Crimes within the jurisdiction of the internationae criminae court

Criminal Law Forum

Volumn 10, Issue 1, 1999, Pages 33-59

  Askin, Kelly D ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 27244439795     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1009443422443     Document Type: Article

References (105)

1. The International Law Commission first proposed a permanent international criminal court in 1950. See "Report of the International Law Commission on the Question of Criminal Jurisdiction," U.M. Doc. A/CN.4/15 (1950).
2. "Report of the International Law Commission on its Forty-Ninth Session, Draft Statute for an International Criminal Court, 2 May-22 July, 1994," GAOR, 49th Sess. Supp. No. 10, A/49/10, 1994, reproduced in INTERNATIONAL CRIMINAL COURT COMPILATION OF UNITED NATIONS DOCUMENTS AND DRAFT ICC STATUTE BEFORE THE DIPLOMATIC CONFERENCE 721 (M. Cherif Bassiouni ed., 1998) [hereinafter ICC COMPILATION OF DOCUMENTS]. For an historic review of the struggle since 1919 to establish an international criminal court,
3. see especially M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997).
4. The reports of each of these pre-Rome Preparatory Committee meetings are reproduced in ICC COMPILATION OF DOCUMENTS, ibid. See also M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee 's Work, 25 DENY. J. INT' L L. & POL'Y 397 (1997); OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE (Leila Sadat Wexler, sp. ed., 13ter NOUVELLES ETUDES PÉNALES (1998)); Model Draft Statute for the International Criminal Court Based on the Preparatory Committee's Text to the Diplomatic Conferences, Rome, June 15-July 17, 1998 (Leila Sadat Wexler & M. Cherif Bassiouni eds., 13ter NOUVELLES ETUDES PÉNALES (1998));
5. Towards the Establishment of a Permanent International Criminal Court (ICC), 2 MEDIT. J. HUM. RTS 3-187 (1998); HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE, RECOMMENDATIONS FOR AN INDEPENDENT AND EFFECTIVE INTERNATIONAL CRIMINAL COURT (1998).
6. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, U.M. Doc. A/CONF.183/9 (1998), 37 I.E.M. 999 (1998), 〈http://www.un.org/icc〈 [hereinafter ICC Statute or Statute].
7. "Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court," U.N. Doc. A/CONE 183/10 (1998), Annex I, Resolutions adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Essentially, the Final Act describes the United Nations resolutions leading to the Rome Conference, details the Rome Conference Committees and Committee Members, and makes provisions for depositing the treaty. Annex I pays tribute to relevant persons or bodies, adopts a resolution on treaty crimes (recommending that a Review Conference pursuant to art. 123 consider terrorism and drug crimes, "with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court"), and establishes a Preparatory Commission for the ICC, to work on (para. 5) (a) Rules of Procedure and Evidence; (b) Elements of Crimes; (c) Relationship between the ICC and the United Nations; (d) Basic principles governing a headquarters agreement between the ICC and The Netherlands; (e) Financial regulations and rules; (0 An agreement on the privileges and immunities of the Court; (g) A budget for the first financial year; (h) The rules of procedure of the Assembly of States Parties; and (para. 7) the definition, elements, and scope of aggression. The draft texts of the Rules of Procedure and Evidence and of the Elements of Crimes are to be finalized by June 30, 2000 (para. 6). Annex II lists the 160 states participating in the Rome Conference, Annex III lists the Organizations, Intergovernmental organizations and other entities, and United Nations programmes and bodies represented at the conference, and Annex IV lists the Nongovernmental organizations represented at the conference.
8. Articles of the Statute cannot be read in isolation - provisions of the Statute must be interpreted in accordance with the Statute as a whole.
