5/10/2018

Centre of Excellence
for Stability Police Units
(CoESPU)

International Humanitarian Law

MAJ. MARCO SUTTO

CoESPU IL&IHL Chair
[email protected]
1

Lesson structure
1. Introduction to IHL
2. Historical notes
3. IHL basic principles
4. International & non-international AC
5. IHL main definitions, concepts and provisions
6. IHL implementation and enforcement

General Objective: Basic knowledge of IHL

principles and provisions

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IHL ?
International humanitarian law
(IHL) is the law that regulates …
..the conduct of armed conflict (jus
in bello).

It is inspired by considerations of
humanity and the mitigation of
human suffering. 3

IHL is that branch of international law

which seeks to limit the effects of armed
conflict by:

protecting persons who are not

participating in hostilities.

restricting and regulating the means and

methods of warfare available to
combatants.
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International Law ?

DEFINITION
Body of rules governing relations between States
and
between them and other members of the
International Community

Juridical system regulating the relationships

among the Entities of the International
Community
5

IHL is designed to balance humanitarian

concerns and Military Necessity, and
subjects warfare to the rule of law by
limiting its destructive effect and
mitigating human suffering

HUMANITARIAN MILITARY
CONSIDERATIONS NECESSITY

IHL
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IHL
"It comprises a set of rules, established by treaty or custom,
that seeks to protect persons and property/objects that are
(or may be) affected by armed conflict and limits the rights
of parties to a conflict to use methods and means of warfare
of their choice".

It includes "the Geneva Conventions (with Addictional

Protocols) and the Hague conventions, as well as
subsequent treaties, case law, and customary international
law.“

It defines the conduct and responsibilities of belligerent

nations, neutral nations, and individuals engaged in
warfare, in relation to each other and to protected persons,
usually meaning non-combatants. 7

“LAW OF GENEVA” INTERNATIONAL

PROTECTION OF VICTIMS CUSTOMARY RULES

“LAW OF THE
“NY LAW” HAGUE”
EFFORTS OF UN TO PERMISSIBLE
ENSURE HR RESPECT IN
AC & LIMIT THE USE OF
IHL MEANS
CERTAIN WEAPONS METHODS OF
WAR
CONVENTION ON PROHIBITIONS/RESTRICTIONS
OF CERTAIN CONVENTIONAL WEAPONS JUS AD BELLUM (“LAW TO MAKE WAR” – LAW
EXCESSIVELY INJURIOUS OR WITH INDISCRIMINATE REGULATING THE USE OF FORCE)
EFFECTS (1980) 3° HAGUE CONVENTION 1907, RELATING TO
PROT. ON NON-DETECTABLE FRAGMENTS THE OPENING OF HOSTILITIES
PROT. ON PROHIBITIONS/RESTRICTIONS OF MINES, JUS IN BELLO - IHL
BOOBY-TRAPS AND OTHER DEVICES LAW OF NEUTRALITY
PROT. ON PROHIBITIONS/RESTRICTIONS OF 5° HAGUE CONVENTION 1907, RATING TO THE
INCENDIARY WEAPONS RIGHTS AND DUTIES OF BELLIGERANTS AND
PROT. ON BLINDING LASER WEAPONS (1995) 8
NEUTRAL POWERS IN CASE OF LAND WARFARE

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www.icrc.org

Essential Rules of IHL

Civilian targets can not be attacked. Attacks only against
military objectives
Civilians and anyone no longer taking part in hostilities
must be respected and treated humanely
Anyone who surrenders or stops fighting (e.g. wounded)
cannot be killed
Torture is prohibited at all times and in all circumstances
Captured combatants and civilians must be respected and
protected
It’s forbidden to use weapons or methods of warfare that
are likely to cause excessive injury or unnecessary
suffering
Wounded and sick must be collected and cared for
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IHL Temporal Scope

Lex specialis
Beginning of application
IACs:
- armed violence between two States Party to the Conventions
- armed occupation, (even not meeting armed resistance)
NIACs:
- violence reaching the level of an armed conflict (Common Art. 3 1949, Art. 1
of AP II (1977))

End of application
IACs:
-Actual cessation of hostilities, occupation. Release or
repatriation of POWs and civilian internees
NIACs:
- Violence not reaching anymore the level of Art. 3 GC or of Art. 1 of
Prot. II.
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International Legal framework in War

