The Constitution Of War Crime

The war, especially the First World War and the Second World War not only have brought the enormous pain for the belligerent country people but also caused the entire world to fall into the huge disaster. How could we carry on the punishment to the war criminal and reduce the war eruption? It is necessary to point out that the legal science domain must pay high attention to the research of the war crime, especially to the constitution of the war crime. Although the scholars as Zhao Bingzhi, Wang Xiumei had paid much attention to the war crime, the monograph work of the war crime does not to be published, so the fundamental research is very weak.The article is based on the constitution of international crime and elaborate the constitution of war crime. As to the constitution of international crime, some domestic scholars support two elements theory which refer to the subjective aspect and objective aspect excluding the subject of crime and the object of crime. Some scholars hold three elements theory that advocates the constitution of international crime including the objective aspect, the subject and the subjective aspect, thus the object of crime is not a part of the international crime constitution; some other scholars hold four elements theory, and this theory borrows the traditional domestic criminal law theory about four elements theory of the constitution of the crime, and advocates that the establishment of the international crime needs to have four important elements: the object ,the objective aspect ,the subject and the subjective aspect of international crime. I agree with three elements theory. Moreover, I expound on constitution of war crime form three elements'perspective, and put forward some opinions of mine. In concrete, to start with, I introduce the objective aspect of War crime and elaborate it according to criminal theory. And then I introduce the subjects of War crime, I mainly discuss whether nation, organization or individual is subject of War crime and my opinion is that all of them are the subject. Because every crime is outcome of the will of crime subject, so then this article elaborates the subjective aspect of war crime. And the subjective aspect of war crime is only criminal intent (directly intentionally and indirect intentionally)and criminal negligence cannot. Finally, this article points out the drawbacks of definition and constitution of war crime in Rome Statute and puts forward some suggestions of perfecting them.