sou · GQB398d4 · 2003-01-01 00:00:00 — 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 gener- ally 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 ap- propriate 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. 1 This paragraph is without prejudice to the obligation of the Prosecutor under article 54, paragraph 1, of the Statute. 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 geno- cidal 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) 1.The perpetrator killed 2one or more persons. 2.Such person or persons belonged to a particular national, eth- nical, 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. 2 The term killed is interchangeable with the term caused death. Article 6 (b) Genocide by causing serious bodily or mental harm 1.The perpetrator caused serious bodily or mental harm to one or more persons. 2.Such person or persons belonged to a particular national, eth- nical, 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 1.The perpetrator inflicted certain conditions of life upon one or more persons. 2.Such person or persons belonged to a particular national, eth- nical, 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. 3 This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. 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 1.The perpetrator imposed certain measures upon one or more persons. 2.Such person or persons belonged to a particular national, eth- nical, 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 1.The perpetrator forcibly transferred one or more persons. 4The term conditions of life may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or services, or sys- tematic expulsion from homes. 5The 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. 2.Such person or persons belonged to a particular national, eth- nical, 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. 1.Since article 7 pertains to international criminal law, its provi- sions, 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 re- sponsibility, and require conduct which is impermissible under ge- nerally applicable international law, as recognized by the principal legal systems of the world. 2.The last two elements for each crime against humanity descri- be the context in which the conduct must take place. These ele- ments clarify the requisite participation in and knowledge of a wi- despread or systematic attack against a civilian population. Howe- ver, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the at- tack or the precise details of the plan or policy of the State or orga- nization. In the case of an emerging widespread or systematic at- tack against a civilian population, the intent of the last ele- ment indicates that this mental element is satisfied if the perpetra- tor intended to further such an attack. 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 fur- therance 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 organiza- tion actively promote or encourage such an attack against a civilian population.6 Article 7 (1) (a) Crime against humanity of murder 1.The perpetrator killed 7one or more persons. 2.The conduct was committed as part of a widespread or sys- tematic 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. 6A 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 im- plemented 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. 7The term killed is interchangeable with the term caused death. This footnote applies to all elements which use either of these concepts. Article 7 (1) (b) Crime against humanity of extermination 1.The perpetrator killed8 one or more persons, including by in- flicting conditions of life calculated to bring about the destruction of part of a population. 2.The conduct constituted, or took place as part of,10 a mass kill- ing of members of a civilian population. 3.The conduct was committed as part of a widespread or sys- tematic 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 di- rected against a civilian population. Article 7 (1) (c) Crime against humanity of enslavement 1.The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by pur- chasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of . 2.The conduct was committed as part of a widespread or sys- tematic attack directed against a civilian population. 8The conduct could be committed by different methods of killing, either directly or indi- rectly. 9The infliction of such conditions could include the deprivation of access to food and medi- cine. 10The term as part of would include the initial conduct in a mass killing. 11It is understood that such deprivation of may, in some circumstances, include ex- acting forced labour or otherwise reducing a person to a servile status as defined in the Sup- plementary Convention on the Abolition of Slavery, the , 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. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack di- rected against a civilian population. Article 7 (1) (d) Crime against humanity of deportation or forcible transfer of population 1.The perpetrator deported or forcibly12 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (e) Crime against humanity of imprisonment or other severe deprivation of physical The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical . 12The 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. 13Deported or forcibly transferred is interchangeable with forcibly displaced. 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (f) Crime against humanity of torture 14 1.The perpetrator inflicted severe physical or mental pain or suf- fering upon one or more persons. 2.Such person or persons were in the custody or under the con- trol 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 sys- tematic 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 di- rected against a civilian population. 14 It is understood that no specific purpose need be proved for this crime. Article 7 (1) (g)-1 Crime against humanity of rape 1.The perpetrator invaded15 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. 3.The conduct was committed as part of a widespread or sys- tematic 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 di- rected against a civilian population. Article 7 (1) (g)-2 Crime against humanity of sexual slavery17 The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by pur- 15The concept of invasion is intended to be broad enough to be gender-neutral. 16It 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. 17Given 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. chasing, 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (g)-3 Crime against humanity of enforced prostitution 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 persons or persons incapacity to give genu- ine consent. 2.The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connec- tion with the acts of a sexual nature. 3.The conduct was committed as part of a widespread or sys- tematic 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 di- rected against a civilian population. 18 It is understood that such deprivation of may, in some circumstances, include ex- acting forced labour or otherwise reducing a person to a servile status as defined in the Sup- plementary Convention on the Abolition of Slavery, the , 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. Article 7 (1) (g)-4 Crime against humanity of forced pregnancy 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 interna- tional law. 2.The conduct was committed as part of a widespread or sys- tematic 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 di- rected against a civilian population. Article 7 (1) (g)-5 Crime against humanity of enforced sterilization 1.The perpetrator deprived one or more persons of biological reproductive capacity.19 2.The conduct was neither justified by the 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 sys- tematic 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 di- rected against a civilian population. 19The deprivation is not intended to include birth-control measures which have a non- permanent effect in practice. 20It is understood that genuine consent does not include consent obtained through decep- tion. Article 7 (1) (g)-6 Crime against humanity of sexual violence 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, psycho- logical oppression or abuse of power, against such person or per- sons or another person, or by taking advantage of a coercive envi- ronment or such persons or persons incapacity to give genuine consent. 2.Such conduct was of a gravity comparable to the other of- fences 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (h) Crime against humanity of persecution 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 col- lectivity as such. 21 This requirement is without prejudice to paragraph 6 of the General to the Elements of Crimes. 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 imper- missible under international law. 4.The conduct was committed in connection with any act re- ferred 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (i) Crime against humanity of enforced disappearance of persons2324 (a) Arrested, detained 2526or abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or abduc- tion, or to give information on the fate or whereabouts of such person or persons. (a) Such arrest, detention or abduction was followed or ac- companied 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 depri- vation of freedom. 22It is understood that no additional mental element is necessary for this element other than that inherent in element 6. 23Given 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. 24This crime falls under the jurisdiction of the Court only if the attack referred to in ele- ments 7 and 8 occurs after the entry into force of the Statute. 25The word detained would include a perpetrator who maintained an existing detention. 26It is understood that under certain circumstances an arrest or detention may have been lawful. 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 dep- rivation of freedom or to give information on the fate or where- abouts of such person or persons;28 or (b) Such refusal was preceded or accompanied by that depri- vation 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 per- sons 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (j) Crime against humanity of apartheid The perpetrator committed an inhumane act against one or more persons. 27This element, inserted because of the complexity of this crime, is without prejudice to the General to the Elements of Crimes. 28It 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. 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 institutional- ized 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 sys- tematic 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 di- rected against a civilian population. Article 7 (1) (k) Crime against humanity of other inhumane acts 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. 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 sys- tematic 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 di- rected against a civilian population. 29It is understood that character refers to the nature and gravity of the act. 30It is understood that character refers to the nature and gravity of the act. The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, para- graph 2 (d) and (f), which are not elements of crimes.