Towards a more progressive codification of war crimes in Italy?

Giulia Marcucci

On 16 March 2023, the Italian Council of Ministers gave the green light to a first draft law for the adoption of a Code on international crimes, with a view to implementing the Rome Statute (RS) of the International Criminal Court (ICC) at the domestic level and finally enabling Italy to investigate and prosecute perpetrators of international crimes. Such adoption would represent a much-awaited turning point for Italy, however, 2023 has now passed by and no follow up was made: the Code is indeed yet to be officially adopted. Meanwhile, prominent experts expressed strong concern with regard to the text green lighted by the Council of Ministers (see, e.g., here) – which is nonetheless yet to be made public – as it seems to have substantively scaled back the draft Code brought forward by the Ministry of Justice, mainly cutting out crimes against humanity as a category of international crimes and narrowing the scope of application of universal jurisdiction. The scope of war crimes might have been narrowed as well.

This post aims at drawing attention to the latter aspect, i.e. the codification of war crimes, which in the current geopolitical context – especially since the outbreak of the conflict in Ukraine in February 2022 – has been one of the main drivers for Italy’s accelerated efforts towards the adoption of an instrument finally enabling it to contribute to the international fight against impunity. While waiting to know more about the specificities of this revised Code and its fate, the current analysis focuses on the most innovative elements relating the substantive content of war crimes as they were introduced in the original draft Code brought forward by the Ministry of Justice, in the hope that these elements will remain an integral part of the text to be finally adopted. Before delving into such analysis (part 3), a brief overview on the need for Italy to implement the RS domestically (part 1) as well as on the rationale followed for this innovative codification of war crimes (part 2) will be provided.

1. The need for Italy to implement the Rome Statute domestically

The adoption of a legislation implementing the RS at the domestic level is a long overdue step for Italy, who was among the first countries to ratify such Statute in 1999 but is yet to adapt its legal system to the international crimes this treaty provides for. Indeed, although upon its ratification the Italian Parliament ordered  its domestic execution through the so-called ordine di esecuzione (Law No. 232 of 12 July 1999), the latter does not suffice to ensure the treaty’s actual enforcement without transposing its crimes into national law. As explained by Bartolini (p. 11) : «[…] pursuant to the principle of strict legality in criminal matters embedded in the Italian Constitution, international provisions establishing new criminal offences are not self-executing and cannot be directly applied by the Italian judiciary». Additional implementing legislation is thus much needed.

Moreover, although there is no explicit obligation for States Parties to the RS to transpose into national law the crimes under the ICC’s jurisdiction, such obligation is to be regarded as implicit based on the principle of complementarity provided for in Arts. 1 and 17 of the RS. Indeed, States Parties lacking such legislation are likely to be considered as unable to carry out an investigation or prosecution relating to an international crime, thus triggering the exercise of the ICC’s jurisdiction (Roscini, pp. 496-7).

With the aim of finally filling this void and ensuring the full fulfillment of Italy’s international obligations, in 2022, the former Italian Minister of Justice established by decree an inter-ministerial commission who produced a draft Code on international crimes, which encompassed all four categories of international crimes (genocide, crimes against humanity, war  crimes and the crimes of aggression). Such Code was then brought forward by the current Minister of Justice through a smaller working group and finally presented in 2023 to the Council of Ministers, with a few small revisions. It is on this original draft Code, i.e. its war crimes provisions, that the present analysis will focus.

2. The rationale behind the recent codification of war crimes

As explained by the former commission in its commentary to the draft Code, the codification of war crimes in the draft Code took into account the plurality of normative sources in force both at the national level, i.e. the 1941 Italian wartime military criminal code (WMCC), and at the international level, i.e. Art. 8 of the RS, as well as the need to harmonize them.

