prop · H103146 · 2014-02-25 00:00:00 — Crime against humanity of enforced disappearance of persons260261 (a) Arrested, detained 262263or 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. (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:264 (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;265 or (b) Such refusal was preceded or accompanied by that deprivation of freedom. 259It is understood that no additional mental element is necessary for this element other than that inherent in element 6. 260Given 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. 261This 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. 262The word detained would include a perpetrator who maintained an existing detention. 263It is understood that under certain circumstances an arrest or detention may have been lawful. 264This element, inserted because of the complexity of this crime, is without prejudice to the General to the Elements of Crimes. 265 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. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political 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 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.266 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. 266 It is understood that character refers to the nature and gravity of the act. Article 7 (1) (k) Crime against humanity of other inhumane acts The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute. The perpetrator was aware of the factual circumstances that established the character of the act. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 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 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. 267 It is understood that character refers to the nature and gravity of the act. Article 8 (2) (a) Article 8 (2) (a) (i) War crime of wilful killing 1.The perpetrator killed one or more persons.268 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.269270 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)-1 War crime of torture 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 Conventions of 1949. 268The term killed is interchangeable with the term caused death. This footnote applies to all elements which use either of these concepts. 269This 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. 270With 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). 271The term international armed conflict includes military occupation. applies to the corresponding element in each crime under article 8 (2) (a). 272 As 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). 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 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 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 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. The conduct took place in the context of and was associated with an international armed conflict. 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 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 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 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. 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 1.The perpetrator coerced one or more persons, by act or threat, to take part in military operations against that persons 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 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 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 established 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. 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 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 established 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. 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 established 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 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 1.The perpetrator directed an attack. 2.The object of the attack was civilian objects, that is, objects which are not military objectives. The perpetrator intended such civilian objects to be the object of the 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 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 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.273 3.The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, longterm 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.274 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 places275 1.The perpetrator attacked one or more towns, villages, dwellings or . 2.Such towns, villages, dwellings or were open for unresisted 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 established the existence of an armed conflict. 273 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. 274 As 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. 275 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) (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 established the existence of an armed conflict. 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.276 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. 276 This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. Article 8 (2) (b) (vii)-2 War crime of improper use of a flag, insignia or uniform of the The perpetrator used a flag, insignia or uniform of the hostile party. The perpetrator made such use in a prohibited under the international law of armed conflict while engaged in an attack. The perpetrator knew or should have known of the prohibited nature of such use.277 The conduct resulted in death or serious personal injury. The perpetrator knew that the conduct could result in death or serious personal injury. The conduct took place in the context of and was associated with an international armed conflict. 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 The perpetrator used a flag, insignia or uniform of the United Nations. The perpetrator made such use in a prohibited under the international law of armed conflict. The perpetrator knew of the prohibited nature of such use.278 The conduct resulted in death or serious personal injury. The perpetrator knew that the conduct could result in death or serious personal injury. The conduct took place in the context of and was associated with an international armed conflict. 277This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. 278This 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. 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 Conventions 1.The perpetrator used the distinctive emblems of the Conventions. 2.The perpetrator made such use for combatant purposes279 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.280 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 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)Transferred281 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. 279Combatant purposes in these circumstances means purposes directly related to hostilities and not including , religious or similar activities. 280This mental element recognizes the interplay between article 30 and article 32. The term prohibited nature denotes illegality. 281The term transfer needs to be interpreted in accordance with the relevant provisions of international humanitarian 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) (ix) War crime of attacking protected objects282 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.