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On July 17, 1998, 120 nations voted to create the International Criminal Court. Then, on April 11, 2002 the Rome Statute (establishing the court) was ratified by the necessary sixty nations and its jurisdiction came into effect in July 2002.

But, what is the jurisdiction of the International Criminal Court? What sorts of crimes did the Rome Statute mean to outlaw?

Author Geoffrey Robertson describes the four types of international crimes the court was created to address:

• Genocide,
• Crimes against humanity,
• War crimes,
• Aggressive wars.

What is the difference between these four types of international crimes? It appears that these different crimes overlap. Indeed, Robertson says that they do (for instance, an aggressive war might contain all of the other crimes as well). But, according to the Rome Statute, each crime does have its own character.

Genocide

The core of the crime of genocide is the “intent to destroy in whole or part a national, ethnical, racial or religious group as such.” When the intent is to destroy all members of a group simply because they are members of the group, then the crime is genocide.

Part of the definition of genocide include acts intended to prevent births within a group. Robertson says that this addition to the definition was added at the insistence of the Vatican, and the author takes a dim view of its inclusion as part of the meaning of genocide. According to Robertson, imposing birth control as a means to extinguish an entire group is a genocidal act, though imposing birth control by law to control population or for health reasons is outside the scope of what the crime of genocide is about.

What Is Not Included in the Definition of Genocide

Perhaps as important as the definition of genocide, is the definition of what does not count as genocide.

It is not considered genocide when a sovereign state goes to war in order to annihilate an enemy nation. The threat or use of force against a state is not itself an act of genocide. Robertson believes that behavior by the state of this sort should be made part of the definition of the crime of aggression, but it is not currently part of the Rome Statute.

Crimes against Humanity

The Rome Statute contains the authoritative definition of crimes against humanity.

The jurisdiction of the International Criminal Court does not cover just any cruel, violent or heinous act. Individuals are capable of committing these types of crimes, but they are not international crimes. To be considered an international crime, there are three conditions:

• The acts must be part of a widespread or systematic attack. Crimes committed on the spur of the moment are not covered.
• They must be directed against a civilian population. Treatment of soldiers is covered under the definition of war crimes.
• They must be carried out as a way to further the policy of a state or organization.

Individuals are prosecuted, but only insofar as they are instruments of a state or organization.

An important point is that it is not only states that can commit crimes against humanity under the Rome Statute. Certain types of non-state actors are covered as well. But, what kind of organization is covered under the statute?

How Organized Is Organized?

A group that has the ability to carry out atrocities by control over territory, people or both fall within the jurisdiction of the International Criminal Court. The group does not have to be invested with formal state power.

Examples include paramilitaries and structured opposition forces. The Lord's Resistance Army (an itinerant guerrilla group operating in northern Uganda and parts of Sudan) provided the first individuals indicted.

Some Examples of Crimes against Humanity

Article 7 of the Rome Statute provides a list of the most heinous offenses, which includes:

• Enforced disappearance, defined as the detention or abduction of people (with the acquiescence of the state) along with a refusal to acknowledge their whereabouts or fate,
• Apartheid,
• Rape, sexual slavery, forced pregnancy and enforced prostitution and sterilization,
• Deportation or forcibly transferring a population,
• Persecution, defined as the intentional and severe deprivation of fundamental rights.

An important advance beyond the previous doctrine of the sovereignty of states is the ability to indict a sitting head of state. It is also important that crimes against humanity are not limited to just political or military leaders. Members of professions—like lawyers or physicians—are not immune.

What Is Not Included in the Definition of Crimes against Humanity?

The Rome Statute specifically excluded certain types of crimes from the definition of crimes against humanity, including:

• Terrorism and drug trafficking. The reason that both of these crimes were not included is that they were not considered “as serious” as the crimes of genocide and crimes against humanity, and they were covered under other treaties.
• Persecution on the basis of gender. Robertson says that this is “the most ridiculous clause in any international treaty ever devised.” Insisted upon by the Vatican and Islamic states, the clause defines gender in terms of two sexes, male and female and should not be construed in any other manner. So, says Robertson, transsexuals, gays and lesbians are not covered by the statute.

War Crimes

There are two types of crimes defined in the Rome Statute as war crimes: crimes at times of international conflict and at times of internal armed conflict. So, a crime can be considered a war crime even if it does not involve multiple countries.

In large measure, the substance of the crimes are stated in the Geneva Conventions. However, the statute includes other crimes as well, including enlisting children soldiers, engaging in systematic sexual violence and targeting UN peacekeepers or humanitarian workers.

Some crimes not covered under the war crimes definition include:

• The use of anti-personnel land mines (covered under another treaty),
• The use of nuclear weapons,
• Internal disturbances and tensions such as riot and unrest.

Robertson says that using nuclear weapons falls easily within the statute definition banning methods of warfare “which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate.” However, using nuclear weapons was consciously omitted from the statute. Robertson says, however, that nuclear weapons may be included in the next version of the statute when it is reviewed in 2009.

Crime of Aggression

Robertson says that the statute failed in not defining aggressive wars as crimes. Members of the Rome Conference could not agree on a definition. The statute does include a provision giving the International Criminal Court jurisdiction over the crime of aggression, but this crime will come into effect only once a definition is approved at a later review conference. In the meantime, declaring and waging an aggressive war in which millions of soldiers and civilians would be killed is not expressly defined as an international crime.

Rome missed the opportunity to outlaw war as an instrument of national policy. Robertson says that this glaring omission is only made worse by the fact that the statute only pretends to include it.

See the full text of the Rome Statute.

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