JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT (excerpted)

from HUMAN RIGHTS WATCH

WAR CRIMES

The recommendations and comments in this section comprise four parts. In (a) we set out the principles which should frame the negotiations around the scope of the Court's jurisdiction over war crimes. Contained in (b) is the list of war crimes which should be included, at a minimum, within that jurisdiction, for both international and non-international conflicts. Comments on the importance of including these basic crimes, and on the current text of the statute before the Diplomatic Conference, follow the recommendations. In (c) we recommend that the Court should have jurisdiction over other crimes that may come to form part of customary international law in the future, and in (d) we make recommendations on the options relating to a possible threshold limiting the Court's jurisdiction to crimes committed pursuant to a plan or policy, or on a massive scale. The Structure of the War Crimes section of the draft statute

The part of Article 5 of the current draft statute which deals with the definition of war crimes is divided into four sections: section A, grave breaches, section B, other war crimes committed in international conflict, section C, violations of Common Article 3 of the Geneva Conventions, and section D, other war crimes committed in non-international armed conflicts. The division of international and non-international conflicts mirrors the distinction enshrined in humanitarian treaty law. This distinction, which exists as a result of the historical context from which the treaties emerged, is becoming increasingly blurred as humanitarian law develops. The statute, in creating an institution for the future, should reflect this trend and establish the Court's jurisdiction over serious war crimes, in line with the list in Section A, Part 1 (b) of this document, whether committed in internal or international conflicts.

GUIDING PRINCIPLES

The statute should ensure that the Court has jurisdiction over serious war crimes, irrespective of whether they were committed in internal or international conflicts. Since the end of the Second World War, the vast majority of armed conflicts have been non-international. It is in the course of such conflicts that some of the gravest violations of human rights and humanitarian law have occurred. The Court's very relevance in the contemporary world will hinge in large part on its ability to reflect this reality. The scope of the Court's jurisdiction over war crimes, and in particular its ability to prosecute those responsible for serious crimes in internal armed conflicts, is therefore critical to its impact and credibility.

There should not be differential standards of criminal responsibility, and corresponding differential protection of victims, for the same conduct on the basis of the nature of the armed conflicts in which it was carried out. This principle is reinforced by the factual difficulty that often arises in determining whether a conflict is international or non-international for the purposes of making such a legal distinction.

Although the express duty to prosecute under the Geneva Conventions arises only with respect to grave breaches in international conflicts, international law has developed to the point where it is now established that individuals are criminally responsible for serious violations of humanitarian law committed in internal conflicts. This is clearly set out in the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Prosecutor v. Tadic. The approach of the tribunal is also reflected in United Nations Security Council resolutions in recent years which, in addition to categorizing civil wars as matters of international concern and threats to international peace, have specifically called for those who violate humanitarian law in these contexts to be held accountable. Moreover, recent legal developments serve to bolster the view that there is increasing recognition that fundamental humanitarian standards apply in internal, as in international, conflicts.

LIST OF BASIC CRIMES WHICH SHOULD COME WITHIN THE JURISDICTION OF THE COURT FOR INTERNATIONAL OR NON-INTERNATIONAL CONFLICTS

The Court should have jurisdiction over the crimes set out in the following list whether perpetrated in international or internal armed conflict. The crimes listed below are based on existing humanitarian law, reflecting the three groups of principles and rules of customary international law described by the International Criminal Tribunal for the Former Yugoslavia and referred to above. We have indicated, in relation to each of these crimes, whether it is currently included in the draft statute, and therefore whether the recommendation is to insert or retain existing provisions. Several crimes included in this list, clearly covered by these fundamental principles of humanity, were omitted from the text prior to the December Preparatory Committee. The inclusion of these serious crimes, committed so frequently in internal armed conflicts, is considered fundamental.

While the following list does not purport to be exhaustive of the crimes to come within the jurisdiction of the Court, it is intended to represent the crimes whose inclusion Human Rights Watch considers indispensable to a credible International Criminal Court.

Recommendation 1: Include as a crime violence against the life, health, physical or mental well-being of persons taking no direct part in hostilities.

