CYIL vol. 12 (2021)

Katarína ŠmigovÁ CYIL 12 (2021) The definition as such reflects historical developments since it in principle points out and comprehends relevant parts of the London Charter concerning the crime against peace (not expressly), the UN Charter and the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 that defined acts of aggression. What is even more important, on 14 December 2017 in New York, the Assembly of State Parties adopted a resolution to activate the jurisdiction of the Court over the crime of aggression. This jurisdiction has been effective since 17 July 2018, although under very strict conditions. 95 Second, the least controversial crimes at the time of adoption of the Charter and the Statute: war crimes. War crimes were known as a legal term even before WWII. Since the Battle of Solferino, international humanitarian law started its codified history. And even before 1859 several crimes had been considered as war crimes under international custom, such as contamination of wells. However, as for the war crimes, the Tribunal based its judgment on the Hague Convention of 1907 96 and the Geneva Convention of 1929. 97 Although the Commission used the definition of the war crimes from the Charter verbatim , it was rather difficult to use the term “war crime” afterwards in the Geneva Convention of 1949. Instead, the term “grave breaches” was adopted and it was only in the Additional Protocol I to the Geneva Conventions that it was declared that grave breaches constitute war crimes. 98 If compared to crimes against humanity of the current legal system, a war crime is a crime that has to be committed during an armed conflict. 99 The legal framework of war crimes has been developed considerably within the jurisprudence of ad hoc tribunals, mainly the ICTY. 100 However, although art. 8 of the Rome Statute is considered to be the most complex legal norm dealing with war crimes, 101 it has not overcome the division of war crimes according to the type of armed conflict and according to the legal norm it originated from. It thus follows, first, the division of war crimes between those committed during an international armed conflict and those committed during a non-international armed conflict 102 and, second, the division of war crimes between those that are covered by international treaty law and those that are covered by international customary law. 103 Despite the ICTY’s decision that the use of prohibited weapons is illegal in both international and non-international armed conflicts, 104 political representatives during the Rome conference voted for a division 95 Finally, a very strict position was adopted that the Court has no jurisdiction over an alleged crime of aggression if committed either on the territory or by a national of a State Party to the ICC Statute, if this state has not ratified the Kampala amendments. See KRESS, C., On the Activation of ICC Jurisdiction over the Crime of Aggression, in Journal of International Criminal Justice , 2018, vol. 16. 96 Art. 46, 50, 52 and 56. Nuremberg Judgment, para. 467, see supra note 2. 97 Art. 2, 3, 4, 46 and 51. Ibid . 98 Art. 85 para. 5 of the Additional Protocol I from 1977. 99 ICTY, Prosecutor v. Dragoljub Kunarać et al. , Judgment, 12 June 2002, IT-96-23/1-A, para. 57–59 100 LA HAYE, E., War Crimes in Internal Armed Conflicts , Cambridge University Press, 2008, p. 112. 101 It is complex, as for including war crimes committed during non-international armed conflicts and also as for the detailed elaboration of some war crimes. See SCHABAS, W. A., An Introduction to the International Criminal Court, 4 th ed., Cambridge University Press, 2011, p. 125. 102 Art. 8 para. 1 letters a) and b) of the Rome Statute for international armed conflicts and art. 8 para. 1 letters c) and e) of the Rome Statute for armed conflicts of not international character. 103 Art. 8 para. 1 letters a) and c) of the Rome Statute for international treaty law and art. 8 para. 1 letters b) and d) of the Rome Statute for international customary law. 104 “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.” ICTY, Appeals Chamber, Prosecutor v. Duško Tadić , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1-AR72, para. 119.

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