International Customary Law and Treaties

UN Charter
Geneva Conventions
Additional Protocols to Geneva Conventions
Hague Regulations…

National laws

When there is occupation and it is not

against the occupant power
Criminal and Civil Laws

Directives and other legal instruments

RoEs
OPORDERs
FRAGOs…

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DEFINITION of IHL
Ensemble of rules and principles limiting violence
during AC (armed conflicts) IOT safeguard the life and
dignity of persons not participating (or anymore
participating) directly in hostilities:

Civilians
Wounded, sick
Shipwrecked
Prisoners of war

IHL also protects objects necessary to the survival of the civilian

population as well as personnel and material of humanitarian
organizations.
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History of IHL
The laws of war were born of
confrontation between armed forces on
the battelfield.

Until the mid-nineteenth century, these

rules remained customary in nature,
reconised because they had existed since
time immemorial and because they
corresponded to the demand of
civilisation. 14

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IHL FOLLOWS THE HISTORICAL EVENTS

Solferino (1859) Wounded (1864 GC 1)
Tsushima (1905) Shipwrecked (1906 GC2)
WWI - 1929 POWs (1929 GC 3)
WWII - Civilians (1949 GC 4)
Vietnam - Civilians (1977 AP)
Afghanistan, Angola, Cambodia - Landmines
(Ottawa-Anti-Personnel Mine Ban Convention 1997)
Yugoslavia & Rwanda – ICTY, ICTR (1993, 1994)
ICC (1998)

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Military Necessity

Distinction
IHL
4 Basic
Principles Proportionality

Humanity
(Humane Treatment - Prohibition of unnecessary
suffering)

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The principle of military necessity

Modern IHL is not naive and accepts that harm,
destruction and death can be lawful during armed
conflict.
TheThe
use“principle of military
of force and necessity”
the violence duringpermits measures
wartime is lawful!!!!
which are actually necessary to accomplish a legitimate
military purpose and are not otherwise prohibited by
international humanitarian law.
In the case of an armed conflict the only legitimate
military purpose is to weaken the military capacity of
the other parties to the conflict.
(Military necessity generally runs counter to humanitarian
exigencies. Consequently the purpose of humanitarian law is to
strike a balance between military necessity and humanitarian
exigencies)
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The principle of distinction

(AP I art.48,51,52 APII art 13)

The parties to the conflict must at all times

distinguish between….
DISTINCTION

CIVILIANS and COMBATANTS

Civilian objectives Military objectives

Attacks may only be directed against

combatants.
Attacks must not be directed against civilians.
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Combatant
Combatants are all the members of the armed
forces of a party to a conflict. They have the right to
participate directly in hostilities

Excludes medical & religious personnel

AP I, Art 43
Only combatants are permitted to take a direct
part in hostilities.
They may therefore be attacked
19

Armed Forces API Art.43

The Armed Forces of a Party to a conflict consist

of all organised armed forces, groups and units
which are under a command responsible to that
Party for the conduct of its subordinates , even if
that Party is represented by a government or an
authority not reconised by an adverse Party.

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Armed Forces ( 3th GC art.4)

Commanded by a person responsible for his

subordinates

Have a fixed distinctive emblem recognizable

at a distance

Carry arms openly

Conduct their operations IAW the laws and

customs of war

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An ORGANIZED GUERRILLA GROUP or RESISTANCE

MOVEMENT which:
commands and takes responsibility for its subordinate
armed forces
has an internal disciplinary system which enforces
compliance with international law
may not necessarily be recognised by another party to the
conflict, but remain a legally recognised armed force.

PARTISANS OR PARAMILITARY FORCES:

acting on their own initiative
without an effective discipline system
would not be members of an ‘armed force’ and would be
liable to trial and punishment in the same way as other
non-combatants participating directly in hostilities. 22

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How to distinguish a combatant?

Geneva and Hague required combatants to carry arms
openly and wear a fixed distinctive sign.

AP I clarified combatants must distinguish themselves

from the civilian population whilst engaged in an attack or
preparatory to an attack

How to distinguish not defined. Easy for regular troops.

Irregulars must make some effort.

If Combatants fail to do so, they do not have the right to

prisoner of war status

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Prisoner of war status art 4 3d GC

Upon capture, combatants entitled to prisoner of

war status may neither be tried for their
participation in the hostilities nor for acts that do
not violate IHL.

