Protecting and respecting civilians : correcting the substantive and structural defects of the Rome Statute
Adil Ahmad Haque
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New Criminal Law Review, Vol. 14, no. 4, Fall 2011, p. 519-575
The Rome Statute of the International Criminal Court fails to fully enforce four core principles of humanitarian law designed to protect civilians: distinction, discrimination, necessity, and proportionality. As a result, it is possible for a combatant with a culpable mental state, without justification or excuse, and in violation of humanitarian law, to kill civilians, yet escape criminal liability under the Rome Statute. The Rome Statute also ignores or misapplies three fundamental criminal law distinctions : between conduct offenses and result offenses, between material elements and mental elements, as well as between offenses and defenses. The purpose of this article is to expose these defects and propose a way to over-come them. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians the legal protection and moral recognition they deserve. The recent adoption of an operative definition of the crime of aggression during a Review Conference in June 2010 suggests that further reform of the Rome Statute is achievable.