THE OVERLAPPING BETWEEN WAR CRIMES AND CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW FULVIO MARIA PALOMBINO* 1. INTRODUCTION Following the rapid development of international criminal law since the Second World War, the precise definition of the concepts of "war crimes" and "crimes against humanity" has become increasingly vital. In this regard, the Nuremberg International Military Tribunal (IMT), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have played a crucial role, directly influencing the content of the Statute (especially Articles 6-8) of the International Criminal Court (ICC), adopted at the 1998 Rome Diplomatic Conference.'I Nevertheless, insofar as these concepts have been jointly applied in judicial practice, the question has emerged as to which features distinguish the two types of offences when, all else being equal, the same act, for instance murder, is classed both as a war crime and as a crime against humanity. In fact, it is clear that if a defendant is found guilty of both crimes as a result of one act, he could claim the violation of the substantive ne bis in idem principle, according to which, when two or more criminal provisions concur in respect of the same act, the perpetrator cannot suffer more than one penalty. The purpose of this paper is to explore the complex concept of concurrence of offences in international criminal law, in order to establish which principles, de jure condendo, should govern the matter.22 * Doctoral candidate, University of Napoli "Federico 11". ' For the text of the Statute of the International Criminal Court see ILM, 1998, p. 1002 ff. 2 In this regard, see KRESS, "Penalties, Enforcement and Cooperation in the International Criminal Court Statute (Parts VII, IX, X)", European Journal of Crime, Criminal Law and Criminal Justice, 1998, p. 442 ff.; JEGGINS, "Art. 78", in TFJFFTERER (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, 1999, p. 999; BING JIA, "The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law", in GOODWFN-GILL and TALMON (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie, Oxford, 1999, p. 243 ff:; AtvtBOS and WIRTH, in Kup and SLATER (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. 11, The International Criminal Tribunal for Rwanda 1994-1999, Antwerp/Groningen/Oxford/Vienna, 2001, p. 701 ff:; CAIANELLO, "II processo nella giustizia internazionale: casi giurisprudenziali dall'esperienza dei tribunali ad hoc", in ILLITMINATI, STORTONI and VIRGILIO (eds.), Crimini internazionali tra diritto e giustizia, Torino, 2000, p. 137 ff.; KITTICHAIRSAREE, International Criminal Law, New York, 2001, p. 308 ff.; WALTHER, "Cumulation of Offences", in CASSESE, In this regard, the initial discussion will focus on which actions can be characterised exclusively as war crimes or only as crimes against humanity and when, by contrast, the two categories of offences overlap. Only by proceeding in this way will it be possible to determine whether and under what conditions the two categories of offences can be distinguished when such a situation occurs. Secondly, concurrence between war crimes and crimes against humanity will be discussed in light of both the general principles of criminal law and the international jurisprudence, having regard not only to the practice of the ad hoc Criminal Tribunals, but also to that of the European Court of Human Rights and of the Human Rights Committee. Finally, this author will emphasise that both the ICTY and the ICTR should use more appropriate criteria to solve the problem of cumulation of offences and that any attempt in this sense ought to take into account that international criminal law does not provide a scale of penalties for each crime covered. Furthermore, it will be recommended that the same tribunals should expressly acknowledge the substantive ne bis in idem principle and, in this regard, specify once and for all what is meant by idem. 2. THE RELATIONSHIP BETWEEN WAR CRIMES AND CRIMES AGAINST HUMANITY War crimes are generally regarded as serious violations of the laws applicable to international and internal conflicts, including breaches of conventions which are declaratory of customary international law.3 They can be committed only in wartime GAETA and JONES (eds.), The Rome Statute of the (International Criminal Court Commentary, Viol. I, Oxford, 2002, p. 475 ff. 3 We refer, in particular, both to the four Geneva Conventions of 1949 concerning the war victims (cf. UNTS, Vol. 75, p. 31 ff.) - including the two Additional Protocols of 12 December 1977 (respectively reprinted in ILM, 1977, p. 1391 ff. and ILM, 1977, p. 1442 ff.) - and to the Hague Convention No. IV of 1907 as well as its attendant Regulations concerning the conduct of hostilities (reprinted in AJIL, 1908, p. 90 ff.). About war crimes see inter alia BALLADORE PALUERi, Diritto bellico, 2nd ed., Milano, 1954, p. 362 ff.; SPERDUTi, Crimini internazionali, EdD, Vol. XI, Milano, 1962, p. 343 ff.; SCHWARZENBERGER, International Law as Applied by International Courts and Tribunals, Vol. II, The Law of Armed Conflict, London, 1968, p. 462 ff.; FRANCIONI, "Crimini internazionali", Digesto delle discipline pubblicistiche, Vol. IV, Torino, 1989, p. 468 ff.; LAMBERTI ZANARDI and VENTURINI (eds.), Crimini di guerra e competenza delle giurisdizioni nazionali, Milano, 1998; ABI-SAAB, "Les crimes de guerre", in ASCENSIO, DECAUX and PELLET (eds.), Droit international penal, Paris, 2000, p. 265 ff.; MERON, War Crimes Law Comes of Age, New York, 1998; GREPPI, I crimini di guerra e contro l'umanita nel diritto internazionale, Torino, 2001, p. 59 f�'.; PAUST, "Content and Contours of Genocide, Crimes against Humanity, and War Crimes", in YEE and TIEYA (eds.), International Law in the Post-Cold War World, Essays in Memory of Li Haopei, London, 2001, p. 293 ff.; Abi-Saab, "The Concept of `War Crimes"', ibid., p. 99 ff. .