Receipt date: 09/30/2021 / Revision date: 05/23/2022 / Acceptance date: 07/27/2022

Introduction

The concept of human rights, according to Peterke (2010), constitutes one of the requirements for the construction of life in freedom, equality, and dignity for human societies and recognized within International Law ₁, where it includes their beliefs, habits, and customs. The attempt to organize these societies begins in the mid-seventeenth century by the State model and acquires in the twentieth century density, multiplication, and settlement on the earth's surface, against the current, (Seitenfus, 2012).

Borrowing knowledge from Neto (2008) and Mazzuoli (2011), International Criminal Law at the expense of the civil liability of General International Law arises to impose certain obligations of behaviors on all individuals of the international society and to punish those guilty of serious wrongful acts that injure human life.

According to Seitenfus (2012), the resolution of the multiple and divergent aspects and interests that could occur within the international relations between States would be through the creation of new institutions, the International Organizations, which would be a new external element, to the States and holder of an objective existence of international character. 

According to the teachings of Professor Jorge Miranda (1991), International Organizations are institutions conceived by States and, eventually, by other subjects of International Law, which intend to permanently and independently develop purposes common to them, where the basis of their international legal institutionalization they participate as active subjects of relations, endowed at least with the right to enter into contracts, jus tractuum and jus legationis, to receive and send diplomatic representatives. 

In the group of international institutions, we find the International Criminal Court, an organ of international jurisdiction, the result of a long analysis in the history of the preservation of human rights, appearing as a reliever and condemner of the perpetrators of criminal acts that embrace the international community, that is, a court that rules on cases of barbarism that shock human rights. This court is the first permanent International Criminal Court, created in 2002 in the Netherlands to promote international law with the mandate to judge individuals and not States, and its jurisdiction is over crimes such as genocide₂, crimes against humanity₃, war crimes₄, and crimes of aggression.

The important fact is that the ICC fills the existing gap in the international legal arena, being that its jurisdiction focuses on individuals who committed crimes in a specific conflict during a specific period of time and acts promptly with respect to acts of atrocities (art. 11 of the ICC Statute), which differs from the International Court of Justice, which deals with questions of responsibility before States and other ad hoc tribunals created by the Security Council, such as the ICTY/R - International Criminal Tribunal for the former Yugoslavia and Rwanda₅ . (Art. 17), which means that the ICC does not invade the jurisdiction of a State.

In Mozambique, some politicians and military leaders use pretexts to delay ratification of the Treaty out of ignorance, believing that Mozambicans who potentially commit such crimes in Mozambique, or abroad and take refuge on their own soil, will find a legal loophole and, therefore, will not face international justice. Such thinking does not take into account that the UN Security Council, under Chapter VII of the UN Charter, can also submit a complaint to the ICC Prosecutor in which case it is not necessary to observe the aforementioned preconditions of ratification of the Rome Treaty by the State in question (Do Amaral, 2011).

This research was based on this presentation, posing the following guiding question: Will Mozambique's accession to the International Criminal Court bring advantages or disadvantages? 

To address the issue under study, it is important to bring up the concept of the International Criminal Court. That is, the ICC, which is the subject of this article. Thus, according to the Organization's website₆, the ICC is a permanent and independent court of last resort that judges individuals and not States, as has been so often confused. These individuals are accused of crimes of international concern, especially genocide, crimes against humanity, and war crimes.

Article 1 of the Rome Statute of the International Criminal Court establishes that the ICC is a permanent institution with jurisdiction over persons responsible for the most serious crimes of international concern and complementary to national criminal jurisdictions.

