II. Ermeni Sorununun Hukuksal Boyutu
5. Uluslararası Ceza Mahkemesini Tesis eden
Roma Sözleşmesi (ilk on iki madde), 1948
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Preamble
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced
together in a shared heritage, and concerned that this delicate mosaic may
be shattered at any time,
Mindful that during this century millions of children, women and men have
been victims of unimaginable atrocities that deeply shock the conscience of
humanity,
Recognizing that such grave crimes threaten the peace, security and
well-being of the world,
Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective
prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes
and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United
Nations, and in particular that all States shall refrain from the threat or
use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistent with the Purposes of the
United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken
as authorizing any State Party to intervene in an armed conflict or in the
internal affairs of any State,
Determined to these ends and for the sake of present and future generations,
to establish an independent permanent International Criminal Court in
relationship with the United Nations system, with jurisdiction over the most
serious crimes of concern to the international community as a whole,
Emphasizing that the International Criminal Court established under this
Statute shall be complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of
international justice,
Have agreed as follows
Part 1. Establishment of the Court
Article 1
The Court
An International Criminal Court ("the Court") is hereby established. It
shall be a permanent institution and shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the
Court shall be governed by the provisions of this Statute.
Article 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations through
an agreement to be approved by the Assembly of States Parties to this
Statute and thereafter concluded by the President of the Court on its
behalf.
Article 3
Seat of the Court
1.The seat of the Court shall be established at The Hague in the Netherlands
("the host State").
2.The Court shall enter into a headquarters agreement with the host State,
to be approved by the Assembly of States Parties and thereafter concluded by
the President of the Court on its behalf.
3.The Court may sit elsewhere, whenever it considers it desirable, as
provided in this Statute.
Article 4
Legal status and powers of the Court
1.The Court shall have international legal personality. It shall also have
such legal capacity as may be necessary for the exercise of its functions
and the fulfilment of its purposes.
2.The Court may exercise its functions and powers, as provided in this
Statute, on the territory of any State Party and, by special agreement, on
the territory of any other State.
Part 2. Jurisdiction, Admissibility and Applicable Law
Article 5
Crimes within the jurisdiction of the Court
1.The jurisdiction of the Court shall be limited to the most serious crimes
of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the following
crimes:
(a)The crime of genocide;
(b)Crimes against humanity;
(c)War crimes;
(d)The crime of aggression.
2.The Court shall exercise jurisdiction over the crime of aggression once a
provision is adopted in accordance with articles 121 and 123 defining the
crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime. Such a provision shall be
consistent with the relevant provisions of the Charter of the United
Nations.
Article 6
Genocide
For the purpose of this Statute, "genocide" means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a)Killing members of the group;
(b)Causing serious bodily or mental harm to members of the group;
(c)Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d)Imposing measures intended to prevent births within the group;
(e)Forcibly transferring children of the group to another group.
Article 7
Crimes against humanity
1.For the purpose of this Statute, "crime against humanity" means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
(a)Murder;
(b)Extermination;
(c)Enslavement;
(d)Deportation or forcible transfer of population;
(e)Imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in
paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any act referred
to in this paragraph or any crime within the jurisdiction of the Court;
(i)Enforced disappearance of persons;
(j)The crime of apartheid;
(k)Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2.For the purpose of paragraph 1:
(a)"Attack directed against any civilian population" means a course of
conduct involving the multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b)"Extermination" includes the intentional infliction of conditions of
life, inter alia the deprivation of access to food and medicine, calculated
to bring about the destruction of part of a population;
(c)"Enslavement" means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such power
in the course of trafficking in persons, in particular women and children;
(d)"Deportation or forcible transfer of population" means forced
displacement of the persons concerned by expulsion or other coercive acts
from the area in which they are lawfully present, without grounds permitted
under international law;
(e)"Torture" means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or
suffering arising only from, inherent in or incidental to, lawful sanctions;
(f)"Forced pregnancy" means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g)"Persecution" means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group
or collectivity;
(h)"The crime of apartheid" means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;
(i)"Enforced disappearance of persons" means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of removing them from
the protection of the law for a prolonged period of time.
3.For the purpose of this Statute, it is understood that the term "gender"
refers to the two sexes, male and female, within the context of society. The
term "gender" does not indicate any meaning different from the above.
Article 8
War crimes
1.The Court shall have jurisdiction in respect of war crimes in particular
when committed as part of a plan or policy or as part of a large-scale
commission of such crimes.
2.For the purpose of this Statute, "war crimes" means:
(a)Grave breaches of the Geneva Conventions of 12 August 1949, namely, any
of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(i)Wilful killing;
(ii)Torture or inhuman treatment, including biological experiments;
(iii)Wilfully causing great suffering, or serious injury to body or health;
(iv)Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v)Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
(vi)Wilfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
(vii)Unlawful deportation or transfer or unlawful confinement;
(viii)Taking of hostages.
