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Previous comments - Part 1

Article 5(1)

[28] Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

The crimes mentioned in the present provision are considered to be the core crimes of international criminal law.

Author: Mark Klamberg

Updated: 30 June 2016

Article 5(1)(a)

[29] (a) The crime of genocide;
See comments under Article 6.

Updated: 30 June 2016

Artiicle 5(1)(b)

[30] (b) Crimes against humanity;
See comments under Article 7.

Updated: 30 June 2016

Article 5(1)(c)

[31] (c) War crimes;
See comments under Article 8.

Updated: 30 June 2016

Article 5(1)(d)

[32] (d) The crime of aggression.
At the Rome Conference, the informal consultations did not bring the delegations to an agreement on the definition of the crime and under which conditions the Court shall exercise jurisdiction with respect to the crime. Thus, the Court may not exercise jurisdiction with respect to the crime of aggression.
  The Court’s jurisdiction over the crime was made dependent on the Assembly of State Parties (ASP) agreeing on a definition in accordance with the now deleted Article 5(2). In 2002 the ASP decided to establish a Special Working Group on the Crime of Aggression (SWGCA), which was to submit proposed provisions to a future Review Conference [Resolution on Continuity of Work in Respect of the Crime of Aggression, 2002]. The SWGCA draft amendments were the starting point for the discussions at the Kampala Review Conference in 2010, where Articles 8 bis, 15 bis, 15 ter and 25 (3) bis were adopted. It follows from Articles 5 bis (3) and 15 ter (3) that the Court will first by 2017 have the power to exercise jurisdiction over the crime, provide that 30 States Parties have ratified or accepted the amendments.

Doctrine:

  1. Gerhard Werle, Principles of International Criminal Law, TMC Asser Press, The Hague, 2005, pp. 400-401, MN 1184-1185.
  2. Herman von Hebel/Darryl Robinson, "Crimes Within the Jurisdiction of the Court", in Roy S. Lee (Ed.), The International Criminal Court: The Making off the Rome Statute: Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, pp. 81-85.
  3. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observer´s Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 129-142, MN 1-41.

Author: Mark Klamberg

Updated: 30 June 2016

Article 6

[33] Genocide
General Remarks
i. The legal and the ordinary concept of genocide
A principal difficulty relating to the interpretation of the concept of genocide arises from the widespread use of the term. The 'ordinary' concept, which exists outside its legal parameters, has been stretched to fit a wide variety of scenarios. The word is commonly employed in particular in reference to campaigns involving the killing of a large number of victims. The legal concept, as it appears in identical phrasing in the texts of Article 6 ICC Statute, Article 4(2) ICTY Statute, Article 2(2) ICTR Statute and Article II of the Genocide Convention, differs from that (see below at C.), but there is evidence that the ordinary concept has influenced the views of tribunals and individual judges. In Kayishema and Ruzindana for instance, the ICTR Trial Chamber quoted with approval the opinion that it was 'virtually impossible' for genocide to be committed without State involvement, 'given the magnitude of this crime' (Prosecutor v Clément Kayishema and Obed Ruzindana, (Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999, para 94.) For the impact of the ordinary concept of genecide on the ICJ judgment in Croatia v Serbia, see Behrens. The legal concept, at least pursuant to the literal interpretation of the Rome Statute, requires neither magnitude (on the objective side of the crime) nor State involvement nor even the involvement of more than one perpetrator. (But see below at ii. for the contextual element).

ii. Contextual element
An attempt to introduce a contextual element into the legal concept of genocide was made through the 'Elements of Crime' in 2000 (see last element of each of the alternatives of genocide in the Elements of Crime).
   A literal reading of the crime as it appears in the ICC Statute does not suggest that organisational structure, pattern, magnitude or other contextual elements have become of the concept of genocide. It is for that reason that the establishment of contextual elements in the Elements of Crime is a problematic feature. Triffterer for one has voiced the view that the requirement of a context is not consistent with the wording of the statute and thus conflicts with Article 9 of the Rome Statute (Triffterer 2001a, 407). In Al-Bashir, however, the majority of the Pre-Trial Chamber found that the application of the Elements of Crime could only be refused if this would lead to an 'irreconcilable contradiction' with the Statute of the court, Prosecutor v Omar Al Bashir, ICC PT. Ch., Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para 128), but concluded that, '[i]n the case at hand', such a contradiction did not exist (ibid., para 132). If a contextual element along these lines were accepted, it would in any event not reflect customary international law that existed before the entry into force of the Elements of Crime (see also Krstic' (Appeals Chamber, para 24). 
   On the requirement of a 'manifest pattern of similar conduct', the Pre-Trial Chamber noted that the 'crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group, or a part thereof.' (Pre-Trial Chamber, Al-Bashir, PT. Ch., 4 March 2009, para 124). That threat had to be 'concrete and real, as opposed to just being latent or hypothetical'(ibid.).  In her dissenting opinion, Judge Ušacka took exception to the 'result-based' reading to which the majority view would lead, and stated that the requirement of a threat 'would then duplicate the purpose of the second part' of the contextual element (Al-Bashir, ICC PT. Ch., Arrest Warrant Decision, ICC-02/05-01/09-3, 4 March 2009, Dissenting Opinion Judge Ušacka, para 26), ie, 'conduct that could itself effect such destruction'.
    With regard to that element, the majority found that it referred to conduct of 'such a nature as to itself effect […]  the total or partial destruction of the targeted group' (Al-Bashir, Pre-Trial Chamber, Arrest Warrant Decision, ICC-02/05-01/09-3, 4 March 2009, para 123). 

iii. Evidentiary issues
Questions of evidence cause particular problems in relation to the existence of specific genocidal intent (See below, notes 34 - 38). The ICTR Appeals Chamber has accepted that this element can be proven through circumstantial evidence, but it also emphasised that a finding of intent must still be 'the only reasonable inference from the totality of the evidence', (Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, (Case No. ICTR-99-52-T), ICTR T. Ch., Judgment, 3 December 2003, para 524). That requirement allows for a critical approach towards strands of evidence which were accepted by the Trial Chambers as suitable indications for genocidal intent.
   With regard to incriminating evidence, the ad hoc tribunals have accepted for a long time that genocidal intent can be inferred from the actions of the perpetrator at the time of the commission of the crime (Prosecutor v Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 523).
   But even actions of this kind may allow for a range of inferences (Behrens 2007, 136). The 'scale of the atrocities' (see Prosecutor v André Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, (Case No. ICTR-99-46-T), ICTR T. Ch., Judgment, 25 February 2004, para 690) and the 'manner of the killing' (see Prosecutor v Ntagerura et al, ICTR T. Ch., 22 Dec. 2008, para. 689) cause particular problems in that regard, as crimes against humanity can be committed in an equally cruel fashion and are, because of their contextual element, likely to result in large scale atrocities.
    The ad hoc tribunals have also given weight to statements which the accused had made at the relevant time (Prosecutor v Kayishema, ICTR T. Ch., 21 May 1999, para 93). In this regard, the fact must be taken into account that a defendant's statements will require interpretation in light of their context (see Prosecutor v Kayishema, ICTR T. Ch., 21 May 1999, para 539, on the phrases 'go to work' or 'get down to work').

Preparatory work
The introduction of the concept of this crime into international law can be traced to the work of the Polish lawyer Raphael Lemkin, who in Axis Rule in Occupied Europe (Washington 1944), used the term ‘genocide’ to refer to the ‘destruction of a nation or of an ethnic group’ (ibid., chapter 9). Before the International Military Tribunal at Nuremberg, ‘genocide’ was mentioned in the text of the indictment, but it did not form an independent charge against the defendants –  it was rather seen as conduct which fulfilled the parameters of war crimes and crimes against humanity.
    In 1946, General Assembly Resolution 96(I) recognised genocide as a ‘crime under international law’ and understood it to mean ‘the denial of the right of existence of entire human groups’ (GA Res 96(I)). In that Resolution, the General Assembly also requested the Economic and Social Council (ECOSOC) to ‘undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide’ (ibid.).
    The UN Secretariat subsequently issued a first draft of a genocide convention, which was then reviewed by an Ad Hoc Committee convened by ECOSOC, resulting in a second draft. A third draft was issued by the Sixth Committee of the General Assembly in 1948 and submitted to the General Assembly for adoption. The resulting convention – the Convention on the Prevention and Punishment of the Crime of Genocide – was adopted on 8 December 1948 and entered into force on 12 January 1951. One of the most important changes which materialised during the codification process, was the shifting emphasis of the crime: where the 1946 General Assembly Resolution still put an objective aspect of genocide at the centre of the concept, the crime as enshrined in the Genocide Convention receives its particular characteristic through its subjective side ('intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such').
Further insight into the interpretation of the crime is provided through the ILC commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind (YILC 1996, vol 2, part 2, at 44). But the definition of genocide as it appears in Article II of the Genocide Convention has remained textually unchanged in the ICC Statute.

Author: Paul Behrens

Updated: 30 June 2016

Article 6 - with intent

[34] C. Analysis of Provisions and Sub-Provisions with intent
Next to the group element, it is the existence of destructive intent which gives the crime its particular character (cf Prosecutor v Radoslav Brđanin, (Case No. IT-99-36-T), ICTY T. Ch., Judgment, 1 September 2004, para 699).
The intent element is not merely a counterpart to an already existing factor on the side of the actus reus, but has an existence outside and above the latter. The ICTY Trial Chamber in Prosecutor v Milomir Stakić, (Case No. IT-97-24-T),  ICTY T. Ch., Judgment, 31 July 2003, thus spoke of a crime distinguished 'by a "surplus" of intent' (para 520).  
    The precise threshold for genocidal intent has been subject of controversy. A majority of the Chambers of the ad hoc tribunals resorts to terms which imply a volitional standard: the perpetrator 'seeks to achieve' the destruction (eg, Prosecutor v Goran Jelisić, (Case No. IT-95-10-A), ICTY A. Ch., Judgment, 5 July 2001, paras 45-46), or he must have had the 'goal' of destroying the group (Prosecutor v Radislav Krstić, (Case No. IT-98-33-T), ICTY T. Ch., Judgment, 2 August 2001, paras 571, 572). The ILC expressed a similar view when it found that 'a general awareness of the probable consequences' of a genocidal act was not sufficient (YILC 1996, vol 2, part 2, 44, Article 17, para. 5). 
    Supporters of the cognitive opinion focus on the knowledge of the perpetrator: in Jelisi‍for instance, the Prosecution stated that it was sufficient for the mental element that the perpetrator 'knew that his acts were destroying, in whole or in part, the group, as such', and made clear that such knowledge must refer to actual (as opposed to probable) destruction (Prosecutor v Jelisić, ICTY A. Ch., 5 July 2001, para 42). For further references in the literature, see Behrens 2012a, 77, 78).
    However, the lower cognitive standard has that far not found favour with the international criminal tribunals – with some Trial Chambers stating expressly that knowledge of inevitable or likely destructive consequences was not sufficient for the conviction of the defendant (Prosecutor v Vidoje Blagojevic' and Dragan Jokic', (Case No. IT-02-60-T), ICTY T. Ch., Judgment, 17 January 2005, para 656).

Author: Paul Behrens

Updated: 30 June 2016

Article 6 - to destroy

[35] to destroy
In the eyes of the ILC, 'destruction' referred only to the 'material destruction of a group either by physical or by biological means'; other forms of destruction were expressly dismissed (YILC 1996 II / 2, 46, para 12). A more inclusive view has been supported by the Constitutional Court of Germany, which in 2000 found that destructive intent extended 'beyond physical and biological extermination' (BVerfG, para. (III)(4)(a) (aa)). In his partially dissenting opinion in Krstić, Judge Shahabuddeen found that the destruction of the group as a 'social 'unit' was embraced by the intention of the perpretrator (Prosecutor v Radislav Krstić, (Case No. IT-98-33-A), ICTY A. Ch., Judgment, 19 April 2004,  Partial Dissenting Opinion of Judge Shahabuddeen, para 51). 
    In the case law of the ad hoc tribunals, there is however a strong tendency to follow the narrower view: in Prosecutor v Seromba, (Case No. ICTR-2001-66-I), ICTR T. Ch., Judgment, 13 December 2006, for instance, the Trial Chamber found that the concept of 'destruction of the group' (in the context of genocidal intent) referred to the 'material destruction of a group either by physical or by biological means […]' (para 319. See also Tournaye, 454). It is certainly true that a group can be destroyed in more ways than through the killing of its members or the prevention of births (Prosecutor v Blagojevic', ICTY T. Ch.,17 January 2005, para 666), but the inclusion of all kinds of destruction is also likely to lead to such an extensive understanding of the crime that its threshold disappears. The existence of national group for example, could effectively be terminated through mere changes in the legal personality of the State, including its voluntary merger with another State. 
    Apart from that, the fact cannot be dismissed that the option of including other forms of destruction had existed at drafting stage but was ultimately rejected (see Prosecutor v Radislav Krstić, (Case No. IT-98-33-T), ICTY T. Ch., Judgment, 2 August 2001, para 576, fn 1284); a comprehensive view of the codification history therefore does not yield a result which supports the wider view.

Author: Paul Behrens

Updated: 30 June 2016

Article 6 - in whole or in part

[36] in whole or in part
The phrase 'in whole or in part' was introduced at the drafting stage through a suggestion by Norway, which the Sixth Committee accepted (UN GAOR, 3rd session, 6th Committee, 73rd meeting, 92, 97); but its interpretation has ever since been subject of much debate in the literature and the international criminal tribunals.
    It does seem well accepted today that the intended destruction must refer at least to a 'substantial part' of the relevant group (see e.g. Prosecutor v Radoslav Brđanin, (Case No. IT-99-36-T), ICTY T. Ch., Judgment, 1 September 2004, para 701; YILC 1996 II / 2, 45, para 8 and Prosecutor v Radislav Krstić, (Case No. IT-98-33-A), ICTY A. Ch., Judgment, 19 April 2004, para 11). However, the determination of 'substantiality' has caused interpretive problems to the tribunals and commentators. In international case law, three general methods have been established to evaluate substantiality: the numerical, the functional, and the geographical approach.
    The Trial Chamber in Prosecutor v Kayishema, (Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999, for instance promoted the numerical approach, when it found that 'in part' required the 'intention to destroy a considerable number of individuals who are part of the group' (para 97; see also Preparatory Committee, Report of the Preparatory Committee on the Establishment of an International Criminal Court, 14 April 1998, A/CONF.183/2/Add.1 – p. 11, Article 5, footnote 1). Later case law was more cautious: The Krstić Appeals Chamber for instance, saw it as a 'necessary' starting point, but 'not in all cases the ending point of the inquiry' (para 12). In any event, the assessment of the numerical significance of the part is not exhausted by an examination of actual numbers, but also needs to involve an evaluation of the part of the group in relation to the overall group size (ibid.).
    Under the 'functional approach', the perpetrator is not necessarily seen as selecting a numerically significant part, but instead a section which has significance for the group because of particular functions associated with it. Whitaker referred in that regard to 'a significant section of a group such as its leadership' (Whitaker Report, para 29). The precise methods of assessing substantiality under the functional approach vary from situation to situation. In Brđanin, reference was made to the 'prominence' which the targeted part enjoyed within the group (Prosecutor v Radoslav Brđanin, (Case No. IT-99-36-T), ICTY T. Ch., Judgment, 1 September 2004, para 702); and the Appeals Chamber in Prosecutor v Radislav Krstić, (Case No. IT-98-33-A), ICTY A. Ch., Judgment, 19 April 2004, expressed the view that the targeted Bosnian Muslims of Srebrenica were 'emblematic of the Bosnian Muslims in general' (at para 37 and see para 16; see also Prosecutor v Zdravko Tolimir (Case No. IT-99-36-T), ICTY A. Ch. Judgment, 8 April 2015, para 261).
    A section which features often in the considerations of the tribunals is the leadership of the group (e.g. Brđanin, ICTY T. Ch., 1 September 2004, para 703). Other sections which have been mentioned by tribunals and commentators include men of military age – a consideration which played a particular role in Krstić, where the killing of the Bosnian Muslim men in Srebrenica was concerned (Krstić, ICTY T. Ch., 2 August 2001, para 579) – and law enforcement or security personnel (Commission of Experts, para 94). Like the numerical approach, the assessment of substantiality here also involves an evaluation of the effect that the targeting of this part has on the group as a whole (Prosecutor v Goran Jelisić, (Case No. IT-95-10-T), ICTY T. Ch., Judgment, 14 December 1999, para 82).
    A particular concern which attaches to the functional approach is the fact that its application might defeat the very purpose of establishing a threshold through substantiality. The problem gained prominence in the Krstić case. According to the Defence, the Trial Chamber had concluded that Krstić had targeted the Bosnian Muslim men of military age of Srebrenica. These formed part of the Bosnian Muslims of Srebrenica, which in turn were part of the actual protected group – the Bosnian Muslims (Krstić, ICTY A. Ch., 19 April 2004, para 18). In the words of the Defence, the Trial Chamber had therefore identified 'part of a part' of a group (Prosecutor v Radislav Krstić, (Case No. IT-98-33-A), ICTY A. Ch., Judgment, 19 April 2004, Partial Dissenting Opinion of Judge Shahabuddeen, para 43). If the Bosnian Muslim men of Srebrenica were just seen as part of the protected group as a whole (the Bosnian Muslims), it would not have been acceptable to consider them as fulfilling the sustantiality requirement (Krstić, ICTY A. Ch., 19 April 2004, para 18).
    The Appeals Chamber did not follow this line of reasoning and concluded that the military-aged men had been considered not as 'part of a part' of a group, but that their killing had formed evidence for the fact that the perpetrator had intent to destroy a (substantial) part of the group, ie, the Bosnian Muslims of Srebrenica (ibid.). At the same time, the Chamber also clarified that the functional approach was 'only one of several' methods to assess the substantiality of the group (ibid., para 22). In Tolimir, the Trial Chamber had referred to the killing of three community leaders as evidence for the existence of genocidal intent (Prosecutor v Zdrakvo Tolimir, (Case No. IT-05-88/2-T), ICTY T. Ch., Judgment, 12 December 2012, paras 780 - 782. The Appeals Chamber found that the Trial Chamber had failed to show that the fate of the community leaders had had an impact 'on the survival of the group as such' (Prosecutor v Zdravko Tolimir (Case No. IT-05-88/2-A), ICTY A. Ch., Judgment, 8 April 2015, para 267), but found no legal errr in the general derivation of genocidal intent from the targeting of leading figures of a community (ibid., para 263).
    The 'geographical approach' is based on the understanding of genocide as a  crime which is by necessity limited by geographical conditions. In 1982 for instance, the General Assembly referred to localised massacres – the killing of Palestinian civilians in the Sabra and Shatila refugee camps – as 'genocide' (UNGA Res 37/123D (1982)) and the ILC pointed out that the intended destruction of a protected group 'from every corner of the globe' was not a necessary requirement of the crime (YILC 1996 II / 2, 45, Article 17, para 8). 
    The geographical approach has, on the whole, been embraced by the ad hoc tribunals (cf Prosecutor v Brđanin, ICTY T. Ch., 1 September 2004, para 703). Some Trial Chambers went so far as to find that the 'part' of the group might be limited to a single region or community (Prosecutor v Duško Sikirica, Damir Došen, Dragan Kolundžija, (Case No. IT-95-8-T), ICTY T. Ch., Judgement on Defence Motion to Acquit, 3 September 2001, para 68). In Prosecutor v Krstić, ICTY T. Ch., 19 April 2004, the Trial Chamber outlined the possibility that genocide might be committed even in a municipality, and made express reference to the General Assembly resolution on Sabra and Shatila (para 589).
    Opposition to the geographical method tends not to concern the basic principle that genocidal intent can be limited to a particular area, but rather seeks to introduce certain limitations on the approach. In Prosecutor v Brđanin, ICTY T. Ch., 1 September 2004, the Trial Chamber expressed the view that a limitation of the 'part' of the group to certain municipalities of the Autonomous Region of the Krajina could have a 'distorting effect' (para 966). Similar concerns were voiced by the ICTY Trial Chamber in Prosecutor v Milomir Stakić, (Case No. IT-97-24-T), ICTY T. Ch., Judgment, 31 July 2003, which however followed the geographical approach 'with some hesitancy' (para 523).
    Additional problems arise from the fact that the perpetrator will in some cases specifically have limited his intent to a particular region and therefore not have targeted the group 'as such'. Situations of this kind arise when a municipality or other geographic area is selected as the target of a punitive expedition – acts which will usually be covered by crimes against humanity, but might, because of their very limited nature, not fulfil the requirements of genocidal intent.