The creation and functioning of the International Criminal Court

After the failure of the attempt to draft the Statute of the International Criminal Court in 1950 by the UN (United Nations Organization), because the permanent organizations did not adhere to the initiative, in 1973, with resolution 3166 (XXVIII) of 12.14.1973 of the League of Nations (LN) or, simply, of the UN, which referred to the Principles of International Cooperation in the Identification, Arrest, Extradition, and Punishment of Persons Guilty of Crimes against Humanity, it was established that all countries should cooperate in the prosecution of those responsible for such acts. However, the ICC was not ready to enter into force, since only in July 1998 the representatives of 120 nations at the Rome Conference approved the project to create the ICC, with the exception of the United States, China, Israel, Yemen, Iraq, Libya, and Qatar (Santos Junior, 2017).

In official terms, the ICC began operating in July 2002, with its headquarters in The Hague, in the Netherlands, and its action only affects the national courts of the States Parties, in the event that they are unable or unwilling to carry out criminal proceedings, which means that the ICC operates under the principle of complementarity, since its intervention manifests itself when a given responsible State is unable or unwilling to act on an unlawful act, and the ICC does not replace the State's national jurisdiction. Regarding Article 4(1) and (2) of the ETPI, they argue as follows:

[.... ]1. The Tribunal shall have international legal personality. It shall have the legal capacity necessary for the performance of its functions and the furtherance of its purposes. The Court may exercise its powers and perform its functions in accordance with this Statute in the territory of any State Party and, by special agreement, in the territory of any other State.

In other words, if a national citizen commits a crime outside its territory and after committing it returns to his country, that State, if it has signed and ratified the ICC Statute, as well as if the State accepts the jurisdiction of the ICC, must extradite him and hand him over for international prosecution, depending on the nature or type of crime and the domestic legislation of the State to which that citizen belongs.

In addition, and in accordance with Article 12 of the Statute and the arguments of Sabóia (2000), which requires that the State where the conduct was committed or, alternatively, the State of nationality of the accused must have ratified the Treaty or accept the jurisdiction of the Court for the trial of the specific crime. In this sense, the International Court will try the individual and not the State itself. In addition, the State of nationality of the accused will also have jurisdiction over the crime and may try the accused or request his extradition, under the terms of Article 90 of the Rome Statute.

It is important to note that the ICC acts to punish individuals, not States, that have committed the four types of international crimes established in Article 5 of the Statute (genocide, crimes against humanity, war crimes, and crimes of aggression). In addition to the above, the ICC faces the great challenge of not having its own mechanism of coercion regarding its deliberations, so it respects the autonomy of each nation since not all are signatories to it, and it only acts if the crime has been committed in a State Party or in any other, provided that they have special agreements and in the case of accession, the ICC can only investigate the act committed by the individual after the accession of the respective State to which it belongs.

An example of this is the barbarity perpetuated by former General Augusto Pinochet (1973 to 1988) against Chile, which culminated in the death of 3,197 leftist militants, without Chilean justice condemning those responsible for the coup and subsequent violations. It was necessary for other countries to take the initiative to punish, given that, under domestic jurisdiction, the crimes committed would be amnestied and prescribed, given the political contingencies in Chile (Miranda, 2000).

Do Amaral (2011) states that the UN Security Council, in the use of its competence, can lift the veil of sovereignty and recommend the investigation, prosecution, and trial of suspects of crimes regulated by the ICC Treaty, even if those States have not ratified it, as was the case of Sudan's President Omar Al Bashir and Libya's President Muhamad Gaddafi. Therefore, not ratifying the Rome Treaty does not mean that Mozambican politicians and military leaders are safe from the ICC.

States Parties have a special relationship with the ICC, particularly with regard to the provision of legal assistance, mainly in the arrest and surrender of suspects, and must comply with these requests in accordance with the Treaty and that the accused may challenge his arrest and surrender to the ICC in local courts on the basis of the principle of ne bis in idem, i.e., no one may be prosecuted more than once for the same offense, but that the accused should not be disqualified from being punished twice for the same offense, as the unlawful conduct may involve a principal and an accessory penalty or the simultaneous imposition of a penalty and an administrative sanction, e.g., a disciplinary or administrative sanction.

