Elements of Crimes IN ICC

Elements of Crimes
*,**
* Explanatory note: The structure of the elements
of the crimes of genocide, crimes against
humanity and war crimes follows the structure of
the corresponding provisions of articles 6, 7 and
8 of the Rome Statute. Some paragraphs of those
articles of the Rome Statute list multiple crimes.
In those instances, the elements of crimes appear
in separate paragraphs which correspond to each
of those crimes to facilitate the identification of
the respective elements.
** The Elements of Crimes are reproduced from
the Official Records of the Assembly of States
Parties to the Rome Statute of the International
Criminal Court, First session, New York, 3-10
September 2002 (United Nations publication, Sales
No. E.03.V.2 and corrigendum), part II.B. The
Elements of Crimes adopted at the 2010 Review
Conference are replicated from the Official Records
of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May
-11 June 2010 (International Criminal Court
publication, RC/11) .Elements of Crimes
Published by the International Criminal Court
ISBN No. 92-9227-232-2
ICC-PIDS-LT-03-002/11_Eng
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International Criminal Court | Po Box 19519 | 2500 CM | The Hague | The Netherlands | www.icc-cpi.intElements of Crimes
Table of Contents
General introduction 1
Article 6 Genocide 2
Introduction 2
6 (a) Genocide by killing 2
6 (b) Genocide by causing serious bodily or mental harm 2
6 (c) Genocide by deliberately inflicting conditions of life calculated to bring
about physical destruction 3
6 (d) Genocide by imposing measures intended to prevent births 3
6 (e) Genocide by forcibly transferring children 3
Article 7 Crimes against humanity 5
Introduction 5
7 (1) (a) Crime against humanity of murder 5
7 (1) (b) Crime against humanity of extermination 6
7 (1) (c) Crime against humanity of enslavement 6
7 (1) (d) Crime against humanity of deportation or forcible transfer of population 6
7 (1) (e) Crime against humanity of imprisonment or other severe deprivation of
physical liberty 7
7 (1) (f) Crime against humanity of torture 7
7 (1) (g)-1 Crime against humanity of rape 8
7 (1) (g)-2 Crime against humanity of sexual slavery 8
7 (1) (g)-3 Crime against humanity of enforced prostitution 9
7 (1) (g)-4 Crime against humanity of forced pregnancy 9
7 (1) (g)-5 Crime against humanity of enforced sterilization 9
7 (1) (g)-6 Crime against humanity of sexual violence 10
7 (1) (h) Crime against humanity of persecution 10
7 (1) (i) Crime against humanity of enforced disappearance of persons, 11
7 (1) (j) Crime against humanity of apartheid 12
7 (1) (k) Crime against humanity of other inhumane acts 12
Article 8 War crimes 13
Introduction 13
Article 8 (2) (a) 13
8 (2) (a) (i) War crime of wilful killing 13
8 (2) (a) (ii)-1 War crime of torture 14
8 (2) (a) (ii)-2 War crime of inhuman treatment 14
8 (2) (a) (ii)-3 War crime of biological experiments 15
8 (2) (a) (iii) War crime of wilfully causing great suffering 15
8 (2) (a) (iv) War crime of destruction and appropriation of property 15
8 (2) (a) (v) War crime of compelling service in hostile forces 16
8 (2) (a) (vi) War crime of denying a fair trial 16
8 (2) (a) (vii)-1 War crime of unlawful deportation and transfer 17
8 (2) (a) (vii)-2 War crime of unlawful confinement 17Elements of Crimes
8 (2) (a) (viii) War crime of taking hostages 17
Article 8 (2) (b) 18
8 (2) (b) (i) War crime of attacking civilians 18
8 (2) (b) (ii) War crime of attacking civilian objects 18
8 (2) (b) (iii) War crime of attacking personnel or objects involved in a humanitarian
assistance or peacekeeping mission 18
8 (2) (b) (iv) War crime of excessive incidental death, injury, or damage 19
8 (2) (b) (v) War crime of attacking undefended places 20
8 (2) (b) (vi) War crime of killing or wounding a person hors de combat 20
8 (2) (b) (vii)-1 War crime of improper use of a flag of truce 20
8 (2) (b) (vii)-2 War crime of improper use of a flag, insignia or uniform of the
hostile party 21
8 (2) (b) (vii)-3 War crime of improper use of a flag, insignia or uniform of the United
Nations 21
8 (2) (b) (vii)-4 War crime of improper use of the distinctive emblems of the Geneva
Conventions 22
8 (2) (b) (viii) The transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory 22
8 (2) (b) (ix) War crime of attacking protected objects 23
8 (2) (b) (x)-1 War crime of mutilation 23
8 (2) (b) (x)-2 War crime of medical or scientific experiments 24
8 (2) (b) (xi) War crime of treacherously killing or wounding 24
8 (2) (b) (xii) War crime of denying quarter 24
8 (2) (b) (xiii) War crime of destroying or seizing the enemy’s property 25
8 (2) (b) (xiv) War crime of depriving the nationals of the hostile power of rights or
actions 25
8 (2) (b) (xv) War crime of compelling participation in military operations 25
8 (2) (b) (xvi) War crime of pillaging 26
8 (2) (b) (xvii) War crime of employing poison or poisoned weapons 26
8 (2) (b) (xviii) War crime of employing prohibited gases, liquids, materials or devices 26
8 (2) (b) (xix) War crime of employing prohibited bullets 27
8 (2) (b) (xx) War crime of employing weapons, projectiles or materials or methods of
warfare listed in the Annex to the Statute 27
8 (2) (b) (xxi) War crime of outrages upon personal dignity 27
8 (2) (b) (xxii)-1 War crime of rape 28
8 (2) (b) (xxii)-2 War crime of sexual slavery 28
8 (2) (b) (xxii)-3 War crime of enforced prostitution 29
8 (2) (b) (xxii)-4 War crime of forced pregnancy 29
8 (2) (b) (xxii)-5 War crime of enforced sterilization 29
8 (2) (b) (xxii)-6 War crime of sexual violence 30
8 (2) (b) (xxiii) War crime of using protected persons as shields 30
8 (2) (b) (xxiv) War crime of attacking objects or persons using the distinctive
emblems of the Geneva Conventions 30
8 (2) (b) (xxv) War crime of starvation as a method of warfare 31
8 (2) (b) (xxvi) War crime of using, conscripting or enlisting children 31Elements of Crimes
Article 8 (2) (c) 31
8 (2) (c) (i)-1 War crime of murder 31
8 (2) (c) (i)-2 War crime of mutilation 32
8 (2) (c) (i)-3 War crime of cruel treatment 32
8 (2) (c) (i)-4 War crime of torture 32
8 (2) (c) (ii) War crime of outrages upon personal dignity 33
8 (2) (c) (iii) War crime of taking hostages 33
8 (2) (c) (iv) War crime of sentencing or execution without due process 34
Article 8 (2) (e) 34
8 (2) (e) (i) War crime of attacking civilians 34
8 (2) (e) (ii) War crime of attacking objects or persons using the distinctive
emblems of the Geneva Conventions 35
8 (2) (e) (iii) War crime of attacking personnel or objects involved in a humanitarian
assistance or peacekeeping mission 35
8 (2) (e) (iv) War crime of attacking protected objects 36
8 (2) (e) (v) War crime of pillaging 36
8 (2) (e) (vi)-1 War crime of rape 36
8 (2) (e) (vi)-2 War crime of sexual slavery 37
8 (2) (e) (vi)-3 War crime of enforced prostitution 37
8 (2) (e) (vi)-4 War crime of forced pregnancy 38