Author: Paul Behrens

Updated: 30 June 2016

Article 6 - a national, ethnical, racial or religious group

[37] a national, ethnical, racial or religious group
The Elements of Crime clarify that the ‘group element’ carries significance both for the objective and the subjective part of the crime. On the objective side, the victim of the perpetrator’s conduct must belong to a ‘particular national, ethnical, racial or religious group’ (Elements of Crime, Article 6, element 2 of each alternative); on the subjective side, the perpetrator must have had the intent ‘to destroy, in whole or in part' a group of this kind (ibid., element 3 of each alternative).
   The ICTR Trial Chamber in Prosecutor v Akayesu, (Case No. ICTR-96-4-T), Judgment, 2 September 1998, defined a  ‘national group’ as a group whose members are seen as sharing a ‘legal bond, based on common citizenship, coupled with reciprocity of rights and duties’ (para 512), an ethnic group as a group ‘whose members share a common language or culture’ (para 513). The characteristics of members of a racial group were seen as their ‘hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors’ (ibid., para 514) and members of a religious group ‘share the same religion, denomination or mode of worship’ (ibid., para 515).
   Apart from the controversial nature inherent in the selection of only certain groups for the protection of international criminal law in this regard (see Behrens 2012b, at 240, 241), the group element has also led to difficulties where its application in practice is concerned.
   The attempt to reach a precise distinction between Hutus and Tutsis in Rwanda for instance – groups which shared the same culture and language and which showed a ‘high rate of mixed marriages’ (Cassese, 101) – posed challenges where the parameters of the four enumerated groups were concerned.
   But the later case law of the ad hoc tribunals has not followed an entirely objective approach. In Kayishema and Ruzinadana, the ICTR would also have included at least under the category of 'ethnic groups' a group which ‘distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others), (Prosecutor v Clément Kayishema and Obed Ruzindana, (Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999, para 98). 
   The approach which was eventually adopted by the Trial Chambers is best understood as a 'contextual approach' – referred to in the Semanza judgment as a method by which the identification of a group ‘ought to be assessed on a case-by-case basis by reference to the objective particulars of a given social and historical context, and by the subjective perceptions of the perpetrator’ (Prosecutor v Laurent Semanza, (Case No. ICTR-97-20-T), ICTR T. Ch., Judgment, 15 May 2003, para 317). The Chamber found that group identification was to be made ‘on a case-by-case basis, consulting both objective and subjective criteria’ (ibid.).
   A similar difficulty exists where the identification of members of a group is concerned. In this regard, the existing case law appears to favour a subjective approach: membership of the group was to be considered 'from a subjective standpoint, holding that the victim is perceived by the perpetrator of the crime as belonging to the group targeted for destruction.' (Prosecutor v Seromba, ICTR T. Ch., 13 December 2006, para 318).

Author: Paul Behrens

Updated: 30 June 2016

Article 6 - as such

[38] as such
The  inclusion of the words 'as such' indicates that the boundaries between genocidal intent and motive, if they do exist, are difficult to identify (see Behrens 2012c). During the drafting process, the Ad Hoc Committee had suggested a list of motives that would form the basis for the genocidal acts. This suggestion triggered considerable debate in the Sixth Committee. In the end, an express reference to motives was not included, but the Committee agreed to a proposal by Venezuela which introduced the words 'as such' into the crime. The Venezuelan delegate, speaking to his amendment, stated that he  'felt that his amendment should meet the views of those who wished to retain a statement of motives; indeed, the motives were implicitly included in the words "as such"' (Pérez Perozo (Venezuela), UN Doc. A/C.6/SR.76, 124). Subsequently, some Trial Chambers have made use of the language of motives when referring to specific intent: the Akayesu Trial Chamber went so far as to refer to an 'ulterior motive, which is to destroy, in whole or in part, the group' (Prosecutor v Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 522).
   The phrase 'as such' also emphasises the fact that the (principal) victim of genocide is the group itself (Prosecutor v Radoslav Brđanin, (Case No. IT-99-36-T), ICTY T. Ch., Judgment, 1 September 2004, para 698) –  a notion which is apparent from the codification history of the crime (Ad Hoc Committee on Genocide, Note by the Secretariat, UN Doc E/AC.25/3/Rev.1, 12 April 1948, 6 and YILC 1996, vol 2, part 2, 45, Article 17, para 6). The group must have been targeted as a 'separate and distinct entity' (Prosecutor v Popović et al., ICTY T. Ch., 10 June 2010, paras 821 and 1177 with further references). The individuals affected by the underlying acts are, by comparison, victims only because of their membership of that particular group (Prosecutor v Radislav Krstić, (Case No. IT-98-33-T), ICTY T. Ch., Judgment, 2 August 2001, para 561).
   This prominent role of the group element on the subjective side of the crime raises the question whether genocide is possible if perpetrators attack members of their own group. The issue gained particular prominence in the context of the large scale crimes which the Khmer Rouge committed on the Khmer people in Cambodia. The UN Commission on Human Rights, reflecting on these events, coined the term 'autogenocide' (Commission on Human Rights, 35th session, Summary Record of the First Part (Public) of the 1510th Meeting, UN Doc. E/CN.4/SR.1510 (1979), paras 22, 24). The term lacks legal currency, but has been at the centre of some debate among commentators of the crime.
  In its discussion of genocide, the Group of Experts for Cambodia declined to take a position on the question whether the Khmer Rouge possessed destructive intent with regard to the Khmer people (Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution  52 / 135, (1999), Annex, para 65). Before the Extraordinary Chambers in the Courts of Cambodia, Ieng Sary and other Khmer Rouge leaders were in 2010 indicted for genocide committed against the Cham and the Vietnamese, but not against the Khmer people (Extraordinary Chambers in the Courts of Cambodia, Office of the Co-Investigating Judges, Closing Order, (Case No 002/I9-09-2007-ECCC-OCIJ), 15 December 2010, paras 1335 – 1349 and 1613.).
  In the literature, some authors have supported the opinion that auto-genocide still qualifies as genocide, as it involves the intended destruction of part of a protected group (Khan / Dixon, 1088, paras 13 – 25, Hannum, 103 et seq, 112). The Trial Chambers on the other hand have emphasised that the individual victims must have been targeted 'specifically because they belonged' to the protected group (Prosecutor v Akayesu, ICTR T. Ch., 2 September 1998, para 521). In the Cambodian case, this lends support to the opposing view, since the Khmer victims were selected for political and other reasons, but not on the basis of their membership of a group protected by the Convention (Vest 1999, 356).
   There is in fact no reason why autogenocide should not be covered by Article 6. But autogenocide, if the concept is to be applied correctly, requires that the perpetrator deliberately made his own group the victim of his actions. There is perhaps a tendency to dismiss too quickly the possibility of self-destructive genocidaires. In the majority of cases however, the perpetrator will probably have an inflated rather than a dismissive perception of his own people, leaving only a slim realm for the reality of 'genuine' autogenocide.

Cross-references:
1. Elements Digest
2. Means of Proof Digest

Author: Paul Behrens

Updated: 30 June 2016

Article 6(a)

[39] (a) Killing members of the group;
The Elements of Crime provide that '[t]he term “killed” is interchangeable with the term “caused death”' (Article 6(a), note 10). That indicates that the death of the victim is a necessary consequence of the perpetrator's conduct and that a causal link needs to exist between conduct and consequence. To that degree, the elements of 'killing' as one of the alternatives of genocide do not appear to show any significant deviation from the elements identified under 'murder' as a crime against humanity (see Prosecutor v Mitar Vasiljević, (Case No. IT-98-32-T), ICTY T. Ch., Judgment, 29 November 2002, para 205, notes 1 and 2.).
   However, the conclusion (suggested by some Trial Chambers) that all elements of that crime against humanity are equivalent to the elements of 'killing' here (see on this Prosecutor v Vujadin Popović, Ljubisa Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević, (Case No. IT-05-88-T), ICTY T. Ch., Judgment, 10 June 2010, para 810, referring to paras 787-789), remains a generalisation. On the side of the mens rea, at least, certain differences arise. With regard to murder as a crime against humanity, the intention to cause serious bodily harm which 'the accused should reasonably have known might lead to death', has in the past been accepted as a sufficient subjective element (Popović, ICTY T. Ch., 10 June 2010, para 788). If that were the case where genocide is concerned, actual knowledge would no longer be required – even negligence would fulfil the mens rea of alternative (a).
   Most Trial Chambers however appear to call for intent with regard to the consequence of the killing. In this regard, the findings in Akayesu are instructive. When considering both the English and the French version of the Genocide Convention, the Chamber found that the French term (meurtre) was to be preferred to the English term 'killing', as the latter could refer even to unintentional homicides (Prosecutor v Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 500). It consequently interpreted Article 2(2)(a) of the ICTR Statute as meaning homicide 'committed with the intent to cause death' (ibid., para 501). The Chamber had based its opinion on the principle that the interpretation which is more favourable to the accused, had to be preferred (ibid.).

Cross-references:
1. Elements of Crime 
2. Elements Digest
3. Means of Proof Digest

Author: Paul Behrens

Updated: 30 June 2016

Article 6(b)

[40] (b) Causing serious bodily or mental harm to members of the group;
The 'harm' to which this alternative of genocide refers, need not be 'permanent and irremediable' (Prosecutor v Akayesu, ICTR T. Ch., 2 September 1998, para 502), but the Seromba Appeals Chamber found that it must be so serious as to cause a threat of the 'destruction [of a protected group] in whole or in part' (Prosecutor v Athanase Seromba, (Case No. ICTR-2001-66-I), ICTR A. Ch., para 46). 
    In Krstić, the Trial Chamber noted that the relevant harm must go 'beyond temporary unhappiness, embarrassment or humiliation' (para 513; see also Prosecutor v Tolimir, ICTR A. Ch., 8 April 2015, paras 203, 212) and that it must result 'in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life' (ibid.). The Elements of Crime and the case law of the tribunals provide examples which qualify in this category, including torture (Elements of Crime, fn 3 to Article 6(b)), 1st element, Prosecutor v Radislav Krstić, (Case No. IT-98-33-T), ICTY T. Ch., Judgment, 2 August 2001, para 513), inhuman and degrading treatment (ibid.), rape (ibid. and Prosecutor v Rutaganda, (Case No ICTR-96-3), ICTR T. Ch., Judgment, 6 December 1999, para 51) and sexual violence (ibid., and Prosecutor v Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 688); but persecution (Akayesu, ICTR T. Ch., 2 September 1998, para 504) and deportations (Krstić, ICTY T. Ch., 2 August 2001 , para 513) have also been mentioned in this context. Threats of death and 'knowledge of impeding death' have been accepted as examples for serious mental harm (Prosecutor v Zdravko Tolimir, Case No. IT-05-88/2-A, ICTY A Ch., Judgment, 8 April 2015, para 206). Forcible transfer, too, can cause serious bodily and mental harm (ibid, paras 208, 209), but a Trial Chamber would also have to find that long-term consequences result from such transfer and that there had been a link between the forcible transfer and the physical destruction of the group (ibid., para 217).
    Pursuant to Article 30, intent is required both for conduct and consequence of this alternative of genocide. With regard to the former, this means that the perpetrator must have meant to engage in the relevant act; with regard to the latter – the resulting serious bodily or mental harm – Article 30 provides that the perpetrator must have meant to cause the consequence or must have been 'aware that it will occur in the ordinary course of events'. The case law of the ad hoc tribunals confirms that the harm must have been inflicted intentionally (Prosecutor v Popović et al., (Case No. IT-05-88-T), ICTY T. Ch., Judgment, 10 June 2010, para 811).

Cross-references:
1. Elements of Crime
2. Elements Digest 
3. Means of Proof Digest 

Author: Paul Behrens

Updated: 30 June 2016

Article 6(c)

[41] (c)  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
The infliction of conditions of this kind does not need to be an imposition of methods which would immediately lead to the deaths of group members (Prosecutor v Kayishema and Ruzindana, (Case No. ICTR-95-1-T), ICTR T. Ch., Judgment, 21 May 1999, para 116). The Tolimir Appeals Chamber went so far as to state that [direct] 'killings' could not be seen as a method of inflicting conditions of life calculated to bring about its destruction under this alternative of crime (Prosecutor v Zdravko Tolimir, Case No. IT-05-88/2-A, ICTY A. Ch., Judgment, 8 April 2015, para 228). The ad hoc tribunals have accepted that so-called 'slow death' measures would fulfil the required element of this alternative (Prosecutor v Kayishema and Ruzindana, ICTR T. Ch., 21 May 1999, para 115). Subjecting members of the group to a subsistence diet, the denial of necessary medical services, but also 'systematic expulsion from homes' fall in this category (Prosecutor v Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 506; Prosecutor v Brđanin, (Case No. IT-99-36-T), ICTY T. Ch., Judgment, 1 September 2004, para 691).   

   Other examples which have been mentioned include the failure to provide proper housing, clothing or hygiene or imposition of 'excessive work or physical exertion' (Brđanin, ICTY T. Ch., 1 September 2004 , para 691; Kayishema, ICTR T. Ch., 21 May 1999 , para 115). The destruction of religious sites as a method of inflicting such conditions of life, has been rejected by the ITCY Appeals Chamber (Prosecutor v Zdravko Tolimir, Case No. IT-05-88/2-A, ICTY A. Ch., 8 April 2015, para 230).
    There is, as the Brđanin Trial Chamber confirmed, no need to prove that the group has been physically destroyed in whole or in part (para 691). On the other hand, it would go too far to conclude from that that 'proof of a result' is not required (but on this, see Prosecutor v Stakić, (Case No. IT-97-24-T), ICTY T. Ch., Judgment, 31 July 2003, para 517). Alternative (c) does envisage a consequence, but the consequence lies not in the destruction of the group, but in the fact that the relevant conditions have come into existence (see on this Article 6 (c) of the Elements of Crime, which in its first paragraph clarifies that the conditions must have been inflicted).
   As such, this consequence requires a corresponding element on the side of the mens rea of the crime. The term 'deliberately' is an express reference to that element (Genocide Application Case, 69, para 186) which therefore cannot involve a standard lower than intent. However, that does not mean that a requirement of prior planning needs to be read into the adjective (cf Jessberger, 101).
   The term 'calculated' on the other hand is not a reference to the mens rea of the perpetrator – the conditions may well have been calculated by a third party to have this effect (for instance, in cases in which a military commander orders the perpetrator to impose an insufficient diet on inmates of a detention camp). This aspect, relating to the nature of the conditions, is a circumstantial element; the perpetrator must have had knowledge of it as defined in Article 30(3) of the Rome Statute.

Cross-references:
1. Starvation in Articles 7(1)(b), (j)and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv)
2. Elements of Crime 
3. Elements Digest
4. Means of Proof Digest

Author: Paul Behrens

Updated: 30 June 2016

Article 6(d)

[42] (d)  Imposing measures intended to prevent births within the group;
In the Akayesu case, the ICTR Trial Chamber clarified that it is sufficient for this alternative if the relevant measures have mental effects on the victims. It referred in this regard to  the example of rape in cases in which 'the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate' (Prosecutor v Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 508).
   In cases of rape, the perpetrator may also achieve the prevention of births in the group through a different chain of causation: in that regard, the ICTR referred to a situation in which female members of a group in a society in which membership of the group was dependent on the identity of the father, were raped by men of another group (ibid., para 507). In circumstances of this kind, the criminal act might well have been carried out with the intent to impregnate the woman and to 'have her give birth to a child who will consequently not belong to its mother's group.' (ibid.). Other examples include sexual mutilation, sterilisation, sexual segregation, prohibition of marriage and forced birth control (ibid.).
   The ILC made clear that the term 'imposing' implied an element of coercion: and therefore, this rule could, for instance, not be seen as encompassing  'voluntary birth control programmes sponsored by a State as a matter of social policy.' (YILC 1996 II / 2, p 46, Article 17, Commentary, para 16).
Intent is required where the commission of the act (the implementation of the measures) is concerned (Prosecutor v Popović et al., (Case No. IT-05-88-T), ICTY T. Ch., Judgment, 10 June 2010, para 808), and Article 30(2)(a) appears to call for a strong volitional element in that regard ('means to engage'). The measure itself, on the other hand, is a circumstantial element, and the required mental element which attaches to it, is therefore cognitive in nature: the perpetrator must have known about the nature of the measures (Article 30(3)). A different reading cannot be derived from the word 'intended', which this alternative of genocide employs (but see also Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ, Judgment, 26 February 2007, para 186): the intent to which the wording of Article 6(d) refers, may well have been that of a third party. The intent of the perpetrator, on the other hand, is required for the consequence of the act (Article 30(2)(b)), ie, for the fact that such measures have now come into existence in the protected group.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Author: Paul Behrens

Updated: 30 June 2016

Article 6(e)

[43] (e)  Forcibly transferring children of the group to another group
The Elements of Crime specify that the act under this alternative consists in the transfer of one or more persons from a protected group to another group, when these persons belonged to the protected group and were below the age of 18 years (Elements of Crime, Article 6, elements 1, 2, 4 and 5.). The potential age range of the victims is therefore more extensive than that envisaged in other international crimes (see e.g. Article 8(2)(b)(xxvi) ICCSt and Article 8(2)(e)(vii)).
  The transfer must have been carried out in a 'forcible' manner. In that regard, however, the ad hoc tribunals had already emphasised that it was the aim of the provision not only to protect against 'forcible physical transfer', but also against 'acts of threats or trauma' which would accomplish the coercive transfer (Prosecutor v Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch., Judgment, 2 September 1998, para 509). Today, the Elements of Crime provide that the word '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 Crime, Article 6, element 1, note 5).
  The perpetrator must have had intent with regard to the consequence of the crime, ie, the completed transfer from one group to another group. However, the fact that the victim of the transfer was a child, is a circumstantial element. In this regard, the Elements of Crime make clear that a standard lower than knowledge is sufficient for the subjective element: it is enough that the perpetrator 'should have known' that the victim had not yet reached the age of 18 years (Elements of Crime, Article 6(e), 6th element) It is one of the rare cases in which the mens rea for one of the underlying acts of genocide deviates from the standard established by Article 30 of the Rome Statute.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine

  1. Paul Behrens, "A Moment of Kindness? Consistency and Genocidal Intent", in Ralph Henham/Paul Behrens, The Criminal Law of Genocide, Ashgate, Aldershot, 2007, 125-140.
  2. Paul Behrens, "Assessment of International Criminal Evidence: The Case of the Unpredictable Génocidaire", Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, vol. 71, 2011, pp. 662-89.
  3. Paul Behrens/Ralph Henham, Elements of Genocide, Routledge, New York, 2012.
  4. Paul Behrens, "The Mens Rea of Genocide", in Paul Behrens/Ralph Henhamhttp://www.legal-tools.org/doc/e48e9a/, Elements of Genocide, Routledge, New York, 2012, 70-96 [Behrens 2012(a)].
  5. Behrens, Paul, "The Need for a Genocide Law"in Paul Behrens/Ralph Henhamhttp://www.legal-tools.org/doc/e48e9a/, Elements of Genocide, Routledge, New York, 2012, 237-253 [Behrens 2012(b)].
  6. Paul Behrens, "Genocide and the Question of Motives", Journal of International Criminal Justice, vol. 10 (2012): 501-23.
  7. Paul Beherens, "Between Abstract Event and Individualized Crime: Genocidal Intent in the Case of Croatia" (2015) Leiden Journal of International Law 28: 923-35. 
  8. Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003.
  9. Pieter Drost, The Crime of State: Penal Protection for Fundamental Freedoms of Persons and Peoples, Book II Genocide, A. W. Sythoff, Leiden, 1959, p. 124.
  10. Paola Gaeta, The UN Genocide Convention: A Commentary, Oxford University Press, Oxford, 2009.
  11. Alexander K.A. Greenawalt, "Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation", Columbia Law Review, vol. 99, 1999, p. 2259.
  12. Hurst Hannum, "International Law and Cambodian Genocide: The Sounds of Silence", Human Rights Quarterly, v. 11 (1989) 82.
  13. Kevin Jon Heller, "Prosecutor v. Karemera, Ngirumpatse, & Nzirorera, Case No. ICTR-98-44-AR73(C). Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice. International Criminal Tribunal for Rwanda, Appeals Chamber, June 16, 2006", American Journal of International Law, vol. 101, 2007, 157.
  14. Ralph Henham/Paul Behrens, The Criminal Law of Genocide, Ashgate, Aldershot, 2007.
  15. Hans-Heinrich Jescheck, "Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom Völkerstrafrecht", Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 66, 1956, p. 193.
  16. Florian Jessberger, "The Definition and the Elements of the Crime of Genocide", in  Paola Gaeta (Ed.), The UN Genocide Convention – A Commentary, Oxford University Press, Oxford, 2009.
  17. Nina H.B. Jørgensen, "The Definition of Genocide: Joining the Dots in the Light of Recent Practice", International Criminal Law Review, vol. 1, 2001, p. 285.
  18. Karim Khan/Rodney Dixon: International Criminal Courts. Practice, Procedure and Evidence, Archibold, Sweet and Maxwell, London, 2009, p. 1088.
  19. Claus Kreß, "The Darfur Report and Genocidal Intent", Journal of International Criminal Justice, vol. 3, 2005, p. 562.
  20. Lawrence J. LeBlanc, "The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding", American Journal of International Law, vol. 78, 1984, p. 380.
  21. Raphael Lemkin, Axis Rule in Occupied Europe, Carnegie Endowment for International Peace, Washington 1944.
  22. Matthew Lippman, "The Convention on the Prevention and Punishment of Genocide: Fifty Years Later", Arizona Journal of International and Comparative Law, 1998, p. 415.
  23. David L. Nersessian, "The Razor's Edge: Defining and Protecting Human Groups under the Genocide Convention", Cornell International Law Journal, 2003, p. 293.
  24. John Quigley, The Genocide Convention: An International Law Analysis, Ashgate, Aldershot, 2006.
  25. Nehemiah Robinson, The Genocide Convention: A Commentary, Institute of Jewish Affairs, World Jewish Congress, New York, 1960.
  26. William Schabas, Genocide in International Law: The Crime of Crimes, Cambridge University Press, Cambridge, 2009.
  27. Cécile Tournaye, "Genocidal Intent before the ICTY", International and Comparative Law Quarterly, vol. 52, 2003, p. 447.
  28. Otto Triffterer, "Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such", Leiden Journal of International Law, vol. 14, 2001, p. 339 [Triffterer 2001(a)].
  29. Otto Triffterer, "Kriminalpolitische und dogmatische Überlegungen zum Entwurf gleichlautender "Elements of Crimes" für alle Tatbestände des Völkermordes", in Bernd Schünemann (Ed.), Festschrift für Claus Roxin zum 70. Geburtstag am 15. Mai 2001, Walter de Gruyter 2001, Walter de Gruyter, Berlin, 2001, p. 1415 [Triffterer 2001(b)].
  30. Harmen Van der Wilt, "Genocide, Complicity in Genocide and International v. Domestic Jurisdiction", Journal of International Criminal Justice, vol. 4, 2006, p. 239.
  31. Beth Van Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot",  Yale Law Journal, 1997, p.  2259.
  32. Hans Vest, "Die bundesrätliche Botschaft zum Beitritt der Schweiz zur Völkermordkonvention – kritische Überlegungen zum Entwurf eines Tatbestandes für den Völkermord", Schweizerische Zeitschrift für Strafrecht, vol. 117, 1999, pp. 351, 356.
  33. Hans Vest, Genozid durch organisatorische Machtapparate, Nomos, Baden-Baden, 2002.
  34. Hans Vest, "A Structure-Based Concept of Genocidal Intent", Journal of International Criminal Justice, 2007, p. 781.
  35. Gerhard Werle, Principles of International Criminal Law, Cambridge University Press, Cambridge, 2009.

