ICC Dictionary – Letter W

By Benjamin Duerr*

The ICC Dictionary is a guide for everyone interested in the proceedings in The Hague. It contains almost 200 of the most important terms and concepts with short explanations in alphabetical order. Justice Hub is presenting a selection of some of the terms highlighted by the Dictionary.

War crimes: War crimes is a category of offenses based on the laws and customs of war and codified in Article 8 of the Rome Statute. The statute distinguishes two categories of war crimes: those that are applicable in international armed conflicts and those applicable in non-international armed conflicts. Offenses that are punishable as war crimes that apply to international armed conflicts are:

– Wilful killing;

– Torture or inhuman treatment, including biological experiments;

– Wilfully causing great suffering, or serious injury to body or health;

– Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

– Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;

– Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

– Unlawful deportation or transfer or unlawful confinement;

– Taking of hostages;

– Intentionally directing attacks against the civilian population;

– Intentionally directing attacks against civilian objects;

– Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission (…);

– 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 (…);

– Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

– Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

– 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 (…);

– The transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies (…);

– 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;

– Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind (…);

– Killing or wounding treacherously individuals belonging to the hostile nation or army;

– Declaring that no quarter will be given;

– Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war (…);

– Compelling the nationals of the hostile party to take part in the operations of war directed against their own country (…);

– Pillaging a town or place, even when taken by assault;

– Employing poison or poisoned weapons;

– Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

– 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;

– Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering (…);

– Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

– Committing rape, sexual slavery, enforced prostitution, forced pregnancy (…), enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

– Utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

– 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;

– 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;

– Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

In the case of non-international armed conflicts, the following offenses are punishable as war crimes:

– Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

– Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

– Taking of hostages;

– The passing of sentences and the carrying out of executions without previous judgement (…)

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

– 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;

– Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission (…);

– Pillaging a town or place, even when taken by assault;

– Committing rape, sexual slavery, enforced prostitution, forced pregnancy (…) enforced sterilisation, and any other form of sexual violence (…);

– Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

– 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;

– Killing or wounding treacherously a combatant adversary;

– Declaring that no quarter will be given;

– 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 (…);

– Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

WEOG: WEOG is the abbreviation for Western and Other States. The Assembly of States Parties categorises states geographically, for instance for the purpose of allocating the number of judges. The WEOG group consists of European States as well as Australia, Canada and New Zealand.

Willful blindness: Willful blindness means an offender remains ignorant of the facts. A superior who ignores information in his possession about the a crime that is committed by his subordinates fails to fulfill his duties. According to an ICTY judgment, he “may be held responsible under the doctrine of superior responsibility” for remaining willfully blind.

Witness familiarisation: Witness familiarisation refers to the process that takes place before a witness takes the stand. Prosecutor and defence can meet their own witness prior to his or her testimony. Usually the witness will be shown the courtroom. He or she is introduced to the different actors in court and is told what is going to happen at the trial.

Witness preparation: Witness preparation can refer to either witness familiarisation or witness proofing. The possibilities for the latter are limited. In contrast, familiarisation of witnesses is common.

Witness proofing: Witness proofing means to meet witnesses before they take the stand in order to coach them. The practice can entail the permission for witnesses to read their statements and refresh their memories; to disclose and prepare questions that will be asked during the trial and to discuss what the witnesses will say in court. There is no provision in the Rome Statute that prohibits witness proofing. Some have argued that it is allowed under Article 64(3)(a) of the Statute which authorises the Chamber to adopt

measures and procedures “to facilitate the fair and expeditious conduct of the proceedings”. While witness proofing is part of the practice at other tribunals by both the prosecutor and the defence, the ICC Trial Chamber in the Lubanga case has not given permission to coach witnesses. The prosecutor had requested to proof its witnesses, who included former child soldiers, before the start of the trial.

Witness testimony: Witness testimony is favoured over written evidence. This is called the orality principle. Witnesses appear in The Hague. Their identity is only known by the parties. It is not disclosed to the public. To protect persons, the Chamber can decide to go into private session while a witness testifies.

Written evidence: Written evidence is only accepted by the Chamber if the evidence is not directly related to the charges. Written evidence can also be used to support an oral testimony. Generally, however, the ICC relies on oral instead of written evidence.