ROME STATUE OF THE INTERNATIONAL

CRIMINAL COURT

Article 7
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part
of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

1. (a)  Murder;
2. (b)  Extermination;
3. (c)  Enslavement;
4. (d)  Deportation or forcible transfer of population;
5. (e)  Imprisonment or other severe deprivation of physical liberty in violation of

fundamental rules of international law;

6. (f)  Torture;
7. (g)  Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious,
gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the
Court;

9. (i)  Enforced disappearance of persons;

10. (j)  The crime of apartheid;
11. (k)  Other inhumane acts of a similar character intentionally causing great suffering, or

serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission
of acts referred to in paragraph1 against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to
food and medicine, calculated to bring about the destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person
and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by
expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under
international law;

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person
in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of
affecting the ethnic composition of any population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g) contrary to

(h) referred to oppression committed

(i)
persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female,
within the context of society. The term “gender” does not indicate any meaning different from the above.

Article 8
War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy
or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons
or property protected under the provisions of the relevant Geneva Convention:

1. (i)  Wilful killing;

2. (ii)  Torture or inhuman treatment, including biological experiments;
3. (iii)  Wilfully causing great suffering, or serious injury to body or health;
4. (iv)  Extensive destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly;
5. (v)  Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
6. (vi)  Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
7. (vii)  Unlawful deportation or transfer or unlawful confinement;
8. (viii)  Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established
framework of international law, namely, any of the following acts:
 1. (i)  Intentionally directing attacks against the civilian population as such or against individual civilians not
taking direct part in hostilities;
2. (ii)  Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

“Persecution” means the intentional and severe deprivation of fundamental rights international law by reason of the
identity of the group or collectivity;

“The crime of apartheid” means inhumane acts of a character similar to those in paragraph 1, committed in the
context of an institutionalized regime of systematic and domination by one racial group over any other racial group
or groups and

with the intention of maintaining that regime;

“Enforced disappearance of persons” means the arrest, detention or abduction of

3. (iii)  Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to civilians or civilian objects under the international law of
armed conflict;
4. (iv)  Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or
injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the concrete and direct overall military
advantage anticipated;
5. (v)  Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are
undefended and which are not military objectives;
6. (vi)  Killing or wounding a combatant who, having laid down his arms or having no longer means of
defence, has surrendered at discretion;
7. (vii)  Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the
enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting
in death or serious personal injury;
8. (viii)  The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory;
9. (ix)  Intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
10. (x)  Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or
scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of
the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger
the health of such person or persons;
11. (xi)  Killing or wounding treacherously individuals belonging to the hostile nation or army;
12. (xii)  Declaring that no quarter will be given;
13. (xiii)  Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively
demanded by the necessities of war;
14. (xiv)  Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the
nationals of the hostile party;
15. (xv)  Compelling the nationals of the hostile party to take part in the operations of war directed against their
own country, even if they were in the belligerent’s service before the commencement of the war;
16. (xvi)  Pillaging a town or place, even when taken by assault;
17. (xvii)  Employing poison or poisoned weapons;
18. (xviii)  Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

19. (xix)  Employing bullets which expand or flatten easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core or is pierced with incisions;
 20. (xx)  Employing weapons, projectiles and material and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the
international law of armed conflict, provided that such weapons, projectiles and material and methods of
warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an
amendment in accordance with the relevant provisions set forth in articles 121 and 123;
21. (xxi)  Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
22. (xxii)  Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7,
paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach
of the Geneva Conventions;
23. (xxiii)  Utilizing the presence of a civilian or other protected person to render certain points, areas or
military forces immune from military operations;
24. (xxiv)  Intentionally directing attacks against buildings, material, medical units and transport, and personnel
using the distinctive emblems of the Geneva Conventions in conformity with international law;
25. (xxv)  Intentionally using starvation of civilians as a method of warfare by depriving them of objects
indispensable to their survival, including wilfully impeding relief supplies as provided for under the
Geneva Conventions;
26. (xxvi)  Conscripting or enlisting children under the age of fifteen years into the national armed forces or
using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the
four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no
active part in the hostilities, including members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention or any other cause:

1. (i)  Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. (ii)  Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
3. (iii)  Taking of hostages;
4. (iv)  The passing of sentences and the carrying out of executions without previous judgement pronounced
by a regularly constituted court, affording all judicial guarantees which are generally recognized as
indispensable.