Other Materials

  1. Draft Code of Crimes Against the Peace and Security of Mankind YILC 1996 II / 2, p 46, Art 17, Commentary.
  2. Report of the Preparatory Committee on the Establishment of an International Criminal Court, 14 April 1998, A/CONF.183/2/Add.1 – p. 11, Art. 5, footnote 1.
  3. Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution  52 / 135, (1999), Annex, para 63.
  4. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council resolution 1564 of 18 September 2004, 25 January 2005 ['Darfur Report'].
  5. United Nations, Ad Hoc Committee on Genocide, Note by the Secretariat, UN Doc E/AC.25/3/Rev.1, 12 April 1948, p. 6.
  6. United Nations, Commission of Experts, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674  ['Commission of Experts'].
  7. United Nations, Commission on Human Rights, 35th session, Summary Record of the First Part (Public) of the 1510th Meeting, UN Doc. E/CN.4/SR.1510 (1979), paras 22, 24.
  8. United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 38th session, Item 4 of the provisional agenda, E/CN.4/Sub.2/1985/6. Revised and updated report on the question of the prevention and punishment of the crime of genocide, prepared by Mr B Whitaker (2 July 1985) ['Whitaker Report'], para 31.
  9. United Nations, General Assembly, Resolution 96(I), 11 Dec 1946, UN Doc A/Res/96(I).
  10. United Nations, General Assembly, Resolution 37/123D, 16 Dec 1982, UN Doc A/Res/37/123D.
  11. United States Congress, Executive Session of the Senate Foreign Relations Committee, (Historical Series), vol. 2 (US Government Printing Office 1976), 370.

Author: Paul Behrens

Updated: 30 June 2016

Article 7(1)

[44] 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
General Remarks

The general elements in the chapeau of Article 7 elevate an ordinary crime or an inhumane conduct to a crime against humanity. The general elements were extensively dealt with during the drafting of the ICC Statute and are set out in Article 7(1) and (2) of the Statute, as well as in the Elements of Crimes [von Hebel and Robinson, 1999, pp. 91-97; McCormack, 2004, pp. 179-182, 186-189]. In the ICC case law, they were analyzed by the Pre-Trial Chamber in Prosecutor v. Bemba in 2008, and its analysis has been largely followed by other Pre-Trial Chambers and the Trial Chamber in the Prosecutor v. Katanga.

Analysis
i. Definition
Crimes against humanity pursuant to the ICC Statute are any of the enumerated acts in Article 7 ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (ICC Statute, Article 7(1)). According to Article 7(2)(a), an ‘attack directed against any civilian population’ means ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’. These words are repeated in the Elements of Crimes.
   For each of the underlying acts, the Elements of Crimes set out that the conduct must have been ‘committed as part of a widespread or systematic attack directed against a civilian population’. Further, they state that the perpetrator must have known ‘that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population’.
   Based on the above, the Pre-Trial Chambers have identified five general elements:

‘(i) an attack directed against any civilian population, (ii) a State or organizational policy, (iii) the widespread or systematic nature of the attack, (iv) a nexus between the individual act and the attack, and (v) knowledge of the attack’ [Situation in the Republic of Kenya, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 79; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, 3 October 2011, para. 29].

Notably, the general elements do not contain any requirement of a nexus to an armed conflict or any discriminatory element [von Hebel and Robinson, 1999, pp. 92-94; McCormack, 2004, pp. 184-186; Robinson, 1999, pp. 45-47; Schabas, 2010, pp. 144-147, 157].

ii. Requirements
a. Material elements
With regard to the requirement of ‘attack’, the Elements of Crimes clarify that ‘[t]he acts need not constitute a military attack’. Although the ICC Statute itself defines ‘attack’ as ‘course of conduct’, the Pre-Trial Chamber in the Prosecutor v. Bemba considered that the term referred to ‘a campaign or operation’, although adding that the ‘appropriate terminology used in [the ICC Statute] being a “course of conduct”’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 75]. The Pre-Trial Chamber set out that it is the commission of the acts referred to in Article 7(1) that constitute the ‘attack’ and ‘beside the commission of the acts, no additional requirement for the existence of an “attack” should be proven’ [Ibid.]. This does not necessarily mean that the element of ‘attack’ is proven, as soon as the underlying acts allegedly committed by the perpetrator are proven [see Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 151]. Presumably the Pre-Trial Chamber merely intended to say that an attack must be composed of acts enumerated in Article 7(1) (as opposed to other acts). In this respect, the Pre-Trial Chamber could have found support in the text of Article 7 itself, although it did cite the Akayesu Trial Judgment, which does not support this [see Akayesu, ICTR-96-4, ICTR T. Ch., 2 September 1998, para. 581 (‘The concept of attack maybe (sic) defined as a (sic) unlawful act of the kind enumerated in Article 3(a) to (i) of the Statute […] An attack may also be non violent in nature, like imposing a system of apartheid […] or exerting pressure on the population to act in a particular manner’].
   The same Pre-Trial Chamber stated that the requirement of ‘directed against’ means that ‘the civilian population must be the primary object of the attack and not just an incidental victim of the attack’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 76, citing ICTY case law, in particular Prosecutor v Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, paras 91-92].
   With regard to the element of ‘population’, the Pre-Trial Chamber implied a low threshold by stating that the Prosecutor must demonstrate ‘that the attack was such that it cannot be characterised as having been directed against only a limited and randomly selected group of individuals’. It added that the entire population of the geographical area where the attack is taking place need not have been targeted [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 77]. In this respect, the Pre-Trial Chamber cited ICTY and ICTR case law, in particular the Kunarac Appeal Judgement [Prosecutor v Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, para. 90].
   The Pre-Trial Chamber noted that the term ‘civilian’ is not defined in the Statute but that ‘according to the well-established principle of international humanitarian law, “[t]he civilian population (…) comprises all persons who are civilians as opposed to members of armed forces and other legitimate combatants”’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 78; also cited by Prosecutor v Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application de l’Article 74 du Statut, 7 March 2014, para. 1102]. In this respect, the Pre-Trial Chamber cited the Trial Judgement in the Kunarac case [Prosecutor v Kunarac et al., IT-96-23 & 23/2, ICTY Trial Ch., 22 February 2001, para. 425], although any reference to the ICTY Appeals Chamber’s later extensive analysis of this issue is notably absent [see Prosecutor v Martić, IT-95-11, ICTY A. Ch., 8 October 2008, paras 291-314 and Prosecutor v Mrkšić and Šljivančanin, IT-95-13/1, ICTY A. Ch., 5 May 2009, paras 23-34].
   The requirement of ‘widespread or systematic’ is disjunctive [see Situation in the Republic of Kenya, ICC PT. Ch. II, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 94]. The issue of whether this should be a disjunctive or a conjunctive test was extensively debated by the drafters of the ICC Statute [see, inter alia, von Hebel and Robinson, 1999; Robinson, 1999, p. 47].
   With regard to ‘widespread’, the Pre-Trial Chambers in the cases Prosecutor v. Katanga and Ngudjolo and Prosecutor v. Gbagbo stated that it ‘connotes the large-scale nature of the attack and the number of targeted persons’ [Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 394; Prosecutor v Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 222]. The Pre-Trial Chamber in the Prosecutor v. Bemba restricted it further by stating that that it ‘connotes the large-scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83, citing Prosecutor v Akayesu, ICTR-96-4, ICTR T. Ch., 2 September 1998, para. 580].
   However, the Bemba and Katanga and Ngudjolo Pre-Trial Chambers also concluded that a widespread attack entailed ‘an attack carried out over a large geographical area or an attack in a small geographical area directed against a large number of civilians’. [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83; Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 395]. Therefore, it appears that the main considerations are the geographical scope of the attack and the number of victims. According to the Katanga Pre-Trial Chamber, even in the context of a systematic attack the requirement of ‘multiple acts’ would ensure that the attack involves a multiplicity of victims [Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 398].
   As for ‘systematic’, the Katanga and Ngudjolo and the Gbagbo Pre-Trial Chambers stated that this element refers to ‘the organised nature of the acts of violence and the improbability of their random occurrence’ [Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 394, citing Kordić and Čerkez, ICTY A. Ch., 17 December 2004, para. 94, which is citing Prosecutor v Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, para. 94; Prosecutor v Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 223].
   Regarding the element of ‘policy to commit such attack’, the Elements of Crimes set out ‘that the State or organization actively promote or encourage such an attack against a civilian population’. In a footnote, the drafters added that ‘a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’ but that ‘[t]he existence of such a policy cannot be inferred solely from the absence of governmental or organizational action’.
   The Pre-Trial Chamber in the Prosecutor v. Katanga and Ngudjolo correctly linked this element to the elements of widespread or systematic:

‘in the context of a widespread attack, the requirement of an organizational policy […] ensures that the attack, […] must still be thoroughly organised and follow a regular pattern’ [Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 396].

The Pre-Trial Chamber in the Prosecutor v. Gbagbo added:

‘the concept of “policy” and that of the “systematic” nature of the attack […] both refer to a certain level of planning of the attack. In this sense, evidence of planning, organisation or direction by a State or organisation may be relevant to prove both the policy and the systematic nature of the attack, although the two concepts should not be conflated as they serve different purposes and imply different thresholds under Article 7(1) and (2)(a) of the Statute’ [Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 216].

Regardless of this statement by the Gbagbo Pre-Trial Chamber, the definition of ‘attack directed against any civilian population’ in Article 7(2) reduces the significance of the disjunctive, as opposed to a conjunctive test, for the characterization of the attack (‘widespread or systematic’) [see Schabas, 2010, p. 143].
   The Pre-Trial Chamber in the Prosecutor v. Bemba discussed the element of policy, stating that it implied that ‘the attack follows a regular pattern’ but that the policy does not have to be formalised [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 81; see also Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 396]. A number of Pre-Trial Chambers also pointed to two extremes, which does little to clarify the limits of the term ‘policy’: ‘an attack which is planned, directed or organized – as opposed to spontaneous or isolated acts of violence – will satisfy this criterion’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 81; Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 396; Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 215].
   Article 7(2)(a) clarifies that it needs to be a State or organizational policy. One Pre-Trial Chamber declared that the term ‘State’ was self-explanatory but added that the policy did not have to be conceived ‘at the highest level of the State machinery’ [Situation in the Republic of Kenya, ICC PT. Ch. II, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 89, citing Prosecutor v Blaškić, ICTY T. Ch., Judgment, 3 March 2000, para. 205]. Therefore, also a policy adopted by regional or local organs of the State could satisfy this requirement [Ibid.].
   With regard to ‘organizational’, the Pre-Trial Chambers in the Prosecutor v. Bemba and the Prosecutor v. Katanga and Ngudjolo stated that te organization may be ‘groups of persons who govern a specific territory or […] any organization with the capability to commit a widespread or systematic attack against a civilian population’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 81; Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 396]. It is therefore not limited to State-like organizations [Situation in the Republic of Kenya, ICC PT. Ch. II, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, paras 90-92; Prosecutor v Muthaura et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 112; Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 33. See also Judge Kaul’s dissents to these decisions: Prosecutor v Ruto et. al. , Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", 15 March 2011, and Prosecutor v Muthaura et. al., Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", 15 March 2011]. The Trial Chamber in the Prosecutor v. Katanga followed this approach [Prosecutor v Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application de l’Article 74 du Statut, 7 March 2014, paras 1117-1122].
   The Bemba Pre-Trial Chamber stated that when determining whether the ‘part of’ requirement was met it would consider ‘the characteristics, the aims, the nature or consequences of the act’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 84]. It also stated ‘the underlying offences must […] not be isolated’ [Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83], although that ought to follow already from the fact they have to be part of a widespread or systematic attack against a civilian population.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1) - mental element

[45] with knowledge of the attack:
Article 7(1) sets out the mental element as ‘knowledge of the attack’. The Elements of Crimes clarify that this requirement:

‘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.’

As stated above, the Elements of Crimes state that the perpetrator must have known ‘that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population’. The intent clause is meant to address the situation of ‘an emerging widespread or systematic attack’, that is a situation when the attack has not yet happened and knowledge of it therefore is impossible [Elements of Crimes, p. 5; see also Robinson, 2001, p. 73].

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

  

Doctrine

  1. Rodney Dixon/Christopher K. Hall, "Chapeau", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 168-183.
  2. Herman Von Hebel/Darryl Robinson, "Crimes Within the Jurisdiction of the Court", in Roy S. Lee (Ed.), The International Criminal Court – The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, pp. 90-103.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford, 2004, pp. 179-189.
  4. Jonas Nilsson, "Crimes Against Humanity", in Antonio Cassese et al. (Eds.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 284-288.
  5. Darryl Robinson, "The Context of Crimes Against Humanity", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 61-80.
  6. Darryl Robinson, "Defining ‘Crimes Against Humanity’ at the Rome Conference", American Journal of International Law, vol. 43, 93, 1999.
  7. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 139-157.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(a)

[46] (a) Murder
General Remarks
Murder has been included as the first crime against humanity in every instrument defining crimes against humanity [Hall, 2008, p. 183]. It was included in Article 7 of the Rome Statute without real controversy [von Hebel and Robinson, p. 98; Hall, 2008, p. 184]. It was also deemed not to require a clarification of the intended meaning in Article 7(2) [McCormack, 2004, p. 189]. Murder as a crime against humanity has been dealt with in one of the judgements before the ICC [Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application de l’Article 74 du Statut, 7 March 2014, paras 765-782].

Analysis
i. Definition
Murder as a crime against humanity within the meaning of Article 7(1)(a) is not defined in the Statute. According to the Elements of Crimes, one element of murder is that the perpetrator killed, or caused the death of, one or more persons. Neither Article 7 nor the Elements of Crimes give any clue as to how the mens rea should be understood. Therefore Article 30 applies and the material elements must be committed with intent and knowledge. [Prosecutor v Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application de l’Article 74 du Statut, 7 March 2014, para. 780].

ii. Requirements
a. Material elements
According to the Pre-Trial Chamber in the case Prosecutor v. Bemba the material elements of murder are that the victim is dead and that the death “result from the act of murder” [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 132]. The first element of the crime of murder is thus that the victim is dead. As for the second element, the Pre-Trial Chamber was unhelpful by simply stating that the crime of murder requires “the act of murder”. It cited a number of ICTR and ICTY trial judgements [Prosecutor v Akayesu, ICTR T. Ch., 2 September 1998, para. 589; Prosecutor Rutaganda, ICTR T. Ch., 6 December 1999, para. 80; Blaškić, ICTY T. Ch., 3 March 2000, paras 216-217; Prosecutor v Delalić et al., ICTY T. Ch., 16 November 1998, para. 424], which all sets out that the second element is that the death must have been caused by an act of the perpetrator, with the ICTR judgements adding that the death could also be caused by an omission.
   The reliance of the Pre-Trial Chamber on ICTY and ICTR trial judgments in this respect is odd considering that the ICTY Appeals Chamber has set out the elements of murder as a crime against humanity. In the case Prosecutor v. Mirolsav Kvočka et al., the Appeals Chamber set out that the first two elements are that the victim is dead and that the death was the result of an act or omission of the perpetrator [Prosecutor Kvočka et al., ICTY A. Ch., 28 February 2005, para. 261]. 
   The Bemba Pre-Trial Chamber went on to clarify that the act may be committed by action or omission [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 132]. In this respect, the Pre-Trial Chamber did not refer to ICTY or ICTR case law but to a decision by the Pre-Trial Chamber in the case Prosecutor v. Katanga and Ngudjolo, discussing the crime of wilful killing as war crime [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 132, citing Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 287].

b. Mental elements
According to the Pre-Trial Chamber in the case Prosecutor v. Katanga and Ngudjolo, the mental element of the crimes against humanity of murder is that the perpetrator intended to kill one or more persons [Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 423]. It specified that this encompasses “first and foremost, cases of dolus directus of the first and second degree” [Ibid.]. The Pre-Trial Chamber in Prosecutor v. Bemba, in its discussion of the mental element, do not use the words “first and foremost” and therefore limits the element to dolus directus in the first and second degree [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 135]. The Pre-Trial Chamber elaborated further on these concepts. It set out that Article 30(2) and (3) embraces two degrees of dolus, namely dolus directus in the first degree, or direct intent, and dolus directus in the second degree, also known as oblique intention. However, the provision does not cover dolus eventualis, also referred to as subjective or advertent recklessness [Ibid., paras 352-369]. The author refers to the commentary of Article 30 for further discussion on this.

Cross-references:
1. Article 8(2)(a)(i) and 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Christopher K. Hall, "Article 7 Crimes against humanity", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 183-190.
  2. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et tal. (Eds.), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford, 2004, pp. 189-190.
  3. Darryl Robinson, "Article 7(a)-Crime Against Humanity of Murder", in Roy S. Lee, (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 80-81.
  4. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 157-158.
  5. Guénaël Mettraux, "Murder", in Antonio Cassese et al. (Eds.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 426-427.
  6. Gerhard Werle, Principles of International Criminal Law, TMC Asser Press, The Hague, 2005, pp. 232-233, MN 674-677.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

 

 

Article 7(1)(b)

[47] (b) Extermination;
General Remarks
The crime against humanity of extermination essentially consists of the large scale killing of members of a civilian population. It has been listed in all instruments concerning crimes against humanity since the Second World War [Hall, 2008, p.190].

Analysis
i. Definition

The crime against humanity of extermination is listed in Article 7(1)(b) of the Rome Statute. While Article 7(1)(b) does not elaborate on the definition of extermination,  Article 7(2)(b) clarifies that it includes the inteal infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population. The Elements of Crimes provide further:

1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.
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.

5. The conduct could be committed by different methods of killing, either directly or indirectly.

6. The infliction of such conditions could include the deprivation of access to food and medicine. 

7. The term “as part of” would include the initial conduct in a mass killing.

ii. Distinction between extermination and murder (both as crimes against humanity) and genocide
The only element that distinguishes murder as a crime against humanity from extermination as a crime against humanity is the requirement for extermination that the killings occur on a mass scale [Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 542]. Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves killing within the context of a widespread or systematic attack against the civilian population. Consequently, a conviction for murder as a crime against humanity and a conviction for extermination as a crime against humanity, based on the same set of facts, are impermissibly cumulative [Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 542; Prosecutor v Lukić and Lukić, ICTY T. Ch. III, 20 June 2009, para. 1045]. While extermination differs from murder because extermination concerns a large number of victims, extermination differs from genocide because extermination covers situations in which a group of individuals who do not share any common characteristics are killed (whereas genocide requires a demonstration of the specific intent to destroy a defined group sharing common characteristics) [Hall, 2008, p.190].

iii. Requirements
In addition to the contextual elements required for all crimes against humanity set out in elements 3 and 4 of the above-listed Elements of Crimes, the following needs to be proven:

a. Material elements
Elements 1 and 2 of the above-listed Elements of Crimes constitute the material elements of extermination.

