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

30 introduction to the international criminal court
large scale. In contrast, war crimes do not, in a definitional sense, require the
same quantitative scale. A single murder of a prisoner of war or a civilian may
constitute a war crime, but it is hard to envisage a single murder constituting
genocide or a crime against humanity, at least in the absence of some broader
context. For this reason, the Rome Statute attempts to narrow the scope of
war crimes with a short introductory paragraph or chapeau at the beginning
of Article 8: ‘The Court shall have jurisdiction in respect of war crimes in
particular when committed as a part of a plan or policy or as part of a
large-scale commission of such crimes.’ Many States were opposed to any
such limitation on the scope of war crimes, and only agreed to the provision
if the words ‘in particular’ were included. It should not be taken as any
new restriction on the customary definition of war crimes but rather as a
technique to limit the jurisdiction of the Court.
The Statute does not propose any formal hierarchy among the four categories
of crime. There are suggestions, within customary international law,
the case law of international tribunals and the Statute itself, that even among
these ‘most serious crimes’, some are more serious than others. It might be
argued that war crimes are less important than both genocide and crimes
against humanity because Article 124 of the Statute allows States to ‘opt out’
temporarilyofjurisdictionforwarcrimesatthetimeofratification.Also,two
of the defences that are codified by the Statute, superior orders and defence
of property, 10 are admissible only in the case of war crimes, implying that
justification may exist for war crimes where it can never exist for genocide
and crimes against humanity. The crime of ‘direct and public incitement’
exists only in the case of genocide; 11 the drafters at Rome rejected suggestions
that this inchoate form of criminality, drawn from Article III of the 1948
Genocide Convention, be broadened to encompass crimes against humanity
and war crimes. Before the ad hoc tribunals for the Former Yugoslavia
and Rwanda, the judges appear to be divided on whether or not there is a
hierarchy between the different categories of offences, although a majority
seems unfavourable to the concept. 12
Article 5 of the Rome Statute declares that the Court’s jurisdiction is limited
to ‘the most serious crimes of concern to the international community
10 Ibid., Arts. 33(1) and 31(1)(c) respectively. 11 Ibid., Art. 25(3)(e).
12 Prosecutor v. Erdemovic (Case No. IT-96-22-A), Sentencing Appeal, 7 October 1997, (1998)
111 ILR 298; Prosecutor v. Kupreskic et al. (Case No. IT-95-16-T), Judgment, 14 January 2000;
Prosecutor v. Tadic (Case No. IT-94-1-A and IT-94-1-Abis), Judgment in Sentencing Appeals, 26
January 2000; Prosecutor v. Furundzija (Case No. IT-96-17/1-A), Judgment, 17 July 2000.