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

crimes prosecuted by the court 55
either the Nuremberg Charter or the Geneva Conventions, 107 which probably
reflects the fact that it was not always prosecuted with great diligence. The
Rome Statute provides a detailed enumeration of rape and similar crimes,
the result of vigorous lobbying by women’s groups prior to and during the
Rome Conference. The real question is whether this rather prolix provision
actually offers women better protection than the somewhat archaic yet
potentially large terms of Geneva Convention IV: ‘Women shall be especially
protected against any attack on their honour, in particular against
rape, enforced prostitution, or any form of indecent assault.’ 108
But as all criminal lawyers know, there is a dark side to detailed codification.
The greater the detail in the provisions, the more loopholes exist for
able defence arguments. It may well be wrong to interpret the lengthy text
of Article 8 as an enlargement of the concept of war crimes. In Kupreskic,
the Yugoslav Tribunal warned that ‘[a]n exhaustive categorization would
merely create opportunities for evasion of the letter of the prohibition’. 109
The extremely precise and complex provisions of Article 8 are mainly due
to the nervousness of States about the scope of war crimes prosecutions,
and arguably have the effect of narrowing the potential scope of prosecutions.
Much of this was cloaked in arguments about the need for precision
in legal texts and the sanctity of the principle of legality. The detailed terms
of Article 8 may indirectly contribute to impunity in their inability to permit
dynamic or evolutive interpretations. As the Appeals Chamber of the
Yugoslav Tribunal recently recalled, citing Nuremberg, the laws of armed
conflict ‘are not static, but by continual adaptation follow the needs of a
changing world’. 110
In customary law, a major distinction between war crimes and the other
categories, crimes against humanity and genocide, is that the latter two
have jurisdictional thresholds while the former does not. Crimes against
humanity must be ‘widespread’ or ‘systematic’, and genocide requires a
very high level of specific intent. War crimes, on the other hand, can in
principle cover even isolated acts committed by individual soldiers acting
without direction or guidance from higher up. While genocide and crimes
107 See, for example, the ‘Leiber Code’, Instructions for the Government of Armies of the United
States in the Field, General Orders No. 100, 24 April 1863, Arts. 44 and 47. See also Theodor
Meron, ‘Rape as a Crime Under International Humanitarian Law’, (1993) 87 American Journal
of International Law 424.
108 Convention (IV), note 103 above, Art. 27.
109 Prosecutor v. Kupreskic et al. (Case No. IT-95-16-T), Judgment, 14 January 2000, para. 563.
110 Prosecutor v. Kunarac et al. (Case No. IT-96-23 and IT-96-23/I-A), Judgment, 12 June 2002,
para. 67.