An Introduction To The International Criminal Court - Institute for ...

crimes prosecuted by the court 51
Degrading Treatment or Punishment includes, in its definition of torture,
the requirement that it be inflicted ‘for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity’. The ad hoc tribunals have regularly
described the definition in the Convention Against Torture as a reflection
of customary international law. 95 However, recent decisions take the view,
consistent with the text of the Rome Statute, that customary international
law does not require that torture be committed by a person acting in an
official capacity. 96 In one ruling, a Trial Chamber of the Yugoslav Tribunal
specifically referred to the Rome Statute as evidence that customary law does
not impose an official capacity criterion as part of the crime of torture. 97
A special provision defines ‘gender’, not only for the purposes of crimes
against humanity but also for whenever else it may be used in the Statute. In
a formulation borrowed from the 1995 Beijing Conference, Article 7 states
that ‘it is understood that the term “gender” refers to the two sexes, male
and female, within the context of society’. 98
War crimes
The lengthiest provision defining offences within the jurisdiction of the
International Criminal Court is Article 8, entitled ‘War crimes’. 99 This is
certainly the oldest of the four categories. War crimes have been punished as
domestic offences probably since the beginning of criminal law. 100 Moreover,
95 Prosecutor v. Furundzija, 17 July 2000, para 111.
96 Prosecutor v. Kunarac et al. (Case No. IT-96-23 and IT-96-23/1-A), Judgment, 12 June 2002,
para. 148.
97 Prosecutor v. Kvocka et al. (Case No. IT-98-30/1-T), Judgment, 2 November 2001, n. 296.
98 On the debate surrounding the term ‘gender’, see Steains, ‘Gender Issues’, pp. 371–5. But for a
somewhat different view, that seems to allow a contrary interpretation of the text, see Bedont,
‘Gender-Specific Provisions’, pp. 198–9.
99 Von Hebel and Robinson, ‘Crimes Within the Jurisdiction’, pp. 103–22; Gabriella Venturini,
‘War Crimes’, in Lattanzi and Schabas, Essays on the Rome Statute, pp. 171–82; Michael Cottier,
William J. Fenrick, Patricia Viseur Sellers and Andreas Zimmermann, ‘Article 8’, in Triffterer,
Commentary, pp. 173–288.
100 Leslie C. Green, ‘International Regulation of Armed Conflict’, in M. Cherif Bassiouni, ed.,
International Criminal Law, 2nd edn, Ardsley, NY: Transnational Publishers, 2003, vol. I,
pp. 355–91.