1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.
The Elements of Crimes indicate that the killing may be carried out either directly or indirectly, which would include the infliction of conditions of life calculated to bring about the destruction of part of a population as set out above. The only ICC decision to date to address the crime of extermination in any detail is the first arrest warrant decision in the Al Bashir case [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009]. Pre-Trial Chamber I found that there were reasonable grounds to believe that the crime of extermination was committed through acts such as the killing of over a thousand civilians in connection with an attack on a town [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para. 97]. The Prosecution also alleged that the systematic destruction of the means of survival of civilian populations in Darfur constituted a form of extermination. However, Pre-Trial Chamber I did not explicitly refer to this means of carrying out extermination when finding reasonable grounds to believe that the crime of extermination was committed [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para. 91, 95-97].
   In the second arrest warrant decision in the Al Bashir case, Pre-Trial Chamber I noted in passing that extermination can be committed through the “infliction of certain conditions of life upon one or more persons” where those conditions are “calculated to bring about the physical destruction of that group, in whole or in part” [Prosecutor v Al Bashir, ICC PT. Ch. I, Second Decision on the Prosecution’s Application for a Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-94, 12 July 2010, para. 33]. Pre-Trial Chamber I concluded (in relation to the genocide charge) that that “one of the reasonable conclusions that can be drawn is that the acts of contamination of water pumps and forcible transfer coupled by resettlement by member of other tribes, were committed in furtherance of the genocidal policy, and that the conditions of life inflicted on the Fur, Masalit and Zaghawa groups were calculated to bring about the physical destruction of a part of those ethnic groups”. [Prosecutor v Al Bashir, ICC PT. Ch. I, Second Decision on the Prosecution’s Application for a Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-94, 12 July 2010, para. 38]. It has been recognised at the ICTY and ICTR that the material elements of extermination includes “subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death” [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para.259]; Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 522].

2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.
In the first arrest warrant decision in the Al Bashir case, Pre-Trial Chamber I repeated that the killings had to occur as part of a mass killing of a civilian population and noted that this mirrors the jurisprudence of the ICTY and ICTR on extermination [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, ICC-02/05-01/09-3, 4 March 2009], para. 96). The Elements of Crimes clarify that the term “as part of” would include the initial conduct in a mass killing. Thus already the first killings in a mass killing meet this requirement even though the requirement of a massive killing may not be satisfied until subsequent killings are perpetrated [Schabas, 2010, p.159].
   At the ICTY and ICTR, the jurisprudence concerning the material elements of extermination has focused on the massiveness requirement, which “distinguishes the crime of extermination from the crime of murder”. [Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para 536; Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, para. 542]. It is well established that the massiveness requirement does not suggest a strict numerical approach with a minimum number of victims [Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para. 537]. While extermination as a crime against humanity has been found in relation to the killing of thousands of victims, it has also been found in relation to fewer killings, including incidents of around 60 victims and less at the ICTY, ICTR, and SCSL [see Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para. 537]. The assessment of the massiveness requirement is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia: the time and place of the killings; the selection of the victims and the manner in which they were targeted; and whether the killings were aimed at the collective group rather than victims in their individual capacity [Prosecutor v Lukić and Lukić, ICTY A. Ch., 4 December 2012, para. 538]. Where mass killings are committed on an extremely large scale, far surpassing the threshold for extermination, this can be taken into account as an aggravating factor in sentencing [Prosecutor v Ndindabahizi, ICTR A. Ch., 16 January 2007.para. 135]. 
  It has been recognised that several killing incidents can be accumulated together to constitute extermination [Prosecutor v Popović et al., ICTY T. Ch. II, 10 June 2010, para. 805 (holding that “in light of the temporal and geographical proximity of the killings, the similarities between them and the organized and coordinated manner in which the Bosnian Serb Forces conducted them, […] they formed part of a single operation.)”; Prosecutor v Tolimir, ICTY A. Ch., 8 April 2015, para. 147)]. Killings that are not part of the same attack on a civilian population, and instead are isolated acts, should not be accumulated together [Prosecutor v Tolimir, ICTY A. Ch., 8 April 2015, para. 150].

a. Mental elements
In the absence of a specific provision defining the mental requirements for extermination, Article 30 of the Rome Statute applies. Accordingly, the material elements must be committed with intent and knowledge, as defined in Article 30.
   At the ICTY and ICTR it has been held that the mental elements of extermination require the intention to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths and that this intent reflects the material elements of the crime. The Appeals Chambers of the ICTY and the ICTR have noted that there is no support in customary international law for the requirement of intent to kill a certain threshold number of victims. This is consistent with the fact that there is no numerical threshold established with respect to the material elements of extermination. [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 260; Prosecutor v Ntakirutimana and Ntakirutimana, ICTR A. Ch., 13 December 2004, paras. 516, 522]. As noted above, in the Al Bashir case, Pre-Trial Chamber I noted in passing that where extermination is committed through the “infliction of certain conditions of life upon one or more persons”, it is necessary to show that those conditions were “calculated to bring about the physical destruction of that group, in whole or in part”. [Prosecutor v Al Bashir, ICC PT. Ch. I, Second Decision on the Prosecution’s Application for a Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-94, 12 July 2010, para. 33].

Cross-references:
1. Articles 67(1)(a)7(2)8(2)(a)(i)8(2)(b)(xxv); 8(2)(c)(i);Rome Statute 30 
2. Elements of Crimes
3. Elements Digest
4. Means of Proof Digest

Doctrine

  1. Christopher K. Hall, "Article 7: Crimes Against Humanity, in Otto Trifterer (Ed.)Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 190-191, 237-243.
  2. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford 2010, pp. 158-160.

Author: Matthew Gillett (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations, the ICTY or the OTP of the ICTY.)

Updated: 30 June 2016

Article 7(1)(c)

[48] (c) Enslavement; 
General Remarks

Enslavement has been included as a crime against humanity in every instrument defining crimes against humanity [Hall, 2008, p. 192]. There was a general agreement throughout the drafting process that enslavement should be included in Article 7 of the Rome Statute, although there was discussion about to the exact meaning of the term [Hall, 2008, p. 192]. None of the judgments before the ICC have addressed the elements of this crime.

Analysis
i. Definition

According to one author, the crime of enslavement encompasses three components: slavery, servitude, and forced or compulsory labour [Hall, 2008, p. 193]. However, Article 7(2)(b) specifies that “Enslavement” means “the exercise of any or all of the powers attaching to the right of ownership over a person”. This reflects the definition of “slavery”, as set out in the Slavery Convention of 1926 [Slavery Convention, Article 1(1)]. This would imply that “enslavement” for the purpose of the Rome Statute is limited to slavery in the traditional sense.
   That said, the Elements of Crimes provides further specification by the words: “such as by purchasing, selling, lending or bartering […] a person or persons or by imposing on them a similar deprivation of liberty”. It adds that “[i]t 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”. Article 7(2)(b) adds that the definition “includes the exercise of [any or all of the powers attaching to the right of ownership over a person] in the course of trafficking in persons, in particular women and children”, which is also repeated in the Elements of Crimes [Elements of Crimes, p. 6, footnote 11]. The texts in Article 7(2)(b) and the Elements of Crimes appear to broaden the definition of “enslavement” beyond the traditional notion of slavery.
   Neither Article 7 nor the Elements of Crimes give any guidance as to how the mens rea should be understood. Therefore Article 30 applies and the material elements must be committed with intent and knowledge.

ii. Requirements
a. Material elements

As explained above, the main area of contention is whether “enslavement” includes something additional to the concept of slavery in the traditional sense. One author comments on the relevant provisions in the Rome Statute and the Elements of Crimes: “The enslavement provision is somewhat convoluted and inelegant, involving a broad general test, a restrictive-sounding list, and an expansive footnote. This reflects the contradictory pressures of the intense negotiations on these issues” [Robinson, 2001, p. 86]. As of now, there is no ICC case law addressing this matter. 
   In the case Prosecutor v. Dragoljub Kunarac et al., the Trial Chamber defined enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person” and that the actus reus of the crime therefore was “the exercise of any or all of the powers attaching to the right of ownership over a person” [Prosecutor v Kunarac et al., ICTY T. Ch., 22 February 2001, paras 539-540]. Having reviewed international instruments and case law, the Trial Chamber added that the definition “may be broader that the traditional and sometimes apparently distinct definitions of either slavery, the slave trade and servitude or forced or compulsory labour found in the areas of international law” [Ibid., paras 518-538, 541]. The Appeals Chamber accepted the Trial Chamber’s “chief thesis […] that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’ [footnote omitted], has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership” [Prosecutor v Kunarac et al., ICTY A. Ch., 12 June 2002, para. 117]. It added that “[i]n the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; [footnote omitted] the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree” [Ibid.]. Thus, the ICTY Appeals Chamber found that not only enslavement but also slavery, as defined in the Slavery Convention of 1926, had a broader meaning than the traditional notion of slavery.
   The Pre-Trial Chamber in the case Prosecutor v. Katanga and Ngudjolo hinted at a similar broad understanding of enslavement. When discussing “sexual slavery” (Article 7(1)(g)), it concluded that this crime may be regarded as a particular form of enslavement and therefore what is encompassed with “sexual slavery” must also be encompassed with “enslavement” [Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 430]. The Pre-Trial Chamber then lists a number of institutions and practices referred to the 1956 Supplementary Convention: “debt bondage, serfdom, forced marriage practices and forms of child labour [Ibid.]. It adds that, in its view, sexual slavery (and therefore, presumably enslavement) also encompasses “situations where women and girls are forced into ‘marriage’, domestic servitude or other forced labour involving sexual activity, including rape, by their captors. [Footnote omitted] Forms of sexual slavery can, for example, be ‘practices such as the detention of women in “rape camps” [footnote omitted] or “comfort stations”, forced temporary “marriages” to soldiers and other practices involving the treatment of women as chattel” [Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 431].

b. Mental elements
See the commentary of Article 30 for discussion on the mens rea for enslavement as a crime against humanity.

Cross-references:
1. Articles 8(2)(b)(xxi) and 8(2)(c)(ii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine

  1. Cherif M. Bassiouni, Crimes Against Humanity – Historical Evolution and Contemporary Application, Cambridge University Press, Cambridge 2011, pp. 374-381.
  2. Christopher K. Hall, "Article 7: Crimes Against Humanity, (c) 'Enslavement'”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 191-194, 244-247.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in http://www.legal-tools.org/doc/ba5c37/Dominic McGoldrick et al. (Eds.), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford, 2004, p. 191.
  4. Darryl Robinson, "Article 7(a) - Crime Against Humanity of Murder", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 84-86.
  5. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 160-163.
  6. Gerhard Werle, Principles of International Criminal Law, TMC Asser Press,The Hague, 2005, pp. 236-238, MN 683-689.
  7. Alexander Zahar, "Slavery", in Antonio Cassese et al. (Eds.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 514-515.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(d)

[49] (d) Deportation or forcible transfer of population;
General remarks

Article 7(1)(d) concerns forced displacement of persons from where they are lawfully present, without grounds permitted under international law.
   Deportation, which is commonly understood as forced displacement from one country to another, was already recognized as a crime against humanity in the Nuremberg Charter [Hall/Stahn, 2016, pp. 192-193]. In addition to deportation, forcible transfer of population was included in the Rome Statute to make clear that forced displacement within a State’s borders can also constitute a crime against humanity [Robinson, 2001, p. 86]. In contrast, the statutes of the ICTY and the ICTR only explicitly list deportation as a crime against humanity. However, the jurisprudence has recognized that forcible transfer can constitute the crime against humanity of “other inhumane acts” or an underlying act of persecution [Prosecutor v Stakić, (Case No. IT-97-24-A), ICTY A. Ch., Judgement, 22 March 2006, para. 317; Prosecutor v Krnojelac, (Case No. IT-97-25-A), ICTY A. Ch., Judgement, 17 September 2003, para. 218; Prosecutor v Naletilić and Martinović, (Case No. IT-98-34-A), ICTY A. Ch., Judgement, 3 May 2006, paras. 153-154]. The protected interests underlying the prohibition of deportation and forcible transfer include the rights to stay in one’s home and community and not to be deprived of one’s property by forcible displacement to another location [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 277; Hall/Stahn, 2016, p. 192; see also Prosecutor v Krnojelac, ICTY A. Ch., 17 September 2003, para. 218; Schabas, 2016, p. 178]. 


Analysis
i. Definition

According to Article 7(2)(d), “‘[d]eportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”. The Elements of Crimes provide further:

1. The perpetrator deported or forcibly12 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.
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.

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”.

ii. Distinction between deportation and forcible transfer
Article 7(2)(d) provides a single definition for “[d]eportation or forcible transfer of population”. This raises the question whether there is a need to distinguish between the two alternatives [see Acquaviva, 2011, p. 18]. ICC case law supports the need for such a distinction [see also Werle/Jessberger, 2014, p. 359 and Hall/Stahn, 2016, p. 263 who refer to distinct crimes]. In Ruto et al. and Muthaura et al. the Prosecution charged and Pre-Trial Chamber II confirmed charges for “deportation or forcible transfer of population” [Prosecutor v Ruto et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, 23 January 2012, paras. 22, 268, 299, 349, 350, 367; Prosecutor v Muthaura et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, paras. 21, 241, 298, 428]. The Defence in Ruto et al. challenged this alternative formulation of the charges. Pre-Trial Chamber II saw “no apparent prejudice caused by this formulation at this particular stage of the proceedings and in relation to this unique crime”. The Pre-Trial Chamber pointed out, however, that the Trial Chamber will ultimately have to draw a distinction between deportation and forcible transfer [Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, para. 268]. In other cases the legal characterization was already limited to forcible transfer at the pre-trial stage. In Al Bashir, Harun and Kushayb, and Hussein Pre-Trial Chamber I issued warrants of arrest for alleged responsibility for forcible transfer as a crime against humanity [Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, p. 92; Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009, pp. 7-8; Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1.Corr, 27 April 2007, pp. 45, 48, 56; Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2, 27 April 2007, pp. 7, 10, 15-16; Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ali Kushayb, ICC-02/05- 01/07-3-Corr, 27 April 2007, pp. 8, 10, 16-17; Prosecutor v Hussein, ICC PT. Ch. I, Public redacted version of “Decision on the Prosecutor’s application under Article 58 relating to Abdel Raheem Muhammad Hussein”, ICC-02/05-01/12-1-Red, 1 March 2012, pp. 29-30; Prosecutor v Hussein, ICC PT. Ch. I, Warrant of Arrest for Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-2, 1 March 2012, pp. 8, 11; see also Prosecutor v Al Bashir, ICC PT. Ch. I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010, p. 6]. Similarly, Pre-Trial Chamber II in Ntaganda confirmed charges for forcible transfer of population as a crime against humanity [Prosecutor v Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, paras. 36, 64-68, p. 63]. 
   The next question is then how to distinguish between deportation and forcible transfer. The distinction between deportation and forcible transfer is commonly seen in whether the victims are forced across a State border, which is considered as deportation, whereas forcible transfer typically refers to displacements within a State [see Hall/Stahn, 2016, p. 192]. As noted above, the definition contained in Article 7(2)(d) does not explicitly make this distinction. While element 1 of the Elements of Crimes provides that the victims must be displaced “to another State or location”, it does not explicitly limit deportation to displacement to another State, nor does it limit forcible transfer to displacement within a State [see Hall/Stahn, 2016, footnote 300]. Nevertheless, Pre-Trial Chamber II in Ruto et al. distinguished between forcible transfer and deportation based on “where [the victims] have finally relocated as a result of these acts (i.e. within the State or outside the State)” [Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, para. 268. For this distinction also Werle/Jessberger, 2014, pp. 358-359; Hall/Stahn, 2016, p. 196 with reference to the drafting history; Schabas, 2016, p. 178]. The distinction made by Pre-Trial Chamber II in Ruto et al. might suggest that it viewed deportation and forcible transfer as mutually exclusive. At the ICTY, the Appeals Chamber confirmed in Đorđević that for forcible transfer “the displacement may take place within national boundaries but is not so restricted” [Prosecutor v Đorđević, (Case No. IT-05-87/1-A), ICTY A. Ch., Judgement, 27 January 2014, footnote 2159, emphasis in original, referring to Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 317; see however Prosecutor v Stanišić and Župljanin, (Case No. IT-08-91-A), ICTY A. Ch., Judgement, 30 June 2016, para. 917]. According to this definition, the ultimate location does not form part of the elements of forcible transfer; deportation thus has an additional element: the displacement across a border [see Prosecutor v Popović et al., (Case No. IT-05-88-T), ICTY T. Ch. II, Judgement, 10 June 2010, paras. 892, 904]. 
   At the ICTY deportation does not require displacement across a de jure State border. Rather, under certain circumstances, displacement across a de facto border suffices. This is to be examined on a case by case basis in light of customary international law, which, for example, recognizes displacement from occupied territory as deportation [see for the ICC Article 8(2)(b)(viii)], while displacement across constantly changing frontlines is not sufficient [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, paras. 278, 300-303; against such “broad interpretation” of deportation at the ICC, Werle/Jessberger, 2014, pp. 358, 359].

iii. Requirements
In addition to the contextual elements required for all crimes against humanity set out in elements 4 and 5 of the above-listed Elements of Crimes, the following needs to be proven:

a. Material elements
Elements 1 and 2 of the above-listed Elements of Crimes constitute the material elements of deportation and forcible transfer.

1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
According to the Elements of Crimes, the term ‘forcibly’ is to be interpreted broadly and 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, footnote 12]. Likewise, at the ICTY forced displacement “is not ‘limited to physical force but includes the 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’” [Prosecutor v Đorđević, ICTY A. Ch., 27 January 2014, para. 727 quoting Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 281]. The question is whether the victims had no genuine choice [Prosecutor v Đorđević, ICTY A. Ch., 27 January 2014, para. 727; Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 279]. ICTY jurisprudence does not require that the displacement results from acts that are criminal as such [Prosecutor v Stanišić and Župljanin, ICTY A. Ch., 30 June 2016, para. 918. For an analysis of military attacks as the required coercive act see Prosecutor v Đorđević, ICTY App. Ch., 27 January 2014, paras. 704-705; Prosecutor v Gotovina and Markač, (Case No. IT-06-90-A), ICTY App. Ch., Judgement, 16 November 2012, para. 114 and footnote 330; see also Prosecutor v Stanišić and Župljanin, ICTY A. Ch., 30 June 2016, footnote 3083].
   According to Pre-Trial Chamber II in Ruto et al., “[a] literal interpretation of the wording used by the Elements of Crimes to define the actus reus of the crime leads to the conclusion that deportation or forcible transfer of population is an open-conduct crime. In other words, the perpetrator may commit several different conducts which can amount to ‘expulsion or other coercive acts’, so as to force the victim to leave the area where he or she is lawfully present” [Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, para. 244]. The Pre-Trial Chamber considered killing, looting, burning and destruction of property as the coercive acts through which the displacement occurred [Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, paras. 251, 255, 260-261, 265-266, 277]. In Muthaura et al. Pre-Trial Chamber II held that the destruction of homes, killings, injuries, rapes and public announcements that people of a certain ethnicity must leave amounted to coercion causing the residents to leave their homes [Prosecutor v Muthaura et al., ICC PT. Ch. II, ICC-01/09-02/11-382-Red, 23 January 2012, paras. 244, 279]. In relation to the Situation in Georgia, Pre-Trial Chamber I found a reasonable basis to believe that deportation or forcible transfer of population were committed based on “[c]oercive acts used by South Ossetian forces to create an atmosphere of fear and terror thus forcing ethnic Georgians to leave their place of residence [which] reportedly included killings, severe beatings, insults, threats and intimidation, detention, looting and destruction of property” [Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation, ICC-01/15-12, 27 January 2016, paras. 22, 31, 32].
   Pre-Trial Chamber II in Ruto et al. emphasized that to prove deportation or forcible transfer a link needs to be established between the perpetrator’s conduct and the resulting effect of forcing the victim to leave the area to another State or location [Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, para. 245; see also Prosecutor v Popović et al., ICTY T. Ch. II, 10 June 2010, para. 893].
   Although Article 7(1)(d) refers to deportation or forcible transfer of population, the Elements of Crimes clarify that the transfer of one person can suffice [Werle and Jessberger, 2014, p. 358]. Provided the contextual element is met – that the conduct was committed as part of a widespread or systematic attack directed against a civilian population – ICTY Trial Chamber II in Popović et al. opined that there is no additional requirement that the victims of forcible displacement are civilians. However, “the status of the victims may be very relevant to distinguish lawful acts from criminal ones” [Prosecutor v Popović et al., ICTY T. Ch. II, 10 June 2010, paras. 910, 912]. As the ICTY Appeals Chamber noted in Popović et al. “forcible displacement of enemy soldiers is not prohibited under international humanitarian law” [Prosecutor v Popović et al., (Case No. IT-05-88-A), ICTY App. Ch., Judgement, 30 January 2015, para. 774].
   The displacement has to occur without grounds permitted under international law. The ICTY Appeals Chamber pointed out in Đorđević that – as with all other elements of the crime – this is for the Prosecution to prove [see Prosecutor v Đorđević, ICTY A. Ch., 27 January 2014, para. 705]. International humanitarian law, for example, permits displacement for certain reasons, such as for the security of the population/civilians involved or in case of imperative military reasons, and under certain conditions (e.g. Article 49 Geneva Convention IV, Article 17 Additional Protocol II). Such evacuations can only be temporary and provisional measures [Prosecutor v Blagojević and Jokić, (Case No. IT-02-60-T), ICTY T. Ch. I, Judgement, 17 January 2005, para. 597]. Pre-Trial Chamber II in Ntaganda considered that the acts of displacement “were not justified by the security of the civilians involved or by military necessity, as there [was] no indication of any precautionary measures having been taken before these acts of displacement were carried out or any reasons linked to the conduct of military operations” [Prosecutor v Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 68]. Displacement can further be permitted for humanitarian reasons such as epidemics or natural disasters [Prosecutor v Popović et al., ICTY T. Ch. II, 10 June 2010, para. 903]. While displacement for humanitarian reasons is allowed in certain situations, the ICTY Appeals Chamber has held that this does not apply “where the humanitarian crisis that caused the displacement is itself the result of the accused's own unlawful activity” [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, para. 287]. Human rights instruments provide for other grounds permitting displacement in certain circumstances [see e.g. Article 12(3) ICCPR; Hall/Stahn, 2016, p. 267; Werle/Jessberger, 2014, p. 359].

