Legal and Procedural Aspects of War Crimes, in the Context of the Interpretation of Articles 7(1)(g) and 8(2)(b)(xxii) of the Rome Statute

Abstract

The prosecution of war criminals under the Rome Statute of the International Criminal Court (hereinafter referred to as the ICC, the Statute) is a complex and evolving area of international criminal law. Articles 7(1)(g) and 8(2)(b)(xxii) of the Statute address criminal liability for gender-based violence, particularly in the context of sexual and reproductive violence in armed conflict. This study examines the legal and procedural aspects of these provisions, highlighting their importance for the codification of gender-specific crimes as violations of international humanitarian law. The authors explore the interaction between substantive law and procedural mechanisms, focusing on issues of interpretation, evidentiary thresholds, and implications for the participation and protection of victims.
The study begins with an analysis of the legislative formulation, examining how the Rome Statute defines and distinguishes between acts that constitute crimes against humanity (Article 7) and war crimes (Article 8). The authors examine the historical and legal evolution of gender-based violence as an international crime, drawing comparisons with precedents established by the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The study then assesses the procedural framework of the ICC, including challenges to the investigation and prosecution of such crimes, including issues related to victim testimony, witness protection, and the collection of forensic evidence in conflict zones.
In addition, the study explores the broader legal implications of prosecuting sexual and gender-based war crimes, including their intersection with cultural norms, state sovereignty, and the principle of complementarity under Article 17 of the Statute. By analysing key ICC cases such as The Prosecutor v. Jean-Pierre Bemba and The Prosecutor v. Bosco Ntaganda, the study sheds light on the development of the Court’s jurisprudence and practical obstacles to achieving accountability. The study concludes with a proposal for reforming procedural mechanisms to ensure justice for victims while protecting the rights of the accused, thereby strengthening the ICC’s capacity to address gender-based violence in conflict.