Comment: The prohibition of violence against the life and person of those taking no direct part in hostilities is contained in Common Article 3(1)(a) of the Geneva Conventions, as expanded by Article 75(2)(a) of Protocol I and Article 4(2)(a) of Protocol II to include violence to the "health, physical or mental well-being of persons." The provisions on grave breaches of the Geneva Conventions contain a prohibition on "willful killing" and "willfully causing great suffering or serious injury to body or health."

The current text's inclusion of such acts as crimes within the Court's jurisdiction, in current sections A29 and C30 of Article 5 of the statute, should be supported.

Recommendation 2: Include as a crime torture, cruel, inhuman or degrading treatment and punishment, and outrages upon personal dignity.

Comment: This recommendation is based in the "cruel treatment and torture," "outrages upon personal dignity" and "humiliating and degrading treatment" prohibitions of common Article 3(1) of the Geneva Conventions, and of Article 75(2) of Protocol I and Article 4(2) of Protocol II, and the provision of the Geneva Conventions which establishes "torture or inhuman treatment" as a grave breach of the Conventions.

The draft statute includes, in sections A(b) and C(a), provisions covering the carrying out of such acts.

Recommendation 3: Include as a crime medical experimentation or physical mutilation.

Comment: Carrying out biological experiments is expressly included as one of the forms of inhuman treatment constituting a grave breach of the Geneva Conventions. It is also addressed in Article 11 of Protocol 1, which prohibits "physical mutilations," "medical or scientific experiments," and "removal of tissue or organ for transplantation" of persons deprived of liberty, even with their consent, unless those acts are justified by the state of health of the person and are consistent with generally accepted medical standards. In the light of the fundamental nature of this crime, and the horrifying frequency with which experimentation was committed during the Second World War, it should be retained within the crimes over which the Court has jurisdiction.

The draft statute includes, in sections A(b), B(h) and D(j), provisions covering the carrying out of such acts.

Recommendation 4: Include as a distinct category rape, sexual slavery, enforced prostitution, and other sexual or gender-based violence, which may concurrently constitute other applicable crimes provided that the constituent elements of those crimes are present.

Comment: In light of their status in international law and their frequent commission in situations of armed conflict, the ICC statute should include rape, sexual slavery, enforced prostitution, and other sexual or gender violence as a distinct category of war crimes. It is well established that these crimes can constitute grave breaches and other serious violations of the laws and customs of war in both international and internal armed conflicts. The 1949 Geneva Conventions and the Additional Protocols thereto explicitly condemn rape, enforced prostitution, and acts of indecent assault as violations of international humanitarian law. Moreover, additional Protocol II expressly prohibits rape, enforced prostitution, and slavery in internal armed conflicts. Similarly, the International Criminal Tribunal for Rwanda (ICTR) statute incorporates rape, enforced prostitution and other forms of indecent assault within the tribunal's jurisdiction, categorizing them as violations of Common Article 3 to the Geneva Conventions and of Protocol II.

The recognition of rape, sexual slavery, enforced prostitution, and other sexual or gender violence as an explicit category of war crimes should not preclude the prosecution of these acts as additional offences when the elements of such offences are satisfied. The commission of rape and other acts of sexual violence can arise in various circumstances and advance several objectives including, inter alia, "ethnic cleansing"; intimidation, humiliation or punishment; or the demonstration of soldiers' domination over civilians. Accordingly, acts of sexual violence can potentially constitute multiple offenses prohibited by the laws and customs of war, such as violence to life; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health; enslavement; and outrages upon personal dignity. Failure to specify that rape and other crimes of sexual violence can constitute a range of war crimes runs the risk that such crimes will not be appropriately charged.

Given their grave physical and psychological consequences, it is important to distinguish crimes of sexual violence from the category of offenses against personal dignity. Characterizing acts of rape, sexual slavery, enforced prostitution, and other sexual or gender violence exclusively as attacks on honor or outrages against personal dignity fails to take into account all the dimensions of such crimes and has frequently allowed for their relatively lenient treatment under the law.

