The ICC’s Jurisdiction Over War Crimes
War crimes clearly could not be omitted from the list of crimes that fall under the ICC’s jurisdiction. While they have been a matter of concern for humanity since ancient times, the question of international jurisdiction over war crimes was first examined in 1919, when the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties examined the existing international legal regime and the principles derived from the 1907 Hague Convention. The actual prosecution of war crimes first took place following the end of World War II before the International Military Tribunals of Nuremberg and Tokyo. Despite the fact that, to a greater or lesser degree, war crimes never ceased to interest legal circles and international news services (Korean war, Vietnam war, war in the former Yugoslavia, first and second Iraq wars etc.), public discourse on the commission of war crimes recently peaked following Navi Pillay’s publication of the findings of a UN inquiry. According to her report, Syrian President Bashar al-Assad carries great responsibility for the commission of many war crimes on both sides of the conflict, which to this day have led to the death of at least 126,000 people.
The present chapter pays great attention to the analysis and interpretation of the following key terms and phrases of Article 8 ICCRSt: (1) the phrase “unless otherwise provided” and the term “wilful(-ly)” which constitute crucial parameters for the mens rea of war crimes under the ICC’s jurisdiction (2) the terms “armed conflict” in conjunction with the phrase “within the established framework of international law” (3) the terms “in particular”, “as part of a plan or policy” or “as part of a large-scale commission” and (4) the term “namely”. Finally yet importantly, the chapter ends with the examination of the ‘phantom’ Article 124 ICCRSt which constitutes a notable exception to the ICC’s jurisdiction over war crimes.