For Mozambique, as Do Amaral (2011) states, the creation of the ICC is an affirmation that the most serious crimes that affect the international community as a whole must not go unpunished, and that their repression must be effectively ensured through the adoption of measures at the national level and the strengthening of international cooperation. States that are determined to put an end to impunity for the perpetrators of these crimes, and so contribute to the prevention of such crimes, should, therefore, adopt and ratify it.

Implications of the ICC for States Parties

According to Cardoso (2012), the establishment of the International Criminal Court in Brazil did not encounter obstacles despite not having participated fully in its creation. But its position of adherence was clearly seen in the signature and ratification in February 2000 and June 2002. Respectively, the advantages of which were presented by the Ambassador and Head of the Brazilian Delegation, Gilberto Sabóia, in which he highlighted the main elements surrounding the position transcribed below (excerpt translated from English):

Brazil is committed to the creation of an effective international criminal court. We believe that a universal, impartial and independent ICC will be a great achievement for the international community in promoting respect for international humanitarian law and human rights. [...]. This judicial body will go a long way towards achieving the goal of fighting impunity and bringing the perpetrators of the most heinous crimes to justice [...]. Brazil was a member of the Security Council when it created the ad hoc tribunals for the former Yugoslavia and Rwanda. As we said at the time, our preferred method for the creation of an international criminal tribunal was the conclusion of a convention [...]. We voted in favor of the establishment of these tribunals because of the exceptionally grave circumstances [...] and as a political expression of our condemnation of the atrocities committed in those regions.

 In addition, on September 27, 2008, during the 73rd session of the United Nations General Assembly in New York, the Minister of Foreign Affairs, Aloysio Nunes Ferreira, signed the declaration of support for the ICC, an act carried out by 34 other countries, which reaffirmed their commitment to speak out and defend the Court, justified by the general erosion of the rules-based international order to establish trade, disarmament, climate change, and the rule of law and human rights. One can read in the statement of commitment the duty to honor the significance that the ICC represents especially for victims of cruel crimes.₈

On the other hand, African countries, in particular Benin, Botswana, Burkina Faso, Cape Verde, Chad, Comoros, Congo, Djibouti, Gabon, Gambia, Ghana, Guinea, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Kenya, Central African Republic and South Africa, Democratic Republic of Congo, Senegal, Sierra Leone, Seychelles, Tanzania, Tunisia, Uganda, Zambia, only Portuguese-speaking Cape Verde signed and ratified the treaty, and Angola advocates a promising future for the ICC, believing it can bring solutions to the discord in Africa. 

At the 2017 African Union Summit, the head of Angolan diplomacy, George Chikoti, said that it is not in the interest of African countries for the ICC to be victimized, as there have been arrests even without formalizing their guilt, adding that it is not a court for Africans₉. At the same summit, Mozambique, represented by the then Minister of Foreign Affairs and Cooperation, Oldemiro Baloi, and the Prime Minister of Sao Tome and Principe, Patrice Trovoada, affirmed that membership or withdrawal from the ICC is a sovereign decision, and that the organization must respect the African continent ₁₀. Only Cape Verde, through the voice of its statesman, Jorge Carlos Fonseca, finds an agreement between his nation and the ICC because he considers that his country is a democratic state based on the rule of law and fights for international justice, especially criminal justice.

The relationship between the ICC and States Parties

The binding and action of the ICC, on the signatory or accepting states, is based on two principles (precepts, laws or assumptions considered universal, with a scope superior to the rules, which must be observed by both the legislator and the operator of the law), in particular, the principle of complementarity (much criticized for the alleged possibility of destruction of evidence by the agents involved in a given case even before investigations are initiated) and the principle of cooperation. 

The principle of complementarity, according to Piovesan and Ikawa (2009), establishes that the ICC will not exercise its jurisdiction when the State where the criminal conduct occurred or the State of which the accused is a national is investigating, prosecuting, or has already tried the person in question. 