9. O.A. Res. 3314, 29 U.M. GAOR Supp. (No. 31), at 142, U.M. Doc. A/9631 (1974), reprinted in 13 I.L.M. 710 (1974).
10. U.M. Doc. A/CONE 183/C.1/L/59 (July 10, 1998).
11. TERRAVIVA, July 13, 1998, No. 21, at 2; Press Release L/ROM/16, 13 July 1998, Meeting of Key Conference Committee Shows Continuing Differences on Important Provisions of International Criminal Court Statute, at 5-6, available at 〈www.un.org/icc/pressrel/lrom 16.htm〉.
12. See especially "Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum," U.M. Doc. A/CONF. 183/27Add. 1 (1998), art. 5 [hereinafter Draft Statute].
13. Arts. 8(2)(b)(iii), 8(2)(b)(vii), 8(2)(3)(iii).
14. See Final Act, supra note 5, at Annex I, E.
15. See ICC Statute, preamble and art. 1. The complementarity principles should be viewed in conjunction with other provisions of the Statute, in particular Part 2 on jurisdiction, Part 5, and Part 9. See discussion in Ruth Phillips, The International Criminal Court: Jurisdiction and Admissibility, at pp. 61-85 of this journal.
16. See especially article 53 of the ICC Statute.
17. It is also interesting to note the inconsistency in gendered terminology in language used throughout the Statute. In some provisions, the wording is appropriately gender neutral or gender inclusive, while in others, the language is blatantly sexist. For example, in article 15, dealing with the powers of the prosecutor, the language is "he or she," which accurately recognizes that the prosecutor may be male or female. On the other hand, in article 8(2)(b)(vi), all combatants are presumed to be male. In article 8(2)(d)(vi), which criminalizes sexual violence (including forced pregnancy), the language is gender neutral although women and girl-children comprise the vast majority of persons targeted for sexual violence, most forms of sexual violence are not committed exclusively against women, so the language appropriately criminalizes sexual violence when committed against both females and males.
18. Although article 5 provides jurisdiction over the core crimes, in another section of the Statute (Part 3, general principles), individual criminal responsibility is established for commission of the crimes and for other acts contributing to or attempting to commit the crimes (art. 25), and for command responsibility (art. 28) or superior orders (art. 33). Thus, for example, while the crime of genocide defined in article 6 does not specify that attempt to commit genocide is a crime or that complicity in genocide is a crime, the Court is given jurisdiction over these ancillary crimes in Part 3 of the Statute. On this aspect of the Statute, see: Kai Ambos, General Principles of Criminal Law in the Rome Statute, at pp. 1-32
19. of this journal. Also: William A. Schabas, General Principles of Criminal Law, 4 EUR. J. CRIME CR. L. CR. J., pp. 84-122 (1998).
20. A similar designation of the core crimes is also contained in the Preamble and in article 1.
21. The Final Act, supra note 5, Annex I, F, 7 provides: "The [Preparatory] Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference ..."
22. Final Act, Annex I, F, 5(b).
23. Article 22(2) stipulates strict construction for the definitions of crimes, and emphasizes that definitions may not be extended by analogy.
24. Article 21(3).
25. Convention for the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951), arts. II, III.
26. S/RES/827, Annex (1993).
27. S/RES/955 (1994).
28. See especially Prosecutor v. Karadzic and Mladic (Case nos. IT-95-5-R61, IT-95-18R62), Review of Indictment Pursuant to Rule 61, July 11, 1996; Prosecutor v. Tadic (Case no. IT-94-1-T), Opinion and Judgment, May 7, 1997; Prosecutor v. Akayesu (Case no. ICTR-96-4-T), Judgement, Sept. 2, 1998. See also discussion in Kelly D. Askin, Sexual Violence Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current 26 Status, 93 AM. J. INT'L L. 97 (1999).
