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35 Cornell Int'l L.J. 1 (2001-2002)


Although the United States supports the creation of a permanent International Criminal Court (ICC), it opposes such a court as set forth in the 1998 Rome Statute because it leaves open the potential for United States military personnel and government officials to be prosecuted for unintended loss of civilian life. Can the United States formulate a legal argument to support its view that inadvertent civilian casualties should not be considered a war crime within the jurisdiction of the ICC? The article argues that it can because the ICC’s jurisdiction under the Rome Statute is not complementary to national prosecutions held in good faith. It also notes that the mens rea requirements for proving a war crime under Article 8 of the Statute are unclear. Lastly, the article points out that the Statute expands traditional notions of command authority by allowing the Court to try and convict military commanders and government leaders for serious breaches of humanitarian law, even if they have little or no direct formal authority over subordinates responsible for these breaches.


Reprinted with permission of Cornell International Law Journal.



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