8 (2) (e) (vi)-5 War crime of enforced sterilization 38
8 (2) (e) (vi)-6 War crime of sexual violence 38
8 (2) (e) (vii) War crime of using, conscripting and enlisting children 39
8 (2) (e) (viii) War crime of displacing civilians 39
8 (2) (e) (ix) War crime of treacherously killing or wounding 39
8 (2) (e) (x) War crime of denying quarter 40
8 (2) (e) (xi)-1 War crime of mutilation 40
8 (2) (e) (xi)-2 War crime of medical or scientific experiments 41
8 (2) (e) (xii) War crime of destroying or seizing the enemy’s property 41
8 (2) (e) (xiii) War crime of employing poison or poisoned weapons 41
8 (2) (e) (xiv) War crime of employing prohibited gases, liquids, materials or devices 42
8 (2) (e) (xv) War crime of employing prohibited bullets 42
Article 8 bis Crime of aggression 43Elements of CrimesElements of Crimes
1
General introduction
1. Pursuant to article 9, the following Elements of Crimes shall assist the Court in the
interpretation and application of articles 6, 7 and 8, consistent with the Statute. The
provisions of the Statute, including article 21 and the general principles set out in
Part 3, are applicable to the Elements of Crimes.
2. As stated in article 30, unless otherwise provided, a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of the Court
only if the material elements are committed with intent and knowledge. Where no
reference is made in the Elements of Crimes to a mental element for any particular
conduct, consequence or circumstance listed, it is understood that the relevant mental
element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the
article 30 standard, based on the Statute, including applicable law under its relevant
provisions, are indicated below.
3. Existence of intent and knowledge can be inferred from relevant facts and
circumstances.
4. With respect to mental elements associated with elements involving value judgement,
such as those using the terms “inhumane” or “severe”, it is not necessary that the
perpetrator personally completed a particular value judgement, unless otherwise
indicated.
5. Grounds for excluding criminal responsibility or the absence thereof are generally
not specified in the elements of crimes listed under each crime.
1
6. The requirement of “unlawfulness” found in the Statute or in other parts of
international law, in particular international humanitarian law, is generally not
specified in the elements of crimes.
7. The elements of crimes are generally structured in accordance with the following
principles:
(a) As the elements of crimes focus on the conduct, consequences and
circumstances associated with each crime, they are generally listed in that
order;
(b) When required, a particular mental element is listed after the affected
conduct, consequence or circumstance;
(c) Contextual circumstances are listed last.
8. As used in the Elements of Crimes, the term “perpetrator” is neutral as to guilt or
innocence. The elements, including the appropriate mental elements, apply, mutatis
mutandis, to all those whose criminal responsibility may fall under articles 25 and 28
of the Statute.
9. A particular conduct may constitute one or more crimes.
10. The use of short titles for the crimes has no legal effect.
1 This paragraph is without prejudice to the obligation of the Prosecutor under article 54, paragraph 1, of the
Statute.Elements of Crimes
2
Article 6
Genocide
Introduction
With respect to the last element listed for each crime:
(a) The term “in the context of” would include the initial acts in an emerging pattern;
(b) The term “manifest” is an objective qualification;
(c) Notwithstanding the normal requirement for a mental element provided for in
article 30, and recognizing that knowledge of the circumstances will usually be
addressed in proving genocidal intent, the appropriate requirement, if any, for a
mental element regarding this circumstance will need to be decided by the Court on
a case-by-case basis.
Article 6 (a)
Genocide by killing
Elements
1. The perpetrator killed
2
one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial
or religious group, as such.
4. The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.
Article 6 (b)
Genocide by causing serious bodily or mental harm
Elements
1. The perpetrator caused serious bodily or mental harm to one or more persons.
3
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial
or religious group, as such.
4. The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.
2 The term “killed” is interchangeable with the term “caused death”.
3 This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman
or degrading treatment.Elements of Crimes
3
Article 6 (c)
Genocide by deliberately inflicting conditions of life calculated to
bring about physical destruction
Elements
1. The perpetrator inflicted certain conditions of life upon one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial
or religious group, as such.
4. The conditions of life were calculated to bring about the physical destruction of that
group, in whole or in part.
4
5. The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.
Article 6 (d)
Genocide by imposing measures intended to prevent births
Elements
1. The perpetrator imposed certain measures upon one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial
or religious group, as such.
4. The measures imposed were intended to prevent births within that group.
5. The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.
Article 6 (e)
Genocide by forcibly transferring children
Elements
1. The perpetrator forcibly transferred one or more persons.
5
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial
or religious group, as such.
4. The transfer was from that group to another group.
4 The term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources
indispensable for survival, such as food or medical services, or systematic expulsion from homes.
5 The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person
or persons or another person, or by taking advantage of a coercive environment.Elements of Crimes
4
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.Elements of Crimes
5
Article 7
Crimes against humanity
Introduction
1. Since article 7 pertains to international criminal law, its provisions, consistent
with article 22, must be strictly construed, taking into account that crimes against
humanity as defined in article 7 are among the most serious crimes of concern to
the international community as a whole, warrant and entail individual criminal
responsibility, and require conduct which is impermissible under generally applicable
international law, as recognized by the principal legal systems of the world.
2. The last two elements for each crime against humanity describe the context in which
the conduct must take place. These elements clarify the requisite participation in
and knowledge of a widespread or systematic attack against a civilian population.
