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Elements of Crime

General introduction

Article 6: Genocide

Introduction

Article 6 (a) Genocide by killing
Article 6 (b) Genocide by causing serious bodily or mental harm
Article 6 (c) Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction
Article 6 (d) Genocide by imposing measures intended to prevent births
Article 6 (e) Genocide by forcibly transferring children


Article 7 Crimes against humanity

Article 7 (1) (a) Crime against humanity of murder
Article 7 (1) (b) Crime against humanity of extermination
Article 7 (1) (c) Crime against humanity of enslavement
Article 7 (1) (d) Crime against humanity of deportation or forcible transfer of population
Article 7 (1) (e) Crime against humanity of imprisonment or other severe deprivation of physical liberty
Article 7 (1) (f) Crime against humanity of torture

Article 7 (1) (g)-1 Crime against humanity of rape
Article 7 (1) (g)-2 Crime against humanity of sexual slavery
Article 7 (1) (g)-3 Crime against humanity of enforced prostitution
Article 7 (1) (g)-4 Crime against humanity of forced pregnancy
Article 7 (1) (g)-5 Crime against humanity of enforced sterilization
Article 7 (1) (g)-6 Crime against humanity of sexual violence

Article 7 (1) (h) Crime against humanity of persecution
Article 7 (1) (i) Crime against humanity of enforced disappearance of
Article 7 (1) (j) Crime against humanity of apartheid
Article 7 (1) (k) Crime against humanity of other inhumane acts

Article 8 War crimes

Article 8 (2) (a)

Article 8 (2) (a) (i) War crime of wilful killing

Article 8 (2) (a) (ii)-1 War crime of torture
Article 8 (2) (a) (ii)-2 War crime of inhuman treatment
Article 8 (2) (a) (ii)-3 War crime of biological experiments

Article 8 (2) (a) (iii) War crime of wilfully causing great suffering
Article 8 (2) (a) (iv) War crime of destruction and appropriation of property
Article 8 (2) (a) (v) War crime of compelling service in hostile forces
Article 8 (2) (a) (vi) War crime of denying a fair trial

Article 8 (2) (a) (vii)-1 War crime of unlawful deportation and transfer
Article 8 (2) (a) (vii)-2 War crime of unlawful confinement

Article 8 (2) (a) (viii) War crime of taking hostages

Article 8 (2) (b)

Article 8 (2) (b) (i) War crime of attacking civilians
Article 8 (2) (b) (ii) War crime of attacking civilian objects
Article 8 (2) (b) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
Article 8 (2) (b) (iv) War crime of excessive incidental death, injury, or damage
Article 8 (2) (b) (v) War crime of attacking undefended places
Article 8 (2) (b) (vi) War crime of killing or wounding a person hors de combat

Article 8 (2) (b) (vii)-1 War crime of improper use of a flag of truce
Article 8 (2) (b) (vii)-2 War crime of improper use of a flag, insignia or uniform of the hostile party
Article 8 (2) (b) (vii)-3 War crime of improper use of a flag, insignia or uniform of the United Nations
Article 8 (2) (b) (vii)-4 War crime of improper use of the distinctive emblems of the Geneva Conventions

Article 8 (2) (b) (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
Article 8 (2) (b) (ix) War crime of attacking protected objects

Article 8 (2) (b) (x)-1 War crime of mutilation
Article 8 (2) (b) (x)-2 War crime of medical or scientific experiments

Article 8 (2) (b) (xi) War crime of treacherously killing or wounding
Article 8 (2) (b) (xii) War crime of denying quarter
Article 8 (2) (b) (xiii) War crime of destroying or seizing the enemy’s property
Article 8 (2) (b) (xiv) War crime of depriving the nationals of the hostile power of rights or actions
Article 8 (2) (b) (xv) War crime of compelling participation in military operations
Article 8 (2) (b) (xvi) War crime of pillaging
Article 8 (2) (b) (xvii) War crime of employing poison or poisoned weapons
Article 8 (2) (b) (xviii) War crime of employing prohibited gases, liquids, materials or devices
Article 8 (2) (b) (xix) War crime of employing prohibited bullets
Article 8 (2) (b) (xx) War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute
Article 8 (2) (b) (xxi) War crime of outrages upon personal dignity

Article 8 (2) (b) (xxii)-1 War crime of rape
Article 8 (2) (b) (xxii)-2 War crime of sexual slavery
Article 8 (2) (b) (xxii)-3 War crime of enforced prostitution
Article 8 (2) (b) (xxii)-4 War crime of forced pregnancy
Article 8 (2) (b) (xxii)-5 War crime of enforced sterilization
Article 8 (2) (b) (xxii)-6 War crime of sexual violence

Article 8 (2) (b) (xxiii) War crime of using protected persons as shields
Article 8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions
Article 8 (2) (b) (xxv) War crime of starvation as a method of warfare
Article 8 (2) (b) (xxvi) War crime of using, conscripting or enlisting children

Article 8 (2) (c) (i)-1 War crime of murder
Article 8 (2) (c) (i)-2 War crime of mutilation
Article 8 (2) (c) (i)-3 War crime of cruel treatment

Article 8 (2) (c) (iii) War crime of taking hostages
Article 8 (2) (c) (iv) War crime of sentencing or execution without due process

Article 8 (2) (e)

Article 8 (2) (e) (i) War crime of attacking civilians
Article 8 (2) (e) (ii) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions
Article 8 (2) (e) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
Article 8 (2) (e) (iv) War crime of attacking protected objects
Article 8 (2) (e) (v) War crime of pillaging

Article 8 (2) (e) (vi)-1 War crime of rape
Article 8 (2) (e) (vi)-2 War crime of sexual slavery
Article 8 (2) (e) (vi)-3 War crime of enforced prostitution
Article 8 (2) (e) (vi)-4 War crime of forced pregnancy
Article 8 (2) (e) (vi)-5 War crime of enforced sterilization
Article 8 (2) (e) (vi)-6 War crime of sexual violence

Article 8 (2) (e) (vii) War crime of using, conscripting and enlisting children
Article 8 (2) (e) (viii) War crime of displacing civilians
Article 8 (2) (e) (ix) War crime of treacherously killing or wounding
Article 8 (2) (e) (x) War crime of denying quarter

Article 8 (2) (e) (xi)-1 War crime of mutilation
Article 8 (2) (e) (xi)-2 War crime of medical or scientific experiments

Article 8 (2) (e) (xii) War crime of destroying or seizing the enemy’s property

 


 

General introduction

1. Pursuant to article 9, the following Elements of Crimes shall assist the Court in

the interpretation and application of articles 6, 7 and 8, consistent with the Statute.

