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Part IV The ICC and its Applicable Law, 29 Charging War Crimes: Policy and Prognosis from a Military Perspective

Michael A. Newton

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 27 January 2023

War crimes — Elements of crimes — Prosecution — Ius in bello — Armed conflict, international — Armed conflict, non-international — Geneva Conventions 1949 — Military objectives — International criminal law, evidence

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.

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