(b)Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts:
(i)Intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities;
(ii)Intentionally directing attacks against civilian objects, that is,
objects which are not military objectives;
(iii)Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United Nations,
as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(iv)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 which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated;
(v)Attacking or bombarding, by whatever means, towns, villages, dwellings or
buildings which are undefended and which are not military objectives;
(vi)Killing or wounding a combatant who, having laid down his arms or having
no longer means of defence, has surrendered at discretion;
(vii)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, as well as of
the distinctive emblems of the Geneva Conventions, resulting in death or
serious personal injury;
(viii)The transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory;
(ix)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;
(x)Subjecting persons who are in the power of an adverse party to physical
mutilation or to medical or scientific experiments of any kind which are
neither justified by the medical, dental or hospital treatment of the person
concerned nor carried out in his or her interest, and which cause death to
or seriously endanger the health of such person or persons;
(xi)Killing or wounding treacherously individuals belonging to the hostile
nation or army;
(xii)Declaring that no quarter will be given;
(xiii)Destroying or seizing the enemy's property unless such destruction or
seizure be imperatively demanded by the necessities of war;
(xiv)Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv)Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they were in
the belligerent's service before the commencement of the war;
(xvi)Pillaging a town or place, even when taken by assault;
(xvii)Employing poison or poisoned weapons;
(xviii)Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
(xix)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;
(xx)Employing weapons, projectiles and material and methods of warfare which
are of a nature to cause superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of the international law of
armed conflict, provided that such weapons, projectiles and material and
methods of warfare are the subject of a comprehensive prohibition and are
included in an annex to this Statute, by an amendment in accordance with the
relevant provisions set forth in articles 121 and 123;
(xxi)Committing outrages upon personal dignity, in particular humiliating
and degrading treatment;
(xxii)Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
or any other form of sexual violence also constituting a grave breach of the
Geneva Conventions;
(xxiii)Utilizing the presence of a civilian or other protected person to
render certain points, areas or military forces immune from military
operations;
(xxiv)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;
(xxv)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;
(xxvi)Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in
hostilities.
(c)In the case of an armed conflict not of an international character,
serious violations of article 3 common to the four Geneva Conventions of 12
August 1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause:
(i)Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(ii)Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
(iii)Taking of hostages;
(iv)The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording
all judicial guarantees which are generally recognized as indispensable.
(d)Paragraph 2 (c) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature.
(e)Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established
framework of international law, namely, any of the following acts:
(i)Intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities;
(ii)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;
(iii)Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United Nations,
as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(iv)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;
(v)Pillaging a town or place, even when taken by assault;
(vi)Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
and any other form of sexual violence also constituting a serious violation
of article 3 common to the four Geneva Conventions;
(vii)Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in hostilities;
(viii)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;
(ix)Killing or wounding treacherously a combatant adversary;
(x)Declaring that no quarter will be given;
(xi)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
which are neither justified by the medical, dental or hospital treatment of
the person concerned nor carried out in his or her interest, and which cause
death to or seriously endanger the health of such person or persons;
(xii)Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of the
conflict;
(f)Paragraph 2 (e) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature. It applies to armed conflicts that take place in
the territory of a State when there is protracted armed conflict between
governmental authorities and organized armed groups or between such groups.
3.Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a
Government to maintain or re-establish law and order in the State or to
defend the unity and territorial integrity of the State, by all legitimate
means.
Article 9
Elements of Crimes
1.Elements of Crimes shall assist the Court in the interpretation and
application of articles 6, 7 and 8. They shall be adopted by a two-thirds
majority of the members of the Assembly of States Parties.
2.Amendments to the Elements of Crimes may be proposed by:
(a)Any State Party;
(b)The judges acting by an absolute majority;
(c)The Prosecutor.
Such amendments shall be adopted by a two-thirds majority of the members of
the Assembly of States Parties.
3.The Elements of Crimes and amendments thereto shall be consistent with
this Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or prejudicing in any
way existing or developing rules of international law for purposes other
than this Statute.
Article 11
Jurisdiction ratione temporis
1.The Court has jurisdiction only with respect to crimes committed after the
entry into force of this Statute.
2.If a State becomes a Party to this Statute after its entry into force, the
Court may exercise its jurisdiction only with respect to crimes committed
after the entry into force of this Statute for that State, unless that State
has made a declaration under article 12, paragraph 3.
Article 12
Preconditions to the exercise of jurisdiction
1.A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in article
5.
2.In the case of article 13, paragraph (a) or (c), the Court may exercise
its jurisdiction if one or more of the following States are Parties to this
Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
(a)The State on the territory of which the conduct in question occurred or,
if the crime was committed on board a vessel or aircraft, the State of
registration of that vessel or aircraft;
(b)The State of which the person accused of the crime is a national.
3.If the acceptance of a State which is not a Party to this Statute is
required under paragraph 2, that State may, by declaration lodged with the
Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. The accepting State shall cooperate with the Court
without any delay or exception in accordance with Part 9.
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