The provisions of the Statute, including article 21 and the general principles set out

in Part 3, are applicable to the Elements of Crimes.

2. As stated in article 30, unless otherwise provided, a person shall be criminally

responsible and liable for punishment for a crime within the jurisdiction of the Court

only if the material elements are committed with intent and knowledge. Where no

reference is made in the Elements of Crimes to a mental element for any particular

conduct, consequence or circumstance listed, it is understood that the relevant

mental element, i.e., intent, knowledge or both, set out in article 30 applies.

Exceptions to the article 30 standard, based on the Statute, including applicable law

under its relevant provisions, are indicated below.

3. Existence of intent and knowledge can be inferred from relevant facts and

circumstances.

4. With respect to mental elements associated with elements involving value

judgement, such as those using the terms “inhumane” or “severe”, it is not necessary

that the perpetrator personally completed a particular value judgement, unless

otherwise indicated.

5. Grounds for excluding criminal responsibility or the absence thereof are

generally not specified in the elements of crimes listed under each crime.[1]

6. The requirement of “unlawfulness” found in the Statute or in other parts of

international law, in particular international humanitarian law, is generally not

specified in the elements of crimes.

7. The elements of crimes are generally structured in accordance with the

following principles:

  • As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order;
  • When required, a particular mental element is listed after the affected conduct, consequence or circumstance;
  • Contextual circumstances are listed last.

8. As used in the Elements of Crimes, the term “perpetrator” is neutral as to guilt

or innocence. The elements, including the appropriate mental elements, apply,

mutatis mutandis, to all those whose criminal responsibility may fall under articles

25 and 28 of the Statute.

9. A particular conduct may constitute one or more crimes.

10. The use of short titles for the crimes has no legal effect.

Article 6: Genocide

Introduction

With respect to the last element listed for each crime:

  • The term “in the context of” would include the initial acts in an emerging pattern;
  • The term “manifest” is an objective qualification;
  • Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.

 

Article 6 (a) Genocide by killing

Elements

1. The perpetrator killed[2] one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or

religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,

racial or religious group, as such.

4. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.

 

Article 6 (b) Genocide by causing serious bodily or mental harm

Elements

1. The perpetrator caused serious bodily or mental harm to one or more persons.[3]

2. Such person or persons belonged to a particular national, ethnical, racial or

religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,

racial or religious group, as such.

4. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.

Article 6 (c) Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction

Elements

1. The perpetrator inflicted certain conditions of life upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or

religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,

racial or religious group, as such.

4. The conditions of life were calculated to bring about the physical destruction

of that group, in whole or in part.[4]

5. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.

 

Article 6 (d) Genocide by imposing measures intended to prevent births

Elements

1. The perpetrator imposed certain measures upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or

religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,

racial or religious group, as such.

4. The measures imposed were intended to prevent births within that group.

5. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.

 

Article 6 (e) Genocide by forcibly transferring children

Elements

1. The perpetrator forcibly transferred one or more persons.[5]

2. Such person or persons belonged to a particular national, ethnical, racial or

religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,

racial or religious group, as such.

4. The transfer was from that group to another group.

5. The person or persons were under the age of 18 years.

6. The perpetrator knew, or should have known, that the person or persons were

under the age of 18 years.

7. The conduct took place in the context of a manifest pattern of similar conduct

directed against that group or was conduct that could itself effect such destruction.

 

Article 7 Crimes against humanity

Introduction

1. Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the  international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.

2. The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.

3. “Attack directed against a civilian population” in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.[6]

Article 7 (1) (a) Crime against humanity of murder

Elements

1. The perpetrator killed[7] one or more persons.

2. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack against a civilian population.

Article 7 (1) (b) Crime against humanity of extermination

Elements

1. The perpetrator killed[8] one or more persons, including by inflicting conditions

of life calculated to bring about the destruction of part of a population.[9]

2. The conduct constituted, or took place as part of,[10] a mass killing of members

of a civilian population.

3. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (c) Crime against humanity of enslavement

Elements

1. The perpetrator exercised any or all of the powers attaching to the right of

ownership over one or more persons, such as by purchasing, selling, lending or

bartering such a person or persons, or by imposing on them a similar deprivation of

liberty.[11]

2. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (d) Crime against humanity of deportation or forcible transfer of population

Elements

1. The perpetrator deported or forcibly[12] transferred,[13] without grounds permitted

under international law, one or more persons to another State or location, by

expulsion or other coercive acts.

2. Such person or persons were lawfully present in the area from which they were

so deported or transferred.

3. The perpetrator was aware of the factual circumstances that established the

lawfulness of such presence.

4. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (e) Crime against humanity of imprisonment or other severe deprivation of physical liberty

Elements

1. The perpetrator imprisoned one or more persons or otherwise severely

deprived one or more persons of physical liberty.

2. The gravity of the conduct was such that it was in violation of fundamental

rules of international law.

3. The perpetrator was aware of the factual circumstances that established the

gravity of the conduct.

4. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (f) Crime against humanity of torture[14]

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one

or more persons.

2. Such person or persons were in the custody or under the control of the

perpetrator.

3. Such pain or suffering did not arise only from, and was not inherent in or

incidental to, lawful sanctions.

4. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-1 Crime against humanity of rape

Elements

1. The perpetrator invaded[15] the body of a person by conduct resulting in

penetration, however slight, of any part of the body of the victim or of the

perpetrator with a sexual organ, or of the anal or genital opening of the victim with

any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or coercion, such

as that caused by fear of violence, duress, detention, psychological oppression or

abuse of power, against such person or another person, or by taking advantage of a

coercive environment, or the invasion was committed against a person incapable of

giving genuine consent.[16]

3. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-2 Crime against humanity of sexual slavery[17]

Elements

1. The perpetrator exercised any or all of the powers attaching to the right of

ownership over one or more persons, such as by purchasing, selling, lending or

bartering such a person or persons, or by imposing on them a similar deprivation of

liberty.[18]

2. The perpetrator caused such person or persons to engage in one or more acts of

a sexual nature.

3. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-3 Crime against humanity of enforced prostitution

Elements

1. The perpetrator caused one or more persons to engage in one or more acts of a

sexual nature by force, or by threat of force or coercion, such as that caused by fear

of violence, duress, detention, psychological oppression or abuse of power, against

such person or persons or another person, or by taking advantage of a coercive

environment or such person’s or persons’ incapacity to give genuine consent.

2. The perpetrator or another person obtained or expected to obtain pecuniary or

other advantage in exchange for or in connection with the acts of a sexual nature.

3. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-4 Crime against humanity of forced pregnancy

Elements

1. The perpetrator confined one or more women forcibly made pregnant, with the

intent of affecting the ethnic composition of any population or carrying out other

grave violations of international law.

2. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-5 Crime against humanity of enforced sterilization

Elements

1. The perpetrator deprived one or more persons of biological reproductive

capacity.[19]

2. The conduct was neither justified by the medical or hospital treatment of the

person or persons concerned nor carried out with their genuine consent.[20]

3. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

4. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (g)-6 Crime against humanity of sexual violence

Elements

1. The perpetrator committed an act of a sexual nature against one or more

persons or caused such person or persons to engage in an act of a sexual nature by

force, or by threat of force or coercion, such as that caused by fear of violence,

duress, detention, psychological oppression or abuse of power, against such person

or persons or another person, or by taking advantage of a coercive environment or

such person’s or persons’ incapacity to give genuine consent.

2. Such conduct was of a gravity comparable to the other offences in article 7,

paragraph 1 (g), of the Statute.

3. The perpetrator was aware of the factual circumstances that established the

gravity of the conduct.

4. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (h) Crime against humanity of persecution

Elements

1. The perpetrator severely deprived, contrary to international law,[21] one or more

persons of fundamental rights.

2. The perpetrator targeted such person or persons by reason of the identity of a

group or collectivity or targeted the group or collectivity as such.

3. Such targeting was based on political, racial, national, ethnic, cultural,

religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds

that are universally recognized as impermissible under international law.

4. The conduct was committed in connection with any act referred to in article 7,

paragraph 1, of the Statute or any crime within the jurisdiction of the Court.[22]

5. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

6. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

Article 7 (1) (i) Crime against humanity of enforced disappearance of persons[23], [24]

Elements

1. The perpetrator:

(a) Arrested, detained[25], [26] or abducted one or more persons; or

(b) Refused to acknowledge the arrest, detention or abduction, or to give

information on the fate or whereabouts of such person or persons.

2. (a) Such arrest, detention or abduction was followed or accompanied by a

refusal to acknowledge that deprivation of freedom or to give information on the

fate or whereabouts of such person or persons; or

(b) Such refusal was preceded or accompanied by that deprivation of

freedom.

3. The perpetrator was aware that:[27]

(a) Such arrest, detention or abduction would be followed in the ordinary

course of events by a refusal to acknowledge that deprivation of freedom or to give

information on the fate or whereabouts of such person or persons;[28] or

(b) Such refusal was preceded or accompanied by that deprivation of

freedom.

4. Such arrest, detention or abduction was carried out by, or with the

authorization, support or acquiescence of, a State or a political organization.

5. Such refusal to acknowledge that deprivation of freedom or to give

information on the fate or whereabouts of such person or persons was carried out by,

or with the authorization or support of, such State or political organization.

6. The perpetrator intended to remove such person or persons from the protection

of the law for a prolonged period of time.

7. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

8. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (j) Crime against humanity of apartheid

Elements

1. The perpetrator committed an inhumane act against one or more persons.

2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was

an act of a character similar to any of those acts.[29]

3. The perpetrator was aware of the factual circumstances that established the

character of the act.

4. The conduct was committed in the context of an institutionalized regime of

systematic oppression and domination by one racial group over any other racial

group or groups.

5. The perpetrator intended to maintain such regime by that conduct.

6. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

7. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 7 (1) (k) Crime against humanity of other inhumane acts

Elements

1. The perpetrator inflicted great suffering, or serious injury to body or to mental

or physical health, by means of an inhumane act.

2. Such act was of a character similar to any other act referred to in article 7,

paragraph 1, of the Statute.[30]

3. The perpetrator was aware of the factual circumstances that established the

character of the act.

4. The conduct was committed as part of a widespread or systematic attack

directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to

be part of a widespread or systematic attack directed against a civilian population.

 

Article 8 War crimes

Introduction

The elements for war crimes under article 8, paragraph 2 (c) and (e), are

subject to the limitations addressed in article 8, paragraph 2 (d) and (f), which are

not elements of crimes.

The elements for war crimes under article 8, paragraph 2, of the Statute shall

be interpreted within the established framework of the international law of armed

conflict including, as appropriate, the international law of armed conflict applicable

to armed conflict at sea.

With respect to the last two elements listed for each crime:

·         There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international;

·         In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international;

·         There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with”.

 

Article 8 (2) (a)

Article 8 (2) (a) (i) War crime of wilful killing

Elements

1. The perpetrator killed one or more persons.[31]

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.[32], [33]

4. The conduct took place in the context of and was associated with an

international armed conflict.[34]

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (ii)-1 War crime of torture

Elements[35]

1. The perpetrator inflicted severe physical or mental pain or suffering upon one

or more persons.

2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining

information or a confession, punishment, intimidation or coercion or for any reason

based on discrimination of any kind.

3. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

4. The perpetrator was aware of the factual circumstances that established that

protected status.

5. The conduct took place in the context of and was associated with an

international armed conflict.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (ii)-2 War crime of inhuman treatment

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one

or more persons.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (ii)-3 War crime of biological experiments

Elements

1. The perpetrator subjected one or more persons to a particular biological

experiment.

2. The experiment seriously endangered the physical or mental health or integrity

of such person or persons.

3. The intent of the experiment was non-therapeutic and it was neither justified

by medical reasons nor carried out in such person’s or persons’ interest.

4. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

5. The perpetrator was aware of the factual circumstances that established that

protected status.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (iii) War crime of wilfully causing great suffering

Elements

1. The perpetrator caused great physical or mental pain or suffering to, or serious

injury to body or health of, one or more persons.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (iv) War crime of destruction and appropriation of property

Elements

1. The perpetrator destroyed or appropriated certain property.

2. The destruction or appropriation was not justified by military necessity.

3. The destruction or appropriation was extensive and carried out wantonly.

4. Such property was protected under one or more of the Geneva Conventions of

1949.

5. The perpetrator was aware of the factual circumstances that established that

protected status.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (v) War crime of compelling service in hostile forces

Elements

1. The perpetrator coerced one or more persons, by act or threat, to take part in

military operations against that person’s own country or forces or otherwise serve in

the forces of a hostile power.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (vi) War crime of denying a fair trial

Elements

1. The perpetrator deprived one or more persons of a fair and regular trial by

denying judicial guarantees as defined, in particular, in the third and the fourth

Geneva Conventions of 1949.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (vii)-1 War crime of unlawful deportation and transfer

Elements

1. The perpetrator deported or transferred one or more persons to another State or

to another location.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (vii)-2 War crime of unlawful confinement

Elements

1. The perpetrator confined or continued to confine one or more persons to a

certain location.

2. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that

protected status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (a) (viii) War crime of taking hostages

Elements

1. The perpetrator seized, detained or otherwise held hostage one or more

persons.

2. The perpetrator threatened to kill, injure or continue to detain such person or

persons.

3. The perpetrator intended to compel a State, an international organization, a

natural or legal person or a group of persons to act or refrain from acting as an

explicit or implicit condition for the safety or the release of such person or persons.

4. Such person or persons were protected under one or more of the Geneva

Conventions of 1949.

5. The perpetrator was aware of the factual circumstances that established that

protected status.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b)

Article 8 (2) (b) (i) War crime of attacking civilians

Elements

1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual

civilians not taking direct part in hostilities.

3. The perpetrator intended the civilian population as such or individual civilians

not taking direct part in hostilities to be the object of the attack.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (ii) War crime of attacking civilian objects

Elements

1. The perpetrator directed an attack.

2. The object of the attack was civilian objects, that is, objects which are not

military objectives.

3. The perpetrator intended such civilian objects to be the object of the attack.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission

Elements

1. The perpetrator directed an attack.

2. The object of the attack was personnel, installations, material, units or vehicles

involved in a humanitarian assistance or peacekeeping mission in accordance with

the Charter of the United Nations.

3. The perpetrator intended such personnel, installations, material, units or

vehicles so involved to be the object of the attack.

4. Such personnel, installations, material, units or vehicles were entitled to that

protection given to civilians or civilian objects under the international law of armed

conflict.

5. The perpetrator was aware of the factual circumstances that established that

protection.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (iv) War crime of excessive incidental death, injury, or damage

Elements

1. The perpetrator launched an attack.

2. The attack was such that it would cause incidental death or injury to civilians

or damage to civilian objects or widespread, long-term and severe damage to the

natural environment and that such death, injury or damage would be of such an

extent as to be clearly excessive in relation to the concrete and direct overall

military advantage anticipated.[36]

3. The perpetrator knew that the attack would cause incidental death or injury to

civilians or damage to civilian objects or widespread, long-term and severe damage

to the natural environment and that such death, injury or damage would be of such

an extent as to be clearly excessive in relation to the concrete and direct overall

military advantage anticipated.[37]

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (v) War crime of attacking undefended places[38]

Elements

1. The perpetrator attacked one or more towns, villages, dwellings or buildings.

2. Such towns, villages, dwellings or buildings were open for unresisted

occupation.

3. Such towns, villages, dwellings or buildings did not constitute military

objectives.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (vi) War crime of killing or wounding a person hors de combat

Elements

1. The perpetrator killed or injured one or more persons.

2. Such person or persons were hors de combat.

3. The perpetrator was aware of the factual circumstances that established this

status.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (vii)-1 War crime of improper use of a flag of truce

Elements

1. The perpetrator used a flag of truce.

2. The perpetrator made such use in order to feign an intention to negotiate when

there was no such intention on the part of the perpetrator.

3. The perpetrator knew or should have known of the prohibited nature of such

use.[39]

4. The conduct resulted in death or serious personal injury.

5. The perpetrator knew that the conduct could result in death or serious personal

injury.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (vii)-2 War crime of improper use of a flag, insignia or uniform of the hostile party

Elements

1. The perpetrator used a flag, insignia or uniform of the hostile party.

2. The perpetrator made such use in a manner prohibited under the international

law of armed conflict while engaged in an attack.

3. The perpetrator knew or should have known of the prohibited nature of such

use.[40]

4. The conduct resulted in death or serious personal injury.

5. The perpetrator knew that the conduct could result in death or serious personal

injury.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (vii)-3 War crime of improper use of a flag, insignia or uniform of the United Nations

Elements

1. The perpetrator used a flag, insignia or uniform of the United Nations.

2. The perpetrator made such use in a manner prohibited under the international

law of armed conflict.

3. The perpetrator knew of the prohibited nature of such use.[41]

4. The conduct resulted in death or serious personal injury.

5. The perpetrator knew that the conduct could result in death or serious personal

injury.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (vii)-4 War crime of improper use of the distinctive emblems of the Geneva Conventions

Elements

1. The perpetrator used the distinctive emblems of the Geneva Conventions.

2. The perpetrator made such use for combatant purposes[42] in a manner

prohibited under the international law of armed conflict.

3. The perpetrator knew or should have known of the prohibited nature of such

use.[43]

4. The conduct resulted in death or serious personal injury.

5. The perpetrator knew that the conduct could result in death or serious personal

injury.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (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

Elements

1. The perpetrator:

(a) Transferred,[44] directly or indirectly, parts of its own population into the

territory it occupies; or

(b) Deported or transferred all or parts of the population of the occupied

territory within or outside this territory.

2. The conduct took place in the context of and was associated with an

international armed conflict.

3. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (ix) War crime of attacking protected objects[45]

Elements

1. The perpetrator directed an attack.

2. The object of the attack was one or more buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals or

places where the sick and wounded are collected, which were not military

objectives.

3. The perpetrator intended such building or buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals or

places where the sick and wounded are collected, which were not military

objectives, to be the object of the attack.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (x)-1 War crime of mutilation

Elements

1. The perpetrator subjected one or more persons to mutilation, in particular by

permanently disfiguring the person or persons, or by permanently disabling or

removing an organ or appendage.

2. The conduct caused death or seriously endangered the physical or mental

health of such person or persons.

3. The conduct was neither justified by the medical, dental or hospital treatment

of the person or persons concerned nor carried out in such person’s or persons’

interest.[46]

4. Such person or persons were in the power of an adverse party.

5. The conduct took place in the context of and was associated with an

international armed conflict.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (x)-2 War crime of medical or scientific experiments

Elements

1. The perpetrator subjected one or more persons to a medical or scientific

experiment.

2. The experiment caused death or seriously endangered the physical or mental

health or integrity of such person or persons.

3. The conduct was neither justified by the medical, dental or hospital treatment

of such person or persons concerned nor carried out in such person’s or persons’

interest.

4. Such person or persons were in the power of an adverse party.

5. The conduct took place in the context of and was associated with an

international armed conflict.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xi) War crime of treacherously killing or wounding

Elements

1. The perpetrator invited the confidence or belief of one or more persons that

they were entitled to, or were obliged to accord, protection under rules of

international law applicable in armed conflict.

2. The perpetrator intended to betray that confidence or belief.

3. The perpetrator killed or injured such person or persons.

4. The perpetrator made use of that confidence or belief in killing or injuring

such person or persons.

