2. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

2. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The Naletilić and Martinović ("Tuta and Štela") Appeals Chamber established:

"The Appeals Chamber concludes that the existence and international character of an armed conflict are both jurisdictional prerequisites (as established in Tadić) and substantive elements of crimes pursuant to Article 2 of the Statute. The fact that something is a jurisdictional prerequisite does not mean that it does not at the same time constitute an element of a crime. If certain conduct becomes a crime under the Statute only if it occurs in the context of an international armed conflict, the existence of such a conflict is not merely a jurisdictional prerequisite: it is a substantive element of the crime charged. Thus, the Prosecution's obligation to prove intent also encompasses the accused's knowledge of the facts pertinent to the internationality of an armed conflict."[1]

The Naletilić and Martinović ("Tuta and Štela") Chamber also stated:

"the Prosecution has to show 'that the accused knew that his crimes' had a nexus to an international armed conflict, or at least that he had knowledge of the factual circumstances later bringing the Judges to the conclusion that the armed conflict was an international one. This aspect of the mens rea requirement for Article 2 crimes does not require that a perpetrator correctly subsume facts known to him during the commission of the crime into a particular legal characterization. This is the task of the judge (iura novit curia). The perpetrator only needs to be aware of factual circumstances on which the judge finally determines the existence of the armed conflict and the international (or internal) character thereof. It is a general principle of criminal law that the correct legal classification of a conduct by the perpetrator is not required. The principle of individual guilt, however, demands sufficient awareness of factual circumstances establishing the armed conflict and its (international or internal) character. [...] Consequently, the Appeals Chamber finds that the principle of individual guilt requires that the accused's awareness of factual circumstances establishing the armed conflict's international character must be proven by the Prosecution. The Trial Chamber erred in law in failing to so find explicitly."[2]