2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
The question of whether the lawfulness of the victims’ presence is to be determined under national or international law was debated during the negotiations of the Rome Statute, but was ultimately left for the Court to decide [Robinson, 2001, p. 87 setting out the different positions during the negotiations; for a determination under international law, Werle/Jessberger, 2014 p. 360; considering lawful presence under national or international law sufficient, Hall/Stahn, 2016, pp. 263, 267; see also Cryer et al., 2014, footnote 147]. For the purpose of confirming charges against Bosco Ntaganda, Pre-Trial Chamber II considered that “absent any indication to the contrary in the evidence”, the civilians displaced were lawfully present in the relevant locations [Prosecutor v Ntaganda, ICC PT. Ch. II, ICC-01-04-02/06-309, 9 June 2014, para. 68; see also Prosecutor v Ruto et al. ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, paras. 251, 255, 261]. ICTY Trial Chamber II in Popović et al. opined that “lawfully present” should not be equated to the legal concept of lawful residence, but understood in its common meaning [Prosecutor v Popović et al.(ICTY T. Ch. II, 10 June 2010, para. 900].

b. Mental elements
With respect to the first material element, Article 30 applies [Robinson, 2001, p. 88]. At the ICTY, the intent to displace the victim permanently is not required for deportation or forcible transfer [Prosecutor v Stakić, ICTY a. Ch., 22 March 2006, paras. 278, 307, 317; see however, Werle/Jessberger, 2014, p. 361; against such a requirement at the ICC Hall/Stahn, 2016, p. 268, pointing out that this is not listed in the Elements of Crimes].
  Consistent with the view that deportation has an additional element not required for forcible transfer, the transfer across a border, ICTY Trial Chamber II held in Popović et al.: “In the case of forcible transfer, as the ultimate location does not form part of the elements of the offence, the mens rea is established with proof of the intent to forcibly displace the person. In the case of deportation, as displacement across a border is a constituent element, the mens rea for the offence must encompass this component of the crime” [Prosecutor v Popović et al.ICTY T. Ch. II, 10 June 2010, para. 904, internal reference omitted; see however Prosecutor v Stanišić and Župljanin, ICTY A. Ch., 30 June 2016, para. 917].
   With respect to the second material element, element 3 of the Elements of Crimes clarifies that awareness of the factual circumstances establishing the lawfulness of the victims’ presence suffices. It is not required that the perpetrator make any legal evaluation of the lawfulness of the victims’ presence [Robinson, 2001, p. 88; Hall/Stahn, 2016, pp. 265, 267].

Cross-references:
1. Articles 7(2)(d)8(2)(a)(vii), 8(2)(b)(viii), 8(2)(e)(viii)30
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Guido Acquaviva, "Forced Displacement and International Crimes", UNHCR Legal and Protection Policy Research Series, Division of International Protection, June 2011. 
  2. Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, pp. 247-248.
  3. Christopher K. Hall/Carsten Stahn, “Article 7: Crimes Against Humanity”, B.I.2(d) “Deportation or forcible transfer of population”, and B.II.4 “Prohibited movements of population”, in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Third Edition, C.H.Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 192-198, 263-268.
  4. Darryl Robinson, "Article 7 (1)(d)—Crime Against Humanity of Deportation Or Forcible Transfer of Population", in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 86-88.
  5. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 178-180.
  6. Gerhard Werle/Florian Jessberger, Principles of International Criminal Law, Third Edition, Oxford University Press, Oxford, 2014, pp. 357-361.

Author:
Barbara Goy (The views expressed are those of the author alone and do not necessarily reflect the views of the Mechanism for International Criminal Tribunals, the ICTY or the United Nations in general.)

Updated: 
15 August 2017

Article 7(1)(e)

[50] (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
General Remarks
Although imprisonment was not included in the Nuremberg and Tokyo Charters, it has been included as a crime against humanity in subsequent instruments, including the ICTY and ICTR statutes [Hall, 2008, p. 200]. None of the judgments before the ICC have addressed the elements of this crime.

Analysis
i. Definition
The full text of Article 7(1)(e) reads ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’. There is no provision in Article 7(2) further addressing this crime.

ii. Requirements
a. Material elements
The two alternatives of ‘imprisonment’ and ‘sever deprivation of physical liberty’ seem to suggest that the term ‘imprisonment’ should be understood in a narrow sense, as imprisonment after conviction by a court [Hall, 2008, p. 201]. However, according to the definition, this imprisonment has to be in violation of fundamental rules of international law. Together the two concepts cover a broad range of arbitrary deprivations of liberty [Hall, 2008, p. 202].
   The Statute does not contain any clear guidance as to what constitute a ‘severe’ deprivation of liberty. The use of the word ‘other’ indicates that ‘imprisonment’ already meets the threshold for ‘severe’ and this might be of some assistance in interpreting the term. Furthermore, according to the Elements of Crimes, one of the elements are that ‘[t]he gravity of the conduct was such that it was in violation of fundamental rules of international law’. Presumably the drafters did not intend to introduce a new gravity-element that was not foreseen in the Statute [see Hall, 2008, p. 204]. Therefore, this element must be a reference to ‘severe’ in the Statute. The meaning of the term ‘severe’ is then merely that the severe deprivation of liberty (including imprisonment) must be in violation of fundamental rules of international law.
   Neither the Statute nor the Elements of Crimes specify which the fundamental rules of international law are.

b. Mental elements
Article 7 does not give any guidance as to how the mens rea should be understood. In this respect, Article 30 applies and the material elements must be committed with intent and knowledge. The author refers to the commentary of Article 30 for discussion on the mens rea for imprisonment as a crime against humanity.
   In addition, the Elements of Crimes specifies that the perpetrator must have been ‘aware of the factual circumstances that established the gravity of the conduct’. In this respect, one author commented that there was general agreement among the drafters ‘that the prosecutor need not prove that the perpetrator made any legal evaluation that the imprisonment was in violation of fundamental rules of international law’ [Robinson, 2001, p. 89].

Cross-references:
1. Article 8(2)(a)(vii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine

  1. Cherif M. Bassiouni, "Crimes Against Humanity – Historical Evolution and Contemporary Application", Cambridge University Press, Cambridge, 2011, pp. 443-445.
  2. Christopher K. Hall, "Article 7: Crimes Against Humanity, (e) 'Imprisonment or other severe deprivation of physical liberty'”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 200-205.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, 2004, p. 193.
  4. Darryl Robinson, "Article 7(1)(e) – Crime Against Humanity of Imprisonment or Other Severe Deprivation of Physical Liberty", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 88-89.
  5. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 165-166.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(f)

[51] (f) Torture;
General Remarks
According to one author, there was a general support throughout the drafting process for the inclusion of torture as a crime against humanity [Hall, 2008, p. 205]. There was, however, a considerable debate about the definition of this crime [Hall, 2008, p. 205].

Analysis
i. Definition

According to Article 7(2)(e) and Elements of Crimes, torture means ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’.
   Notably, the definition in the Statute does not include a requirement that the infliction of pain or suffering was done for a specific purpose [Elements of Crimes, footnote 14]. Such a requirement is included in the torture definition in the Torture Convention, as well as in the definition of torture as a war crime in the Statute. Further, the definition does not include a requirement of a connection to a public official [see von Hebel and Robinson, 1999, p. 99].

ii. Requirements
a. Material elements
The two material elements are 1) the infliction of severe physical or mental pain or suffering, and 2) that this infliction is on a person in custody or under the control of the perpetrator. With regard to the severity requirement, the Pre-Trial Chamber in the case Prosecutor v. Bemba considered that ‘it is constantly accepted in applicable treaties and jurisprudence that an important degree of pain and suffering has to be reached’ [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 193]. Arguably, this adds very little or nothing to the understanding of the word ‘severe’ in the definition.
   Torture in the sense of the Statute does not include infliction of pain or suffering that arises only from, are inherent in or incidental to, lawful sanctions. According to one author, ‘lawful’ refers to international law or national law, which is consistent with international law and standards [Hall, 2008, p. 253]. However, the Statute itself, as well as the Elements of Crimes, are silent on this issue.

b. Mental elements
Article 7(2)(e) includes the word ‘intentional’, which means that Article 30, stating ‘[u]nless otherwise provided’, is not applicable with regard to the crime of torture. The Pre-Trial Chamber in the case Prosecutor v. Bemba concluded that the use of the term ‘intentional’ excluded the separate requirement of knowledge set out in Article 30(2) of the Statute and that it was therefore not necessary to demonstrate that the perpetrator knew that the harm inflicted was severe [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 194].

Cross-references:
1. Articles 8(2)(a)(ii) and 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine

  1. Cherif M. Bassiouni, "Crimes Against Humanity – Historical Evolution and Contemporary Application", Cambridge University Press, Cambridge, 2011, pp. 411-419.
  2. Christopher K. Hall, "Article 7 Crimes Against Humanity, (f) 'Torture' and (e) 'Torture'”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 205-206, 251-255.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford/Portland, 2004, pp. 194-195.
  4. Darryl Robinson, "Article 7(1)(f)-Crime Against Humanity of Torture", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 90-92.
  5. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 166-169.
  6. Alexander Zahar, "Torture", in Antonio Cassese et al. (Eds.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 537-538. 

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(g)-1

[52] (g) Rape,
Rape is considered the most severe form of sexual violence. Sexual violence is a broad term that covers all forms of acts of a sexual nature under coercive circumstances, including rape. The key element that separates rape from other acts is penetration. The Elements of Crime provide a more specific definition of the criminal conduct. Rape falls under the chapeaus of genocide, crimes against humanity or war crimes under specific circumstances, confirmed both through the Rome Statute and through the case law of the ICTR and the ICTY. In order for rape to rise to the level of a crime against humanity, it must be perpetrated within the context of a widespread or systematic attack aimed at a civilian population. Combatants cannot thus be victims of rape as a crime against humanity. The attack must also aim at a significant number of victims. This does not preclude a single rape from constituting a crime against humanity, if perpetrated within the context of a widespread or systematic attack. The underlying act, such as rape, does not have to be the same as the other acts committed during the attack.
   For the mental element of rape Article 30 applies. The perpetrator has to have knowledge of the act being part of a systematic attack or the factual circumstances of a widespread attack. It is sufficient if he or she intended to further such an attack. He or she must also have intended to penetrate the victim’s body and be aware that the penetration was by force or threat of force.
   The definition of rape is the same regarding rape as genocide, crimes against humanity and war crimes, albeit the contextual elements of the chapeaus differ. The actus reus of the violation is found in the Elements of Crimes. The definition focuses on penetration with 1) a sexual organ of any body part, or 2) with the use of an object or any other part of the body of the anal or genital opening of the victim, committed by force or threat or force or coercion. “Any part of the body” under point 1 refers to vaginal, anal and oral penetration with the penis and may also be interpreted as ears, nose and eyes of the victim. Point 2 refers to objects or the use of fingers, hands or tongue of the perpetrator. Coercion may arise through fear of violence, duress, detention, psychological oppression or abuse of power. These situations are provided as examples, apparent through the use of the term “such as”. Consent is automatically vitiated in such situations. The definition is intentionally gender-neutral, indicating that both men and women can be perpetrators or victims. The definition of rape found in the Elements of Crimes is heavily influenced by the legal reasoning in cases regarding rape of the ICTY and the ICTR. Such cases can thus further elucidate the interpretation of the elements of the crime, meanwhile also highlighting different approaches to the main elements of rape, including “force” and “non-consent”. See e.g. Furundzija, in which the Trial Chamber of the ICTY held that force or threat of force constitutes the main element of rape [Prosecutor v. Furundzija (Case No. IT-95-17/1-T) ICTY T. Ch., 10 December 1998]. To the contrary, the latter case of Kunarac emphasized the element of non-consent as the most essential in establishing rape, in that it corresponds to the protection of sexual autonomy. [Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23 and 23/1) ICTY T. J, 22 February 2001]. As to the term “coercion” the ICTR Trial Chamber in Akayesu held that a coercive environment does not require physical force. It also adopted a broad approach to the actus reus, including also the use of objects, an approach that has been embraced also by the ICTY and the ICC [Prosecutor v. Jean-Paul Akayesu, ( Case No. ICTR-96-4-T), ICTR T. Ch., 2 September 1998, para. 598]. 
   Rule 63 is of importance which holds that the Court’s Chambers cannot require corroboration to prove any crime within its jurisdiction, particularly crimes of sexual violence. Rule 70 further delineates the possibility of introducing evidence of consent as a defense. This is highly limited, emphasizing that consent cannot be inferred in coercive circumstances. Rule 71 forbids evidence of prior sexual conduct. 
   Several cases at the ICC include charges of rape as a crime against humanity. This includes Pre-Trial Chamber III in Bemba, for crimes committed in the Central African Republic, 2002-2003. Bemba is charged with rape as a crime against humanity and war crime. In the 2009 confirmation of charges decision in the Bemba case, Pre-Trial Chamber II dismissed charges of rape as torture and outrages upon personal dignity, solely confirming charges of rape. The Chamber held that including the distinctive charges would constitute cumulative charging and be “detrimental to the rights of the Defence”. [Prosecutor v. Bemba, PT Ch. I, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/05-01/08-424, 15 June 2009, para. 202].
   In Prosecutor v Katanga, the Chamber referred to the Akayesu judgment on the interpretation of a coercive environment. It held that “threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or military presence”  [Prosecutor v. Katanga, ICC PT. Ch. I. Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008. para. 440. See also Prosecutor v. Akayesu, (Case No IT-96-4-T), ICTR T. Ch. I, Trial Judgement, 2 September 1998, para 688. The Chamber found sufficient evidence to confirm charges that members of the FNI and FRPI by force or threat invaded the body of women and girls abducted in the village of Bogoro. See para. 442].
   In Prosecutor v Kenyatta, the Chamber confirmed that there were substantial grounds to believe widespread rapes had been perpetrated sufficient to rise to the level of crimes against humanity [Prosecutor v Kenyatta, ICC PT. Ch. I. Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute Against Kenyatta, ICC-01/09-02/11, 23 January 2012, para. 257.]
   Several arrest warrants confirm reasonable grounds to believe that rape as crimes against humanity have been committed. See e.g. Prosecutor v Gbagbo, Warrant of arrest ICC-02/11, 23 November 2011, para 8; Prosecutor v Ntaganda, ICC PT. Ch. II., Decision on ther Prosecutor's Application under Article 58, ICC-01/04-02/06, 13 July 2012, para. 38: “reasonable grounds to believe, that crimes of rape and sexual slavery were committed as part of the attacks in different locations in Ituri…”; Prosecutor v Ahmad Harun and Ali Kushayb, ICC PT. Ch. I., Warrant of Arresthttp://www.legal-tools.org/doc/cfa830/, ICC-02/05-01/07, 27 April 2007 found reasonable grounds to believe that Harun and Kushayb, through the direction of the Sudanese Armed Forces and the Janjaweed committed rapes of women and girls of certain ethnic groups. In Prosecutor v Al Bashir, ICC PT. Ch. I., Second Warrant of Arrest, ICC-02/05-01/09, 12 July 2010, the Pre-Trial Chamber found reasonable grounds to establish rape as a crime against humanity. In Prosecutor v Kony, ICC PT. Ch. II, Warrant of Arrest, ICC-02/04-01/05, 27 September 2005, the chamber also found reasonable grounds to establish rape and sexual slavery as crimes against humanity.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Antonio Cassese, in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 374-375.
  2. Gerhard Werle, Principles of International Criminal Law,  T.M.C. Asser Press, The Hague, 2005, pp. 248-250, MN 723-727.
  3. Macheld Boot, in Otto Triffterer (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 209-211.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Mortsel, 2005, pp. 103-135.
  5. M. Cherif Bassiouni, Crimes Against Humanity, Historical Evolution and Contemporary Application, Cambridge University Press, Cambridge, 2011, pp. 440-442.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(g)-2

[53] sexual slavery,
Sexual slavery is a particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Although it is listed as a separate offence in the Rome Statute, it is regarded as a particular form of enslavement. However, whereas enslavement is solely considered a crime against humanity, sexual slavery may constitute either a war crime or a crime against humanity. It is partly based on the definition of enslavement identified as customary international law by the ICTY in the Kunarac case [Prosecutor v Kunarac, Kovac and Vukovic, (Case No. IT-96-23), ICTY T. Ch., 22 February 2001, para. 543]. Sexual slavery is thus considered a form of enslavement with a sexual component. Its definition is found in the Elements of Crimes and includes the exercise of any or all of the powers attached 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”. The person should have been made to engage in acts of a sexual nature. The crime also includes forced marriages, domestic servitude or other forced labour that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence.
   In Prosecutor v Katanga and Ngudjolo, The Pre-Trial chamber held that "sexual slavery also encompasses situations where women and girls are forced into 'marriage', domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors [Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 431]. Forms of sexual slavery can, for example, be practices such as the detention of women in 'rape camps' or 'comfort stations', forced temporary 'marriages' to soldiers and other practices involving the treatment of women as chattel, and as such, violations of the peremptory norm prohibiting slavery". The Chamber found sufficient evidence to affirm charges of sexual slavery as crimes against humanity in the form of women being abducted for the purpose of using them as wives, being forced or threatened to engage in sexual intercourse with combatants, to serve as sexual slaves and to work in military camps servicing soldiers. See para. 434.
   The SCSL Appeals Chamber in the Brima case has found the abduction and confinement of women to constitute forced marriage and consequently a crime against humanity. The Chamber concluded that forced marriage was distinct from sexual slavery. Accordingly, “While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the “husband” and “wife”, which could lead to disciplinary consequences for breach of this exclusive arrangement”. See Prosecutor v Brima, (Case No. SCSL-2004-16-A), SCSL A Ch., Appeals Judgment, 22 February 2008, para. 195. In 2012 the Court in a decision on the Charles Taylor case declared its preference for the term ‘forced conjugal slavery’. The Trial Chamber did not find the term “marriage” to be helpful in describing the events that had occurred, in that it did not constitute marriage in the universally understood sense [Prosecutor v Taylor, SCSL-03-01-T, 18 May 2012, para. 427].
   Several arrest warrants at the ICC confirm reasonable grounds to believe that sexual slavery has been committed as part of attacks on civilian population and thus constituting crimes against humanity. See Prosecutor v Bosco Ntaganda, ICC PT. Ch. II, Decision on Prosecutor's Application under Article 58, ICC-01/04-02/06-36-Red, 13 July 2012; Warrant of Arrest for Joseph Kony, ICC PT Ch. II, ICC-02/04-01/05, 27 September 2005, para. 38; and Warrant of Arrest against Vincent Otti, ICC PT. Ch. II, ICC-02/04, 8 July 2005, para. 17.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Macheld Boot revised by Christofer K. Hall, in Otto Triffterer (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 211-212.
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press. The Hague, 2005, pp. 250-251, MN 728.
  3. Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, p. 256.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Antwerpen/Oxford, 2005, pp. 137-141.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(g)-3

[54] enforced prostitution,
The Elements of Crimes requires the 1) causing or a person to engage in acts of a sexual nature 2) by force or threat of force or under coercive circumstances and 3) the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts. Primarily the latter point distinguishes it from sexual slavery. It can also be distinguished in that sexual slavery requires the exercise or any or all of the powers attaching to the rights of ownership. Enforced prostitution could, however, rise to the level of sexual slavery, should the elements of both crimes exist. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act. Enforced prostitution is prohibited in the Geneva Convention IV 1949 as an example of an attack on a woman’s honour and in Additional Protocol I as an outrage upon personal dignity.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 212-213. 
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 251, MN 729-730.
  3. Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, pp.256-257.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Antwerpen/Oxford, 2005, pp. 141-142.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(g)-4

[55] forced pregnancy,
According to  Article 7(2)(f) forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. Unlawful confinement should be interpreted as any form of deprivation of physical liberty contrary to international law. The deprivation of liberty does not have to be severe and no specific time frame is required. The use of force is not required, but some form of coercion. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. The forcible impregnation may involve rape or other forms of sexual violence of comparable gravity. In addition to the mental requirements in Article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 213 and 255-256. 
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 251-252, MN 731-732.
  3. Robert Cryer et al.An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, p. 257.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Antwerpen/Oxford, 2005, pp. 143-146.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(g)-5

[56] enforced sterilization,
Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of Article 6(e). It is carried out without the consent of a person. Genuine consent is not given when the victim has been deceived. Enforced sterilization includes depriving a person of their biological reproductive capacity, which is not justified by the medical treatment of the person. It does not include non-permanent birth-control methods. It is not restricted to medical operations but can also include the intentional use of chemicals for this effect. It arguably includes vicious rapes where the reproductive system has been destroyed. The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element Article 30 applies. Enforced sterilization may also fall under the chapeau of genocide if such intent is present.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 213-214. 
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 252, MN 733.
  3. Robert Cryer et al.An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, p. 257-258.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Antwerpen/Oxford, 2005, p. 146.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(g)-6

[57] or any other form of sexual violence of comparable gravity;
The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in Article 7(1)(g). It concerns acts of a sexual nature against a person through the use of force or threat of force or coercion. The importance of distinguishing the different forms of sexual violence primarily lies in the level of harm to which the victim is subjected and the degree of severity, and therefore becomes a matter of sentencing.
   It is generally held to include forced nudity, forced masturbation or forced touching of the body. The ICTR in Akayesu held that “sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact…”. See Prosecutor v Akayesu,(Case No. ICTR-96-4-T) ICTR T. Ch., 2 September 1998, para. 688. The Trial Chamber in the case confirmed that forced public nudity was an example of sexual violence within its jurisdiction [para. 10 A]. Similarly, the Trial Chamber of the ICTY in its Kvocka decision declared: “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation, and also covers sexual acts that do not involve physical contact, such as forced public nudity [Prosecutor v Kvocka, (Case No. IT-98-30/1-T) ICTY T. Ch., 2 November 2001, para. 180]. To the contrary, in the decision on the Prosecutor’s application for a warrant of arrest in the Bemba case, the Pre-Trial Chamber of the ICC did not include a charge of sexual violence as a crime against humanity in the arrest warrant, which had been based on allegations that the troops in question had forced women to undress in public in order to humiliate them, stating that “the facts submitted by the Prosecutor do not constitute other forms of sexual violence of comparable gravity to the other forms of sexual violence set forth in Article 7(1)(g)" [Prosecutor v Bemba, ICC PT. I, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 10 June 2008, para. 40].
   In the Lubanga case of the ICC, evidence of sexual violence was presented during the trial, including various forms of sexual abuse of girl soldiers who were forcefully conscripted. However, no charges of sexual violence were brought. The Prosecution rather encouraged the Trial Chamber to consider evidence of sexual violence as an integral element of the recruitment and use of child soldiers [Prosecutor v Lubanga, ICC T. Ch. I, Prosecution's Closing Brief, ICC-01/04-01/06-2748-Red, 1 June 2011, paras. 139, 142 and 205]. In the confirmation of charges in the Muthaura and Kenyatta case, Pre-Trial Chamber II chose not to charge forced male circumcision and penile amputation as sexual violence, but rather as inhumane acts. The Chamber held that “the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice…” [Prosecutor v Muthaura and Kenyatta, ICC PT. Ch. I, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 266]. It argued that “not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence”. See para. 265.