5. Such person or persons belonged to an adverse party.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xii) War crime of denying quarter

Elements

1. The perpetrator declared or ordered that there shall be no survivors.

2. Such declaration or order was given in order to threaten an adversary or to

conduct hostilities on the basis that there shall be no survivors.

3. The perpetrator was in a position of effective command or control over the

subordinate forces to which the declaration or order was directed.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xiii) War crime of destroying or seizing the enemy’s property

Elements

1. The perpetrator destroyed or seized certain property.

2. Such property was property of a hostile party.

3. Such property was protected from that destruction or seizure under the

international law of armed conflict.

4. The perpetrator was aware of the factual circumstances that established the

status of the property.

5. The destruction or seizure was not justified by military necessity.

6. The conduct took place in the context of and was associated with an

international armed conflict.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xiv) War crime of depriving the nationals of the hostile power of rights or actions

Elements

1. The perpetrator effected the abolition, suspension or termination of

admissibility in a court of law of certain rights or actions.

2. The abolition, suspension or termination was directed at the nationals of a

hostile party.

3. The perpetrator intended the abolition, suspension or termination to be directed

at the nationals of a hostile party.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xv) War crime of compelling participation in military operations

Elements

1. The perpetrator coerced one or more persons by act or threat to take part in

military operations against that person’s own country or forces.

2. Such person or persons were nationals of a hostile party.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xvi) War crime of pillaging

Elements

1. The perpetrator appropriated certain property.

2. The perpetrator intended to deprive the owner of the property and to

appropriate it for private or personal use.[47]

3. The appropriation was without the consent of the owner.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xvii) War crime of employing poison or poisoned weapons

Elements

1. The perpetrator employed a substance or a weapon that releases a substance as

a result of its employment.

2. The substance was such that it causes death or serious damage to health in the

ordinary course of events, through its toxic properties.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

Article 8 (2) (b) (xviii) War crime of employing prohibited gases, liquids, materials or devices

Elements

1. The perpetrator employed a gas or other analogous substance or device.

2. The gas, substance or device was such that it causes death or serious damage to

health in the ordinary course of events, through its asphyxiating or toxic

properties.[48]

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xix) War crime of employing prohibited bullets

Elements

1. The perpetrator employed certain bullets.

2. The bullets were such that their use violates the international law of armed

conflict because they expand or flatten easily in the human body.

3. The perpetrator was aware that the nature of the bullets was such that their

employment would uselessly aggravate suffering or the wounding effect.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xx) War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute

Elements

[Elements will have to be drafted once weapons, projectiles or material or methods

of warfare have been included in an annex to the Statute.]

 

Article 8 (2) (b) (xxi) War crime of outrages upon personal dignity

Elements

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one

or more persons.[49]

2. The severity of the humiliation, degradation or other violation was of such

degree as to be generally recognized as an outrage upon personal dignity.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxii)-1 War crime of rape

Elements

1. The perpetrator invaded[50] the body of a person by conduct resulting in

penetration, however slight, of any part of the body of the victim or of the

perpetrator with a sexual organ, or of the anal or genital opening of the victim with

any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or coercion, such

as that caused by fear of violence, duress, detention, psychological oppression or

abuse of power, against such person or another person, or by taking advantage of a

coercive environment, or the invasion was committed against a person incapable of

giving genuine consent.[51]

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

Article 8 (2) (b) (xxii)-2 War crime of sexual slavery[52]

Elements

1. The perpetrator exercised any or all of the powers attaching to the right of

ownership over one or more persons, such as by purchasing, selling, lending or

bartering such a person or persons, or by imposing on them a similar deprivation of

liberty.[53]

2. The perpetrator caused such person or persons to engage in one or more acts of

a sexual nature.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxii)-3 War crime of enforced prostitution

Elements

1. The perpetrator caused one or more persons to engage in one or more acts of a

sexual nature by force, or by threat of force or coercion, such as that caused by fear

of violence, duress, detention, psychological oppression or abuse of power, against

such person or persons or another person, or by taking advantage of a coercive

environment or such person’s or persons’ incapacity to give genuine consent.

2. The perpetrator or another person obtained or expected to obtain pecuniary or

other advantage in exchange for or in connection with the acts of a sexual nature.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxii)-4 War crime of forced pregnancy

Elements

1. The perpetrator confined one or more women forcibly made pregnant, with the

intent of affecting the ethnic composition of any population or carrying out other

grave violations of international law.

2. The conduct took place in the context of and was associated with an

international armed conflict.

3. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxii)-5 War crime of enforced sterilization

Elements

1. The perpetrator deprived one or more persons of biological reproductive

capacity.[54]

2. The conduct was neither justified by the medical or hospital treatment of the

person or persons concerned nor carried out with their genuine consent.[55]55

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxii)-6 War crime of sexual violence

Elements

1. The perpetrator committed an act of a sexual nature against one or more

persons or caused such person or persons to engage in an act of a sexual nature by

force, or by threat of force or coercion, such as that caused by fear of violence,

duress, detention, psychological oppression or abuse of power, against such person

or persons or another person, or by taking advantage of a coercive environment or

such person’s or persons’ incapacity to give genuine consent.

2. The conduct was of a gravity comparable to that of a grave breach of the

Geneva Conventions.

3. The perpetrator was aware of the factual circumstances that established the

gravity of the conduct.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxiii) War crime of using protected persons as shields

Elements

1. The perpetrator moved or otherwise took advantage of the location of one or

more civilians or other persons protected under the international law of armed

conflict.

2. The perpetrator intended to shield a military objective from attack or shield,

favour or impede military operations.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions

Elements

1. The perpetrator attacked one or more persons, buildings, medical units or

transports or other objects using, in conformity with international law, a distinctive

emblem or other method of identification indicating protection under the Geneva

Conventions.

2. The perpetrator intended such persons, buildings, units or transports or other

objects so using such identification to be the object of the attack.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxv) War crime of starvation as a method of warfare

Elements

1. The perpetrator deprived civilians of objects indispensable to their survival.

2. The perpetrator intended to starve civilians as a method of warfare.

3. The conduct took place in the context of and was associated with an

international armed conflict.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (b) (xxvi) War crime of using, conscripting or enlisting children

Elements

1. The perpetrator conscripted or enlisted one or more persons into the national

armed forces or used one or more persons to participate actively in hostilities.

2. Such person or persons were under the age of 15 years.

3. The perpetrator knew or should have known that such person or persons were

under the age of 15 years.