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar
nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character,
within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking
direct part in hostilities;

2. (ii)  Intentionally directing attacks against buildings, material, medical units and transport, and personnel
using the distinctive emblems of the Geneva Conventions in conformity with international law;
3. (iii)  Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to civilians or civilian objects under the international law of
armed conflict;
4. (iv)  Intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
5. (v)  Pillaging a town or place, even when taken by assault;
 6. (vi)  Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7,
paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious
violation of article 3 common to the four Geneva Conventions;
7. (vii)  Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using
them to participate actively in hostilities;
8. (viii)  Ordering the displacement of the civilian population for reasons related to the conflict, unless the
security of the civilians involved or imperative military reasons so demand;
9. (ix)  Killing or wounding treacherously a combatant adversary;
10. (x)  Declaring that no quarter will be given;
11. (xi)  Subjecting persons who are in the power of another party to the conflict to physical mutilation or to
medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his or her interest, and which cause death to or
seriously endanger the health of such person or persons;
12. (xii)  Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively
demanded by the necessities of the conflict;

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar
nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict
between governmental authorities and organized armed groups or between such groups.

3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law
and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Article 9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be
adopted by a two-thirds majority of the members of the Assembly of States Parties.

2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party;

2. (b)  The judges acting by an absolute majority;

3. (c)  The Prosecutor.

Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.

JUSTICE NOT REVENGE:

The International Criminal Court and the ‘grounds to exclude
criminal responsibility’: defences or negation of criminality?
 III. SELF-DEFENCE
In international law the notion of self-defence tended to apply only to inter-states relationships. Vattel has made the
point that for states self-defence is not only a right but also one of the most sacred duties of the state. Nowadays, the
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right to self-defence for states is part of both customary and conventional international law. Nevertheless, such a
right to „self-protection‟ is conceded to the State under attack and not to the individual facing a charge of war crimes
before a court. Thus, such a defence might be recognised for the soldier only in a derivative manner. The Rome
Statute clearly makes the difference between the two notions of individual and state self-defence. Article 31 (c)
reads: “The fact that the person was involved in a defensive operation conducted by forces shall not in itself
constitute a ground for excluding criminal responsibility under this subparagraph”. Therefore, even though the state
is engaged in a self-defence action, the person involved in such an operation cannot claim that he/she was acting in
self-defence.

In criminal law, self-defence is a frequently recognised defence. In the history of criminal law such a right to self-
defence was justified by the urgency of the situation, usually laws authorised the victim to protect themselves. This
right was to protect another right that was threatened. In such cases public authorities transfer a power which is
usually only rightfully exercise by those authorities. Today such a defence is recognized in both common law and
civil law. Internationally, the Tokyo tribunal has highlighted that: “[A]ny law, international or municipal which
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prohibits recourse to force, is necessarily limited by the right of self-defense”. During the trial of Willi Tessmann
and others by the British Military Court in Hamburg in 1947, the Judge Advocate stated:

The law permits a man to save his own life by dispatching that of another, but it must be in the last resort. He is
expected to retreat to the uttermost before turning and killing his assailant; and of course, such considerations as the
nature of the weapon in the hands of the accused, the question whether the assailant had any weapon and so forth,
have to be considered. In other words, was it a last resort? Had he retreated to the uttermost before ending the life of
another human being?

Rome Statute of the International Criminal

Court, Article 28
Article 28. Responsibility of commanders and other superiors. Under this provision, military commanders
are held criminally responsible for crimes committed by armed forces under their effective command and
control, such as rape and any sexual violence used in war. This applies to instances where the superior knew or
should have known about such crimes, or failed to take all necessary and reasonable measures to prevent their
commission. The crimes committed by the armed forces must have been a result of the failure of the
commander to properly exercise control over them. In addition, there must be evidence beyond any reasonable
doubt that the commander is responsible and the crimes were sufficiently widespread so that it is evident that
they occurred during the ordinary implementation of the military action for which the commander is
responsible. The goal of this provision is to encourage commanders and superiors to prevent effectively the
perpetration of crimes by their forces.
 REPUBLIC OF THE PHILIPPINES
Focus: Any alleged crime within the jurisdiction of the Court, including but not limited to the
crime against humanity of murder, committed in the Philippines between 1 November 2011 and
16 March 2019 in the context of the so-called 'war on drugs' campaign.