Canedo (2017) refers that the principle of complementarity stipulates that the ICC does not have primacy to judge the individual who will commit the crime provided in its Statute, but acts subsidiary to the State of who committed the wrongful act when (i) the process has been initiated, is pending, or the resolution has been issued in the State in order to exempt the interested party from criminal responsibility; (ii) there is excessive delay in the processing of the case; (iii) the proceedings are not being conducted in an independent and impartial manner, which conflicts with the intention to bring the person concerned to justice. 

This rule, however, presents exceptions, not applying when: i) the State that investigates, prosecutes, or has already judged is incapable or does not intend to do so; ii) the case has not been judged in accordance with the rules of Article 20, paragraph 3 of the Statute; or iii) the case is not sufficiently serious (Piovesan; Ikawa, 2009). 

Regarding the principle of cooperation, Schabas (2001) shows that States Parties are imposed an obligation to cooperate fully with the ICC in the investigation, which, at some point, may be carried out without the consent of the State Party, being exceptional in cases where it is done by authorization when the State is unable to execute a request for cooperation due to the absence of any authority or any component of its competent judicial system to give effect to the request for cooperation, which includes preventive arrests, production of evidence, searches and seizures, and witness protection. 

If Mozambique is a party to the Treaty, it may report evidence of international crimes directly to the Prosecutor of the ICC and request the Prosecutor to investigate in order to determine whether one or more identified persons should be charged with such crimes.

International law deviates from national norms

According to Moreira (2015), international human rights treaties in Brazil were elevated to the category of sources of state law by the Federal Constitution of 1988, although it caused divergences in the Supreme Court in recognizing the hierarchy of laws, since a certain wing defended the norms as constitutional and another as infra-constitutional, treaties enjoying normative parity with ordinary laws.

The author adds that, by virtue of the principles pacta sunt servanda, good faith and the imperativeness of jus cogens norms, the Brazilian State complies with international commitments, under penalty of accountability and international sanctions by the International Courts and Tribunals in case of non-compliance, (Moreira, 2015).

In the Mozambican context, the sources of international law are incorporated into the legal system without losing their ius international character (Pereira Coutinho, 2018). In light of Article 18 of the Constitution of the Republic of Mozambique, international treaties and agreements, validly approved and ratified, are in force after their official publication and as long as they bind internationally the State of Mozambique (see paragraph 1), and the norms of international law have the same value in the domestic legal order as infra-constitutional normative acts issued by the Assembly of the Republic and the Government, according to their respective form of reception (see paragraph 2).

Borrowing from Bastos (2007), the Mozambican Constitution, understood as the source of legitimacy of political power and state sovereignty, functions as the referent of validity used to evaluate all normative acts of a legal system, regardless of their origin or nature. 

The same author (2007) adds that the clauses located in paragraphs 1 and 2 of the aforementioned article 18 are deployed on the distinction between treaties and international agreements; the method of incorporation of international obligations (treaties in the broad sense) in the Mozambican legal system; the requirement of internal publication of international commitments (treaties in the broad sense) assumed by the Mozambican State; the provision for the production of legal effects in the Mozambican legal system of sources of international law other than international obligations (treaties in the broad sense); the method of incorporation of other sources of international law in addition to international obligations (treaties in the broad sense) in the Mozambican legal system and the hierarchical position of the sources of international law within the Mozambican legal system, which in his opinion, the participation of Mozambique in an international treaty is primarily a manifestation of political power, resulting from an assessment of the individual interests of the respective State (Bastos, 2007). 

At the Rome Conference, held between June 15 and July 17, 1998, which created the International Criminal Court, Mozambique was one of the 120 countries that voted in favor of its creation, thus accepting its existence and relevance. The only step, the most important one, that Mozambique has not yet taken is to ratify it in order for it to enter into force in the internal legal system, justified by the fact that it creates burdens or commitments for the State, and so must be submitted to public appreciation and debate, with the Assembly of the Republic at the head.

In addition to what was said in the previous paragraph, Do Amaral (2011) states that the political leadership of Mozambique justifies that ratification requires harmonization between the ICC and the Constitution of the Republic, that in technical and legal terms the Mother Law does not have to be harmonized with a treaty, but on the contrary, that it seems wrong to have the Constitution harmonized with the Treaty to allow its ratification by Mozambique.