4. The conduct took place in the context of and was associated with an

international armed conflict.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c)

Article 8 (2) (c) (i)-1 War crime of murder

Elements

1. The perpetrator killed one or more persons.

2. Such person or persons were either hors de combat, or were civilians, medical

personnel, or religious personnel[56] taking no active part in the hostilities.

3. The perpetrator was aware of the factual circumstances that established this

status.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (i)-2 War crime of mutilation

Elements

1. The perpetrator subjected one or more persons to mutilation, in particular by

permanently disfiguring the person or persons, or by permanently disabling or

removing an organ or appendage.

2. The conduct was neither justified by the medical, dental or hospital treatment

of the person or persons concerned nor carried out in such person’s or persons’

interests.

3. Such person or persons were either hors de combat, or were civilians, medical

personnel or religious personnel taking no active part in the hostilities.

4. The perpetrator was aware of the factual circumstances that established this

status.

5. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (i)-3 War crime of cruel treatment

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one

or more persons.

2. Such person or persons were either hors de combat, or were civilians, medical

personnel, or religious personnel taking no active part in the hostilities.

3. The perpetrator was aware of the factual circumstances that established this

status.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (i)-4 War crime of torture

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one

or more persons.

2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining

information or a confession, punishment, intimidation or coercion or for any reason

based on discrimination of any kind.

3. Such person or persons were either hors de combat, or were civilians, medical

personnel or religious personnel taking no active part in the hostilities.

4. The perpetrator was aware of the factual circumstances that established this

status.

5. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (ii) War crime of outrages upon personal dignity

Elements

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one

or more persons.[57]

2. The severity of the humiliation, degradation or other violation was of such

degree as to be generally recognized as an outrage upon personal dignity.

3. Such person or persons were either hors de combat, or were civilians, medical

personnel or religious personnel taking no active part in the hostilities.

4. The perpetrator was aware of the factual circumstances that established this

status.

5. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (iii) War crime of taking hostages

Elements

1. The perpetrator seized, detained or otherwise held hostage one or more

persons.

2. The perpetrator threatened to kill, injure or continue to detain such person or

persons.

3. The perpetrator intended to compel a State, an international organization, a

natural or legal person or a group of persons to act or refrain from acting as an

explicit or implicit condition for the safety or the release of such person or persons.

4. Such person or persons were either hors de combat, or were civilians, medical

personnel or religious personnel taking no active part in the hostilities.

5. The perpetrator was aware of the factual circumstances that established this

status.

6. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (c) (iv) War crime of sentencing or execution without due process

Elements

1. The perpetrator passed sentence or executed one or more persons.[58]

2. Such person or persons were either hors de combat, or were civilians, medical

personnel or religious personnel taking no active part in the hostilities.

3. The perpetrator was aware of the factual circumstances that established this

status.

4. There was no previous judgement pronounced by a court, or the court that

rendered judgement was not “regularly constituted”, that is, it did not afford the

essential guarantees of independence and impartiality, or the court that rendered

judgement did not afford all other judicial guarantees generally recognized as

indispensable under international law.[59]

5. The perpetrator was aware of the absence of a previous judgement or of the

denial of relevant guarantees and the fact that they are essential or indispensable to a

fair trial.

6. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e)

Article 8 (2) (e) (i) War crime of attacking civilians

Elements

1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual

civilians not taking direct part in hostilities.

3. The perpetrator intended the civilian population as such or individual civilians

not taking direct part in hostilities to be the object of the attack.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (ii) War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions

Elements

1. The perpetrator attacked one or more persons, buildings, medical units or

transports or other objects using, in conformity with international law, a distinctive

emblem or other method of identification indicating protection under the Geneva

Conventions.

2. The perpetrator intended such persons, buildings, units or transports or other

objects so using such identification to be the object of the attack.

3. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (iii) War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission

Elements

1. The perpetrator directed an attack.

2. The object of the attack was personnel, installations, material, units or vehicles

involved in a humanitarian assistance or peacekeeping mission in accordance with

the Charter of the United Nations.

3. The perpetrator intended such personnel, installations, material, units or

vehicles so involved to be the object of the attack.

4. Such personnel, installations, material, units or vehicles were entitled to that

protection given to civilians or civilian objects under the international law of armed

conflict.

5. The perpetrator was aware of the factual circumstances that established that

protection.

6. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (iv) War crime of attacking protected objects60

Elements

1. The perpetrator directed an attack.

2. The object of the attack was one or more buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals or

places where the sick and wounded are collected, which were not military

objectives.

3. The perpetrator intended such building or buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals or

places where the sick and wounded are collected, which were not military

objectives, to be the object of the attack.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (v) War crime of pillaging

Elements

1. The perpetrator appropriated certain property.

2. The perpetrator intended to deprive the owner of the property and to

appropriate it for private or personal use.[61]

3. The appropriation was without the consent of the owner.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-1 War crime of rape

Elements

1. The perpetrator invaded[62] the body of a person by conduct resulting in

penetration, however slight, of any part of the body of the victim or of the

perpetrator with a sexual organ, or of the anal or genital opening of the victim with

any object or any other part of the body.

2. The invasion was committed by force, or by threat of force or coercion, such

as that caused by fear of violence, duress, detention, psychological oppression or

abuse of power, against such person or another person, or by taking advantage of a

coercive environment, or the invasion was committed against a person incapable of

giving genuine consent.[63]

3. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-2 War crime of sexual slavery[64]

Elements

1. The perpetrator exercised any or all of the powers attaching to the right of

ownership over one or more persons, such as by purchasing, selling, lending or

bartering such a person or persons, or by imposing on them a similar deprivation of

liberty.[65]

2. The perpetrator caused such person or persons to engage in one or more acts of

a sexual nature.

3. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-3 War crime of enforced prostitution

Elements

1. The perpetrator caused one or more persons to engage in one or more acts of a

sexual nature by force, or by threat of force or coercion, such as that caused by fear

of violence, duress, detention, psychological oppression or abuse of power, against

such person or persons or another person, or by taking advantage of a coercive

environment or such person’s or persons’ incapacity to give genuine consent.

2. The perpetrator or another person obtained or expected to obtain pecuniary or

other advantage in exchange for or in connection with the acts of a sexual nature.

3. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-4 War crime of forced pregnancy

Elements

1. The perpetrator confined one or more women forcibly made pregnant, with the

intent of affecting the ethnic composition of any population or carrying out other

grave violations of international law.

2. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

3. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-5 War crime of enforced sterilization

Elements

1. The perpetrator deprived one or more persons of biological reproductive

capacity.[66]

2. The conduct was neither justified by the medical or hospital treatment of the

person or persons concerned nor carried out with their genuine consent.[67]

3. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

4. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vi)-6 War crime of sexual violence

Elements

1. The perpetrator committed an act of a sexual nature against one or more

persons or caused such person or persons to engage in an act of a sexual nature by

force, or by threat of force or coercion, such as that caused by fear of violence,

duress, detention, psychological oppression or abuse of power, against such person

or persons or another person, or by taking advantage of a coercive environment or

such person’s or persons’ incapacity to give genuine consent.

2. The conduct was of a gravity comparable to that of a serious violation of

article 3 common to the four Geneva Conventions.

3. The perpetrator was aware of the factual circumstances that established the

gravity of the conduct.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (vii) War crime of using, conscripting and enlisting children

Elements

1. The perpetrator conscripted or enlisted one or more persons into an armed

force or group or used one or more persons to participate actively in hostilities.

2. Such person or persons were under the age of 15 years.

3. The perpetrator knew or should have known that such person or persons were

under the age of 15 years.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (viii) War crime of displacing civilians

Elements

1. The perpetrator ordered a displacement of a civilian population.

2. Such order was not justified by the security of the civilians involved or by

military necessity.

3. The perpetrator was in a position to effect such displacement by giving such

order.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

Article 8 (2) (e) (ix) War crime of treacherously killing or wounding

Elements

1. The perpetrator invited the confidence or belief of one or more combatant

adversaries that they were entitled to, or were obliged to accord, protection under

rules of international law applicable in armed conflict.

2. The perpetrator intended to betray that confidence or belief.

3. The perpetrator killed or injured such person or persons.

4. The perpetrator made use of that confidence or belief in killing or injuring

such person or persons.

5. Such person or persons belonged to an adverse party.

6. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (x) War crime of denying quarter

Elements

1. The perpetrator declared or ordered that there shall be no survivors.

2. Such declaration or order was given in order to threaten an adversary or to

conduct hostilities on the basis that there shall be no survivors.

3. The perpetrator was in a position of effective command or control over the

subordinate forces to which the declaration or order was directed.

4. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (xi)-1 War crime of mutilation

Elements

1. The perpetrator subjected one or more persons to mutilation, in particular by

permanently disfiguring the person or persons, or by permanently disabling or

removing an organ or appendage.

2. The conduct caused death or seriously endangered the physical or mental

health of such person or persons.

3. The conduct was neither justified by the medical, dental or hospital treatment

of the person or persons concerned nor carried out in such person’s or persons’

interest.[68]

4. Such person or persons were in the power of another party to the conflict.

5. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (xi)-2 War crime of medical or scientific experiments

Elements

1. The perpetrator subjected one or more persons to a medical or scientific

experiment.

2. The experiment caused the death or seriously endangered the physical or

mental health or integrity of such person or persons.

3. The conduct was neither justified by the medical, dental or hospital treatment

of such person or persons concerned nor carried out in such person’s or persons’

interest.

4. Such person or persons were in the power of another party to the conflict.

5. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

6. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

Article 8 (2) (e) (xii) War crime of destroying or seizing the enemy’s property

Elements

1. The perpetrator destroyed or seized certain property.

2. Such property was property of an adversary.

3. Such property was protected from that destruction or seizure under the

international law of armed conflict.

4. The perpetrator was aware of the factual circumstances that established the

status of the property.

5. The destruction or seizure was not required by military necessity.

6. The conduct took place in the context of and was associated with an armed

conflict not of an international character.

7. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict.

 

 

 


 

[1] This paragraph is without prejudice to the obligation of the Prosecutor under article 54,

paragraph 1, of the Statute.

[2] The term “killed” is interchangeable with the term “caused death”.

[3] This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual

violence or inhuman or degrading treatment.

[4] The term “conditions of life” may include, but is not necessarily restricted to, deliberate

deprivation of resources indispensable for survival, such as food or medical services, or

systematic expulsion from homes.

[5] The term “forcibly” is not restricted to physical force, but may include threat of force or

coercion, such as that caused by fear of violence, duress, detention, psychological oppression or

abuse of power, against such person or persons or another person, or by taking advantage of a

coercive environment.

[6] A policy which has a civilian population as the object of the attack would be implemented by

State or organizational action. Such a policy may, in exceptional circumstances, be implemented

by a deliberate failure to take action, which is consciously aimed at encouraging such attack.

The existence of such a policy cannot be inferred solely from the absence of governmental or

organizational action.

[7] The term “killed” is interchangeable with the term “caused death”. This footnote applies to all

elements which use either of these concepts.

[8] The conduct could be committed by different methods of killing, either directly or indirectly.

[9] The infliction of such conditions could include the deprivation of access to food and medicine.

[10] The term “as part of” would include the initial conduct in a mass killing

[11] It is understood that such deprivation of liberty may, in some circumstances, include exacting

forced labour or otherwise reducing a person to a servile status as defined in the Supplementary

Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar

to Slavery of 1956. It is also understood that the conduct described in this element includes

trafficking in persons, in particular women and children.

[12] The term “forcibly” is not restricted to physical force, but may include threat of force or

coercion, such as that caused by fear of violence, duress, detention, psychological oppression or

abuse of power against such person or persons or another person, or by taking advantage of a

coercive environment.

[13] “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.

[14] It is understood that no specific purpose need be proved for this crime.

[15] The concept of “invasion” is intended to be broad enough to be gender-neutral.

[16] It is understood that a person may be incapable of giving genuine consent if affected by natural,

induced or age-related incapacity. This footnote also applies to the corresponding elements of article 7 (1) (g)-3, 5 and 6.

[17] Given the complex nature of this crime, it is recognized that its commission could involve more

than one perpetrator as a part of a common criminal purpose.

[18] It is understood that such deprivation of liberty may, in some circumstances, include exacting

forced labour or otherwise reducing a person to a servile status as defined in the Supplementary

Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar

to Slavery of 1956. It is also understood that the conduct described in this element includes

trafficking in persons, in particular women and children.

[19] The deprivation is not intended to include birth-control measures which have a non-permanent

effect in practice.

[20] It is understood that “genuine consent” does not include consent obtained through deception.

[21] This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements

of Crimes.

[22] It is understood that no additional mental element is necessary for this element other than that

inherent in element 6.

[23] Given the complex nature of this crime, it is recognized that its commission will normally

involve more than one perpetrator as a part of a common criminal purpose.

[24] This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7

and 8 occurs after the entry into force of the Statute.

[25] The word “detained” would include a perpetrator who maintained an existing detention.

[26] It is understood that under certain circumstances an arrest or detention may have been lawful.