29. See Lori Lyman Bruun, Beyond the 1948 Convention - Emerging Principles of Genocide in Customary International Law, 17 Mo. J. INT'L L. & TRADE 193 (1993);
30. Bern Van Schaack, The Crime of Political Genocide: Repairing the Genocide Convention 's Blind Spot, 106 YALE L. J. 2259, 2269, 2271, 2290 (1997);
31. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L. J. 2537, 2565 (1991);
32. Julie V. Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia's Balancing Act, 9 EMORY INT'L L. REV. 553, 572-573 (1995);
33. BEVERLY ALLEN, RAPE WARFARE: THE HIDDEN GENOCIDE IN BOSNIAHERZEGOVINA AND CROATIA (1996).
34. See also Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later, 15 ARIZ. J. INT'L & COMP. L. 415 (1998).
35. "1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards."
36. Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 4 Bevans 20, as amended, 4 Bevans 27 ("Charter of the Tokyo Tribunal"), art. 5(c).
37. Prosecutor v. Tadic (Case no. IT-94-1-AR 72), Decision on the defence motion for interlocutory appeal on jurisdiction, Oct. 2, 1995, para. 141.
38. Article 7(2)(b) specifies that extermination includes intentionally inflicting conditions of life on a group which are calculated to destroy part of a "population." This is similar to language used in the Genocide Convention, supra note 22. Article 7(2)(b) is not intended as a definition, only as an example of what may constitute extermination. Specific reference is made to include depriving a group of access to food and medicine.
39. Article 7(2)(c) specifies that, as constituting a crime against humanity, enslavement means "the exercise of any or all of the powers attaching to the right of ownership over a person." This definition is nearly a mirror image of that of slavery used in the Slavery Convention, adopted Sept. 25, 1926, 60 L.N.T.S. 253, art. 1(1): "Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." In the ICC Statute, trafficking in persons, with special reference to women and children, is specifically mentioned as constituting enslavement.
40. Article 7(2)(d) specifies that in this section, deportation or forcible transfer of population means forced displacement from an area in which the displaced are lawfully present, by means of expulsion or other coercive acts, without grounds permitted under international law.
41. Article 7(2)(e) specifies that torture means the "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanction." This is similar to the definition of torture contained in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.T.S. 85, except that no State action is required under the ICC Statute. Excluding this requirement is progressive, reflective of the trend in international law to afford victims of non-State sanctioned torture the same rights as victims of torture by State agents or persons acting under colour of the State.
42. In article 7(2)(g), persecution is defined as the "intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity." The persecution on "other grounds" must be grounds that are universally recognized as impermissible under international law, and all persecution must be committed in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court (art. 7(1)(h)).
43. Crimes against humanity are defined as follows in the relevant instruments: Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, London, 8 August 1945, 8 U.N.T.S. 279, Annex, Charter of the International Military Tribunal (8 Aug. 1945), art. 6(c): "namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crimes within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." International Military Tribunal for the Far East, Proclaimed at Tokyo, 19 January 1946 and amended 26 April 1946, TIAS No. 1589, Annex, Charter of the International Military Tribunal for the Far East, at art. 5(c): "namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Eeaders, organizers, instigators and accomplices participating in the formation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan." Allied Control Council Eaw No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Humanity, 20 Dec. 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, 31 Jan. 1946, at art. 11(1 )(c): "Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated." Statute of the International Criminal Tribunal for the Former Yugoslavia, supra note 23, art. 5. [Note: (a)-(i) categorization deleted]: "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; other inhumane acts." Statute of the International Criminal Tribunal for Rwanda, supra note 24, art. 3 [Note: (a)-(i) categorization deleted]: "The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; other inhumane acts."
44. Supra note 35.
45. "Report of the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 1995/85," U.M. Doc. E./CN.4/1996/53 (1996), at para. 73.
46. See "Report on the mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime: Democratic People's Republic of Korea, submitted by the U.N. Special Rapporteur on Violence Against Women," E/CN.4/1996/53/Add.l (1996), at paras. 8 and 10.
