Chapter

Challenges in applying Article 8 of the Rome Statute

Tim McCormack

For the sake of present and future generations : essays on international law, crime and justice in honour of Roger S. Clark

Leiden ; Boston : Brill Nijhoff, 2015

p. 333-355

English

Photocopies

Writing in honour of Roger Clark, the author advocates for reforming Article 8 of the Rome Statute. Article 8 distinguishes between war crimes in international armed conflicts (IACs) and non-international armed conflicts (NIACs). This distinction creates an additional, unnecessary burden on the Office of the Prosecutor at the International Criminal Court (ICC), which must prove whether the armed conflict in which specific crimes took place was an IAC or a NIAC. Article 8 also excludes offences in the context of NIACs that should logically exist in both categories. For example, in the case of NIACs, there are glaring omissions for crimes against civilian populations and property. Thus the author proposes replacing Article 8 “with a unitary set of war crimes over which the ICC has jurisdiction in all armed conflicts”. However, some states prefer the distinction, which codified a higher threshold for IACs to ensure domestic civil disturbances remained domestic legal matters. The author also offers two alternative recommendations for reform that maintain the differentiation: expanding the list of offences under Article 8 for NIACs; or replacing part of Article 8 with a relatively flexible provision such as Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

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