 The 1941 WMCC is Italy’s main instrument for the domestic prosecution of war crimes. As it dates back to 1941, with the exception of a few amendments introduced in 2001-2002, it is evident that many of its war crimes provisions (Book 3, Title IV, Arts. 165-230) are not in line with current treaty and/or customary international humanitarian law (IHL) and would need to be updated. For the purposes of the current analysis, it is particularly worth highlighting the following shortcomings: first, it does not cover offences that are nowadays clearly considered as war crimes (see Bartolini, pp. 16-17); secondly, its outdated terminology makes it difficult to prosecute certain war crimes, especially when committed in non-international armed conflicts (NIACs). In addition, the definition of “armed conflict” provided for in Art. 165 of the WMCC (as modified by law 15/2002), which sets the scope of application of its war crimes provisions, is too restrictive and somewhat inconsistent with contemporary IHL. It indeed seems to require high thresholds (a certain degree of intensity of violence, duration of hostilities, etc.) in order to classify a situation as an armed conflict, which do not normally have to be fulfilled for a situation to amount to an international armed conflict (IAC; see Common Article 2 to the Geneva Conventions and its Commentary, paras. 269-277). Other relevant shortcomings of the WMCC, such as its lack of a proper application of the principle of universal jurisdiction and its complex application to military missions abroad, are not the focus of the present analysis and have been analyzed in depth elsewhere (see, e.g., Bartolini).

Art. 8 of the RS, on the other hand, crystalized subsequent developments of IHL, particularly the contributions of the ad hoc tribunals of the former Yugoslavia (ICTY) and Ruanda (ICTR) with regard to the criminalization of serious IHL violations committed in NIACs. However, it still reflects the classic dichotomy between IACs and NIACs providing for two separate yet different lists of war crimes depending on whether they are committed in the context of the former or the latter. There are indeed around ten war crimes that are criminalized under Art. 8 only if committed in IACs, thus creating some legal gaps that are no longer in line with more recent IHL developments. In fact, while there does not seem to be any legal basis neither under customary nor treaty IHL to harmonize a few of these crimes also in the context of NIACs, such basis exists for most of them, e.g.: Art. 8(2)(b)(ii) on direct attacks against civilian objects, Art. 8(2)(b)(iv) on disproportionate attacks, Art. 8(2)(b)(vii) on the improper use of flags of truce UN or enemy military flags, insignia, or uniforms, or the distinctive emblems, Art. 8(2)(b)(xxii) on human shields, Art. 8(2)(b)(xx) on the use of weapons or methods of warfare that cause superfluous injury or unnecessary suffering or are inherently indiscriminate, just to mention a few (see Geneva Academy, Research Brief, Harmonizing War Crimes in the Rome Statute). Moreover, there are also discrepancies between the list of war crimes of both IACs and NIACs provided under Art. 8 and those of customary IHL (see Rule 156 of the ICRC Customary IHL Study), as the former does not include relevant conducts criminalized under the latter.

The original Italian draft Code, i.e. its war crimes provisions, clearly addressed the above-mentioned shortcomings of the WMCC, but also some pertaining to Art. 8 of the RS.

3. The most progressive aspects of war crimes provisions originally included in the Italian draft Code

First, the draft Code included definitions of both IACs and NIACs, which are consistent with contemporary IHL (Art. 34 of the draft text) thus setting the right scope of application for the following war crimes provisions. Secondly, as for the individual war crimes (Arts. 36-61 of the draft text), it mostly incorporated the list of Art. 8 of the RS, including its updated terminology. There are nevertheless a few differences on the codification of some crimes, which would align the Italian draft Code more closely with relevant IHL and other international law instruments and developments. For instance, Art. 55 of the draft Code on disproportionate attacks differed from Art. 8(2)(b)(iv) of the RS as it did not retain the term “clearly” to qualify the excessive damage compared to the anticipated military advantage in an armed attack. Indeed, such term sets a higher threshold that was not included in the relevant provisions of Additional Protocol I to the Geneva Conventions prohibiting disproportionate attacks (i.e. Art. 85(3)(b)), thus weakening the prohibition. As another example, when it comes to the war crime of conscripting or enlisting children into armed forces/groups or using them to participate actively in hostilities, while Art. 8(2)(b)(xxvi) and 8(2)(e)(vii) of the RS provide for the minimum age of 15 years, the draft Code set the threshold at 18 years (Art. 46 of the draft text), taking into account that Italy ratified in 2002 the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which provides precisely for the limit of 18 years in this regard. In the same light of considering relevant international law instruments ratified by Italy and the developments contained therein, differently from the RS, the draft Code also provided for a separate and independent provision criminalizing attacks against cultural property (Art. 53 of the draft text). Such provision set greater penalties in case of attacks against cultural property, compared to civilian objects more generally, particularly by virtue of the degree of protection (special or enhanced) enjoyed by the cultural property in question according to the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict of 1954 or its Second Protocol of 1999 – both ratified by Italy.

