Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute

Abstract

The Review Conference on the International Criminal Court (ICC) held in Kampala in June 2010 resulted in the first amendment ever made to the Rome Statute. This historic amendment was, in substance, a rather modest change to the provisions on war crimes--expanding the Court’s jurisdiction over the use of prohibited weapons in international armed conflicts to their use in armed conflicts of a non- international character. The amendment was relatively uncontroversial because the language to be added to Article 8, and the accompanying elements of the crimes, already existed for international armed conflicts. This language has yet to be interpreted by the ICC, however. The breadth of the Court’s jurisdiction over the newly added crime will likely depend on how broadly the Court will interpret the prohibition on the use of ‘gases’ and the mens rea requirement for each of the crimes. Perhaps most importantly, the Court will have to clearly define where the jurisdictional line between internal law-enforcement activities and armed conflicts should be drawn. Overall, the amendment forms part of a broader movement to reduce or remove the distinctions between the protections available in international and non-international armed conflicts. The process by which the amendment was successfully adopted is also instructive for future efforts to modify the ICC Statute.