In addition, the International Criminal Court prescribes the penalty of life imprisonment for crimes within its jurisdiction, when the extreme gravity of the crime and the individual circumstances of the convicted person justify it, whereas, in the Mozambican legal system, the maximum possible prison sentence is 30 years, as can be seen in Article 67(3), which is consistent with Article 61(2), cited above: 

"penalties and security measures that deprive or restrict the liberty of life or of unlimited or indefinite duration are prohibited" (art. 67, 3);

"extradition for offenses punishable by death or life imprisonment under the law of the requesting State, or when there are reasonable grounds to believe that the extradited person may be subjected to torture or inhuman, degrading, or cruel treatment" (art. 61, 2).

Method

The methodology includes the presentation of the procedure used to achieve the objectives set out in the research, i.e., the paths followed by the author to carry out the research. 

Therefore, to address the advantages and disadvantages of Mozambique's accession to this court, the divergences in the installation of international law on Mozambican law were listed, describing the main challenges in relation to the advantages and disadvantages, including the level of perspective on Mozambique's accession to the ICC, as it is one of the major challenges for the justice sector.

For its materialization, bibliographic research was used, which consisted of an exhaustive search for information relevant to the topic, in books, articles, theses available on various digital platforms that have already gone through the publication process, and a questionnaire survey to jurists, criminalists, technicians in international relations, and academics to have an idea capable of providing a critical analysis of the author in relation to the positive and negative facts of Mozambique's accession to the ICC.

 This survey was sent to 87 experts and students of law and international relations, of which 64 surveys were processable for completion, 41 male and 23 female, corresponding to 64.17% and 35.9%, respectively, as shown in Table 1.

The data collected in the interviews were selected, coded, and entered into the Microsoft Excel program and tabulated in the SPSS statistical package in the Analyze-Frequencies, Descriptive Statistics, and Graphics extensions for the elaboration of graphs, tables, and statistical analyses in order to analyze the level of significance of the advantageous and disadvantageous perspective of Mozambique's accession to the ICC.

Table 1 

Distribution of respondents by gender

Respondents			Frequency	Percentage	Cumulative percentage
	Men	41		64.1%	100,0%
	Women	23		35.9%	100%
	Total	64		100%

Although the number corresponds to 79.31% of the surveys sent, the data were sufficient for the author to develop his reasoning and critical analysis, as well as to master the objectivity of the same, taking into account the level of specialization of the respondents, as can be seen in the graph in Figure 1.

Figure 1. Graph of the percentage distribution of respondents regarding their profession.

As can be seen in the graph in Figure 1 on the percentage distribution of respondents in relation to their profession, the majority is made up of jurists (37.5%), divided into 20.31% for jurists, and another 17.19% for criminal lawyers. The remaining percentages correspond to students, with 18.75%, and to professors and administrative staff (technicians in various areas, especially international relations), with 17.19% each, corresponding to 12 and 11 respondents, respectively.

Results

The international norm and the other infra-constitutional norms in force in the Republic of Mozambique have the same value. Thus, to understand whether the installation of the International Criminal Court in Mozambican law would bring some divergence, 87.5% of respondents stated that it would bring divergence, while the remaining 12.5% stated that its insertion would not bring any divergence in Mozambican law, as can be seen in Table 2.

Table 2 

Percentage distribution of respondents on the divergence of the creation of the International Criminal Court from Mozambican law

		Frequency	Percentage	Valid percentage	Cumulative percentage
Valid	YES	56	87,5	87,5	87,5
	NO	8	12,5	12,5	100,0
	Total	64	100,0	100,0

It should be noted that the installation of the International Criminal Court in Mozambican law presents divergences due to the imposition of some rules that do not apply to the Mozambican reality, the disarticulation with the constitution, the death penalty, and justice in Mozambique is not yet separate from the government, nor is it free to be independent. These divergences may, in a way, provoke in Mozambican law a prior revision of Art. 67 as alluded to by Pereira Coutinho (2018), to overcome the prohibition of expulsion or extradition of nationals (paragraph 4), and the prohibition of extradition for crimes corresponding in the requesting State to a life sentence (paragraph 3). 