However, the last element should not be interpreted as requiring proof that the
perpetrator had knowledge of all characteristics of the attack or the precise details of
the plan or policy of the State or organization. In the case of an emerging widespread
or systematic attack against a civilian population, the intent clause of the last element
indicates that this mental element is satisfied if the perpetrator intended to further
such an attack.
3. “Attack directed against a civilian population” in these context elements is understood
to mean a course of conduct involving the multiple commission of acts referred to in
article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack. The acts need
not constitute a military attack. It is understood that “policy to commit such attack”
requires that the State or organization actively promote or encourage such an attack
against a civilian population.
6
Article 7 (1) (a)
Crime against humanity of murder
Elements
1. The perpetrator killed
7
one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack against a civilian population.
6 A policy which has a civilian population as the object of the attack would be implemented by State or
organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure
to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be
inferred solely from the absence of governmental or organizational action.
7 The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which
use either of these concepts.Elements of Crimes
6
Article 7 (1) (b)
Crime against humanity of extermination
Elements
1. The perpetrator killed
8
one or more persons, including by inflicting conditions of life
calculated to bring about the destruction of part of a population.
9
2. The conduct constituted, or took place as part of,
10
a mass killing of members of a
civilian population.
3. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (c)
Crime against humanity of enslavement
Elements
1. The perpetrator exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, lending or bartering such a
person or persons, or by imposing on them a similar deprivation of liberty.
11
2. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (d)
Crime against humanity of deportation or forcible transfer
of population
Elements
1. The perpetrator deported or forcibly
12
transferred,
13
without grounds permitted under
international law, one or more persons to another State or location, by expulsion or
other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so
deported or transferred.
8 The conduct could be committed by different methods of killing, either directly or indirectly.
9 The infliction of such conditions could include the deprivation of access to food and medicine.
10 The term “as part of” would include the initial conduct in a mass killing.
11 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the
conduct described in this element includes trafficking in persons, in particular women and children.
12 The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or
persons or another person, or by taking advantage of a coercive environment.
13 “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.Elements of Crimes
7
3. The perpetrator was aware of the factual circumstances that established the
lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (e)
Crime against humanity of imprisonment or other severe
deprivation of physical liberty
Elements
1. The perpetrator imprisoned one or more persons or otherwise severely deprived one
or more persons of physical liberty.
2. The gravity of the conduct was such that it was in violation of fundamental rules of
international law.
3. The perpetrator was aware of the factual circumstances that established the gravity of
the conduct.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (f)
Crime against humanity of torture
14
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or
more persons.
2. Such person or persons were in the custody or under the control of the perpetrator.
3. Such pain or suffering did not arise only from, and was not inherent in or incidental
to, lawful sanctions.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
14 It is understood that no specific purpose need be proved for this crime.Elements of Crimes
8
Article 7 (1) (g)-1
Crime against humanity of rape
Elements
1. The perpetrator invaded
15
the body of a person by conduct resulting in penetration,
however slight, of any part of the body of the victim or of the perpetrator with a sexual
organ, or of the anal or genital opening of the victim with any object or any other part
of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of
power, against such person or another person, or by taking advantage of a coercive
environment, or the invasion was committed against a person incapable of giving
genuine consent.
16
3. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (g)-2
Crime against humanity of sexual slavery
17
Elements
1. The perpetrator exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, lending or bartering such a
person or persons, or by imposing on them a similar deprivation of liberty.
18
2. The perpetrator caused such person or persons to engage in one or more acts of a
sexual nature.
3. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
15 The concept of “invasion” is intended to be broad enough to be gender-neutral.
16 It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements of article 7 (1) (g)-3, 5 and 6.
17 Given the complex nature of this crime, it is recognized that its commission could involve more than one
perpetrator as a part of a common criminal purpose.
18 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the
conduct described in this element includes trafficking in persons, in particular women and children.Elements of Crimes
9
Article 7 (1) (g)-3
Crime against humanity of enforced prostitution
Elements
1. The perpetrator caused one or more persons to engage in one or more acts of a sexual
nature by force, or by threat of force or coercion, such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against such person or
persons or another person, or by taking advantage of a coercive environment or such
person’s or persons’ incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other
advantage in exchange for or in connection with the acts of a sexual nature.
3. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (g)-4
Crime against humanity of forced pregnancy
Elements
1. The perpetrator confined one or more women forcibly made pregnant, with the intent
of affecting the ethnic composition of any population or carrying out other grave
violations of international law.
2. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (g)-5
Crime against humanity of enforced sterilization
Elements
1. The perpetrator deprived one or more persons of biological reproductive capacity.
19
2. The conduct was neither justified by the medical or hospital treatment of the person
or persons concerned nor carried out with their genuine consent.
20
3. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
19 The deprivation is not intended to include birth-control measures which have a non-permanent effect in
practice.
20 It is understood that “genuine consent” does not include consent obtained through deception.Elements of Crimes
10
Article 7 (1) (g)-6
Crime against humanity of sexual violence
Elements
1. The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature by force, or by
threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons or
another person, or by taking advantage of a coercive environment or such person’s or
persons’ incapacity to give genuine consent.
2. Such conduct was of a gravity comparable to the other offences in article 7,
paragraph 1 (g), of the Statute.
3. The perpetrator was aware of the factual circumstances that established the gravity of
the conduct.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (h)
Crime against humanity of persecution
Elements
1. The perpetrator severely deprived, contrary to international law,
21
one or more
persons of fundamental rights.
2. The perpetrator targeted such person or persons by reason of the identity of a group
or collectivity or targeted the group or collectivity as such.
3. Such targeting was based on political, racial, national, ethnic, cultural, religious,
gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are
universally recognized as impermissible under international law.
4. The conduct was committed in connection with any act referred to in article 7,
paragraph 1, of the Statute or any crime within the jurisdiction of the Court.
22
5. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
6. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
21 This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.
22 It is understood that no additional mental element is necessary for this element other than that inherent in
element 6.Elements of Crimes
11
Article 7 (1) (i)
Crime against humanity of enforced disappearance of persons
23, 24
Elements
1. The perpetrator:
(a) Arrested, detained
25, 26
or abducted one or more persons; or
(b) Refused to acknowledge the arrest, detention or abduction, or to give
information on the fate or whereabouts of such person or persons.
2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal
to acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.
3. The perpetrator was aware that:
27
(a) Such arrest, detention or abduction would be followed in the ordinary course
of events by a refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such person or persons;
28
or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.