Cross-references:
1. Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, Münche/Oxford/Baden-Baden, 2008, pp. 214-215.
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 252-253, MN 734. 
  3. Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, pp. 258-259.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Antwerpen/Oxford, 2005, pp. 147-152.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 7(1)(h)

[58] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
General Remarks
Persecution has been included in every instrument defining crimes against humanity. Arguably, it is central to the concept of crimes against humanity, as being an act not criminalized also as a war crime or as an ordinary crime. It seeks to criminalize massive violations of human rights, committed on discriminatory grounds. There was controversy among the drafters with regard to including persecution as a crime against humanity in the ICC Statute, as well as to the crime’s exact definition [von Hebel and Robinson, 1999, p. 101]. The crime of persecution has been extensively dealt with in the case law of the ICTY [see Nilsson, 2011]. None of the judgments before the ICC have addressed the elements of this crime.
 
Analysis
i. Definition
The full text of the definition of persecution in Article 7(1)(h) reads: ‘Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court’. Article 7(2)(g) sets out that persecution means ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’.
   In this respect, the ICC Statute differs significantly from other legal instruments, which include a considerably more succinct provision. For example, the equivalent provision in the Nuremberg Charter (reproduced in the ICTY and ICTR Statutes), reads: ‘persecution on political, racial or religious grounds’. The reason for the more elaborate definition was a concern among many delegations at the Rome Conference that persecution might be interpreted to include any kind of discriminatory practices [Witschel and Rückert, 2001, pp. 94-95].
   The Elements of Crimes clarifies that the perpetrator must have targeted ‘one or more persons’ [Elements of Crimes, Article 7(1)(h), nos 1-2]. Besides that, the Elements of Crimes do not add anything to the text in the Statute itself.

ii. Requirements
a. Material elements
The material elements of persecution are: 1) severe deprivation of fundamental rights contrary to international law; 2) on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law; and 3) in connection with any act referred to in Article 7(1) or any crime within the jurisdiction of the Court. According to one commentator, the requirement of connection with other crimes means in practice war crimes, as ‘[p]rosecuting persecution in the presence of genocide would also be totally redundant’ [Schabas, 2010, p. 177]. Another commentator argues that ‘[i]n practical terms, the requirement should not prove unduly restrictive, as a quick review of historical acts of persecution shows that persecution is inevitably accompanied by such inhumane acts’ [Robinson, 1999, p. 55].
   With regard to the element of ‘severe deprivation of fundamental rights’, the charges confirmed before the ICC until now have been limited to such crimes which have also been charged separately as other crimes against humanity [Prosecutor v Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 204, compared with paras 193-199; Prosecutor v Muthaura et al., ICC PT. Ch. II, ICC-01/09-02/11-382-Red, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 283, compared with paras 233, 243, 257, 270-271, 275-277; Prosecutor v Ruto et al., ICC PT. Ch. II, ICC-01/09-01/11-373, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, paras 271-272, compared with paras 225-226, 228-239, 241-242, 248-251, 253-266].

b. Mental elements
The definition in Article 7 sets out that the severe deprivation of fundamental rights must be committed intentionally. In addition, it expresses that the deprivation must be committed on discriminatory grounds. Finally, with regard to the third material element mentioned above (‘in connection with any act referred to in Article 7(1) or any crime within the jurisdiction of the Court’), the Elements of Crimes clarifies that no additional mental element is necessary [Elements of Crimes, p. 10, footnote 22].

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine

  1. Dermot Groome, "Persecution", in Antonio Cassese (Ed.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 453-454.
  2. Christopher K. Hall, "Article 7 Crimes against humanity, (h)'Persecution'”,  in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 216-221.
  3. Herman Von Hebel/Darryl Robinson, in Roy S. Lee (Ed.), The International Criminal Court – The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, Leiden, 1999, pp. 90-103.
  4. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford/Portland, 2004, pp. 196-197.
  5. Jonas Nilsson, "The Crime of Persecution in the ICTY Case-Law", in Bert Swart et al. (Eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University Press, Oxford, 2011, pp. 219-246.
  6. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 175-180.
  7. Georg Witschel/Wiebke Rückert, "Article 7(1)(h) - Crime Against Humanity of Persecution", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, New York, pp. 94-97.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(i)

[59] (i) Enforced disappearance of persons;
General Remarks

The ‘systematic practice’ of enforced disappearance was considered ‘the nature of crimes against humanity’ by the UN General Assembly through a resolution in 1992 [UN GA res. 47/133, 18 December 1992, preamble]. Similarly, the International Convention for the Protection of All Persons from Enforced Disappearance states that enforced disappearance ‘in certain circumstances defined in international law’ constitutes a crime against humanity.  None of the judgments before the ICC have addressed the elements of this crime.
   The complex nature of the crime is acknowledged in the Elements of Crimes: ‘it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose’ [Elements of Crimes, footnote 23].

Analysis
i. Definition
According to Article 7(2)(i), enforced disappearance of persons means ‘the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.’ The Elements of Crimes clarifies that both the deprivation of liberty and the refusal to acknowledge this deprivation or to give information on the fate or whereabouts of such person or persons must have been carried out by, or with the authorization, support or acquiescence of, a State or political organization.

ii. Requirements
a. Material elements
The two central material elements are 1) an arrest, detention or abduction of a person or persons, and 2) a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons. According to the Elements of Crimes, there must be an objective nexus between these material elements [Elements of Crimes, Article 7(1)(i), item 2].
   Furthermore, the deprivation of liberty needs to have been carried out by, or with the authorization, support or acquiescence of, a State or political organization. In this respect, there is an overlap with one of the general elements of crimes against humanity: ‘part of a widespread or systematic attack directed against any civilian population’, with ‘attack’ being defined as ‘a course of conduct […] pursuant to or in furtherance of a State or organizational policy to commit such attack’ [Article 7(1),  and (2)(a)].

b. Mental elements
According to the Elements of Crimes, the perpetrator must be aware that the deprivation of liberty ‘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’ or that ‘[s]uch refusal was preceded or accompanied by that deprivation of freedom’.
   In addition, the definition adds a specific intent for this crime: ‘the intention of removing [the person or persons deprived of their liberty] from the protection of the law for a prolonged period of time’.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine

  1. Cherif M. BassiouniCrimes Against Humanity – Historical Evolution and Contemporary Application,  Cambridge University Press, Oxford, 2011, pp. 448-452.
  2. Christopher K. Hall, "Article 7 Crimes Against Humanity, (i) 'Enforced Disappearance of Persons'", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 221-226, 266-273.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford/Portland, 2004, pp. 197-198.
  4. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press,Oxford, 2010, pp. 180-182.
  5. Marieke Wierda/Thomas Unger, "Enforced Disappearances", in http://www.legal-tools.org/doc/7be65f/Antonio Cassese (Ed.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 309-310.
  6. Georg Witschel/Wiebke Rückert, Article 7(1)(i)-Crime Against Humanity of Enforced Disappearance of Persons, in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 98-103.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(j)

[60] (j) The crime of apartheid;
General Remarks

The crime of apartheid was condemned as a crime against humanity by the UN General Assembly through a resolution in 1966 [UN GA res. 2202 (XXI), 16 December 1966, para. 1] and in the International Convention on the Suppression and Punishment of the Crime of Apartheid. None of the judgments before the ICC have addressed the elements of this crime.
   A number of authors have criticized the inclusion of “the crime of apartheid” in the list of crimes against humanity in the ICC Statute as legally unsound [Zahar, 2009, pp. 245-246 and McCormack, 2004, pp. 198-200]. Essentially, the critique is that the crime is fully covered by the crime of persecution as a crime against humanity and that there is therefore no need for it.

Analysis
i. Definition

According to Article 7(2)(h), the crime of apartheid encompasses “inhumane acts of a character similar to those referred to in paragraph 1 [of Article 7], committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime”. The Elements of Crimes clarifies that the crime may be committed by an act against one or more persons, that “character” refers to the nature and gravity of the act, and that the perpetrator need to be aware of the factual circumstances that established the character of the act.

ii. Requirements
a. Material elements

The material elements of the crime of apartheid bear similarities with the crimes of persecution and other inhumane acts, in that it overlaps substantially with other crimes against humanity. With regard to which acts it encompasses, the definition itself points to the other crimes against humanity. The act or acts of the crime of apartheid must be of “a character similar to those referred to in paragraph 1 [of Article 7]”, meaning of the same nature and gravity as those acts. Therefore, the acts of the crime of apartheid could also be one of those listed acts, for example murder and torture.
    According to the definition the act or acts must be “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups”. With regard to this element there is a clear overlap with one of the general elements of crimes against humanity: “part of a widespread or systematic attack directed against  any civilian population”, with “attack” being defined as “a course of conduct […] pursuant to or in furtherance of a State or organizational policy to commit such attack” [Article 7(1) and (2)(a)]. It is difficult to imagine any scenario in which the general elements have been proven (which they have to for the act to qualify as a crime against humanity), but the specific element of the crime of apartheid has not. Therefore, at least in practice, this element of the crime of apartheid does not amount to a distinct element of the crime.

b. Mental elements
Besides the mental elements of the crime, as set out in Article 30 of the Rome Statute, the definition adds a specific intent for this crime: “the intention of maintaining [the institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups]”.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Cherif M. BassiouniCrimes Against Humanity – Historical Evolution and Contemporary Application, Cambridge University Press, Cambridge, 2011, pp. 448-452.
  2. Christopher K. Hall, "Article 7: Crimes Against Humanity, (j) 'The Crime of Apartheid'”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers´ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 227-229, 263-266.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford/Portland, 2004, pp. 198-200.
  4. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 182-183.
  5. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 262-264, MN 758-765.
  6. Georg Witschel/Wiebke Rückert, "Article 7(1)(j) - Crime Against Humanity of Apartheid", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 103-106.
  7. Alexander Zahar, "Apartheid as an International Crime", in Antonio Cassese (Ed.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 245-246.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(1)(k)

[61] (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
General Remarks
The definitions of crimes against humanity in the Nuremberg Charter, Control Council Law No. 10, and the ICTY and ICTR Statutes, have all included a residual provision of this kind, indicating that the list of expressly named acts is not exhaustive. It reflects the sentiment that it is not possible to create such an exhaustive list. According to one author: ‘The capacity of human beings to concoct novel forms of atrocity is a constant source of discomfort and shame and it is critical that provisions exist to facilitate prosecution of such actions not currently known or experienced’ [McCormack, 2004, p. 201].
   The risk of creating an open-ended definition was countered in the drafting of the ICC Statute by clarifying the terms with the ejusdem generis rule [von Hebel and Robinson, 1999, p. 102]. By linking it with the other crimes against humanity, the drafters sought to achieve a more precise definition and thus consistency with the principle of nullum crimen sine lege [Witschel and Rückert, 2001, p. 107].

Analysis
i. Definition
The definition in Article 7(1)(k) reads: ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. Article 7(2) does not contain any further clarification of the provision. The Elements of Crimes clarifies that ‘character’ refers to the nature and gravity of the act [Elements of Crimes, footnote 30]. Further, the perpetrator must be aware of the factual circumstances that established the character of the act [Elements of the Crimes, p. 12].

ii. Requirements
a. Material elements
There are two material elements for this crime: 1) an act causing great suffering, or serious injury to body or to mental or physical health; and 2) an act of similar character (nature and gravity) to any other act in Article 7(1).
   The Pre-Trial Chamber in the case Prosecutor v. Katanga and Ngudjolo contrasted the provision in the ICC Statute with the equivalent provision in the Nuremberg Charter and the ICTY and ICTR Statutes:

the [ICC] Statute has given to “other inhumane acts” a different scope than its antecedents like the Nuremberg Charter and the ICTR and ICTY Statutes. The latter conceived “other inhumane acts” as a “catch all provision”, leaving a broad margin for the jurisprudence to determine its limits. In contrast, the Rome Statute contains certain limitations, as regards to the action constituting an inhumane act and the consequences required as a result of that action [Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008, para. 450].

In this respect, it first clarified that none of the acts constituting crimes against humanity according to Article 7(1)(a) to (j) could simultaneously be considered as an other inhumane act [Ibid., para. 452]. Referring to the principle of nullum crimen sine lege, it added that inhumane acts are to be considered ‘as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law’ [Ibid., para. 448]. Whether a particular act meets these requirements has to be determined with considerations given to all the factual circumstances [Ibid., para. 449]. In this respect, the Pre-Trial Chamber referred primarily to ICTY case law [Prosecutor v Kupreškić et al. (Case No. IT-95-16), ICTY T. Ch., Judgement, 14 January 2000, para. 566; Prosecutor v Stakić (Case No. IT-97-24), ICTY T. Ch., Judgement, 31 July 2003, para. 721; Prosecutor v Vasiljević (Case No. IT-98-32), ICTY A. Ch., 25 February 2004, para. 165], which might appear odd considering that the Pre-Trial Chamber expressly attempted to distinguish the ICTY provision from that in the ICC Statute. With regard to consequences, the Pre-Trial Chamber merely reiterated the words from the Statute: ‘great suffering, or serious injury to body or to mental or physical health’ [Ibid., para. 453].
   The Pre-Trial Chamber in the case Prosecutor v. Muthaura et al. did not contrast the provision on ‘other inhumane acts’ with the equivalent provisions in other legal instruments. It did, however, consider that the provision ‘must be interpreted conservatively and must not be used to expand uncritically the scope of crimes against humanity’ [Prosecutor v Mathaura et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 269]. It also considered that if a conduct could be charged as another crime against humanity, its charging as other inhumane acts would be impermissible [Ibid.]. The Pre-Trial Chamber confirmed charges of acts causing physical injury (including forcible circumcision, penile amputation, and mutilations) and acts causing mental suffering on the part of victims whose family members were killed in front of their eyes [Ibid., paras 267-268, 270-277]. However, with regard to the destruction or vandalizing of property and businesses the Pre-Trial Chamber did not consider that this conduct caused ‘serious injury to mental health’ within the definition of other inhumane acts.

b. Mental elements
The definition in the Statute and the Elements of Crimes sets out that the perpetrator must have inflicted great suffering, or serious injury to body or to mental or physical health intentionally. Further, the perpetrator must have been aware of the factual circumstances that established the character similar to any other act referred to in Article 7(1) of the Statute.
   The Pre-Trial Chamber in the case Prosecutor v. Katanga and Ngudjolo declined to confirm charges of attempted murder under the provision of other inhumane acts, for reasons of lack of mens rea:

‘the clear intent to kill persons cannot be transformed into intent to severely injure persons by means of inhumane acts solely on the basis that the result of the conduct was different from that which was intended and pursued by the perpetrators’ [Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 463].

Cross-references:
1. Starvation in Articles 6(c); 7(1)(b)and (j); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv); and 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest


Doctrine

  1. Christopher K. Hall, "Article 7: Crimes Against Humanity, (k) 'Other Inhumane Acts'”, in Otto Trifterer (Ed.)Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 230-234.
  2. Herman Von Hebel/Darryl Robinson, in Roy S. Lee (Ed.), The International Criminal Court – The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, Alphen aan Den Rijn, 1999, pp. 90-103.
  3. Timothy L.H. McCormack, "Crimes Against Humanity", in Dominic McGoldrick et al. (Eds), The Permanent International Criminal Court – Legal and Policy Issues, Hart Publishing, Oxford/Portland, 2004, pp. 200-201.
  4. William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 183-186.
  5. Georg Witschel/Wiebke Rückert, "Article 7(1)(k)-Crime Against Humanity of Other Inhumane Acts", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 106-108.
  6. Alexander Zahar, "Other Inhumane Acts", in Antonio Cassese (Ed.)The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, p. 448.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(2)(a)

[62] 2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
Article 7(2)(a) clarifies that it needs to be a State or organizational policy. One Pre-Trial Chamber declared that the term ‘State’ was self-explanatory but added that the policy did not have to be conceived ‘at the highest level of the State machinery’ [Situation in the Republic of Kenya, ICC PT. Ch. II,  Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01-09, 31 March 2010, para. 89, citing Prosecutor v Blaškić, ICTY T. Ch., Judgment, 3 March 2000, para. 205]. Therefore, also a policy adopted by regional or local organs of the State could satisfy this requirement [Ibid.].

   With regard to ‘organizational’, the Pre-Trial Chambers in the Prosecutor v. Bemba and the Prosecutor v. Katanga and Ngudjolo stated that it may be ‘groups of persons who govern a specific territory or […] any organization with the capability to commit a widespread or systematic attack against a civilian population’ [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 81; Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 396]. It is therefore not limited to State-like organizations [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, paras 90-92; Prosecutor v Muthaura et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 112; Prosecutor v Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 33. See also Judge Kaul’s dissents to these decisions: Prosecutor v Ruto et. al. , Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", 15 March 2011, and Prosecutor v Muthaura et. al., Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", 15 March 2011]. The Trial Chamber in the Prosecutor v. Katanga followed this approach [Prosecutor v Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application de l’Article 74 du Statut, 7 March 2014, paras 1117-1122].
   The Bemba Pre-Trial Chamber stated that when determining whether the ‘part of’ requirement was met it would consider ‘the characteristics, the aims, the nature or consequences of the act’ [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 84]. It also stated ‘the underlying offences must […] not be isolated’ [Prosecutor v Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83], although that ought to follow already from the fact they have to be part of a widespread or systematic attack against a civilian population.

Author: Jonas Nilsson (The views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or the ICTY.)

Updated: 30 June 2016

Article 7(3)

[63] 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
The term "gender" refers to socially constructed roles played by women and men.

Doctrine:

        Macheld Boot, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court-        Observer's Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-        Baden, 2008, p. 273.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(1)

[64] Article 8 War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes
.
In contrast to crimes against humanity, plan, policy, and scale are not elements of war crimes. One single act may constitute a war crime. However, it is unlikely that a single act would meet the gravity threshold in Article 17(1)(d).