Procedural history

On 15 September 2021, Pre-Trial Chamber I authorized the Prosecutor to commence an

investigation of crimes within the jurisdiction of the Court allegedly committed on the territory
of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called
'war on drugs' campaign.

This authorization followed the Prosecutor's request to open an investigation, initially submitted

on 24 May 2021 and filed in public redacted version on 14 June 2021. The Chamber also
received views on this request submitted by or on behalf of victims.

On 26 January 2023, following a careful analysis of the materials provided by the Philippines,
Pre-Trial Chamber I granted the Prosecutor’s request to resume investigation into the Situation
of the Republic of the Philippines.  

Jurisdiction: 

The Philippines, State party to the Rome Statute since 1 November 2011, deposited a written
notification of withdrawal from the Statute on 17 March 2018. While the Philippines' withdrawal
from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to
alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1
November 2011 up to and including 16 March 2019. While the relevant crimes appear to have
continued after this date, Pre-Trial Chamber I noted that alleged crimes identified in the Article
15(3) Request were limited to those during the period when the Philippines was a State Party to
the Statute and restricted the authorized investigation to that period.

International Criminal Court’s Philippines

Investigation
Questions and Answers from Human Rights Watch Why did the ICC open an
investigation?

1. Why did the ICC open an investigation?

Soon after taking office in 2016, then-President Rodrigo Duterte unleashed his “war on drugs,” which resulted in
thousands of killings, mostly of the urban poor. Human Rights Watch and others found that the police regularly
falsified evidence to justify the unlawful killings. The government reported that members of the Philippine National
Police and the Philippine Drug Enforcement Agency killed 6,252 people during anti-drug operations from July 1,
2016, to May 31, 2022. After Ferdinand Marcos Jr. became president in 2022, the government stopped releasing
these statistics.

The official death toll does not include those killed by unidentified gunmen whom Human Rights Watch and other
rights monitors have credible evidence to believe operate in cooperation with local police and officials. The United
Nations Office of the High Commissioner for Human Rights (OHCHR) calculated in a 2020 report that the death
toll was at least 8,663. Domestic human rights groups and the government-appointed Philippine Commission on
Human Rights state that the real number of “drug war” killings is possibly triple the number included in the UN
report.

The scale of the “drug war” killings prompted the then-ICC prosecutor, Fatou Bensouda, to announce in February
2018 the opening of a preliminary examination over the deaths, many of which are linked to “extrajudicial killings
in the course of police anti-drug operations.” In May 2021, following her analysis of these crimes, Bensouda
requested the court’s authorization to open an investigation into the situation in the Philippines. The ICC pre-trial
chamber authorized the opening of the investigation in September 2021.

2. What happened before the January 26 decision, and why was the
investigation on hold?
In November 2021, the Philippine government asked the ICC prosecutor to defer the investigation, claiming that
national authorities had begun their own investigations into cases of extrajudicial killings attributed to the police
during “drug war” operations. Upon receipt of the request, the prosecutor temporarily suspended investigative
activities pending his assessment of the request.

In June 2022, the court’s current prosecutor, Karim Khan, asked the ICC judges for authorization to resume his
investigation, noting that the Philippine government had not substantiated its deferral request and that the domestic
proceedings referenced “[did] not sufficiently mirror the court’s investigation.”

3. Why did the judges authorize the resumption of the ICC investigation?
In reaching their decision to resume the investigation, the ICC judges examined materials from the Philippine
government and the ICC prosecutor, as well as observations by victims and their families, to assess the existence of
domestic proceedings that would warrant a deferral of the investigation to domestic authorities through genuine
investigations and prosecutions of crimes under the jurisdiction of the court.