[27] This element, inserted because of the complexity of this crime, is without prejudice to the

General Introduction to the Elements of Crimes.

[28] It is understood that, in the case of a perpetrator who maintained an existing detention, this

element would be satisfied if the perpetrator was aware that such a refusal had already taken

place.

[29] It is understood that “character” refers to the nature and gravity of the act.

[30] It is understood that “character” refers to the nature and gravity of the act.

[31] The term “killed” is interchangeable with the term “caused death”. This footnote applies to all

elements which use either of these concepts.

[32] This mental element recognizes the interplay between articles 30 and 32. This footnote also

applies to the corresponding element in each crime under article 8 (2) (a), and to the element in

other crimes in article 8 (2) concerning the awareness of factual circumstances that establish the

status of persons or property protected under the relevant international law of armed conflict.

[33] With respect to nationality, it is understood that the perpetrator needs only to know that the

victim belonged to an adverse party to the conflict. This footnote also applies to the

corresponding element in each crime under article 8 (2) (a).

[34] The term “international armed conflict” includes military occupation. This footnote also applies

to the corresponding element in each crime under article 8 (2) (a).

[35] As element 3 requires that all victims must be “protected persons” under one or more of the

Geneva Conventions of 1949, these elements do not include the custody or control requirement

found in the elements of article 7 (1) (e).

[36] The expression “concrete and direct overall military advantage” refers to a military advantage

that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be

temporally or geographically related to the object of the attack. The fact that this crime admits

the possibility of lawful incidental injury and collateral damage does not in any way justify any

violation of the law applicable in armed conflict. It does not address justifications for war or

other rules related to jus ad bellum. It reflects the proportionality requirement inherent in

determining the legality of any military activity undertaken in the context of an armed conflict.

[37] As opposed to the general rule set forth in paragraph 4 of the General Introduction, this

knowledge element requires that the perpetrator make the value judgement as described therein.

An evaluation of that value judgement must be based on the requisite information available to

the perpetrator at the time.

[38] The presence in the locality of persons specially protected under the Geneva Conventions of

1949 or of police forces retained for the sole purpose of maintaining law and order does not by

itself render the locality a military objective.

[39] This mental element recognizes the interplay between article 30 and article 32. The term

“prohibited nature” denotes illegality.

[40] This mental element recognizes the interplay between article 30 and article 32. The term

“prohibited nature” denotes illegality.

[41] This mental element recognizes the interplay between article 30 and article 32. The “should

have known” test required in the other offences found in article 8 (2) (b) (vii) is not applicable

here because of the variable and regulatory nature of the relevant prohibitions.

[42] Combatant purposes. in these circumstances means purposes directly related to hostilities and

not including medical, religious or similar activities.

[43] This mental element recognizes the interplay between article 30 and article 32. The term

“prohibited nature” denotes illegality.

[44] The term “transfer” needs to be interpreted in accordance with the relevant provisions of

international humanitarian law.

[45] The presence in the locality of persons specially protected under the Geneva Conventions of

1949 or of police forces retained for the sole purpose of maintaining law and order does not by

itself render the locality a military objective.

[46] Consent is not a defence to this crime. The crime prohibits any medical procedure which is not

indicated by the state of health of the person concerned and which is not consistent with

generally accepted medical standards which would be applied under similar medical

circumstances to persons who are nationals of the party conducting the procedure and who are in

no way deprived of liberty. This footnote also applies to the same element for article 8(2) (b) (x)-2.

[47] As indicated by the use of the term “private or personal use”, appropriations justified by

military necessity cannot constitute the crime of pillaging.

[48] Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or

developing rules of international law with respect to the development, production, stockpiling

and use of chemical weapons.

[49] For this crime, “persons” can include dead persons. It is understood that the victim need not

personally be aware of the existence of the humiliation or degradation or other violation. This

element takes into account relevant aspects of the cultural background of the victim.

[50] The concept of  “invasion” is intended to be broad enough to be gender-neutral.

[51] It is understood that a person may be incapable of giving genuine consent if affected by natural,

induced or age-related incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6.

[52] Given the complex nature of this crime, it is recognized that its commission could involve more

than one perpetrator as a part of a common criminal purpose.

[53] It is understood that such deprivation of liberty may, in some circumstances, include exacting

forced labour or otherwise reducing a person to servile status as defined in the Supplementary

Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar

to Slavery of 1956. It is also understood that the conduct described in this element includes

trafficking in persons, in particular women and children.

[54] The deprivation is not intended to include birth-control measures which have a non-permanent

effect in practice.

[55] It is understood that “genuine consent” does not include consent obtained through deception.

[56] The term “religious personnel” includes those non-confessional non-combatant military

personnel carrying out a similar function.

[57] For this crime, “persons” can include dead persons. It is understood that the victim need not

personally be aware of the existence of the humiliation or degradation or other violation. This

element takes into account relevant aspects of the cultural background of the victim.

[58] The elements laid down in these documents do not address the different forms of individual

criminal responsibility, as enunciated in articles 25 and 28 of the Statute.

[59] With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant

circumstances, the cumulative effect of factors with respect to guarantees deprived the person or

persons of a fair trial.

[60] The presence in the locality of persons specially protected under the Geneva Conventions of

1949 or of police forces retained for the sole purpose of maintaining law and order does not by

itself render the locality a military objective.

[61] As indicated by the use of the term “private or personal use”, appropriations justified by

military necessity cannot constitute the crime of pillaging.

[62] The concept of “invasion” is intended to be broad enough to be gender-neutral.

[63] It is understood that a person may be incapable of giving genuine consent if affected by natural,

induced or age-related incapacity. This footnote also applies to the corresponding elements in article 8 (2) (e) (vi)-3, 5 and 6.

[64] Given the complex nature of this crime, it is recognized that its commission could involve more

than one perpetrator as a part of a common criminal purpose.

[65] It is understood that such deprivation of liberty may, in some circumstances, include exacting

forced labour or otherwise reducing a person to servile status as defined in the Supplementary

Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar

to Slavery of 1956. It is also understood that the conduct described in this element includes

trafficking in persons, in particular women and children

[66] The deprivation is not intended to include birth-control measures which have a non-permanent

effect in practice.

[67] It is understood that “genuine consent” does not include consent obtained through deception.

[68] Consent is not a defence to this crime. The crime prohibits any medical procedure which is not

indicated by the state of health of the person concerned and which is not consistent with

generally accepted medical standards which would be applied under similar medical

circumstances to persons who are nationals of the party conducting the procedure and who are in

no way deprived of liberty. This footnote also applies to the similar element in article 8 (2)(e)(xi)-2.