Rome Statute
Part 2: Jurisdiction, Admissibility and Applicable Law

Article Art. 8
War crimes

Mentioned in

International Criminal Law Analysis of the Situation in Israel

OpinioJuris, October 12, 2023

“…several colleagues and students have asked for my preliminary legal assessment regarding the recent attacks in Israel by Hamas terrorists. These terrorist attacks were egregious and shocking violations of human dignity and cannot be justified in any context.”

Bibliographic info

Trials of Ukrainian Prisoners of War in Russia: Decay of the Combatant’s Immunity

NYU School of Law / Just Security, August 21, 2023

“Fundamentally, the accused seem to have been tried for their participation in hostilities against the Russian forces. This analysis explores the extent to which Russian trials of the ‘Azov’ and ‘Aidar’ fighters might be in violation of the combatant privilege rule, which affords combatants immunity from prosecution…”

Bibliographic info

The International Criminal Court and Ukraine

Parliament of Australia / FlagPost, March 8, 2022

“…Another key feature of international justice is that it prosecutes individuals, not states, therefore neither Russia nor Ukraine as states will ever find themselves in the dock in The Hague. A Russian or Ukrainian individual, including high ranking people, may however…”

Bibliographic info

1.

The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2.

For the purpose of this Statute, “war crimes” means:

(a)

Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i)

Wilful killing;

(ii)

Torture or inhuman treatment, including biological experiments;

(iii)

Wilfully causing great suffering, or serious injury to body or health;

(iv)

Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v)

Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi)

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii)

Unlawful deportation or transfer or unlawful confinement;

(viii)

Taking of hostages.

(b)

Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii)

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v)

Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi)

Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii)

Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii)

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix)

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x)

Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi)

Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii)

Declaring that no quarter will be given;

(xiii)

Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv)

Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv)

Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(xvi)

Pillaging a town or place, even when taken by assault;

(xvii)

Employing poison or poisoned weapons;

(xviii)

Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix)

Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx)

Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi)

Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii)

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii)

Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv)

Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv)

Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi)

Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities;

(xxvii)

Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

(xxviii)

Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

(xxix)

Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

(c)

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i)

Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)

Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii)

Taking of hostages;

(iv)

The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d)

Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e)

Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)

Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii)

(iv)

(v)

Pillaging a town or place, even when taken by assault;

(vi)

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(vii)

Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii)

Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix)

Killing or wounding treacherously a combatant adversary;

(x)

Declaring that no quarter will be given;

(xi)

Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii)

Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(xiii)

Employing poison or poisoned weapons;

(xiv)

Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xv)

Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xvi)

Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

(xvii)

Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

(xviii)

(f)

Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

3.

Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Note:

Paragraphs 2 (e) (xiii) to 2 (e) (xv) were inserted by resolution RC/Res.5 of 11 June 2010. See depositary notification C.N.533.2010.TREATIES-6 of 29 November 2010. The UN Treaty Section website detailing the status of the amendment is available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-a&chapter=18&clang=_en

Note:

Paragraphs (2) (b) (xxvii) to (xxix) and 2 (e) (xvi) to (xviii) were inserted by resolution ICC-ASP/16/Res.4 of 14 December 2017. For the amendment regarding “weapons which use microbial or other biological agents, or toxins”, see depositary notification C.N.116.2018.TREATIES-XVIII-10 of 8 March 2018; the UN Treaty Section website detailing the status of the amendment is available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-d&chapter=18&clang=_en. For the amendment regarding “weapons the primary effect of which is to injure by fragments undetectable by x-rays in the human body”, see depositary notification C.N.125.2018.TREATIES-XVIII-10 of 8 March 2018; the UN Treaty Section website detailing the status of the amendment is available at: https://treaties.un.org/PAGES/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-e&chapter=18&clang=_en. For the amendment regarding “blinding laser weapons”, see depositary notification C.N.126.2018.TREATIES-XVIII-10 of 8 March 2018; the UN Treaty Section website detailing the status of the amendment is available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-f&chapter=18&clang=_en.

Source: Article 8 — War crimes, https://www.icc-cpi.int/Publications/Rome-Statute.pdf.

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Rome Statute Part 2: Jurisdiction, Admissibility and Applicable Law

Article Art. 8 War crimes

Mentioned in

Note:

Note:

Rome Statute
Part 2: Jurisdiction, Admissibility and Applicable Law

Article Art. 8
War crimes