47. The lists of gender or sexual crimes is generally consistent throughout the subject matter jurisdiction section, with the exception of the words "of comparable gravity" added to crimes against humanity (art. 7(1)(g)); the words "also constituting a grave breach of the Geneva Conventions" added to war crimes (art. 8(2)(b)(xxii)); and the words "also constituting a serious violation of article 3 common to the four Geneva Conventions" added to war crimes in an internal armed conflict (art. 8(2)(d)(vi)).
48. The Women's Caucus for Gender Justice in the International Criminal Court was created in February 1997 to ensure the incorporation of a gender perspective throughout the international criminal court, statute, and organs. Women's human rights activists from throughout the world participated in the caucus. For their detailed position paper, see Women 's Caucus for Gender Justice in the International Criminal Court, Gender Justice in the ICC (June 1998) available at 〈gopher://gopher.igc.org:70/00/orgs/icc/ngodocs/rome/womenscaucus.t xt〉.
49. For a broad spectrum of works recognizing that women's rights are part of human rights and insisting that a gendered approach to human rights is necessary to address and correct the imbalances resulting from historically unequal positions of power which subordinate and disadvantage women and girls, see generally WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW (Kelly D. Askin & Dorean M. Koenig eds., vol. I., 1999);
50. ELIZABETH FISHER & LINDA GRAY MACK.AY, GENDER JUSTICE, WOMEN'S RIGHTS ARE HUMAN RIGHTS (1996);
51. FROM BASIC NEEDS TO BASIC RIGHTS, WOMEN'S CLAIM TO HUMAN RIGHTS (Margaret A. Schuler ed., 1995);
52. WOMEN'S RIGHTS, HUMAN RIGHTS, INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995);
53. HUMAN RIGHTS OF WOMEN, NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994);
54. OURS BY RIGHTS, WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993);
55. KATARINA TOMASEVSKI, WOMEN AND HUMAN RIGHTS (1993); OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, THE UNITED NATIONS, ALL HUMAN RIGHTS FOR ALL - FIFTIETH ANNIVERSARY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948-1998, WOMEN'S RIGHTS, THE RESPONSIBILITY OF ALL 7 (Basic Information Kit No. 2,1997).
56. See especially BEVERLY ALLEN, RAPE WARFARE, THE HIDDEN GENOCIDE IN BOSNIA-HERZEGOVINA AND CROATIA 96-97 (1996);
57. Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA 183, 185-191 (Alexandra Stiglmayer ed., 1994);
58. ANNE TlERNEY GOLDSTEIN, RECOGNIZING FORCED IMPREGNATION AS A WAR CRIME UNDER INTERNATIONAL LAW (1993);
59. KELLY DAWN ASKIN, WAR CRIMES AGAINST WOMEN: PROSECUTION IN INTERNATIONAL WAR CRIME TRIBUNALS 273-76 (1997).
60. The Women's Caucus and other women's rights advocates were divided on which term afforded greater protection to the victims/survivors. Some preferred enforced pregnancy, others forced pregnancy, and still others advocated for use of (en)forced impregnation and (en)forced maternity. Differentiation between these terms is beyond the scope of this article, but distinctions are articulated in Dorean Koenig & Kelly Askin, Crimes Against Women: International Criminal Law and the International Criminal Court Statute, in WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW (Kelly D. Askin & Dorean M. Koenig eds., vol. II, forthcoming 1999).
61. See Alessandra Stanley, Semantics Stalls Pact Labeling Rape a War Crime, NEW YORK TIMES, July 8, 1998, at A3;
62. Farhan Haq, Women's Groups Urge Caution on Compromises, INTER PRESS SERV., June 30, 1998, available on Westlaw at 1998 WL 5988031;
63. On Women and Gender, TERRAVIVA, no. 21, July 10, 1998, at 7.
64. "Report of the Secretary-General, Integrating the human rights of women throughout the United Nations system," U.N. Doc. E/CN.4/1997/40, at 10, available at 〈www.unhchr. ch/html/menu4/chrrep/4097/htm〉.