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Exceptions
Spies and Mercenaries do not have combatant
status and may be put on trial under the domestic
criminal legislation of the territory concerned
Child soldiers (AP I, Art 77) under 15 are not Combatants
Under 18 years old they shouldn’t participate actively
in hostilities

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Civilians API art50

Persons who are not members of the armed

forces.

AP I, Art 51
Civilian population and individual civilians shall enjoy
general protection against dangers arising from military
operations
Civilians may not take a direct part in hostilities
As long as refrain from doing so are protected from
attack.

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Protection accorded by IHL

C.P. shall not be object of attack
Acts or threat of violence with pourpose
spreading terror among C.P. are prohibited
Indiscriminate attacks are prohibited
Can’t be Used as shield

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Common art.3 GCs 1\2

In the case of armed conflict not of an international
character occurring in the territory of one of the High
Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:

(1) 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, shall in all
circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria.
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Common art.3 GCs 2\2

To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above mentioned
persons:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties
to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all
or part of the other provisions of the present Convention.The application of the preceding provisions shall not affect 29 the
legal status of the Parties to the conflict.

Objectives distinction
Military objectives:
are limited to those objects
which by their nature,
location, purpose or use Civilian objectives:
make an effective Are all objects which
contribution to military are not military
action and whose partial or objectives
total destruction, capture or
neutralization, in the
circumstances ruling at the
time, offers a definite military
advantage

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Distinction Between civilian and

military Objectives
The parties to the conflict must all times
distinguish between civilian and military
objectives.
Attacks may only be directed against military
objectives.
Attacks must not be directed against civilian
objects.

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Protection of civilian objectives

Civilian objects are protected agaist attack,
unless and for such time as they are military
objectives.

Principle of presumption of civilan character in

case of doubt (AP I art 52)

IHL also protects objects necessary to the

survival of the civilian population as well as
personnel and material of humanitarian
organizations. 32

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Combatant …civilian?!?!?!!

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Objective ……..????
Military….or….civilian?!?!

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Prohibition of Indiscriminate
I.A. are those:
Attacks API art.51(4)
Which are not directed at a specific military objective;

Which employ a method or means of combat which

cannot be directed at a specific military objective; or

Which employ method or means of combat the effects

of which cannot be limited as required by international
humanitarian law
And consequently, in each such case, are of a nature to
strike military objectives and civilians or civilian objects
without distinction. 35

Proportionality (AP I art 51,57)

Lauching an attack which may be expected to cause incidental loss
of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated, is prohibited.

In the conduct of military operations, constant care must be taken

to spare civilian population, civilians and civilian objects.

All feasible precautions must be taken to avoid, and in any event to

minimise, incidental loss of civilian life, injury to civilians and
damage to civilian objects.

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Precautions in Attack
Military perspective
(Targeting Considerations)
Commander must assess what precautions
he can take to minimize incidental loss using
all sources which are reasonably available to
them at that time.
Time of attack
Direction of fire
Weapon to be used
Give a warning if necessary
Keep objective under constant review
Risks to own troops of various options

Targeting
‘Proportionality’ does not limit casualties
among combatants in war; it seeks to minimize
non combatant losses…

Civilian area

Target

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Distinction?!?!
…proportionality…?!?!?!

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A Legal and Legitimate Military

Target?

GAZA – August 2014

Drones: the Legal Controversy

• Obama administration
regards itself as at war
with Al Qaeda/ISIS

• Drone strikes militarily

highly effective, precision
strike, no US casualties

• Targeted killings outside

armed conflict areas
regarded by many lawyers
as illegal

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Military Force: The Collateral Damage Controversy

Source: Washington Post – 10 June 2016

MISTAKES IN TARGETING

Chinese Embassy
Belgrade, 1999

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The principle of humanity

The notion of humanity is central to the
human condition and separates humans
from animals.

The principle of humanity, and its absence during the battle of

Solferino of 1859, was the central notion that inspired the founder of
the International Committee of the Red Cross (ICRC), Henry
Dunant.

The principle stipulates that all humans have the capacity

and ability to show respect and care for all, even their
sworn enemies. 45

IHL, the principles of which can be found in all major

religions and cultures, set out only basic protections, but
ones which look to demonstrate that even during armed
conflict there is some common sense of and respect for
humanity.