The current text of the statute, at Article (p)bis of section B and Article (e)bis in section D, provides for crimes of sexual and gender violence to be a separate category of war crimes. Such a specific category should be retained in the final text of the statute, for both internal and international armed conflicts. The wording of (e)bis and (p)bis should make clear that these crimes may concurrently constitute grave breaches or violations of Article 3 and be prosecuted as such. Human Rights Watch favors the express inclusion of rape, sexual slavery, enforced prostitution, forced pregnancy (meaning the confinement or restriction of liberty of a woman impregnated as a result of rape with the intent that the pregnancy proceed to term), sexual mutilation, and forced sterilization and "other sexual or gender-based violence" within this category, to ensure inclusion of the full spectrum of relevant crimes.

Recommendation 5: Include as a crime the taking of hostages

Comment: Hostage-taking is prohibited by common Article 3(1)(b) of the Geneva Conventions, Article 75(2)(c) of Protocol I, and Article 4(2)(c) of Protocol II, and customary international law.

The current text before the Diplomatic Conference supports the inclusion of this crime which appears, without square brackets, in both parts A(h) and C(c) of Article 5 of the draft statute.

Recommendation 6: Include as a crime slavery and the slave trade in all their forms.

Comment: Article 4(2)(f) of Protocol II expressly prohibits "slavery and the slave trade in all their forms." The importance of protecting persons from being subject to slavery is reflected in the wide array of human rights instruments, which enshrine freedom from the slavery as a fundamental non-derogable right, applicable in time of war or peace. The prohibition of slavery is considered jus cogens.

The reference to slavery which appears in "Option II" at the end of part D, relating to non-international conflicts, should be retained. We do, however, express our concern over the omission of slavery from the sections dealing with international conflicts, where it would be equally applicable. We therefore urge its retention in part D and insertion in part B.

Recommendation 7: Include as a crime attacks against the civilian population as such, or individual civilians.

Comment: The protection of the civilian population, in international and internal conflicts, is a fundamental objective of humanitarian law. "Making the civilian population the object of attack" is a grave breach of Protocol I, as set out in Article 85(3) of that protocol. Article 13 of Protocol II specifically states that the civilian population shall "not be the object of attack." Art 51(2) of Protocol I echoes this prohibition.

Delegations are urged to ensure that the ICC has jurisdiction over this most basic crime. In parts B(a) and D(a), the second option of each article would have this most basic crime deleted from those within the jurisdiction of the Court. Prohibiting direct attacks against the civilian population is one of the most fundamental prohibitions of humanitarian law; as such, the first option of part D(a) and part B(a), which provides for the retention of this crime, should be insisted upon.

Recommendation 8: Include as a crime attacks against civilian objects.

Comment: Attacks against civilian objects, being attacks against "all objects which are not military objects," are prohibited by Article 52(1) of Protocol I. It is a basic principle of humanitarian law that civilian and military objectives shall be distinguished, and attacks affecting the civilian population not justified by military necessity shall not be carried out.

The crime included in part B(a)bis should be reflected in part D.

Recommendation 9: Include as a crime carrying out of attacks which may cause incidental loss of life or injury to civilians or damage to civilians objects, which would be excessive in relation to the concrete and direct military advantage anticipated.

Comment: Article 57(2) of Protocol 1 obliges parties to "refrain from deciding to launch any attack which may be expected to cause incidental loss of 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."

There is a duty to protect the civilian population, enshrined in international humanitarian instruments. This involves not simply not directing attacks against civilians but also protecting them from the injurious affect of attacks against military objectives but which result in severe civilian losses, disproportionate to the direct military advantage which prompted the attack. Exposing civilians to grave danger by launching attacks which may cause incidental loss or injury is a violation of principle of humanity.

We note that Option II of part D includes "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects ... or widespread or severe damage to the natural environment," reflecting the comparable provision in part B(b). The addition of this provision which, together with the other articles in Option II, represents a significant improvement in the text, should be supported. The language should however, in line with Article 57(2), cover wilful (including reckless) carrying out of such attacks which may cause incidental loss of life etc, rather than only those attacks "intentionally" carried out "in the knowledge" of the losses or damage that would ensue.

Recommendation 10: Include as a crime the launching of an indiscriminate attack affecting civilians or civilian objects in the knowledge of the excessive loss of life, injury to civilians or damage to civilian objects that would result from the attack.