However, there are both advantages and disadvantages to the creation of the Court, which in some ways weigh more towards the disadvantages than the advantages. On the advantageous side, accession to the ICC, Mozambique will ensure the surrender of citizens to the Court, as respondents were unanimous in stating (see graph in Figure 3).

Figure 3. Graph showing respondents' answers on the advantages of Mozambique's accession to the ICC.

The analysis of variance shows that there are no statistically significant differences between the means of the variables analyzed, since the p factor was below the 5% significance level, having presented a level of 0.000% (see Table 3).

Table 3

Statistical significance analysis of the benefits of Mozambique's accession to the ICC

Source of variation	SS	df	MS	F	P-value
Between groups	.000	2	.000	.	.000
Within groups	.000	61	.000
Total	.000	63

The statistical analysis of variance with p-value (0.05) showed that there are no differences between the averages of the points of view, even if the variable delivery of national citizens to the CPI is isolated. In statistical terms, it is not significant, since the p-value was below the 5% significance level, with a variance of 0.333, as can be seen in Table 4 below.

Table 4

Statistical significance test of the benefits of Mozambique's accession to the ICC

Groups	Account	Sum	Mean	Deviation
Surrender of nationals to the ICC	3	64	21.333333	0.3333333
Limits the constitutional power of the Assembly of the Republic to grant amnesty or pardon of penalties	3	0	0	0
Distinction between the criminal frameworks applicable by the ICC in relation to the Mozambican legal system	3	0	0	0
Interference of the ICC in the Constitution of the Republic of Mozambique	3	0	0	0

On the other hand, accession is seen as an encroachment on the Constitution of the Republic and as such will limit the constitutional competence of the Assembly of the Republic to grant amnesties or pardons of penalties to nationals, in addition to the fact that there is a difference in the penal frameworks that are applicable by the ICC in relation to the Mozambican Legal System, as can be seen in the graph in Figure 4.

Figure 4. Graph of respondents' answers on the disadvantages of Mozambique's accession to the ICC.

From the descriptive statistical analysis, all the negative aspects of Mozambique's adherence to the ICC did not show statistically significant differences between the means of the variables analyzed, since the p factor was below the 5% significance level, presenting a level of 0.02% (see table below).

Table 5

Statistical significance analysis of the disadvantages of Mozambique's accession to the ICC

Source of variation	SS	Df	MS	F	P-value	Criticism F
Between groups	2048	1	2048	2	0.0207031	5.987378
Within groups	6144	6	1024
Total	8192	7

The significance test of the unfavorable items of Mozambique's accession to the ICC, with a p-value of 0.05, allowed finding that the averages of the items do not present differences in variance among them, but the p-value of the limitation of the constitutional competence of the Assembly of the Republic in granting amnesty or pardon of sentences, the distinction of the criminal frameworks applicable by the ICC in relation to the Mozambican Legal System, and the intrusion of the ICC in the Constitution of the Republic of Mozambique turned out to be higher than the 5% significance level, having been observed 13.66667, 4 and 3,6666667, respectively, as can be seen in Table 6.

Table 6

Statistical significance test for the disadvantages of Mozambique's accession to the ICC.

Groups	Account	Sum	Media	Deviation
Surrender of nationals to the ICC	3	0	0	0
Limits the constitutional power of the Assembly of the Republic to grant amnesty or pardon of penalties	3	41	13.666667	0.333333
Distinction between the criminal frameworks applicable by the ICC in relation to the Mozambican legal system	3	12	4	0.333333
Interference of the ICC in the Constitution of the Republic of Mozambique	3	11	3.6666667	0.333333

Discussion and conclusions

The main objective of this study is to provide an approach on the advantages and disadvantages of Mozambique's accession to the International Criminal Court, a Court that judges individuals and not States, which is said to be efficient, impartial, and independent, but finds divergences in Mozambican law in the aspects of the imposition of some rules that do not apply to the Mozambican reality, the disarticulation with the constitution, the death penalty, and justice in Mozambique that is not yet separated from the government. 