Modern IHL is not naive and accepts that harm,

destruction and death can be lawful during armed
conflict.

IHL simply looks to limit the harm, and the principle of

humanity is very much at the heart of this ambition.
Many rules of IHL are inspired by this notion,
specifically those setting out protections for the
wounded and sick.

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DEFINITION OF N-IAC
Non international Armed Conflicts are armed confrontations
occurring within the territory of a single State and in which the
armed forces are engaged against the central government
Internal disturbances & tensions (such as riots, isolated &
sporadic acts of violence…) do not amount to NIAC

International Armed Conflicts

Armed Conflicts Between Independent States
Wars of National Liberation (Struggles for Self-Determination)
Non-International Armed Conflicts
Civil Wars
Non-International Armed Conflicts
Art. 3 common to the four G.C. (1949); )
47

IAC NIAC
A
SPT
A B B
R

A
SPT B
R

48

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Main concepts about IHL

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Hostile Act - elements

Affects the conduct of Ops or military
capacity of the enemy

Will to cause it

Definition of attacks:

Acts of violence against the adversary,

whether in offence or defence (AP I art 49)

51

Hostile Intent - Elements

The threat of imminent use of force, which is
demonstrated through an action which appears
to be preparatory to a hostile act.
Only a reasonable belief in the hostile intent is
required, before the use of force is authorized.
Commander on scene decides based upon:
1. The capability and preparedness of the threat.

2. The available evidence which indicates an

intention to attack.
3. Historical precedents within the Mission’s
Area of Responsibility (AOR).
52

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IHL Special protections

Religious & Medical Personnel

53

Works and Installations containing

Dangerous Forces (AP I 56)
Dams, Dykes and nuclear electrical generating stations
including military objectives nearby, shall not be made
the object of attack, even where these objects are
military objectives, if such attack may cause the release
of dangerous forces and consequent severe losses among
the civilian population.
Marked with emblem 3 orange circles on same axis.

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Civilian Defence Facilities (AP I Art 61)

Civil Defence Personnel (non combatants) must be exclusively assigned to
the performance of civil defence tasks to remain protected.
Can include members of the armed forces, however they may not
take part in hostilities.
Buildings and personnel must wear/carry identification and be marked with
the recognised emblem

55

Cultural Objects and Places of Worship

Art 53 AP I and the Hague Cultural Property Convention 1954

Prohibited to commit acts of hostility against cultural property.
Prohibited to use such objects in support of the military effort.
States must protect it from theft, vandalism, misappropriation,
requisitioning or reprisals. 56

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Women & Children APIart.76, 77

PROHIBITED WEAPONS
Poisons,
Non-detectable fragments,
Exploding small arms
projectiles,
Asphyxiating gases,
Lasers designed to blind,
Anti-Personnel landmines,
Environment altering weapons, and
Chemical, biological or bacteriological
weapons. 58

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Iraqis Mustard gas victim

59

Prohibited Methods of
Warfare
Terror Attacks
Using Civilians as shields
Indiscriminate Attacks
Pillage
Food and Water
Starvation

60

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Who is bound by IHL?

States and Organized groups are bound
by IHL

The rules and principles of IHL also apply

to UN peacekeeping forces

UN military personnel who violate IHL

are subject to prosecution in their national
courts
61

Who is bound by IHL?

Each party to the conflict must respect and
ensure respect for ihl by its armed forces
or other persons. (CG common art.1-3 , AP
I, APII art1)

No need of reciprocity

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Application of IHL to
PSOs?
UN usually not a party to the conflict;

UN not a party to IHL Conventions;

If UN engaged as a party UN bound by the

rules of customary international law;

Participating States when engaged in armed

conflict are bound by IHL Conventions to
which they are a party;

UN SG 1999 Bullettin

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UN SG 1999 Bullettin
The fundamental principles and rules of
international humanitarian law set out in the
present bulletin are applicable to United
Nations forces when, in situations of armed
conflict, they are actively engaged therein as
combatants, to the extent and for the duration of
their engagement.
They are accordingly applicable in enforcement
actions, or in peacekeeping operations when the
use of force is permitted in self-defence. (Section
1 - Field of application)

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ENFORCEMENT OF
IHL

UNDER ALL CIRCUMSTANCES

in time of peace and conflict

prevention

• training and dissemination (AP. I, 1977, Art. 83)