Comment: Article 85(3)(b) of Protocol I lists "launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects..." as one of the acts which, when committed wilfully and causing death or serious injury, constitute a grave breach of Protocol I. Knowingly exposing civilians to grave danger by launching indiscriminate attacks is a flagrant violation of the duty to protect the civilian population, in clear contravention of the principle of humanity.

Indiscriminate attacks which expose the population to serious risk are grave crimes, and should be included within the Court's jurisdiction whether committed in international or non-international conflict.

Recommendation 11: Include as a crime attacks against works or installations containing dangerous forces, where such an attack may cause the release of dangerous forces and consequent severe losses among the civilian population, which would be excessive in relation to the concrete and direct military advantage anticipated.

Comment: Article 56(1) of Protocol I and Article 15 of Protocol II expressly prohibit "attacks against installations containing dangerous forces even where the objects are military objectives, if such attack may cause severe losses among the civilian population" (emphasis added). Moreover, Article 85(3) of Protocol I provides that such attacks carried out in the knowledge of the excessive loss of life, injury or damage is a grave breach of that Protocol. The principles applicable to the protection of civilians from being the object of attack or affected by indiscriminate attacks, and arguments set out in those contexts above, apply equally to these attacks, which by their nature expose the civilian population to very serious danger.

Option II of part D contains a comparable provision to that in part B(b)bis Option 1, and the retention of this crime in both types of conflict situation should be supported. The language should however, in line with Article 57(2), cover the wilful carrying out of such attacks which may cause the relevant loss, injury or damage, rather than only those "intentionally" carried out "in the knowledge" of the losses or damage that would ensue.

Recommendation 12: Include as a crime the use of weapons, projectiles and material and methods of warfare of a nature to cause excessive injury or unnecessary suffering, or which are inherently indiscriminate.

Comment: The infliction of unnecessary suffering is clearly prohibited by the principles of humanity. The 1907 Hague Regulations on Land Warfare in Article 23(e) established a categorical prohibition on the employment of "arms, projectiles or material calculated to cause unnecessary suffering." This principle is repeated with slight variation in Article 35(2) of Protocol I to the Geneva Conventions: "It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering." The jurisdiction of the ICC should, in this respect, reflect that of the International Criminal Tribunal for the Former Yugoslavia, which has explicit jurisdiction over the "employment of poisonous or other weapons calculated to cause unnecessary suffering."

Humanitarian law requires that attacks should only be against legitimate military objectives. The employment of weapons which by their inherently indiscriminate nature are incapable of being directed against specific targets should also come within the jurisdiction of the Court, as proposed in Option 3 of part B(o) of Article 5 of the draft statute.

This crime should be included within the jurisdiction of the Court whether committed in international or non-international conflicts. The statute should not exhaustively enumerate the prohibited weapons, as represented (currently under part B(o) of Article 5) as Option 1 or the first part of Option 4. Rather, a definition such as that in Option 3,44 or the second part of Option 4,45 which allows the Court the necessary flexibility to accommodate new weapons systems that may develop in the future and changes in the relevant law, should be supported.

Recommendation 13: Include as a crime pillage and the extensive and wanton destruction of property not justified by military necessity.

Comment: The "wanton destruction of cities, towns or villages, or devastation not justified by military necessity" and the "plunder of public or private property" are two of the five categories of violations of laws and customs of war specified in Article 3 of the ICTY. These crimes should come within the jurisdiction of the ICC. This conduct constitutes a grave breach of the Geneva Conventions. The Security Council has condemned "the burning of houses, looting of property, and killings of civilians" as "serious violations of international humanitarian law and of human rights." Delegates should support the proposals to include pillage, as prohibited in Article 4(2)(g) of Protocol II, and extensive destruction of property.

Accordingly, the inclusion of this crime in parts B(n) and D(b) should be supported.

Recommendation 14: Include as a crime attacks directed against historic monuments, works of art or places of worship that constitute part of the cultural or spiritual heritage of people.

Comment: The protection of cultural property is a fundamental rule of international humanitarian law and one which the Appeals Chamber of the ICTY in the Tadic case described as having attained the status of customary international law. Article 16 of Protocol II contains an express prohibition on directing hostilities against any such objects and using them in support of the military effort. Delegates should support the inclusion in parts B(g) and D(c) of the crime of targeting of such property as a crime whether committed in internal or international conflict.

