Charging war crimes : policy and prognosis from a military perspective
Michael A. Newton
The law and practice of the International Criminal Court
Oxford : Oxford University Press, 2015
The Rome Statute was designed to largely align criminal norms with actual state practice based on the realities of warfare. Article 8 embodied notable new refinements (e.g. in relation to disproportionate attack under Article 8(2)(b)(iv)), but did so against a backdrop of pragmatic military practice. This chapter dissects the structure of war crimes under Rome Statute to demonstrate this deliberate intention of Article 8 and then describes the correlative considerations related to charging practices for the maturing institution, including command responsibility. When properly understood and applied in light of the Elements of Crimes, the Court’s charging decisions with respect to war crimes ought to reflect the paradox that its operative provisions are at once revolutionary yet broadly reflective of the actual practice of warfare.