Cross-reference:
Elements of Crime 

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Ed.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 380-381.
  2. Michael Cottier, "Article 8, War Crimes", in Otto Triffterer (Ed.), The Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, Münche/Oxford/Baden-Baden, 2008, pp. 299-300.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C Asser Press, The Hague, 2005, p. 269, MN 773.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)

[65] 2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
General Remarks

War crimes are crimes committed in time of armed conflict. As there is no general definition of an armed conflict in the ICC Statute or the Elements of Crimes the Court has relied on ICTY jurisprudence to define “armed conflict”: “an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State” (Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 533).
   The crimes listed in Article 8(2) can be perpetrated in both international and non-international armed conflicts (Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, ICC-01/05-01/08-424, 15 June 2009, para. 216). Whilst Articles 8(2)(a) and (b)  cover acts committed in an international armed conflict, Articles 8(2)(c) and (e) refer to acts committed in a non-international armed conflict.   
   Following the Tadić jurisprudence of the ICTY that refers to mixed conflicts, i.e. conflicts that are both international and non-international (Prosecutor v. Tadić, (Case No. IT-94-1-I), ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 77), the ICC has stated that (1) the nature of a conflict can change over time (Prosecutor v. Katanga, ICC T. Ch. II, Judement, ICC-01/04-01/07-3436, 7 March 2014, para. 1181) and (2) conflicts of different nature can take place on the same territory (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 540; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras. 1174 and 1182; Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision on the Confirmation of Charges, ICC-01/04-02/06-309, 9 June 2014, para. 33). As a result any determination of the qualification of an armed conflict must be based on an evaluation of the facts at the relevant time.

Analysis
Article 8(2)(a) states that “For the purpose of this Statute, ‘war crimes’ means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention…”.

i) Scope of Application
The four Geneva Conventions of 1949 apply in international armed conflict. Neither the Statute nor the Elements of Crimes define the concepts of “armed conflict” and “international armed conflict” and thus recourse must be had to the principles rules of international law, and more specifically, Common Article 2 of the Geneva Conventions which state that international armed conflicts involve two or more State parties to the conventions and do not necessitate a threshold of violence to apply (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1177 ).
   The concept of an international armed conflict also includes military occupation (footnote 34 of the Elements of Crimes; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1179). Whether the initial intervention that led to the occupation is lawful and whether the occupation was met with resistance is of no relevance (Office of the Prosecutor, Report on Preliminary Examination Activities 2016, 14 November 2016, para. 158): a “territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised” (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 212; Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 542; Katanga, ICC T. Ch. II, Judgement, ICC-01/04-01/07-3436, 7 March 2014, para. 1179). In Katanga the ICC developed a list of elements to be taken into consideration when applying this definition (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1180).
   Following the Tadic jurisprudence of the ICTY (Prosecutor v. Tadić, (Case No. IT-94-1-A), ICTY A. Ch., Judgement, 15 July 1999, para. 84) the ICC has interpreted the definition of an international armed conflict to include conflicts opposing a State against an armed opposition group when “(i) another State intervenes in that conflict through its troops (direct intervention), or (ii) some of the participants in the internal armed conflict on behalf of that other State (indirect intervention)”. (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 220; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1177); in this instance the conflict is internationalised. However, assistance provided by foreign States to the State fighting an armed opposition group does not lead to the internationalisation of the conflict (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 246; Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 101). Likewise, armed opposition groups siding with the State do not internationalise the conflict (Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 653-654). To determine whether a situation falls within situation (ii) the ICC follows the “overall control” test that was devised by the ICTY in Tadić (Tadić, ICTY A. Ch., Judgement, 15 July 1999, para. 137) (Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, 29 January 2007, para. 211; Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 130). It specifies that when a State plays a role “in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group” then the conflict becomes international (Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 211; Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1178; Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 655).
   To sum up ‘an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State’ (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 223; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1177).

ii) Concept of Grave Breaches
Each Geneva Convention has its own list of grave breaches (Article 50 GC I, Article 51 GC II, Article 130 GC III and Article 147 GC IV). The ICC Statute is an accurate reflection of the grave breaches provisions of the four Geneva Conventions.

iii) Acts against Persons or Property Protected under GCs
For the grave breaches regime under the Geneva Conventions to apply the acts must have been committed against protected persons (e.g. wounded, injured, sick and/or shipwrecked combatants, prisoners of war and civilians in occupied territory) and property (e.g. movable and non-movable property in occupied territory (see e.g. Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY T. Ch., Judgement, 3 March 2000, para. 157). This is repeated in footnote 35 of the Elements of Crimes: “all victims must be ‘protected persons’ under one or more of the Geneva Conventions of 1949”.
   Whilst the GC I, II and III do not refer to the nationality of the member of the armed forces, Article 4 GC IV explicitly considers protected persons as those who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict of Occupying Power of which they are not nationals”. Footnote 33 of the Elements of Crimes explains that “[w]ith respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict” thereby seemingly adopting the broad definitional approach of the ICTY whereby allegiance, rather than nationality, is key to determining whether the individual is to be granted protection under the GC IV (Tadić, ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 76; Tadić, ICTY A. Ch., Judgement, 15 July 1999, paras 164-166). In Katanga and Chui the ICC endorsed this approach, specifying that “individual civilians […] automatically become protected persons within the meaning of Article 4 GC IV, provided they do not claim allegiance to the party in question”. (Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 293)
   So far no such cases have been decided by the ICC. Generally, it is rather rare for international criminal tribunals to deal with violations of the first three Geneva Conventions.

iv) Awareness
Unlike for crimes prosecuted before the ICTY which requires that the perpetrator was aware that that his/her acts were linked to a conflict of an international nature (Prosecutor v. Naletilić and Martinović, (Case No. IT-98-34-A), ICTY A. Ch., Judgement, 3 May 2006, paras 110-120) the ICC Statute only requires 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’” (Elements of Crimes, Article 8, Introduction). There must however be a nexus between the act and the conflict.
   However both courts require that the individual was aware that the individuals/property were protected under one or more of the Geneva Conventions (Elements of Crimes, Article 8(2)(a)(i), footnote 32). It is sufficient to show that the perpetrator was aware of the “factual circumstances that established [the] status [of the individuals]”.

Cross-references:
1. Elements of Crimes
2. Elements Digest
3. Means of Proof Digest

Doctrine

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", in Elizabeth Wilmhurst (Ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 32-79.
  2. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 379-426. 
  3. Knuck Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 300-305.
  4. Antonio Cassese  et al. (Eds.), International Criminal Law, Oxford University Press, Oxford, 2013, pp. 63-83.
  5. Robert Cryer et al. (Eds.), An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, pp. 264-284.
  6. Anthony Cullen, "War Crimes", in William Schabas/Nadia Bernaz (Eds), Routledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154.
  7. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, pp. 17-37.
  8. William SchabasAn Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 131-133.
  9. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.

Author:
Noëlle Quénivet

Updated:
23 March 2017

Article 8(2)(a)(i)

[66] (i) Wilful killing;
The term "killing" is interchangeable with the term "causing death". Killing in actual fighting between combatants (which is not a prisoner of war, wounded or sick) is not covered by the provision. The present provision is more clear than Article 7(1)(a) regarding the mental element by the use of the notion "wilful". Thus, the perpetrator must either act intentionally or recklessly.
    In Prosecutor v Katanga and Ngudjolo, ICC pt. cH. i, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 294, PTC I stated that "Article 8(2)(a)(i) of the Statute also applies to the wilful killing of the protected persons by an attacking force, when such killings occur after the overall attack has ended, and defeat or full control of the targeted village has been secured."

Cross-references:
1. Article 7(1)(a) and 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 392.
  2. William J. Fenrick, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 305-306.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 302-303, MN 875-878.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(ii)-1

[67] (ii) Torture
Torture is the infliction of severe physical or mental pain or suffering upon one or more persons. The standard for torture is set in the Torture Convention. In contrast to the aforementioned convention, it is not necessary that perpetrator acted in an official capacity. The Elements of Crimes provides a non-exclusive listing of which purposes the torture serve, which distinguishes it from torture as a crime against humanity which does not require a purpose.

Cross-references:
1. Articles 7(1)(f) and 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1.  Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 392-393. 
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer, (Ed.) Commentary on the Rome Statute of the International Criminal Court - Obsservers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 306-308.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 305-306, MN 887-890.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(ii)-2

[68] or inhuman treatment, 
Inhuman treatment means the infliction of severe physical or mental pain or suffering upon one or more persons. The protected interest is the human dignity. For the mental element Article 30 applies.
    In Prosecutor v Katanga and Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 364, PTC I was of the "that there is sufficient evidence to establish substantial grounds to believe that the war crime of inhuman treatment, as defined in Article 8(2)(a)(ii) of the Statute".

Cross-references:
1. Article 8(2)(c)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 393.
  2. Knutt Dörmann, "Article 8, War Crimes", in Otto Triffterer, (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 308-309. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 308-309, MN 903-906.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(ii)-3

[69] including biological experiments;
The prohibition of biological experiments covers the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Cross-references:
1. Article 8(2)(b)(x) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 393.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer, (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 309-310 . 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, pp. 308-309, MN 898-901.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(iii)

[70] (iii) Wilfully causing great suffering, or serious injury to body or health;
This provision covers acts such as rape, mutilation of the wounded or their exposure to useless and unnecessary suffering. It differs from the war crime of torture mainly in that the act does not need to serve a specific purpose. The mental element requires at least recklessness.

Cross-references:
1. Article 8(2)(c)(i)
2. Starvation in Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(b)(ii), (v), (xiii) and (xxv); and 8(2)(c)(i)
3. Elements of Crime
4. Elements Digest
5. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 393.
  2. Knutt Dörmann, "Article 8, War Crimes", in Otto Triffterer, (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 310-311. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 306-307, MN 891-894.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(iv)

[71] (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
The destruction of property is also criminalized through offences that cover methods of warfare. The term appropriation is interchangeable with confiscation. The seizure of property in armed conflict is not prohibited under all circumstances. Nevertheless, pillaging is expressly forbidden and cannot be justified on the basis of military necessity, see Articles 8(2)(b)(xvi) and 8(2)(e)(v). The mental element requires at least recklessness.

Cross-references:
1. Articles(8)(b)(xiii), 8(2)(b)(xvi), 8(2)(e)(v) and 8(2)(e)(xii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 394.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer, (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 311-313. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 334-340, MN 987-1004.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(v)

[72] (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
The expression "forces" should be given a broad interpretation.

Cross-references:
1. Article 8(2)(b)(xv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 394.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 311-313. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 316-317, MN 924-928.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(vi)

[73] (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
The Elements of Crime refers to the guarantees laid down in Geneva Conventions III (GC III) and IV (GC IV), stating that the right to fair trial include: the right to an independent and impartial court (Article 84(2) of GC III ), the right to timely notification by the detaining power about any planned trial of a prisoner of war (Article 104 of GC III), the right to immediate information on the charges (Article 104 of GC III and Article 71(2) of GC IV), the prohibition of collective punishment (Article 87(3) of GC III and Article 33 of GC IV), the principle of legality (Article 99(1) of GC III and Article 67 of GC IV), the ne bis in idem principle (Article 86 of GC III and Article 117(3) of GC IV), the right to appeal or petition and information on the possibility thereof (Article 106 of GC III and Article 73 of GC IV), the possibility of presenting a defence and having assistance of qualified counsel (Article 99(3) of GC III), the right to receive the charges and other trial documents in good time an din understandable language (Article 105(4) of GC III), the right of an accused prisoner of war to assistance by one of his prisoner comrades (Article 105(1) of GC III), the defendant's right to representation by an advocate of his own choice (Article 105(1) of GC III and Article 72(1) of GC IV), the right of the defendant to present necessary evidence and especially to call and question witnesses (Article 105(1) of GC III and Article 72(1) of GC IV), and the right to the services of an interpreter (Article 105(1) of GC III and Article 72(3) of GC IV). The death penalty may only be imposed under specific circumstances (Article 100 of GC III and Article 68 of GC IV), and prisoners of war must be tried in the same courts and according to the same procedure as members of the armed forces of the detaining power (Article 102 of GC III). These rules should be supplemented by the rules on a fair trial contained in Article 75(3) and (4) of Additional Protocol I.  The mental element requires at least recklessness.

Cross-references:
1. Articles 8(2)(b)(xiv) and 8(2)(c)(iv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 394-395.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 314-316. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, the Hague, 2005, pp. 320-322, MN 938-943.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(vii)-1

[74] (vii) Unlawful deportation or transfer
The material element requires the transfer of persons from one territory to another. The difference between deportation and forcible transfer lies only in whether a border is crossed. Deportation requires that a border is crossed, while as forcible transfer means the transfer of one or more persons within the same state's territory.  For the mental element Article 30 applies.

Cross-references:
1. Articles 7(1)(d), 8(2)(b)(viii) and 8(2)(e)(viii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 395.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statue of the International Criminal Court - Observsers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 316-318. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 327-328, MN 963-867.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(vii)-2

[75] or unlawful confinement;
In certain circumstances confinement of protected persons may be legitimate, for example if a civilian threatens one of the parties in a conflict.

Cross-references:
1. Article 7(1)(e)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 395.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp.318-321. 
  3. Gerhard Werle, Principles of InternationalCriminal Law, T.M.C. Asser Press, The Hague, pp. 323-325, MN 950-954.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(a)(viii)

[76] (viii) Taking of hostages
Hostage taking involves the seizure and detainment of one or more protected persons and a threat to kill, injure or continue to detain such person or persons. In addition to the general mental requirement in Article 30 the purpose of the hostage taking is 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.

Cross-references:
1. Article 8(2)(c)(iii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2202, p. 393.
  2. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 321-322.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 325-327, MN 958-962.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)

[77] (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
General Remarks

Along with Article 8(2)(a)Article 8(2)(b) lists war crimes that take place in the context of an international armed conflict.

Analysis
Article 8(2)(b) reads: “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts”.

i) Scope of Application
The scope of subparagraph (b) is the same as subparagraph (a): it is applicable in times of an international armed conflict. This is supported by the Elements of Crimes that repeat that “[t]he conduct took place in the context of and was associated with an international armed conflict” (Article 8(2)(b)) and by the case-law (Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges,  ICC-01/04-01/07-717, 30 September 2008, para. 244). In fact in Katanga and Chui the ICC, after stating that the conflict was international, proceeds to examine offences charged under Article 8(2)(a) and (b) (Katanga and Chui, ICC PT. Ch. I, Decision on te Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 243).

ii) Acts Prohibited
The use of the word “other” indicates that this list of prohibited acts is additional to the grave breaches (which are also “serious violations of the laws and customs applicable in international armed conflict”) list included in subparagraph (a). Yet, whilst some of the grave breaches of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I) are referred to in Article 8(2)(b) (e.g. Article 85(3)(b) AP I “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians, or damage to civilian objects, as defined in Article 57 paragraph 2(a)(iii)” is reflected in Article 8(2)(b)(iv)) others are not (e.g. Article 85(4)(b) AP I “unjustifiable delay in the repatriation of prisoners of war or civilians”). This lack of full incorporation in the ICC Statute of the grave breaches mentioned in AP I may be due to the fact that AP I enjoys far less unanimity with States than the Geneva Conventions do.
   In fact, the acts enumerated under Article 8(2) (b) are a patchwork of 26 serious violations of international law. Such acts are prohibited by either or both treaty and customary international law. For example, some subprovisions expressly mention the Geneva Conventions (e.g. Articles (2)(b)(xxii) and (xxv)); others are drawn from AP I. For example, Article 8(2)(b)(xxvi) that refers to the crime of recruiting and using children under the age of 15 years is based on Article 77(2) AP I (Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 542). Most of the subprovisions relate to means and methods of warfare and are drawn from the Convention Relating to the Laws and Customs of War on Land (Hague IV). Yet there are also a number of new crimes under Article 8(2)(b) such as the prohibition of attacks against humanitarian or peacekeeping missions (Article 8(2)(b)(iii)) and against the environment (Article 8(2)(b)(iv)).
   Unlike for Article 8(2)(a) there is no requirement for the victims or objects to have protected status.

iii) Awareness
Similar to Article 8(2)(a) the Elements of Crime only require the perpetrator to have been “aware of factual circumstances that established the existence of an armed conflict”. The ICC specifically explains that this element of the crime is “common to all war crimes provided for in Article 8(2)(a) and (b) of the Elements of Crimes” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 244).

Cross-references:
1. Elements of Crimes
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", in https://www.legal-tools.org/doc/415188/Elizabeth Wilmhurst (Ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 32-79.
  2. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395-397.
  3. Antonio Cassese et al. (Eds.), International Criminal Law, Oxford University Press, Oxford, 2013, pp.62-83.
  4. Robert Cryer et al. (Eds.), An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, pp. 264-284.
  5. Anthony Cullen, "War Crimes", in William Schabas /Nadia Bernaz (Eds.), Routledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154.
  6. Knut DörmannElements of War Crimes under the Rome Statute of the International Criminal Court,  Cambridge University Press, Cambridge, 2002, pp. 17-37.
  7. Knut Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.)Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 323.
  8. Leena GroverInterpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2014, pp. 279-285.
  9. William Schabas, An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 133-142.
  10. William SchabasThe International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.

Author: Noëlle Quénivet

Updated: 30 June 2016

Article 8(2)(b)(i)

[78] (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

General Remarks
The war crime of attacking the civilian population and civilians not taking direct part in hostilities “is the first in the series of war crimes for which one essential element is that the crime must be committed during the conduct of hostilities (commonly known as ‘conduct of hostilities crimes’)”. (Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717,30 September 2008, para. 267). Under international humanitarian law the act of “making the civilian population or individual civilians the object of attack” “when committed wilfully … and causing death or serious injury to body or health” is a grave breach (Article 85(3)(a) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I)).
   Article 8(2)(b)(i) is a reflection of the principle of distinction in attack in an international armed conflict. Whilst the principle is enshrined in Articles 48 and 51 AP I it is also of customary nature (Rule 1 of the ICRC Study on Customary International Humanitarian Law; Prosecutor v. Galić, (Case No. IT-98-29-A), ICTY A. Ch., Judgement, 30 November 2006, para. 87). The International Court of Justice has stressed that deliberate attacks on civilians are absolutely prohibited by international humanitarian law (Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at 257 (para. 78). Further, as the ICTY highlighted “the principles underlying the prohibition of attacks on civilians, namely the principles of distinction and protection … incontrovertibly form the basic foundation of international humanitarian law and constitute ‘intransgressible principles of international customary’” (Galić, ICTY A. Ch., Judgement, 30 November 2006, para. 87).