 A review conducted by a Philippine Department of Justice panel – This is “an ad hoc group of
Department of Justice members chaired by the Secretary of Justice” tasked with reviewing administrative
 and criminal cases against personnel of the Philippine National Police involved in anti-illegal drugs
operations resulting in deaths.” The ICC judges found that this review does not amount to relevant
investigations warranting a deferral of the ICC investigation and that the number of cases reviewed by the
panel is low compared to the number of killings allegedly committed during “war on drugs” operations.

 “Writ of amparo proceedings” – Under Philippine law, this is a “remedy available to any person whose
right to life, liberty and security is violated or threatened with violation by an unlawful act or omission by a
public official or employee, or a private individual or entity.” These proceedings may lead to criminal
investigations, but the judges found that this mere possibility is not sufficient to justify a deferral.

 Activities of the Administrative Order No. 35 Committee and the United Nations Joint Program on
Human Rights – The Administrative Order No. 35 Committee is an inter-agency committee chaired by the
justice secretary and focusing on extra-legal killings, enforced disappearances, torture and other grave
violations of the right to life, liberty, and security of persons. The United Nations Joint Program on Human
Rights is a technical assistance and capacity building program. According to the judges, neither carried out
concrete investigative steps relevant for a deferral.

 Investigations conducted by the Philippine National Police’s Internal Affairs Services – These are
disciplinary proceedings against police personnel that, according to the judges, do not have the primary aim
to further criminal proceedings and thus do not justify a deferral of the ICC investigation.

4. Didn’t the Philippines leave the ICC? Why can the ICC prosecutor still
investigate there?
On March 17, 2018, then-President Duterte formally notified the United Nations secretary-general that the
Philippines was withdrawing from the ICC’s Rome Statute. In accordance with the ICC treaty, the withdrawal took
effect one year later. The provisions of the Rome Statute permit the court to retain its jurisdiction over crimes
committed prior to withdrawal. In the case of the Philippines, this was from November 1, 2011 – the date in which
the Rome Statute went into effect in the Philippines – up to and including March 16, 2019.

In their January 26 decision, the ICC judges addressed the Philippine government’s claim that the court does not
have jurisdiction over the situation in the Philippines under the principles of non-intervention and sovereign equality
as enshrined in the United Nations Charter. Non-intervention relates to the right of states to conduct their domestic
affairs without outside interference. Sovereign equality concerns the equal standing of states within the international
community.

The judges stated: “By ratifying the Statute, the Philippines explicitly accepted the jurisdiction of the Court, within
the limits mandated by the treaty, and pursuant to how the system of complementarity functions.” They further noted
that relevant “ensuing obligations remain applicable, notwithstanding the Philippines withdrawal from the Statute.”
This includes the Philippine government’s obligation to cooperate with the court in connection with the
investigation. The ICC relies on cooperation from its member countries to implement its mandate, including access
to crime scenes, witnesses, and arrests.
6. Who is likely to be the target of ICC investigations? How many people
could be charged?
Criminal liability before the ICC can apply to those who commit crimes, but also to those who give orders, as well
as those in a position of command who should have been aware of the abuses and failed to prevent them or report or
prosecute those responsible. At the ICC there is no exemption from liability based on official position.

It is a policy of the ICC prosecutor to target those most responsible for the crimes.

7. Even if the ICC issues charges against individuals for crimes committed in
the Philippines, will arrests ever be possible?
Securing arrests is one of the ICC’s most difficult challenges. Without its own police force, the court must rely on
states and the international community to assist in arrests. The court has issued arrest warrants against 14 individuals
in various countries that have not yet been executed, and some of these warrants are now almost 18 years old.

However, arrests do happen. At least 13 ICC suspects have been arrested to date.

Arrests can take time, particularly where those sought are high-ranking government officials, but usually have
occurred with sufficient international support. Charles Taylor, the former Liberian president, was apprehended to
face charges at the UN-backed Special Court for Sierra Leone after three years of safe haven in Nigeria. Similarly,
after many years of evading justice, high-level suspects were arrested and faced trial by the International Criminal
Tribunal for the former Yugoslavia.