4. Such arrest, detention or abduction was carried out by, or with the authorization,
support or acquiescence of, a State or a political organization.
5. Such refusal to acknowledge that deprivation of freedom or to give information on
the fate or whereabouts of such person or persons was carried out by, or with the
authorization or support of, such State or political organization.
6. The perpetrator intended to remove such person or persons from the protection of the
law for a prolonged period of time.
7. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
8. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
23 Given the complex nature of this crime, it is recognized that its commission will normally involve more than one
perpetrator as a part of a common criminal purpose.
24 This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after
the entry into force of the Statute.
25 The word “detained” would include a perpetrator who maintained an existing detention.
26 It is understood that under certain circumstances an arrest or detention may have been lawful.
27 This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction
to the Elements of Crimes.
28 It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be
satisfied if the perpetrator was aware that such a refusal had already taken place.Elements of Crimes
12
Article 7 (1) (j)
Crime against humanity of apartheid
Elements
1. The perpetrator committed an inhumane act against one or more persons.
2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act
of a character similar to any of those acts.
29
3. The perpetrator was aware of the factual circumstances that established the character
of the act.
4. The conduct was committed in the context of an institutionalized regime of systematic
oppression and domination by one racial group over any other racial group or groups.
5. The perpetrator intended to maintain such regime by that conduct.
6. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
7. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
Article 7 (1) (k)
Crime against humanity of other inhumane acts
Elements
1. The perpetrator inflicted great suffering, or serious injury to body or to mental or
physical health, by means of an inhumane act.
2. Such act was of a character similar to any other act referred to in article 7, paragraph 1,
of the Statute.
30
3. The perpetrator was aware of the factual circumstances that established the character
of the act.
4. The conduct was committed as part of a widespread or systematic attack directed
against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part
of a widespread or systematic attack directed against a civilian population.
29 It is understood that “character” refers to the nature and gravity of the act.
30 It is understood that “character” refers to the nature and gravity of the act.Elements of Crimes
13
Article 8
War crimes
Introduction
The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the
limitations addressed in article 8, paragraph 2 (d) and (f), which are not elements of
crimes.
The elements for war crimes under article 8, paragraph 2, of the Statute shall be
interpreted within the established framework of the international law of armed
conflict including, as appropriate, the international law of armed conflict applicable
to armed conflict at sea.
With respect to the last two elements listed for each crime:
(a) 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 noninternational;
(b) 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 noninternational;
(c) There is only a requirement for the awareness of the factual circumstances
that established the existence of an armed conflict that is implicit in the terms
“took place in the context of and was associated with”.
Article 8 (2) (a)
Article 8 (2) (a) (i)
War crime of wilful killing
Elements
1. The perpetrator killed one or more persons.
31
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
32, 33
4. The conduct took place in the context of and was associated with an international
armed conflict.
34
31 The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which
use either of these concepts.
32 This mental element recognizes the interplay between articles 30 and 32. This footnote also applies to the
corresponding element in each crime under article 8 (2) (a), and to the element in other crimes in article 8 (2)
concerning the awareness of factual circumstances that establish the status of persons or property protected
under the relevant international law of armed conflict.
33 With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged
to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under
article 8 (2) (a).
34 The term “international armed conflict” includes military occupation. This footnote also applies to the
corresponding element in each crime under article 8 (2) (a).Elements of Crimes
14
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (ii)-1
War crime of torture
Elements
35
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or
more persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining
information or a confession, punishment, intimidation or coercion or for any reason
based on discrimination of any kind.
3. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
4. The perpetrator was aware of the factual circumstances that established that protected
status.
5. The conduct took place in the context of and was associated with an international
armed conflict.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (ii)-2
War crime of inhuman treatment
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or
more persons.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
35 As element 3 requires that all victims must be “protected persons” under one or more of the Geneva Conventions
of 1949, these elements do not include the custody or control requirement found in the elements of article 7 (1)
(e).Elements of Crimes
15
Article 8 (2) (a) (ii)-3
War crime of biological experiments
Elements
1. The perpetrator subjected one or more persons to a particular biological experiment.
2. The experiment seriously endangered the physical or mental health or integrity of
such person or persons.
3. The intent of the experiment was non-therapeutic and it was neither justified by
medical reasons nor carried out in such person’s or persons’ interest.
4. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
5. The perpetrator was aware of the factual circumstances that established that protected
status.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (iii)
War crime of wilfully causing great suffering
Elements
1. The perpetrator caused great physical or mental pain or suffering to, or serious injury
to body or health of, one or more persons.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (iv)
War crime of destruction and appropriation of property
Elements
1. The perpetrator destroyed or appropriated certain property.
2. The destruction or appropriation was not justified by military necessity.
3. The destruction or appropriation was extensive and carried out wantonly.
4. Such property was protected under one or more of the Geneva Conventions of 1949.Elements of Crimes
16
5. The perpetrator was aware of the factual circumstances that established that protected
status.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (v)
War crime of compelling service in hostile forces
Elements
1. The perpetrator coerced one or more persons, by act or threat, to take part in military
operations against that person’s own country or forces or otherwise serve in the
forces of a hostile power.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (vi)
War crime of denying a fair trial
Elements
1. The perpetrator deprived one or more persons of a fair and regular trial by denying
judicial guarantees as defined, in particular, in the third and the fourth Geneva
Conventions of 1949.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.Elements of Crimes
17
Article 8 (2) (a) (vii)-1
War crime of unlawful deportation and transfer
Elements
1. The perpetrator deported or transferred one or more persons to another State or to
another location.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (vii)-2
War crime of unlawful confinement
Elements
1. The perpetrator confined or continued to confine one or more persons to a certain
location.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established that protected
status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (a) (viii)
War crime of taking hostages
Elements
1. The perpetrator seized, detained or otherwise held hostage one or more persons.
2. The perpetrator threatened to kill, injure or continue to detain such person or persons.
3. The perpetrator intended to compel a State, an international organization, a natural
or legal person or a group of persons to act or refrain from acting as an explicit or
implicit condition for the safety or the release of such person or persons.
4. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
5. The perpetrator was aware of the factual circumstances that established that protected
status.Elements of Crimes
18
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b)
Article 8 (2) (b) (i)
War crime of attacking civilians
Elements
1. The perpetrator directed an attack.
2. The object of the attack was a civilian population as such or individual civilians not
taking direct part in hostilities.
