sou · GQB398d4 · 2003-01-01 00:00:00 — 1.The perpetrator effected the abolition, suspension or termina- tion 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 termina- tion 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xv) War crime of compelling participation in military operations 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. 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 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xvii) War crime of employing poison or poisoned weapons 1.The perpetrator employed a substance or a weapon that re- leases 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 proper- ties. 3.The conduct took place in the context of and was associated with an international armed conflict. 47 As indicated by the use of the term private or personal use, appropriations justified by military necessity cannot constitute the crime of pillaging. The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (b) (xviii) War crime of employing prohibited gases, liquids, materials or devices 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xix) War crime of employing prohibited bullets 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. 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 development, production, stockpil- ing and use of chemical weapons. 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) (xx) War crime of employing weapons, projectiles or materials or methods of warfare listed in the to the Statute [Elements will have to be drafted once weapons, projectiles or ma- terial 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 1.The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. 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 estab- the existence of an armed conflict. 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. Article 8 (2) (b) (xxii)-1 War crime of rape 1.The perpetrator invaded50 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xxii)-2 War crime of sexual slavery52 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 liberty.53 50The concept of invasion is intended to be broad enough to be gender-neutral. 51It 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. 52Given 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. 53It is understood that such deprivation of may, in some circumstances, include ex- acting forced labour or otherwise reducing a person to servile status as defined in the Sup- plementary Convention on the Abolition of Slavery, the , and Institutions and 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xxii)-3 War crime 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 took place in the context of and was associated with an international armed conflict. 4.The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. 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 8 (2) (b) (xxii)-4 War crime 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 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) (xxii)-5 War crime of enforced sterilization 1.The perpetrator deprived one or more persons of biological reproductive capacity.54 2.The conduct was neither justified by the or hospital treatment of the person or persons concerned nor carried out with their genuine consent.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 estab- the existence of an armed conflict. 54The deprivation is not intended to include birth-control measures which have a non- permanent effect in practice. 55It is understood that genuine consent does not include consent obtained through decep- tion. Article 8 (2) (b) (xxii)-6 War crime 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.The conduct was of a gravity comparable to that of a grave breach of the 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xxiii) War crime of using protected persons as shields 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. The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive emblems of the Conventions 1.The perpetrator attacked one or more persons, , units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Conven- tions. 2.The perpetrator intended such persons, , 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 estab- the existence of an armed conflict. Article 8 (2) (b) (xxv) War crime of starvation as a method of warfare 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. The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (b) (xxvi) War crime of using, conscripting or enlisting children 1.The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to par- ticipate 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 estab- the existence of an armed conflict. Article 8 (2) (c) Article 8 (2) (c) (i)-1 War crime of murder 1.The perpetrator killed one or more persons. 2.Such person or persons were either hors de combat, or were civilians, personnel, or religious personnel56 taking no ac- tive part in the hostilities. 3.The perpetrator was aware of the factual circumstances that established this status. 56 The term religious personnel includes those non-confessional non-combatant military personnel carrying out a similar function. 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 estab- the existence of an armed conflict. Article 8 (2) (c) (i)-2 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 was neither justified by the , dental or hospital treatment of the person or persons concerned nor carried out in such persons or persons interests. 3.Such person or persons were either hors de combat, or were civilians, personnel or religious personnel taking no 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 estab- the existence of an armed conflict. Article 8 (2) (c) (i)-3 War crime of cruel treatment The perpetrator inflicted severe physical or mental pain or suf- fering upon one or more persons. 2.Such person or persons were either hors de combat, or were civilians, personnel, or religious personnel taking no 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 estab- the existence of an armed conflict. Article 8 (2) (c) (i)-4 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 either hors de combat, or were civilians, personnel or religious personnel taking no 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 estab- the existence of an armed conflict. Article 8 (2) (c) (ii) War crime of outrages upon personal dignity 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, personnel or religious personnel taking no 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 estab- the existence of an armed conflict. Article 8 (2) (c) (iii) 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 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. 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, personnel or religious personnel taking no 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 estab- the existence of an armed conflict. Article 8 (2) (c) (iv) War crime of sentencing or execution without due process 1.The perpetrator passed sentence or executed one or more per- sons.58 2.Such person or persons were either hors de combat, or were civilians, personnel or religious personnel taking no 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 af- 58 The elements laid down in these documents do not address the different forms of individ- ual criminal responsibility, as enunciated in articles 25 and 28 of the Statute. ford all other judicial guarantees generally recognized as indispen- sable under international law.59 5.The perpetrator was aware of the absence of a previous judge- ment 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 estab- the existence of an armed conflict. Article 8 (2) (e) Article 8 (2) (e) (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 armed conflict not of an international character. 5.The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. 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. Article 8 (2) (e) (ii) War crime of attacking objects or persons using the distinctive emblems of the Conventions 1.The perpetrator attacked one or more persons, , units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Conven- tions. 2.The perpetrator intended such persons, , 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 estab- 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 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 armed conflict not of an international character. 7.The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (e) (iv) War crime of attacking protected objects60 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 armed conflict not of an international character. 5.The perpetrator was aware of factual circumstances that estab- the existence of an armed conflict. Article 8 (2) (e) (v) War crime of pillaging 1.The perpetrator appropriated certain property. 60 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. 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 estab- the existence of an armed conflict. Article 8 (2) (e) (vi)-1 War crime of rape 1.The perpetrator invaded62 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 estab- the existence of an armed conflict. 61As indicated by the use of the term private or personal use, appropriations justified by military necessity cannot constitute the crime of pillaging. 62The concept of invasion is intended to be broad enough to be gender-neutral. 63It 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. Article 8 (2) (e) (vi)-2 War crime of sexual slavery64