Recommendation 15: Include starvation of civilians as a crime.

Comment: Article 14 of Protocol II and Article 54 of Protocol I expressly provide that "starvation as a method of combat is prohibited." To this end, they prohibit parties to a conflict from attacking, destroying, removing or rendering useless, for that purpose, objects indispensable to the survival of the civilian population. The fundamental principle of humanity, set out in the context of attacking or exposing to danger the civilian population, is unquestionably applicable to the starvation of that population.

Starvation appears in part B(s), with respect to international conflicts, without brackets, and in part D, as an option (II). Starvation should be criminalized in either type of conflict and, accordingly, delegates should retain Option II in part D.

Recommendation 16: Include as a crime attacks against non-defended localities and demilitarized zones.

Comment: Articles 59 and 60 of Protocol I attacks against non-defended localities and the extension of military operations into demilitarized zones, respectively. Furthermore, the "attack or bombardment by whatever means of undefended towns, villages, dwellings or buildings" is specified as one of the crimes within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. These are clearly not legitimate military objectives, and the attack of such targets is prohibited by the requirement to protect the civilian population and not to commit violence or attacks against persons taking no active part in hostilities, embodied in Common Article 3 and the principle of humanity.

This crime is not included in the current text with respect to non-international armed conflicts and should be inserted.

Recommendation 17: Include as a crime attacks against buildings, materials, medical units, transport and personnel entitled to use, inconformity with international humanitarian law, the distinctive emblem of the red cross or red crescent.

Comment: Article 12 of Protocol II to the Geneva Conventions states that the distinctive emblem shall be "respected in all circumstances," and Article 38 of Protocol I that "it is prohibited to make improper use of the distinctive emblem."

Comparable provisions in the statute at parts B(r) and D(b) should be retained.

Recommendation 18: Include as a crime forcing or compelling persons under the age of eighteen to participate in hostilities.

Comment: The current text of the statute, at Article (t) of part B and Article (f) of part C, appropriately provides for crimes involving the participation of children under the age of fifteen in armed conflict. However, the options presented fail to recognize the clear emergence of higher standards which seek to exclude children under the age of eighteen from participation in hostilities.

One of the most alarming trends in contemporary armed conflicts is the reliance on children as soldiers. Children are often sought because they are uniquely susceptible to psychological and physical manipulation. In hostilities, their inexperience and immaturity make children particularly vulnerable to trauma, injury, and death.

While the Convention on the Rights of the Child and Protocols I and II to the Geneva Conventions set the minimum age for children's participation in armed conflict at fifteen years, this age is widely acknowledged to be too low and is inconsistent with other international standards. The age at which an individual is liable to be conscripted for military service is eighteen years or higher for nearly all states; the same is true for voting age, the age of political majority, and international standards prohibiting the application of the death penalty to persons under the age of eighteen. Finally, an international consensus is emerging towards establishing eighteen as the age below which persons may neither be recruited nor allowed to participate in hostilities.

While recruiting under-eighteens or allowing them to participate in hostilities may not be a sufficiently serious violation of international standards to warrant its inclusion as a crime before this Court, forcing or compelling under-eighteens to participate in hostilities should be included as a war crime.

Forced participation in hostilities would cover children's forced performance of support functions linked to combat such as scouting, manning check points, serving as porters or messengers connected to front line activities, and other activities that expose children to the risks of harm associated with combat. Forced participation in hostilities may also involve forced participation in acts of extreme violence against others, sometimes directed against a child's own family members and community, to break the ties to the community and desensitize the child to death and bloodshed.

In order to end the gross exploitation and abuse of children in armed conflict, it is essential that at least this most extreme form of children's participation in armed conflict, their forced participation in hostilities, be defined as a war crime for all children, not just those under fifteen years of age.

Recommendation 19: Include as a crime 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.

Comment: The prohibition on passing sentences in these circumstances is contained in common Article 3(1)(d) of the Geneva Conventions. Article 6 of Protocol II also sets out in some detail "the essential guarantees of independence and impartiality," embodying the right to a fair hearing, as does Article 75(4) of Protocol I. Delegates should support the current inclusion of these crimes in sections A and C of the current text without square brackets.