3. The perpetrator intended the civilian population as such or individual civilians not
taking direct part in hostilities to be the object of the attack.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (ii)
War crime of attacking civilian objects
Elements
1. The perpetrator directed an attack.
2. The object of the attack was civilian objects, that is, objects which are not military
objectives.
3. The perpetrator intended such civilian objects to be the object of the attack.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (iii)
War crime of attacking personnel or objects involved in a
humanitarian assistance or peacekeeping mission
Elements
1. The perpetrator directed an attack.
2. The object of the attack was personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with
the Charter of the United Nations. Elements of Crimes
19
3. The perpetrator intended such personnel, installations, material, units or vehicles so
involved to be the object of the attack.
4. Such personnel, installations, material, units or vehicles were entitled to that
protection given to civilians or civilian objects under the international law of armed
conflict.
5. The perpetrator was aware of the factual circumstances that established that
protection.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (iv)
War crime of excessive incidental death, injury, or damage
Elements
1. The perpetrator launched an attack.
2. The attack was such that it would cause incidental death or injury to civilians or
damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated.
36
3. The perpetrator knew that the attack would cause incidental death or injury to
civilians or damage to civilian objects or widespread, long-term and severe damage
to the natural environment and that such death, injury or damage would be of suchan
extent as to be clearly excessive in relation to the concrete and direct overall military
advantage anticipated.
37
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
36 The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable
by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related
to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral
damage does not in any way justify any violation of the law applicable in armed conflict. It does not address
justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent
in determining the legality of any military activity undertaken in the context of an armed conflict.
37 As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element
requires that the perpetrator make the value judgement as described therein. An evaluation of that value
judgement must be based on the requisite information available to the perpetrator at the time.Elements of Crimes
20
Article 8 (2) (b) (v)
War crime of attacking undefended places
38
Elements
1. The perpetrator attacked one or more towns, villages, dwellings or buildings.
2. Such towns, villages, dwellings or buildings were open for unresisted occupation.
3. Such towns, villages, dwellings or buildings did not constitute military objectives.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (vi)
War crime of killing or wounding a person hors de combat
Elements
1. The perpetrator killed or injured one or more persons.
2. Such person or persons were hors de combat.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (vii)-1
War crime of improper use of a flag of truce
Elements
1. The perpetrator used a flag of truce.
2. The perpetrator made such use in order to feign an intention to negotiate when there
was no such intention on the part of the perpetrator.
3. The perpetrator knew or should have known of the prohibited nature of such use.
39
4. The conduct resulted in death or serious personal injury.
5. The perpetrator knew that the conduct could result in death or serious personal
injury.
6. The conduct took place in the context of and was associated with an international
armed conflict.
38 The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police
forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military
objective.
39 This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature”
denotes illegality.Elements of Crimes
21
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (vii)-2
War crime of improper use of a flag, insignia or uniform of the
hostile party
Elements
1. The perpetrator used a flag, insignia or uniform of the hostile party.
2. The perpetrator made such use in a manner prohibited under the international law of
armed conflict while engaged in an attack.
3. The perpetrator knew or should have known of the prohibited nature of such use.
40
4. The conduct resulted in death or serious personal injury.
5. The perpetrator knew that the conduct could result in death or serious personal
injury.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (vii)-3
War crime of improper use of a flag, insignia or uniform of the
United Nations
Elements
1. The perpetrator used a flag, insignia or uniform of the United Nations.
2. The perpetrator made such use in a manner prohibited under the international law of
armed conflict.
3. The perpetrator knew of the prohibited nature of such use.
41
4. The conduct resulted in death or serious personal injury.
5. The perpetrator knew that the conduct could result in death or serious personal
injury.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (vii)-4
War crime of improper use of the distinctive emblems of the
40 This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature”
denotes illegality.
41 This mental element recognizes the interplay between article 30 and article 32. The “should have known” test
required in the other offences found in article 8 (2) (b) (vii) is not applicable here because of the variable and
regulatory nature of the relevant prohibitions.Elements of Crimes
22
Geneva Conventions
Elements
1. The perpetrator used the distinctive emblems of the Geneva Conventions.
2. The perpetrator made such use for combatant purposes
42
in a manner prohibited
under the international law of armed conflict.
3. The perpetrator knew or should have known of the prohibited nature of such use.
43
4. The conduct resulted in death or serious personal injury.
5. The perpetrator knew that the conduct could result in death or serious personal
injury.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (viii)
The transfer, directly or indirectly, by the Occupying Power of
parts of its own civilian population into the territory it occupies, or
the deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory
Elements
1. The perpetrator:
(a) Transferred,
44
directly or indirectly, parts of its own population into the
territory it occupies; or
(b) Deported or transferred all or parts of the population of the occupied territory
within or outside this territory.
2. The conduct took place in the context of and was associated with an international
armed conflict.
3. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
42 “Combatant purposes” in these circumstances means purposes directly related to hostilities and not including
medical, religious or similar activities.
43 This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature”
denotes illegality.
44 The term “transfer” needs to be interpreted in accordance with the relevant provisions of international
humanitarian law.Elements of Crimes
23
Article 8 (2) (b) (ix)
War crime of attacking protected objects
45
Elements
1. The perpetrator directed an attack.
2. The object of the attack was one or more buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives.
3. The perpetrator intended such building or buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives, to be the object
of the attack.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (x)-1
War crime of mutilation
Elements
1. The perpetrator subjected one or more persons to mutilation, in particular by
permanently disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage.
2. The conduct caused death or seriously endangered the physical or mental health of
such person or persons.
3. The conduct was neither justified by the medical, dental or hospital treatment of the
person or persons concerned nor carried out in such person’s or persons’ interest.
46
4. Such person or persons were in the power of an adverse party.
5. The conduct took place in the context of and was associated with an international
armed conflict.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
45 The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police
forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military
objective.
46 Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated
by the state of health of the person concerned and which is not consistent with generally accepted medical
standards which would be applied under similar medical circumstances to persons who are nationals of the
party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same
element for article 8 (2) (b) (x)-2.Elements of Crimes
24
Article 8 (2) (b) (x)-2
War crime of medical or scientific experiments
Elements
1. The perpetrator subjected one or more persons to a medical or scientific experiment.
2. The experiment caused death or seriously endangered the physical or mental health
or integrity of such person or persons.
3. The conduct was neither justified by the medical, dental or hospital treatment of such
person or persons concerned nor carried out in such person’s or persons’ interest.
