Article 8 War crimes

• Author: International Criminal Court
• Pages: 9-11

9

Elements of Crimes

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.

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 conict including, as appropriate, the international

law of armed conict applicable to armed conict 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

conict or its character as international or non-international;

(b) In that context there is no requirement for awareness by the perpetrator of the facts that established

the character of the conict as international or non-international;

(c) There is only a requirement for the awareness of the factual circumstances that established the

existence of an armed conict 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 conict.34

5. The perpetrator was aware of factual circumstances that established the existence of an armed conict.

31 The te rm “killed ” is interchang eable with the ter m “caused death”. This foot note applies to all ele ments which use eit her of these concept s.

32 This mental e lement recognizes t he interplay betwee n articles 30 and 32. T his footnote als o applies to the corresp onding element in each

crime unde r article 8 (2) (a), and t o the element in othe r crimes in a rticle 8 (2) conc erning the aw areness of fac tual cir cumstan ces that establ ish

the status of p ersons or proper ty protected u nder the relevant i nternational l aw of armed con ict.

33 With respect to nation ality, it is understood t hat the perpetrator need s only to know that the vi ctim belonged to an adver se party to the

conict. T his footnote a lso applies to the co rresponding e lement in each cri me under artic le 8 (2) (a).

34 The term “i nternational a rmed conict ” includes mi litary occ upation. This fo otnote also appl ies to the correspo nding element in eac h crime

under art icle 8 (2) (a).