Recommendation 20: Include as a crime the imposition of collective punishments.

Comment: Collective punishments are expressly prohibited by Article 75(2)(d) of Protocol I and Article 4(2)(b) of Protocol II. They violate the principle of personal responsibility.

Human Rights Watch is concerned by the non-inclusion of this crime in the current draft in respect of either international nor non-international conflicts. We therefore urge delegates to include the imposition of collective punishments within the Court's jurisdiction for international and non-international conflicts.

Recommendation 21: Include as a crime wilfully causing widespread, severe damage to the natural environment.

Comment: Article 35(3) of Protocol I provides that "it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment." Article 55 of Protocol I expands upon this prohibition and also states that "care shall be taken in warfare to protect the natural environment against widespread, long term and severe damage." This principle has been codified in substantial detail in other international instruments, testifying to the importance attached by the international community to long-term damage to the environment.

Recommendation 22: Include as a crime terrorism of the civilian population.

Comment: In addition to attacks against the civilian population as such, or individual civilians, the ICC should have jurisdiction over acts of terrorism within the context of war crimes. Geneva Convention IV states that "all measures of intimidation or of terrorism are prohibited." This is confirmed for non-international conflicts by Article 4(2)(d) of Protocol II. Furthermore, Article 4(d)of the statute of the International Tribunal for Rwanda gives that Tribunal jurisdiction over acts of terrorism.

This crime should be inserted in the war crimes section of the draft statute.

Recommendation 23: Include as a crime declaring that there will be no survivors, either by express or implicit means.

Comment: Article 4 of Protocol II, dealing with the "fundamental guarantees," provides expressly that "it is prohibited to declare that there shall be no survivors," as does Article 40 of Protocol I. Delegates should support the inclusion of the crime of declaring that there shall be no survivors in the current text of the statute at part B(j) and B(I).

Recommendation 24: Include as a crime the forced movement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.

Comment: Displacement causes maximum disruption to the lives of the civilian population and can have the effect of exposing it to great risk, in contravention of the clear obligation to protect the civilian population from dangers arising from military operations. The fundamental nature of the right not to be forcibly moved within a country, or from one country to another, is reflected in the plethora of Security Council Resolutions in recent years testifying to the importance the international community attributes to the voluntary return of refugees and displaced persons.

This crime should be included within the jurisdiction of the ICC. In the context of part B(f) relating to international conflicts, there is an option to have no such provision. At part B(g) it appears unbracketed. We urge the retention of this crime in respect of both classes of conflict, as it embodies a fundamental protection of the civilian population. We further support the wording of B(g) which provides that the only military reasons which might justify displacement of the civilian population are those deemed "imperative" so as to limit the otherwise potentially wide-ranging military reasons which might be invoked for civilian displacement. This reflects the wording of Article 17 of Protocol II.

Recommendation 25: Include the crime of perfidy.

Comment: The commission of perfidy involves inviting the confidence of adversaries by feigning protected status, for example by purporting to be a civilian or non-combatant, wounded or sick person, or bearing a sign, emblems or uniform of the U.N. or other non-parties to conflict, or by use of flag of truce or surrender. To do so inevitably undermines the force of humanitarian law and ultimately jeopardizes the protection it seeks to afford to these categories of persons. Delegations should therefore support the inclusion of this crime within the Court's jurisdiction, currently excluded in respect of both international or non-international conflicts.

· Recommendation 26: Include utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces which otherwise would be legitimate military objectives, immune from military operations.

Comment: The principles underlying the criminality of perfidy apply also to the use of civilians and other protected groups as human shields. It is an abuse of the principles of humanitarian law for military gain, and as such ultimately undermines the ability of that body of law to afford the relevant groups the necessary protection. In exposing noncombatants to attacks, it is prohibited by the most basic principles of the laws of war.

Delegations should therefore supports the inclusion of this crime within the Court's jurisdiction, as in part B(q) in respect of international conflicts. However, that since the principle that the civilian population be protected is equally applicable in non-international conflict, this crime should extend to this type of conflict also.

International War Crimes