65. See A Court Is Born, ROME TREATY CONFERENCE MONITOR, Issue 26, July 18, 1998, at 4-5, available at 〈gopher.igc.apc.org:70/00/orgs/ics/ngodocs/monitor/rome/ monitor26.txt〉.
66. Because, as noted, the definition in article 7(3) could be viewed as prohibitively regressive, this situation is somewhat like that of a reservation to a treaty which is incompatible with the object and purpose of the treaty - which is invalid, the reservation or the ratification, or is there some implicit modification of the terms?
67. Article 21(3): "The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status."
68. See e.g., Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 TEX. INT'L L. J. 237, 240 (1998);
69. Edward A. Amley, Jr., Sue and be Recognized: Collecting §1350 Judgments Abroad, 107 YALE L.J. 2177, 2188 (1998);
70. Hari M. Osofsky, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALE. L.J. 191, 210 (1997);
71. L.C. Green, Low-Intensity Conflict and the Law, 3 ILS A J. INT'L & COMP. L. 493, 502 (1997);
72. Peter A. Schey, Dinah L. Shelton & Naomi Roht-Arriaza, Addressing Human Rights Abuses: Truth Commissions and the Value of Amnesty, 19 WHITTIER L. REV. 325, 329 (1997);
73. Major Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, 66 (1996);
74. JORDAN J. PAUST, M. CHERIE BASSIOUNI, SHARON A. WILLIAMS, MICHAEL SCHARF, JIMMY GURULÈ, & BRUCE ZAGARIS, INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS (1996) passim.
75. International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, O.A. Res. 3068 (XXVIII), art. II.
76. Infra note 57.
77. TERRAVIVA, July 13, 1998, No. 21, at 4 (insert of Monitor) [emphasis added].
78. "Notwithstanding article 12 paragraph 1, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1."
79. Convention Concerning the Laws and Customs of War on Land (Hague IV), Oct. 18, 1907, 3 Martens Nouveau Recueil (3d) 461.
80. [Geneva] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, including Annex I, adopted Aug. 12, 1949, 75 U.N.T.S. 31; [Geneva] Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted Aug. 12, 1949, 75 U.N.T.S. 85; [Geneva] Convention (III) Relative to the Treatment of Prisoners of War, including Annexes I-V, adopted Aug. 12, 1949, 75 U.N.T.S. 135; [Geneva] Convention (IV) Relative to the Protection of Civilian Persons in Time of War, including Annexes I-III, adopted Aug. 12, 1949, 75 U.N.T.S. 287.
81. Protocol [I] Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3; Protocol [II] Additional to the Geneva Conventions of 1949, and Relating to the Protections of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609.
82. Grave breaches, as contained in article 50 of the first Geneva Convention, article 51 of the second Geneva Convention, article 130 of the third Geneva Convention, and article 147 of the fourth Geneva Convention, and enumerated in article 8(2)(a)(i)-(viii) of the ICC Statute, are: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; taking of hostages.
83. See e.g., Gabrielle Kirk McDonald, The Eleventh Annual Waldemar A. Solf Lecture: The Changing Nature of the Laws of War, 156 MIL. L. REV. 30 (1998).
84. Pursuant to article 8(2)(b)(xxii), the Court has jurisdiction over persons "committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions" [emphasis added].
85. See e.g., Convention With Respect to the Laws and Customs of War on Land (II), The Hague, 26 July 1899, 26 Martens (2d) 949; Convention Respecting the Laws and Customs of War on Land (IV), The Hague, 18 Oct. 1907, 3 Martens (3d) 461; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field, 22 Aug. 1864, 1 Bevans 7.
86. See especially Protocol I, supra note 56, at arts. 3, 75; Hans-Peter Gasser, International Humanitarian Law, An Introduction, in HANS HAUG, HUMANITY FOR ALL, THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT (1993) (separate print);
87. Louise Doswald-Beck & Sylvain Vite, International Humanitarian Law and Human Rights Law, 293 INT'L REV. RED CROSS 94 (1993).