Another relevant difference concerns the war crime of using prohibited weapons. Under the RS, only the use of three expressly listed categories of weapons is criminalized: poison or poisoned weapons (Art. 8(2)(b)(xvii)), asphyxiating, poisonous or other gases (Art. 8(2)(b)(xviii)) and bullets which expand or flatten easily in the human body (Art. 8(2)(b)(xix)). More recent amendments to Art. 8 of the RS have introduced other categories of weapons whose use would also amount to war crimes: however, such amendments only enter into force for those States Parties to the RS which have accepted them one year after the deposit of their instruments of ratification or acceptance. In addition to these specific provisions, a catch-all provision (Art. 8(2)(b)(xx)) criminalizes the use of all weapons, projectiles and material and methods of warfare which are contrary to general IHL rules (i.e. the prohibition to cause superfluous injury or unnecessary suffering and the prohibition to use weapons which are by nature indiscriminate). However, the provision requires that such weapons be included in annex to the Statute by amendment. Since the annex has not yet been created, the catch-all provision is not applicable at the present time. The Italian draft Code, on the other hand, chose a different approach, which is more in line with the general prohibition also provided for under customary IHL (Rule 156 of the ICRC Customary IHL Study). Instead of providing a list of all weapons subject to prohibition, indeed, Art. 56 of the draft Code generally criminalized the use of any means of warfare that are prohibited either by relevant customary or treaty law or which are inherently indiscriminate or of a nature to cause superfluous injury or unnecessary suffering. This general renvoi not only to treaty law but alsoto customary law or to the relevant IHL rules would also allow to possibly criminalize the use of those weapons that are not expressly prohibited under international law yet but which may in fact be inherently indiscriminate or cause superfluous injury or unnecessary suffering.

Last but not least, it is worth highlighting that some examples of war crimes analyzed above – the use of prohibited weapons (as contained in the catch-all provision of Art. 8(2)(b)(xx) of the RS) and disproportionate attacks (Art. 8(2)(b)(iv) of the RS) – only appear to be criminalized (as in the former case), or at least expressly criminalized (as in the latter case), under the RS when committed in IACs but not in NIACs. This despite the fact that both conducts clearly amount to serious violations of customary and treaty IHL also in NIACs, as confirmed by several sources. Most innovatively, the Italian draft Code overcame this dichotomy of Art. 8 of the RS between IACs and NIACs by harmonizing all war crimes, regardless of whether they are committed in the context of/have a nexus with an IAC or a NIAC. That is to say, the draft Code would prohibit war crimes regardless of the nature of the conflict (Art. 33 of the draft text). Such codification, in fact, would go even beyond Italy’s implementing obligations of the RS as, contrary to Art. 8 of the RS, it would abolish the distinction between IACs and NIACs in the Italian war crime legislation thus embracing the progressive tendency of bringing IHL of NIACs closer to IHL of IACs. Practically speaking, this tendency, which was mainly started by the ICTY in the famous Tadic case (paras. 96-136) and then embraced by several States in their national war crime legislations (e.g. Belgium, Germany, Switzerland with a few exceptions, among others), aims at granting equal protection to victims of war crimes in all armed conflict situations.

4. Conclusion

For all these reasons, the hope remains that the progressive codification of war crimes originally envisaged in the original draft Code will stand as an integral part of any future Italian Code on international crimes that will be adopted by law – leaving aside the need for such future Code to include all categories of international crimes, which goes beyond the scope of this post and has already been highlighted elsewhere (e.g. here). 2024 provides an additional boost for Italy to speed up the process to fully fulfil its international obligations with specific regard to the investigation and prosecution of war crimes, thus addressing the shortcomings of its current legislation and effectively contributing to the fight against impunity at the international level. It marks indeed the 75th anniversary of the Geneva Conventions (GCs) of 1949, which provide States Parties with explicit obligations of domestic criminalization of war crimes referred to as “grave breaches” (GCs, Common Arts. 49/50/129/146) and also request them to take measures to suppress all acts contrary to the GCs (GCs, Common Arts. 49/50/129/146), possibly by punishing the commission of a list of war crimes which goes beyond the list of grave breaches (see, e.g., ICRC Commentary of Art. 49(3) GCI, para. 2897). As one would say, it would still be better late than never!