PEACE THROUGH LAW: THE ROME STATUTTE OF INTERNACIONAL CRIMINAL COURT AND CONTEXTUAL ELEMENTS WITH REFERENCETO ARMED CONFLICT
Author/s: Sabina Zgaga, PhD,
Pages: 139-158
UDK: 341.322.5
DOI:
Abstract: The relationship between peace and international criminal law reflects also in definitions of international crimes (genocide, war crimes, crimes against humanity and aggression). Their contextual elements have been namely closely connected with armed conflict. The paper discusses contextual elements of international crimes, related to armed conflict as a part of material elements of international crimesfrom the viewpoint of their present regulation in the Rome Statute of the International Criminal Court and historical comparison. It is centred on the issue, whether a connection between a certain international crime and armed conflict is required or not, and what is the essential element of this connection. Also, since the material elements alone do not suffice for criminal responsibility, the second prerequisite for criminal responsibility - perpetrator’s guilt regarding the contextual elements of international crimes - is analysed as well. The contextual elements of core crimes in international criminal law (aggression, genocide, crimes against humanity, war crimes) show certain legal or factual link to armed conflict. Aggression itself represents incrimination of unlawful warfare, war crimes must be committed in the context and are associated with an international or non international armed conflict, crimes against have lost connection with armed conflict since the ICTY Tadi? decision and genocide has never had it, but the most notorious and well-known cases of genocide from history have occurred in the framework of armed conflict and wars. Demands regarding guilt towards the existing contextual elements of core crimes, which connect the latter to armed conflict, are moderated. According to the Rome Statute with aggression, as well as with war crimes factual awareness of transgression of United Nations’ Charter, existence and nature of armed conflict suffices, which alleviates the prosecution and conviction of perpetrators of these core crimes. In this manner the contextual elements in question in a manner, in which they are defined, facilitate the conviction. Contextual elements serve also as arguments for multiple conviction for one natural executing act of core crimes. Namely, core crimes differ mostly in contextual elements and share many of the executing acts. Therefore, it is common practice to prosecute and convict a perpetrator of an act for all core crimes, for which contextual elements could be proved.
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