• duty of commanders (AP. I, 1977, Art. 87)
• legal advisers (AP. I, 1977, Art. 82)

prosecution, repression of breaches (AP. I,

1977, Art. 85)
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Duty of commanders
(ART. 87 AP I)

• prevent, suppress and report

• ensure that subordinates are aware
• initiate disciplinary or penal action

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Enforcing IHL by Prosecution

The Parties to Geneva Conventions

• universal jurisdiction/mutual assistance
• imprescriptibility of war crimes/no amnisty

DOMESTIC CIVIL & CRIMINAL COURTS

INTERNATIONAL COURTS

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International Criminal Courts

• ICTY (The Hague) (Ad hoc)

• ICTR (Arusha, Tanzania) (Ad hoc)
• Cambodia, S. Leone (special)
• International Criminal Court (The Hague)
• Special Tribunal for Lebanon
• Special programs in Kosovo and East
Timor

INTERNATIONAL CRIMINAL COURT

Co-operation (AP I to GC Art. 89)

In situations of serious violations of the Conventions or of

this Protocol, the High Contracting Parties undertake to act,
jointly or individually, in co-operation with the United
Nations and in conformity with the United Nations Charter”

GRAVE
BREACHES
UN
PRIMARY RESPONSIBILITY
FOR IMPLEMANTATION
STATES ICTY, ICTR
ICC
UNIVERSAL
JURISDICTION
70

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INTERNATIONAL CRIMINAL
COURT (ICC)
Jurisdiction over the most serious crimes
Genocide
Crimes against humanity
War crimes
Complementary to national criminal jurisdictions

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Establishment of the Court

The International Criminal Court was established by the Rome Statute of the
International Criminal Court, so called because it was adopted in Rome,
Italy on 17 July 1998 by the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court.
The Rome Statute is an international treaty, binding only on those States
which formally express their consent to be bound by its provisions. These
States then become "Parties" to the Statute.
In accordance with its terms, the Statute entered into force on 1 July 2002,
once 60 States had become Parties. As of 6 january 2015, 123
States are Parties to the Rome Statute. The States Parties meet in the
Assembly of States Parties which is the management oversight and
legislative body of the Court.
Following the adoption of the Rome Statute, the United Nations convened
the Preparatory Commission for the International Criminal Court. As with
the Rome Conference, all States were invited to participate in the
Preparatory Commission.
Among its achievements, the Preparatory Commission reached consensus
on the Rules of Procedure and Evidence and the Elements of Crimes. These
two texts were subsequently adopted by the Assembly of States
Parties. Together with the Rome Statute and the Regulations of the Court
adopted by the judges, they comprise the Court’s basic legal texts, setting
out its structure, jurisdiction and functions. 72

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The International Criminal Court is composed of 18

judges, who are elected for terms of office of nine years
by the Assembly of States Parties to the Rome Statute, the
founding instrument of the Court. They are not eligible for
re-election.
The judges are chosen from among persons of high moral
character, impartiality and integrity who possess the
qualifications required in their respective States for
appointment to the highest judicial offices. They have either
established competence in criminal law and procedure, and
the necessary relevant experience, whether as a judge,
prosecutor, advocate or in other similar capacity, in criminal
proceedings: or have established competence in relevant
areas of international law such as international humanitarian
law and the law of human rights, and extensive experience
in a professional legal capacity which is of relevance to the
judicial work of the Court. All are fluent in at least one of
the working languages of the Court, English and French.73

GENOCIDE?
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to another
group.

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CRIMES AGAINST HUMANITY?

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
WHEN WIDESPREAD OR SYSTEMATIC AGAINST
CIVILIAN POPULATION 75

CASES
To date, three States Parties to the Rome Statute –
Uganda, the Democratic Republic of the Congo and
the Central African Republic – have referred
situations occurring on their territories to the Court
In addition, the Security Council has referred the
situation in Darfur, Sudan – a non‐State Party and
Libya
Kenya the Prosecutor opened an investigation proprio
motu
The Court publicly indicted 26 people, proceedings against 24 of whom are ongoing. The
ICC has issued arrest warrants for 17 individuals and summonses to nine others. Five
individuals are in custody and are being tried while eleven individuals remain at large as
fugitives
76
FOR an UPDATED situation consult: https://www.icc-cpi.int/

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That ends
my lecture !

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