88. Protocol I defines civilian objects as "all objects which are not military objectives" and normally these include places of worship, houses, and schools. Military objects are "objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (art. 52). Additionally, objects indispensable to the survival of the civilian population, such as food, crops, drinking water installations, and irrigation works, may not be attacked, destroyed, removed, or rendered useless (art. 54). Other proscriptions against harming cultural and religious objects and the environment, are also included (arts. 53-56). Similar provisions are found in Protocol II (arts. 13-17).
89. Protocol I provides: "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objects and accordingly shall direct their operations only against military objectives" (art. 48).
90. See Press Release L/ROM/17, 13 July 1998, UN Secretary-General's Representative Urges All Out Effort to Achieve Consensus on International Criminal Court Treaty, at 2.
91. For an eloquent and descriptive analysis of the delinquent treatment of nuclear, chemical, and biological weapons at the Rome conference and in the final Statute, see August 4, 1998 letter from Roger Clark to: Readers of my Tribute to Howard Herman on Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering, or which are Inherently Indiscriminate (letter on file with author). Professor Clark considers the deletion of weapons of mass destruction from the jurisdiction of the Statute as "a rout." The article Professor Clark refers to in his letter, written just before the Rome Conference, is found in Roger S. Clark, Methods of Warfare That Cause Unnecessary Suffering or Are Inherently Indiscriminate: A Memorial Tribute to Howard Berman, 28 CALIF. W. INT'L L. J. 379 (1998).
92. For discussion of several weaknesses in the Statute regarding the protection of children, see lain Guest, What are the Prospects for the International Criminal Court!, ON THE RECORD, Vol. 1, No. 23, July 27, 1998.
93. Article 8(2)(b)(iii), 8(2)(d)(iii), applicable in international and internal armed conflicts.
94. Article 8(2)(b)(viii). This provision caused Israel to vote against the ICC Statute, stating: "Israel has reluctantly cast a negative vote. It fails to comprehend why it has been considered necessary to insert into the list of the most heinous and grievous war crimes the action of transferring [a] population into occupied territory. The exigencies of lack of time and intense political and public pressure have obliged the Conference to by-pass very basic sovereign prerogatives to which we are entitled ..." UN Diplomatic Conference Concludes in Rome With Decision to Establish Permanent International Criminal Court, Press Release L/ROM/22, July 17, 1998, at Explanations of Vote.
95. Ibid.
96. Article 8(2)(c)-(d).
97. "Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission resolution 1997/44," U.M. Doc. E/CN.4/1998/54 (1998), at paras. 4-6; Kelly Askin, Women & International Humanitarian Law, in WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW, supra note 41; ASKIN, WAR CRIMES AGAINST WOMEN, supra note 42, at 370-71.
98. Press Release L/ROM/17, July 13, 1998, UN Secretary-General's Representative Urges All Out Effort to Achive Consensus on International Criminal Court Treaty, at 2.
99. See e.g., Theodor Meron, War Crimes Law Comes of Age, 92 AM. J.lNT'L L. 462, 466-68(1998).
100. For a discussion on these omissions in the PrepComs, see Christopher Keith Hall, The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92 AM. J. INT'L L. 331, 336 (1998);
101. Christopher Keith Hall, The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92AM. J. INT'L L. 124 (1998).
102. See especially Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 561 (1995).
103. Similarly, each time the core crimes are defined in articles 6-8, the ICC Statute emphasizes that the definitions are "for the purpose of this Statute."
104. Roger S. Clark, Methods of Warfare That Cause Unnecessary Suffering or Are Inherently Indiscriminate: A Memorial Tribute to Howard Berman, 28 CALIF. W. INT'L L. J. 379, 381 (1998).
105. Robert C. Johansen, A Turning Point in International Relations? Establishing a Permanent International Criminal Court, 13 REPORT 1, 1 (Joan B. Kroc Institute for International Peace Studies, 1997).