However, its installation would help the country in the investigative process of finding information that often goes beyond the jurisdiction of national courts, international crimes committed on the territory of Mozambique without the ability to criminal management against offenders. And this makes Mozambique lose the strengths that the existing democracy has built in the country and the limitation of administrative, judicial, and executive powers, which means that there are offenders of international crimes against humanity without due punishment for not having constitutional legal provisions against gross violations of human rights. But it would also entail numerous drawbacks, such as limiting the constitutional competence of the Assembly of the Republic to grant amnesties or pardons of sentences and distinguishing the criminal frameworks applicable by the ICC in relation to the Mozambican legal system.

These drawbacks in statistical terms clearly present the existence of significant differences, as the p factor was shown to be above the 5% significance level or p > 0.05. Hence, the research recommends the separation of powers, which as of today is centralized, and which should begin with the adoption of preventive measures to accommodate the legislation and application of international criminal law, a new Constitution, laws, and regulations. 

The fact that the Rome Statute, the agreement by which countries adhere to it, demonstrates that there is equality of human rights, must be verified even in the application of penal frameworks without taking into account the social status of the offenders. This situation leads Mozambique to prepare and change the molds of the existing democracy, as well as to have a new vision of the legislator regarding the benefits granted to certain figures according to their social status.

¹Seitenfus argues that international law laid the foundations for the organization of international society by codifying custom and establishing the basic principles and rules of coexistence among states.

²According to Article 6 of the Rome Statute of the ICC, genocide is any of the acts (killing members of the group; causing serious bodily or mental harm to members of the group; intentionally inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group) committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.

³Acts of murder, extermination, enslavement, deportation or forcible transfer of a population, imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution of an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender grounds, or on other criteria universally recognized as unacceptable in international law, enforced disappearance of persons, the crime of apartheid, and other inhumane acts of inhumane treatment or punishment, national, ethnic, cultural, religious, gender-based, or other criteria universally recognized as unacceptable in international law, enforced disappearance of persons, the crime of apartheid and other inhumane acts of a similar character intentionally causing great suffering, serious injury, or mental or physical harm, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (art. 7 of the SPRT).

⁴War crimes are understood to be all those which involve a grave breach of the Geneva Conventions of 12 August 1949, directed against persons or property protected by the Geneva Convention, such as murder, torture, or other inhuman treatment, including biological experiments, the intentional infliction of great suffering or serious injury to body or health, the large-scale destruction or appropriation of property when not justified by any military necessity and carried out unlawfully and arbitrarily, the act of compelling a prisoner of war or other protected person to serve in the armed forces of an enemy power, the intentional deprivation of a prisoner of war or other protected person of his right to a fair and impartial trial, deportation or transfer, or unlawful deprivation of liberty; (viii) hostage-taking and other serious violations of the laws and customs applicable in international armed conflicts under international law, such as intentional attacks against the civilian population and civilian objects.

⁵International Criminal Tribunals for the former Yugoslavia and Rwanda.

⁶http://www.icc-cpi.int/. Accessed 02.07.2020.

⁷States are tried by another tribunal, the International Court of Justice (which is not the subject of this research), which also deserves attention for future research.

⁸http://www.brazil.gov.br/about-brazil/news/2018/10/brazil-declares-support-for-the-international-criminal-court-icc. Accessed 07.03.2020

Fly Journal of Wednesday, 02.02.2017. Available at: https://www.voaportugues.com/a/paises-africanos-divergem-tpi/3703493.htmlAccessed 07.04.2020.

¹⁰ibdem

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