4. Such person or persons were in the power of an adverse party.
5. The conduct took place in the context of and was associated with an international
armed conflict.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xi)
War crime of treacherously killing or wounding
Elements
1. The perpetrator invited the confidence or belief of one or more persons that they
were entitled to, or were obliged to accord, protection under rules of international law
applicable in armed conflict.
2. The perpetrator intended to betray that confidence or belief.
3. The perpetrator killed or injured such person or persons.
4. The perpetrator made use of that confidence or belief in killing or injuring such
person or persons.
5. Such person or persons belonged to an adverse party.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xii)
War crime of denying quarter
Elements
1. The perpetrator declared or ordered that there shall be no survivors.
2. Such declaration or order was given in order to threaten an adversary or to conduct
hostilities on the basis that there shall be no survivors.
3. The perpetrator was in a position of effective command or control over the subordinate
forces to which the declaration or order was directed.Elements of Crimes
25
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xiii)
War crime of destroying or seizing the enemy’s property
Elements
1. The perpetrator destroyed or seized certain property.
2. Such property was property of a hostile party.
3. Such property was protected from that destruction or seizure under the international
law of armed conflict.
4. The perpetrator was aware of the factual circumstances that established the status of
the property.
5. The destruction or seizure was not justified by military necessity.
6. The conduct took place in the context of and was associated with an international
armed conflict.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xiv)
War crime of depriving the nationals of the hostile power of rights
or actions
Elements
1. The perpetrator effected the abolition, suspension or termination of admissibility in
a court of law of certain rights or actions.
2. The abolition, suspension or termination was directed at the nationals of a hostile
party.
3. The perpetrator intended the abolition, suspension or termination to be directed at
the nationals of a hostile party.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xv)
War crime of compelling participation in military operations
Elements
1. The perpetrator coerced one or more persons by act or threat to take part in military
operations against that person’s own country or forces.Elements of Crimes
26
2. Such person or persons were nationals of a hostile party.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xvi)
War crime of pillaging
Elements
1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of the property and to appropriate it
for private or personal use.
47
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xvii)
War crime of employing poison or poisoned weapons
Elements
1. The perpetrator employed a substance or a weapon that releases a substance as a
result of its employment.
2. The substance was such that it causes death or serious damage to health in the
ordinary course of events, through its toxic properties.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xviii)
War crime of employing prohibited gases, liquids, materials or
devices
Elements
1. The perpetrator employed a gas or other analogous substance or device.
2. The gas, substance or device was such that it causes death or serious damage to health
in the ordinary course of events, through its asphyxiating or toxic properties.
48
47 As indicated by the use of the term “private or personal use”, appropriations justified by military necessity
cannot constitute the crime of pillaging.
48 Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules
of international law with respect to the development, production, stockpiling and use of chemical weapons.Elements of Crimes
27
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xix)
War crime of employing prohibited bullets
Elements
1. The perpetrator employed certain bullets.
2. The bullets were such that their use violates the international law of armed conflict
because they expand or flatten easily in the human body.
3. The perpetrator was aware that the nature of the bullets was such that their
employment would uselessly aggravate suffering or the wounding effect.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xx)
War crime of employing weapons, projectiles or materials or
methods of warfare listed in the Annex to the Statute
Elements
[Elements will have to be drafted once weapons, projectiles or material or methods of warfare
have been included in an annex to the Statute.]
Article 8 (2) (b) (xxi)
War crime of outrages upon personal dignity
Elements
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or
more persons.
49
2. The severity of the humiliation, degradation or other violation was of such degree as
to be generally recognized as an outrage upon personal dignity.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
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.Elements of Crimes
28
Article 8 (2) (b) (xxii)-1
War crime of rape
Elements
1. The perpetrator invaded
50
the body of a person by conduct resulting in penetration,
however slight, of any part of the body of the victim or of the perpetrator with a sexual
organ, or of the anal or genital opening of the victim with any object or any other part
of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of
power, against such person or another person, or by taking advantage of a coercive
environment, or the invasion was committed against a person incapable of giving
genuine consent.
51
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxii)-2
War crime of sexual slavery
52
Elements
1. The perpetrator exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, lending or bartering such a
person or persons, or by imposing on them a similar deprivation of liberty.
53
2. The perpetrator caused such person or persons to engage in one or more acts of a
sexual nature.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
50 The concept of “invasion” is intended to be broad enough to be gender-neutral.
51 It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6.
52 Given the complex nature of this crime, it is recognized that its commission could involve more than one
perpetrator as a part of a common criminal purpose.
53 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the
conduct described in this element includes trafficking in persons, in particular women and children.Elements of Crimes
29
Article 8 (2) (b) (xxii)-3
War crime of enforced prostitution
Elements
1. The perpetrator caused one or more persons to engage in one or more acts of a sexual
nature by force, or by threat of force or coercion, such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against such person or
persons or another person, or by taking advantage of a coercive environment or such
person’s or persons’ incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other
advantage in exchange for or in connection with the acts of a sexual nature.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxii)-4
War crime of forced pregnancy
Elements
1. The perpetrator confined one or more women forcibly made pregnant, with the intent
of affecting the ethnic composition of any population or carrying out other grave
violations of international law.
2. The conduct took place in the context of and was associated with an international
armed conflict.
3. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxii)-5
War crime of enforced sterilization
Elements
1. The perpetrator deprived one or more persons of biological reproductive capacity.
54
2. The conduct was neither justified by the medical or hospital treatment of the person
or persons concerned nor carried out with their genuine consent.
55
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.
54 The deprivation is not intended to include birth-control measures which have a non-permanent effect in
practice.
55 It is understood that “genuine consent” does not include consent obtained through deception.Elements of Crimes
30
Article 8 (2) (b) (xxii)-6
War crime of sexual violence
Elements
1. The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature by force, or by
threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons or
another person, or by taking advantage of a coercive environment or such person’s or
persons’ incapacity to give genuine consent.
2. The conduct was of a gravity comparable to that of a grave breach of the Geneva
Conventions.
3. The perpetrator was aware of the factual circumstances that established the gravity of
the conduct.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxiii)
War crime of using protected persons as shields
Elements
1. The perpetrator moved or otherwise took advantage of the location of one or more
civilians or other persons protected under the international law of armed conflict.
2. The perpetrator intended to shield a military objective from attack or shield, favour or
impede military operations.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxiv)
War crime of attacking objects or persons using the distinctive
emblems of the Geneva Conventions
Elements
1. The perpetrator attacked one or more persons, buildings, medical units or transports
or other objects using, in conformity with international law, a distinctive emblem or
other method of identification indicating protection under the Geneva Conventions.
