sou · GQB398d4 · 2003-01-01 00:00:00 — 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 perpe- trator 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 1.The perpetrator killed one or more persons.31 2.Such person or persons were protected under one or more of the Conventions of 1949. 3.The perpetrator was aware of the factual circumstances that established that protected status.3233 31 The term killed is interchangeable with the term caused death. This footnote applies to all elements which use either of these concepts. 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 estab- the existence of an armed conflict. Article 8 (2) (a) (ii)-1 War crime of torture 1.The perpetrator inflicted severe physical or mental pain or suf- fering upon one or more persons. 2.The perpetrator inflicted the pain or suffering for such pur- poses as: obtaining information or a confession, punishment, in- timidation 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 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 estab- the existence of an armed conflict. 32This 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. 33With 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). 34The term international armed conflict includes military occupation. This footnote also applies to the corresponding element in each crime under article 8 (2) (a). 35As element 3 requires that all victims must be protected persons under one or more of the Conventions of 1949, these elements do not include the custody or control requirement found in the elements of article 7 (1) (e). Article 8 (2) (a) (ii)-2 War crime of inhuman treatment 1.The perpetrator inflicted severe physical or mental pain or suf- fering upon one or more persons. 2.Such person or persons were protected under one or more of the 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 estab- the existence of an armed conflict. Article 8 (2) (a) (ii)-3 War crime of biological experiments 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 reasons nor carried out in such persons or persons interest. 4.Such person or persons were protected under one or more of the 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 estab- the existence of an armed conflict. Article 8 (2) (a) (iii) War crime of wilfully causing great suffering 1.The perpetrator caused great physical or mental pain or suffer- ing 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 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 estab- the existence of an armed conflict. Article 8 (2) (a) (iv) War crime of destruction and appropriation of property 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 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 estab- the existence of an armed conflict. Article 8 (2) (a) (v) War crime of compelling service in hostile forces 1.The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that persons own coun- try 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 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 estab- the existence of an armed conflict. Article 8 (2) (a) (vi) War crime of denying a fair trial 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 Conventions of 1949. 2.Such person or persons were protected under one or more of the 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 estab- the existence of an armed conflict. Article 8 (2) (a) (vii)-1 War crime of unlawful deportation and transfer 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 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. The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (a) (vii)-2 War crime of unlawful confinement 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 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 estab- the existence of an armed conflict. Article 8 (2) (a) (viii) War crime of taking hostages 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 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 estab- the existence of an armed conflict. Article 8 (2) (b) Article 8 (2) (b) (i) War crime of attacking civilians 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 ob- ject 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 estab- the existence of an armed conflict. Article 8 (2) (b) (ii) War crime of attacking civilian objects 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 estab- 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 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 peace- mission in accordance with the Charter of the United Na- tions. 3.The perpetrator intended such personnel, installations, mate- rial, 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 un- der 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 estab- the existence of an armed conflict. Article 8 (2) (b) (iv) War crime of excessive incidental death, injury, or damage 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 ad- vantage anticipated.36 3.The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or wide- spread, 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 estab- the existence of an armed conflict. 36The expression concrete and direct overall military advantage refers to a military advan- tage 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 justifica- tions for war or other rules related to jus ad bellum. It reflects the proportionality require- ment inherent in determining the legality of any military activity undertaken in the context of an armed conflict. 37As opposed to the general rule set forth in paragraph 4 of the General , 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. Article 8 (2) (b) (v) War crime of attacking undefended places38 1.The perpetrator attacked one or more towns, villages, dwell- ings or . 2.Such towns, villages, dwellings or were open for un- resisted occupation. 3.Such towns, villages, dwellings or 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 estab- the existence of an armed conflict. Article 8 (2) (b) (vi) War crime of killing or wounding a person hors de combat 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 estab- the existence of an armed conflict. 38 The presence in the locality of persons specially protected under the Conventions of 1949 or of forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective. Article 8 (2) (b) (vii)-1 War crime of improper use of a flag of truce 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 estab- 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 1.The perpetrator used a flag, insignia or uniform of the hostile party. 2.The perpetrator made such use in a 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 39 This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. 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 estab- 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 1.The perpetrator used a flag, insignia or uniform of the United Nations. 2.The perpetrator made such use in a 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 estab- the existence of an armed conflict. 40This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. 41This 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. Article 8 (2) (b) (vii)-4 War crime of improper use of the distinctive emblems of the Conventions 1.The perpetrator used the distinctive emblems of the Conventions. 2.The perpetrator made such use for combatant purposes42 in a 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 estab- the existence of an armed conflict. Article 8 (2) (b) (viii) The transfer, directly or indirectly, by the Occupying 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 (a)Transferred44 directly or indirectly, parts of its own popula- tion into the territory it occupies; or 42Combatant purposes in these circumstances means purposes directly related to hostilities and not including , religious or similar activities. 43This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. (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 estab- the existence of an armed conflict. Article 8 (2) (b) (ix) War crime of attacking protected objects45 1.The perpetrator directed an attack. 2.The object of the attack was one or more 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 or 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 estab- the existence of an armed conflict. 44The term transfer needs to be interpreted in accordance with the relevant provisions of international humanitarian law. 45The presence in the locality of persons specially protected under the Conventions of 1949 or of forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective. Article 8 (2) (b) (x)-1 War crime of mutilation 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 , dental or hospital treatment of the person or persons concerned nor carried out in such persons 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 estab- the existence of an armed conflict. Article 8 (2) (b) (x)-2 War crime of or scientific experiments 1.The perpetrator subjected one or more persons to a or scientific experiment. 2.The experiment caused death or seriously endangered the physical or mental health or integrity of such person or persons. 46 Consent is not a defence to this crime. The crime prohibits any procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted standards which would be applied under similar circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of . This footnote also applies to the same element for article 8 (2) (b) (x)-2. 3.The conduct was neither justified by the , dental or hospital treatment of such person or persons concerned nor carried out in such persons 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xi) War crime of treacherously killing or wounding 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 con- flict. 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xii) War crime of denying quarter 1.The perpetrator declared or ordered that there shall be no sur- vivors. 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 or- der 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xiii) War crime of destroying or seizing the enemys property 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 neces- 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 estab- 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