2. The perpetrator intended such persons, buildings, units or transports or other objects
so using such identification to be the object of the attack.
3. The conduct took place in the context of and was associated with an international
armed conflict.Elements of Crimes
31
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxv)
War crime of starvation as a method of warfare
Elements
1. The perpetrator deprived civilians of objects indispensable to their survival.
2. The perpetrator intended to starve civilians as a method of warfare.
3. The conduct took place in the context of and was associated with an international
armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (b) (xxvi)
War crime of using, conscripting or enlisting children
Elements
1. The perpetrator conscripted or enlisted one or more persons into the national armed
forces or used one or more persons to participate actively in hostilities.
2. Such person or persons were under the age of 15 years.
3. The perpetrator knew or should have known that such person or persons were under
the age of 15 years.
4. The conduct took place in the context of and was associated with an international
armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c)
Article 8 (2) (c) (i)-1
War crime of murder
Elements
1. The perpetrator killed one or more persons.
2. Such person or persons were either hors de combat, or were civilians, medical
personnel, or religious personnel
56
taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
56 The term “religious personnel” includes those non-confessional non-combatant military personnel carrying
out a similar function.Elements of Crimes
32
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c) (i)-2
War crime of mutilation
Elements
1. The perpetrator subjected one or more persons to mutilation, in particular by
permanently disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage.
2. The conduct was neither justified by the medical, dental or hospital treatment of the
person or persons concerned nor carried out in such person’s or persons’ interests.
3. Such person or persons were either hors de combat, or were civilians, medical personnel
or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c) (i)-3
War crime of cruel treatment
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or
more persons.
2. Such person or persons were either hors de combat, or were civilians, medical
personnel, or religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c) (i)-4
War crime of torture
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or
more persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining
information or a confession, punishment, intimidation or coercion or for any reason
based on discrimination of any kind.Elements of Crimes
33
3. Such person or persons were either hors de combat, or were civilians, medical personnel
or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c) (ii)
War crime of outrages upon personal dignity
Elements
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or
more persons.
57
2. The severity of the humiliation, degradation or other violation was of such degree as
to be generally recognized as an outrage upon personal dignity.
3. Such person or persons were either hors de combat, or were civilians, medical personnel
or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (c) (iii)
War crime of taking hostages
Elements
1. The perpetrator seized, detained or otherwise held hostage one or more persons.
2. The perpetrator threatened to kill, injure or continue to detain such person or persons.
3. The perpetrator intended to compel a State, an international organization, a natural
or legal person or a group of persons to act or refrain from acting as an explicit or
implicit condition for the safety or the release of such person or persons.
4. Such person or persons were either hors de combat, or were civilians, medical personnel
or religious personnel taking no active part in the hostilities.
5. The perpetrator was aware of the factual circumstances that established this status.
6. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
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.Elements of Crimes
34
Article 8 (2) (c) (iv)
War crime of sentencing or execution without due process
Elements
1. The perpetrator passed sentence or executed one or more persons.
58
2. Such person or persons were either hors de combat, or were civilians, medical personnel
or religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. There was no previous judgement pronounced by a court, or the court that rendered
judgement was not “regularly constituted”, that is, it did not afford the essential
guarantees of independence and impartiality, or the court that rendered judgement
did not afford all other judicial guarantees generally recognized as indispensable
under international law.
59
5. The perpetrator was aware of the absence of a previous judgement or of the denial of
relevant guarantees and the fact that they are essential or indispensable to a fair trial.
6. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e)
60
Article 8 (2) (e) (i)
War crime of attacking civilians
Elements
1. The perpetrator directed an attack.
2. The object of the attack was a civilian population as such or individual civilians not
taking direct part in hostilities.
3. The perpetrator intended the civilian population as such or individual civilians not
taking direct part in hostilities to be the object of the attack.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
58 The elements laid down in these documents do not address the different forms of individual criminal
responsibility, as enunciated in articles 25 and 28 of the Statute.
59 With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances,
the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial.
60 As amended by resolution RC/Res.5.Elements of Crimes
35
Article 8 (2) (e) (ii)
War crime of attacking objects or persons using the distinctive
emblems of the Geneva Conventions
Elements
1. The perpetrator attacked one or more persons, buildings, medical units or transports
or other objects using, in conformity with international law, a distinctive emblem or
other method of identification indicating protection under the Geneva Conventions.
2. The perpetrator intended such persons, buildings, units or transports or other objects
so using such identification to be the object of the attack.
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (iii)
War crime of attacking personnel or objects involved in a
humanitarian assistance or peacekeeping mission
Elements
1. The perpetrator directed an attack.
2. The object of the attack was personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with
the Charter of the United Nations.
3. The perpetrator intended such personnel, installations, material, units or vehicles so
involved to be the object of the attack.
4. Such personnel, installations, material, units or vehicles were entitled to that
protection given to civilians or civilian objects under the international law of armed
conflict.
5. The perpetrator was aware of the factual circumstances that established that
protection.
6. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.Elements of Crimes
36
Article 8 (2) (e) (iv)
War crime of attacking protected objects
61
Elements
1. The perpetrator directed an attack.
2. The object of the attack was one or more buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives.
3. The perpetrator intended such building or buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives, to be the object
of the attack.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (v)
War crime of pillaging
Elements
1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of the property and to appropriate it
for private or personal use.
62
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (vi)-1
War crime of rape
Elements
1. The perpetrator invaded
63
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.
61 The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police
forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military
objective.
62 As indicated by the use of the term “private or personal use”, appropriations justified by military necessity
cannot constitute the crime of pillaging.
63 The concept of “invasion” is intended to be broad enough to be gender-neutral.Elements of Crimes
37
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.
64
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (vi)-2
War crime of sexual slavery
65
Elements
1. The perpetrator exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, lending or bartering such a
person or persons, or by imposing on them a similar deprivation of liberty.
66
2. The perpetrator caused such person or persons to engage in one or more acts of a
sexual nature.
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (vi)-3
War crime of enforced prostitution
Elements
1. The perpetrator caused one or more persons to engage in one or more acts of a sexual
nature by force, or by threat of force or coercion, such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against such person or
persons or another person, or by taking advantage of a coercive environment or such
person’s or persons’ incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other
advantage in exchange for or in connection with the acts of a sexual nature.
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
64 It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity. This footnote also applies to the corresponding elements in article 8 (2) (e) (vi)-3, 5 and 6.
65 Given the complex nature of this crime, it is recognized that its commission could involve more than one
perpetrator as a part of a common criminal purpose.
66 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the
conduct described in this element includes trafficking in persons, in particular women and children.Elements of Crimes
38
Article 8 (2) (e) (vi)-4
War crime of forced pregnancy
Elements
1. The perpetrator confined one or more women forcibly made pregnant, with the intent
of affecting the ethnic composition of any population or carrying out other grave
violations of international law.
2. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
3. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (vi)-5
War crime of enforced sterilization
Elements
1. The perpetrator deprived one or more persons of biological reproductive capacity.
67
2. The conduct was neither justified by the medical or hospital treatment of the person
or persons concerned nor carried out with their genuine consent.
68
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (vi)-6
War crime of sexual violence
Elements
1. The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature by force, or by
threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons or
another person, or by taking advantage of a coercive environment or such person’s or
persons’ incapacity to give genuine consent.
2. The conduct was of a gravity comparable to that of a serious violation of article 3
common to the four Geneva Conventions.
3. The perpetrator was aware of the factual circumstances that established the gravity of
the conduct.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
67 The deprivation is not intended to include birth-control measures which have a non-permanent effect in
practice.
68 It is understood that “genuine consent” does not include consent obtained through deception.Elements of Crimes
39
Article 8 (2) (e) (vii)
War crime of using, conscripting and enlisting children
Elements
1. The perpetrator conscripted or enlisted one or more persons into an armed force or
group or used one or more persons to participate actively in hostilities.
2. Such person or persons were under the age of 15 years.
3. The perpetrator knew or should have known that such person or persons were under
the age of 15 years.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (viii)
War crime of displacing civilians
Elements
1. The perpetrator ordered a displacement of a civilian population.
2. Such order was not justified by the security of the civilians involved or by military
necessity.
3. The perpetrator was in a position to effect such displacement by giving such order.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (ix)
War crime of treacherously killing or wounding
Elements
1. The perpetrator invited the confidence or belief of one or more combatant adversaries
that they were entitled to, or were obliged to accord, protection under rules of
international law applicable in armed conflict.
2. The perpetrator intended to betray that confidence or belief.
3. The perpetrator killed or injured such person or persons.
4. The perpetrator made use of that confidence or belief in killing or injuring such
person or persons.
5. Such person or persons belonged to an adverse party.
6. The conduct took place in the context of and was associated with an armed conflict
not of an international character.Elements of Crimes
40
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (x)
War crime of denying quarter
Elements
1. The perpetrator declared or ordered that there shall be no survivors.
2. Such declaration or order was given in order to threaten an adversary or to conduct
hostilities on the basis that there shall be no survivors.
3. The perpetrator was in a position of effective command or control over the subordinate
forces to which the declaration or order was directed.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (xi)-1
War crime of mutilation
Elements
1. The perpetrator subjected one or more persons to mutilation, in particular by
permanently disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage.
2. The conduct caused death or seriously endangered the physical or mental health of
such person or persons.
3. The conduct was neither justified by the medical, dental or hospital treatment of the
person or persons concerned nor carried out in such person’s or persons’ interest.
69
4. Such person or persons were in the power of another party to the conflict.
5. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
69 Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated
by the state of health of the person concerned and which is not consistent with generally accepted medical
standards which would be applied under similar medical circumstances to persons who are nationals of the
party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the
similar element in article 8 (2) (e) (xi)-2.Elements of Crimes
41
Article 8 (2) (e) (xi)-2
War crime of medical or scientific experiments
Elements
1. The perpetrator subjected one or more persons to a medical or scientific experiment.
2. The experiment caused the death or seriously endangered the physical or mental
health or integrity of such person or persons.
3. The conduct was neither justified by the medical, dental or hospital treatment of such
person or persons concerned nor carried out in such person’s or persons’ interest.
4. Such person or persons were in the power of another party to the conflict.
5. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (xii)
War crime of destroying or seizing the enemy’s property
Elements
1. The perpetrator destroyed or seized certain property.
2. Such property was property of an adversary.
3. Such property was protected from that destruction or seizure under the international
law of armed conflict.
4. The perpetrator was aware of the factual circumstances that established the status of
the property.
5. The destruction or seizure was not required by military necessity.
6. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
7. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (xiii)
70
War crime of employing poison or poisoned weapons
Elements
1. The perpetrator employed a substance or a weapon that releases a substance as a
result of its employment.
2. The substance was such that it causes death or serious damage to health in the
ordinary course of events, through its toxic properties.
70 As amended by resolution RC/Res.5; see Official Records of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11),
part II.Elements of Crimes
42
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (xiv)
71
War crime of employing prohibited gases, liquids, materials or
devices
Elements
1. The perpetrator employed a gas or other analogous substance or device.
2. The gas, substance or device was such that it causes death or serious damage to health
in the ordinary course of events, through its asphyxiating or toxic properties.
72
3. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
Article 8 (2) (e) (xv)
73
War crime of employing prohibited bullets
Elements
1. The perpetrator employed certain bullets.
2. The bullets were such that their use violates the international law of armed conflict
because they expand or flatten easily in the human body.
3. The perpetrator was aware that the nature of the bullets was such that their
employment would uselessly aggravate suffering or the wounding effect.
4. The conduct took place in the context of and was associated with an armed conflict
not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
71 Ibid.
72 Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules
of international law with respect to the development, production, stockpiling and use of chemical weapons.
73 As amended by resolution RC/Res.5; see Official Records of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11),
part II.Elements of Crimes
43
Article 8 bis
74
Crime of aggression
Introduction
1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as
an act of aggression.
2. There is no requirement to prove that the perpetrator has made a legal evaluation as
to whether the use of armed force was inconsistent with the Charter of the United
Nations.
3. The term “manifest” is an objective qualification.
4. There is no requirement to prove that the perpetrator has made a legal evaluation as
to the “manifest” nature of the violation of the Charter of the United Nations.
Elements
1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person
75
in a position effectively to exercise control over or
to direct the political or military action of the State which committed the act of
aggression.
3. The act of aggression – the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations – was committed.
4. The perpetrator was aware of the factual circumstances that established that such a
use of armed force was inconsistent with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest
violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances that established such a
manifest violation of the Charter of the United Nations.
74 As amended by resolution RC/Res.6; see Official Records of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11),
part II.
75 With respect to an act of aggression, more than one person may be in a position that meets these criteria.Elements of Crimes
44

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