Analysis
Article 8(2)(b)(i) states that the ICC has jurisdiction overs acts of “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”.

i) Material Elements
a. Definition of an Attack

The first element of the Elements of Crimes requires that “the perpetrator directed an attack” (Elements of Crimes, page 18). Yet, neither the Statute nor the Elements of Crimes define the term “attack”. The Court has used Article 49(1) AP I to define an attack as “acts of violence against the adversary, whether in offence or in defence” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 266).
   As the ICC Statute does not provide for a specific offence of acts whose primary purpose is to spread terror among the civilian population, it is likely that such acts fall within the broad scope of Article 8(2)(b)(i). As Article 8(2)(b)(i) is a reflection of the principle of distinction enshrined in Articles 48 and 51 AP I and Article 8(2)(b) must be read “within the established framework of international law” it is likely that it will also cover the second sentence of the Article 51(2) AP I: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. This approach was espoused by the ICTY inasmuch as it explained that the prohibition of terror amounts to “a specific prohibition within the general (customary) prohibition of attack on civilians” (Prosecutor v. Galić, (Case No. IT-98-29-T), ICTY T. Ch. I, Judgment and Opinion, 5 December 2003, para. 98, upheld in Galić, ICTY A. Ch., Judgement, 30 November 2006, para. 87).
   To establish the link between the attack and the conduct of the hostilities, the Court has stipulated that these civilians must be those “who [have] not fallen yet into the hands of the adverse or hostile party to the conflict to which the perpetrator belongs” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 267). Following the ICTY case law, the Court has stated that the litmus test is whether the individual is under the control of the members of the hostile party to the conflict (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 268). Acts committed against civilians who have fallen into the hands of the enemy cannot be classified as attacks as they are not methods of warfare. They can however be prosecuted under other appropriate legal provisions (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 269).
   There must be a causal link between the perpetrator’s conduct and the consequence of the attack (by analogy in relation to Article 8(2)(e)(i), Prosecutor v. Abu Garda, ICC PT. Ch. I, Public Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 66). That being said, the attack does not need to lead to civilian casualties; it is sufficient to prove that the author launched the attack towards the civilian population or individual civilians. As the Court explained ‘it does not require any material result or a ‘harmful impact on the civilian population or on the individual civilians targeted by the attack…’” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para.  270). It is the intention that counts as the third element of the Elements of Crimes requires that “the perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack". As noted by the Court in Katanga and Chui (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para.  270) this  stands in contrast to Article 85(3) AP I that requires “death or serious injury to body or health” and the jurisprudence of the ICTY (e.g. Prosecutor v. Kordić and Čerkez, (Case IT-95-14/2-T), ICTY T. Ch., Judgment, 26 February 2001, para. 328 as reiterated in Prosecutor v. Kordić and Čerkez, (Case IT-95-14/2-A), ICTY A. Ch., Judgment, 17 December 2004, para. 40).

b. Object of the Attack is a Civilian Population and Civilians Not Taking Direct Part in the Hostilities
The second element of the Elements of Crimes specifies that “the object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities” (Elements of Crimes, page 18). This is an absolute prohibition that cannot be counterbalanced by military necessity (Prosecutor v. Katanga, ICC Tr. Ch. II, Judgement pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-T, 7 March 2014, para. 800). This position is reinforced by the fact that in the context of a non-international armed conflict (and thus likely to apply in an international armed conflict too) the ICC has indicated that reprisals are prohibited in all circumstances (Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 143).
   Civilians are defined by reference to Article 50(1) AP I and the civilian population by reference to Articles 50(2) and (3) AP I (Katanga and Chui, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008, footnotes 366 and 368 respectively; Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148 in relation to the civilian population). Generally, civilians are persons who are not members of State and non-State armed forces (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras. 788 and 801). In case of doubt an individual must be considered a civilian (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, footnotes 366 and 375; Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148; Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 94)). The presence amongst the civilian population of individuals who do not fit within the definition of a civilian, however, does not deprive the entire population of its civilian character (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, footnote 375; Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148).
   Article 8(2)(b)(i) refers to “individual civilians not taking direct part in direct hostilities”, thereby introducing the concept of direct participation in hostilities in the context of an international armed conflict. Although the adjective “active”, rather than “direct”, appears in international humanitarian law in relation to participation in hostilities the Court treats them as synonyms (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, footnote 367). To determine whether these civilians were indeed not taking part in the hostilities, the ICC, relying on ICTY case-law (eg Prosecutor v Halilovic, ICTY T. Ch., Judgment, (Case IT-01-48), 16 November 2005, paras 33-34) has spelled, though in the context of a non-international armed conflict, the following factors "the location of the [individuals], whether the victims were carrying weapons, and the clothing, age, and gender of the victims." (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 94). The Court explains that such participation leads to a temporary loss of protection of civilian status “for such time [such individuals] take direct part in the hostilities” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, footnote 375; Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148). Examples of such acts are when a “civilian uses weapons or other means to commit violence against human or material enemy forces” but not when the civilians are supplying food and shelter or sympathising with a belligerent party (Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148). Moreover, the status is not lost when a civilian is defending him/herself.
   The ICC has explained that in cases where the attack is directed towards a legitimate military objective within the meaning of Articles 51-52 AP I and simultaneously the civilian population or civilians not taking direct part in the hostilities, the perpetrator can still be prosecuted under Article 8(2)(b)(i) (Katanga and Chui, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008, para. 273). This situation must nonetheless be distinguished from attacks against military objectives with the awareness that they will or may result in the incidental loss of life or injury to civilians (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 274). The Court has thus distinguished between a violation of the principle of discrimination and a violation of the principle of proportionality, the latter being prosecuted under Article 8(2)(b)(iv) of the Statute.

ii) Subjective Elements
a. “[I]ntentionally” Directing an Attack

The crime must be committed with intention and knowledge, as indicated in Article 30 ICC Statute. Additionally, the third element of the Elements of Crimes (Elements of Crimes, page 18) requires the perpetrator to have “intended” the attack. The Court has specified that this intention to attack the civilian population is in addition to the standard mens rea requirement provided in Article 30 ICC Statute, i.e. there must be a dolus directus of first degree, i.e. a concrete intent (Abu Garda, ICC PT. Ch. I, Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 93; Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para.  271). In more recent case-law, albeit relating to non-international armed conflict, the Court has argued that the third element in the Elements of Crimes (Elements of Crimes, page 34) does not constitute a specific dolus (Katanga, ICC Tr. Ch. II, Judgement pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-T, 7 March 2014, para 806; see Commentary to Article 8(2)(e)(i)). According to the Elements of Crimes and the case-law so far recklessness does not appear to suffice to fulfil the test. That being said, the Office of the Prosecutor has indicated that “[a]n argument could be made that a pattern of indifference and recklessness with respect to civilian life and property should eventually satisfy the intent requirements of Articles 30 and 8(2)(b)(i) and (ii)”. (Office of the Prosecutor, Situation in the Republic of Korea. Article 5 Report, June 2014, para. 65).
   The Court nonetheless distinguishes two situations:

- The civilian population is the sole target of the attack. In this case the moment the attack is launched the crime is committed (Katanga and Chui, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008, para. 272);
- The attack is launched simultaneously against two distinct aims: a military objective (according to Articles 51-52 AP I) and a civilian population. In this case a number of requirements must be fulfilled for the crime to be committed. First, the village must have a significant military value and second it must contain two distinct targets: the defending forces of the adverse or hostile party in control of the village and the civilian population of the village which shows allegiance to the adverse or hostile party. (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 273).

b. Intention that the Object of the Attack Is the Civilian Population or Civilians
This requirement, which is the second element in the Elements of Crimes (Elements of Crimes, page 18), must be analysed as a behaviour (Prosecutor v. Chui, ICC PT. Ch. I, Sous scellés Décision concernant les éléments de preuve et les renseignements fournis  par l’Accusation aux fins de délivrance d’un mandat d’arrêt à l’encontre de Germain Katanga, ICC-01/04-01/07-4-tFRA, 6 July 2007, para. 41). “[T]he crime described in Article 8(2)(c)(i) of the Statute… is a crime of mere action” (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, footnote 374).
   Elements assisting in ascertaining the intention of attacking the civilian population or civilians are the means and methods used during the attack (e.g. blocking roads to and from the village and order to kill civilians attempting to flee (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 281)), the number and status of victims (killing of women and children (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 282)), the discriminatory character of the attack (e.g. chanting songs with lyrics indicating that specific groups should be killed whilst others shown mercy (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 280)) and the nature of the act (e.g. killing civilians and destroying their property (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, paras 277 and 282)).

c. Awareness of the Civilian Status of the Population or Individuals
By analogy with the requirements for the crime of attacking the civilian population or individual civilians not taking direct part in the hostilities in a non-international armed conflict under Article 8(2)(e)(i) it can be argued that the Court further requires that the perpetrator must be aware of the civilian status of the victims (Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, paras 151 and 219; Katanga, ICC Tr. Ch. II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7 March 2014, para. 808). In the report of the Office of the Prosecutor (OTP) on the Situation in the Republic of Korea, the OTP noted  that the ICTY had explained that “[The] attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity”. (Office of the Prosecutor, Situation in the Republic of Korea. Article 5 Report, June 2014, para. 62).

d. Awareness of the Circumstances that Established the Existence of the Armed Conflict
According to element 5 of the Elements of Crimes for the war crime of attacking civilians, the perpetrator must be aware of factual circumstances that established the existence of an armed conflict (Elements of Crimes, page 18). This has been reiterated by the Court (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 265).

Cross-references:
1. Article 8(2)(b)(ii), 8(2)(b)(ix) and 8(2)(e)(i)
2. Elements of Crimes
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 397.
  2. William Fenrick, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 323-327.
  3. Gerhard Werle/Florian Jessberger, Principles of International Criminal Law, Oxford University Press, Oxford, 2014, pp. 475-485, MN 1278-1304.
  4. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, PP. 188-257.
  5. Daniel Frank, "The Elements of War Crimes – Article 8(2)(b)(i)", in Roy S. Lee (Ed), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, p. 140.

Author:
Noëlle Quénivet

Updated:
21 March 2017

Article 8(2)(b)(ii)

[79] (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
General Remarks

The war crime of attacking civilian objects is a crime committed during the conduct of hostilities. Unlike attacks on the civilian population and individual civilians taking a direct part in the hostilities (see Article 8(2)(b)(i)) the crime of attacking civilian objects is not a grave breach of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I). Further there is no equivalent provision in the Statute that deals with non-international armed conflict (Prosecutor v. Abu Garda, ICC PT. Ch. I, Public Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-red, 8 February 2010, para. 85). 
   Article 8(2)(b)(ii) is a reflection of the principle of distinction in attack in an international armed conflict. Whilst the principle is enshrined in Articles 48 and 52 AP I it is also of customary nature (Rule 7 of the ICRC Study on Customary International Humanitarian Law). The International Court of Justice has stressed that deliberate attacks on civilian objects are absolutely prohibited by international humanitarian law (Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at 257 (para. 78).

Analysis
Article 8(2)(b)(ii) states that the ICC has jurisdiction overs acts of “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives”.

i) Material Elements
a. Definition of an Attack
The first element of the Elements of Crimes requires that “the perpetrator directed an attack” (Elements of Crimes, page 18). Yet, neither the Statute nor the Elements of Crimes define the term “attack”. Although the Court has not defined the concept of “attack” in the context of Article 8(2)(b)(ii) it is likely that, alike for Article 8(2)(b)(i), it will refer to Article 49(1) AP I which asserts that an attack are “acts of violence against the adversary, whether in offence or in defense” (Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 266). In its report on the Situation on Registered Vessels of Comoros, Greece and Cambodia, the Office of the Prosecutor found that an “attack includes all acts of violence against an adversary.” (Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia. Article 53(1) Report, 6 November 2014, para. 93)
   There must be a causal link between the perpetrator’s conduct and the consequence of the attack. As in the case with the war crime of attacking the civilian population and civilians taking a direct part in hostilities (see Commentary to Article 8(2)(b)(i)) there does not seem to be a requirement that the attack results in some damage or destruction (see discussion in Prosecutor v. Kordić and Čerkez, (Case IT-95-14/2-A), ICTY A. Ch., Judgment, 17 December 2004, paras 59-62). It is the intention that counts as the third element of the Elements of Crimes requires that “the perpetrator intended such civilian objects to be the object of the attack” (Elements of Crimes, page 18). In contrast Article 8(2)(b)(xiii) which covers both military and civilian objects requires the destruction, by action or omission, of the property (Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 310).

b. Object of the Attack is Civilian Objects
The second element of the Elements of Crimes specifies that “the object of the attack was civilian objects, that is, objects which are not military objectives” (Elements of Crimes, page 18). In Gotovina the ICTY had explained that the targeting of civilian objects may never be justified by military necessity (Prosecutor v. Gotovina, Čermak and Markač, (Case No. IT-06-90-T), ICTY T. Ch., Judgment, 15 April 2011, para. 1766.). Given that the ICC has also dismissed the justification of military necessity, though in the context of attacks on civilians, it is likely that it will espouse the same approach with regard to objects and follow the Gotovina jurisprudence.
   Civilian objects are defined in Article 8(2)(b)(ii) in the negative, as “objects which are not military objectives”, thereby espousing the international humanitarian law approach (see Article 52(1) AP I and Rule 8 of the ICRC Study on Customary International Humanitarian Law). Military objectives are thus “limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. (Article 52(2) AP I). It must be noted that the Court has found that this definition also applies in the context of a non-international armed conflict in relation to attacks on “installations, material, units or vehicles involved in a peacekeeping mission” (Abu Garda, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-red, 8 February 2010, para. 89).
   There are three elements in assessing whether an object is a military objective:

- The object’s nature, location, purpose or use makes a contribution to military action. Usually weapons, military equipment, military transport, military communication centres and army headquarters fulfil his requirements. Other objects that are often called “dual-use objects” (e.g. bridges, airports, power plants, manufacturing plants, and integrated power grids) must be examined on a case-by-case basis. As for objects that normally serve civilian purposes such as schools and hospitals they must also be assessed on a case-by-case basis. That being said, referring to Galić (Prosecutor v. Galić, (Case No. IT-98-29-T), ICTY T. Ch. I, Judgment and Opinion, 5 December 2003, para. 51) the Court has explained that in case of doubt an object that is “normally dedicated to civilian purposes” must be considered civilian (Abu Garda, ICC PT. Ch. I, Public Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-red, 8 February 2010, footnote 131). This again reflects the approach taken by international humanitarian law in Article 52(3) AP I.
- The object must make an effective contribution to military action. This means that there must be a proximate nexus between the object and the military action.
- The attack on the military objective must offer a definite military advantage in the sense that it is not potential or indeterminate. It is however unclear whether the definition of military advantage relates to one specific military operation or can be viewed in light of a wider operation or military action more generally. Military advantage usually includes gaining ground or weakening the military forces of the adversary.

Examples of civilian objects falling within the purview of Article 8(2)(b)(ii) are houses and parts thereof, personal items and furniture (see Situation in the Democratic Republic of Congo, ICC PT. Ch. I, Public Document, Decision on the Applications for Participation Filed in Connection with the Investigation in the Democratic Republic of Congo by Applicants a/0047/06 to a/0052/06, a/0163/06 to a/0187/06, a/0221/06, a/0225/06, a/0226/06, a/0231/06 to a/0233/06, a/0237/06 to a/0239/06, and a/0241/06 to a/0250/06, ICC-01/04-504, 3 July 2008).  
   Article 8(2)(b)(ii) must be distinguished from attacks against military objectives with the awareness that they will or may result in the incidental destruction of civilian property as this is covered by Article 8(2)(b)(iv) which reflects the principle of proportionality.

ii) Subjective Elements
a. “[I]ntentionally” Directing an Attack
The crime must be committed with intention and knowledge, as indicated in Article 30 ICC Statute. Additionally, the third element of the Elements of Crimes (Elements of Crimes, page 18) requires the perpetrator to have “intended” the attack. In relation to Article 8(2)(b)(i) (see Commentary on Article 8(2)(b)(i)) the Court has specified that this intention is in addition to the standard mens rea requirement provided in Article 30 ICC Statute, i.e. there must be a dolus directus of first degree, i.e. a concrete intent (Abu Garda, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-red, 8 February 2010, para. 93; Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para.  271). As the same terminology is used and Article 8(2)(b)(ii) also deals with civilian status (of objects rather than persons) it is likely that the Court will adopt the same approach. However, in more recent case-law, albeit relating to attack on civilians in the context of a non-international armed conflict, the Court has argued that the third element in the Elements of Crimes (Elements of Crimes, page 34) does not constitute a specific dolus (Prosecutor v. Katanga, ICC Tr. Ch. II, Jugment, ICC-01/04-01/07-3436, 7 March 2014, para. 806; see Commentary to Article 8(2)(e)(i)).
   According to the Elements of Crimes and the case-law so far recklessness does not appear to suffice to fulfil the test. That being said, the Office of the Prosecutor has indicated that “[a]n argument could be made that a pattern of indifference and recklessness with respect to civilian life and property should eventually satisfy the intent requirements of Articles 30 and 8(2)(b)(i) and (ii)”. (Office of the Prosecutor, Situation in the Republic of Korea. Article 5 Report, June 2014, para. 65).

b. Intention that the Object of the Attack Is Civilian Objects
The second element in the Elements of Crimes (Elements of Crimes, page 18), that is that the object of the attack was civilian objects, must be analysed as a behaviour (Prosecutor v. Chui, ICC PT. Ch. I, Sous scellés Décision concernant les éléments de preuve et les renseignements fournis  par l’Accusation aux fins de délivrance d’un mandat d’arrêt à l’encontre de Germain Katanga, ICC-01/04-01/07-4-tFRA, 6 July 2007, para. 41).

c. Awareness of the Civilian Status of the Object
In the report of the Office of the Prosecutor (OTP) on the Situation in the Republic of Korea, the OTP noted  that the ICTY had explained that “[the] attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity”. (Office of the Prosecutor, Situation in the Republic of Korea. Article 5 Report, June 2014, para. 62).

d. Awareness of the Circumstances that Established the Existence of the Armed Conflict
According to element 5 of the Elements of Crimes for the war crime of attacking civilians, the perpetrator must be aware of factual circumstances that established the existence of an armed conflict (Elements of Crimes, page 18).

Cross-references:
1. Article 8(2)(b)(i), 8(2)(b)(ix) and 8(2)(e)(i)
2. Starvation in Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(v), (xiii) and (xxv)
3. Elements of Crimes
4. Elements Digest
5. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 397-398.
  2. Knutt Dörmann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers¨Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 328-330.
  3. Gerhard Werle/Florian Jessberger, Principles of International Criminal Law, Oxford University Press, Oxford, 2014, pp. 486-488, MN 1305-1312.
  4. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, PP. 188-257.
  5. Daniel Frank, "The Elements of War Crimes – Article 8(2)(b)(ii)", in Roy S. Lee (Ed), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 143-144.

Author: Noëlle Quénivet

Updated: 30 June 2016

Article 8(2)(b)(iii)

[80] (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 
General remarks

Attacking personnel or objects involved in humanitarian assistance or peacekeeping missions, entitled to the protection of civilians or civilian objects, is not a new crime under international humanitarian law. It is rather evidence of the need to specify a group of civilians that because of its missions deserves a specific protection (Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc., S/2000/915, 4 October 2000, para.16). During the negotiations of the ICC Statute, the Convention on the Safety of United Nations and Associated Personnel was included in the Draft Statute as one out of three treaty crimes. When decided that no treaty crime would be included in the Statute the delegations began to concentrate on treating and including attacks against UN personnel as a war crime. The crime of attacking peacekeepers was the only one of the three treaty crimes that "survived" this change, which is evidence of its strong symbolic character. A crime with the same definition as in the ICC Statute was in included in the Statute of the Special Court for Sierra Leone.
 
Analysis
a) Objective Elements
i. The perpetrator directed an attack
The Elements of Crimes do not include a definition of the term “attack”. The ICC Pre-Trial Chamber has, by reference inter alia to the “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict” in Article 21(1)(b) of the Statute found guidance in Article 49 of AP I, applicable in international armed conflicts (IACs) where the term “attack” is defined as “acts of violence against the adversary, whether in offence or in defence”. The term has been given the same definition in Article 13(2) of AP II applicable in non-international armed conflicts (NIACs). There is no requirement of any harmful impact on the personnel or material. There is a need to establish a causal link between the conduct of the perpetrator and the consequence “so that the concrete consequence, the attack in this case, can be seen as having been caused by the perpetrator”. (Prosecutor v Abu Garda, PT. Ch., Decision on the Confirmation of Charges, Public Redacted Version. Doc., ICC-02/05- 02/09, 8 February 2010, para. 64-66).

ii. 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.
There is no generally accepted definition on the notion "humanitarian assistance", but it includes measures taken with the purpose of preventing or alleviating human suffering of victims of an armed conflict. In practice the object of attacks has so far been personnel and objects involved in a peacekeeping mission. The term “peacekeeping” is not mentioned in the UN Charter but has developed in practice. The reference to “in accordance with the Charter of the United Nations” does not mean that the mission needs to be established by the UN but includes also missions established by regional organisations. (Abu Garda, para 124). While the term lack a simple definition three basic principles are accepted as constituting a peacekeeping mission; consent of the parties; impartiality; and use of force only in self-defence, (Abu Garda, para. 71) although there is now a change in UN doctrine regarding definition of such missions (Prosecutor v Sesay, Kallon and Gbao (RUF), Case No. SCSL-04-15-T, Judgement, 2 March 2009 (RUF, paras. 224-225). Consent of the host state is a legal requirement but in practice the consent of the main parties to the conflict is also sought to ensure the effectiveness of the operation. Regarding impartiality, the Report of the Panel of the United Nations Peace Operations (UN Doc., A/55/305-S/2000/809 (the Brahimi Report)) states inter alia that "impartiality for such operations must therefore mean adherence to the principles of the Charter and to the objectives of a mandate that is rooted in those Charter principles. Such impartiality is not the same as neutrality or equal treatment of all parties in all cases for all time, which can amount to a policy of appeasement". (Brahimi Report para. 50 and Abu Garda, para 73 not 106). The Majority in the ICC Pre-Trial Chamber noted that peacekeeping missions were only entitled to use force in self-defence compared to peace enforcement missions decided under Chapter VII of the UN Charter which may use force beyond the concept of self-defence in order to achieve their mandates. (Abu Garda, para. 74). In UN doctrine the right of self-defence includes a “right to resist attempts by forceful means to prevent the peacekeeping operation from discharging its duties under the mandate of the Security Council” although it is doubtful if it has developed to become settled law (international or national) (RUF, para. 228).
   The development in practice where operations are often authorized by the Security Council under Chapter VII to use all necessary measures for certain purposes is reflected in the UN doctrine by references to robust peacekeeping. Recent UN doctrine considers that the tendency to refer to peacekeeping operations as Chapter VI operations and peace enforcement operations as Chapter VII operations is somewhat misleading. It is now the usual practice, both in peacekeeping and in peace enforcement, "for a Chapter VII mandate to be given" and a distinction is instead made between "operations in which the robust use of force is integral to the mission from the outset [...] and operations in which there is a reasonable expectation that force may not be needed at all" (A More Secure World: Our Shared Responsibility, UN Doc., A/59/565 (2004) para. 211). The Capstone Doctrine, as it is known, draws a distinction between peace enforcement and robust peacekeeping. Peacekeeping operations with a robust mandate have been authorized to "use all necessary means to deter forceful attempts to disrupt the political process, and/or assist the national authorities in maintaining law and order. The concept of robust peacekeeping is defined as involving "the use of force at the tactical level with the authorization of the Security Council and consent of the host nation and/or the main parties to the conflict". A peace enforcement operation on the other hand "does not require the consent of the main parties and may involve the use of military force at the strategic level, which is generally prohibited for Member States under Article 2(4) of the Charter, unless authorized by the Security Council" (United Nations Peacekeeping Operations: Principles and Guidelines (2008) p. 34).
   The difference between these types of operation is thus not whether they have been established under Chapter VII of the UN Charter, but whether they are dependent on the existence of consent and the use of force at a strategic level. The concept of robust peacekeeping therefore challenges the traditional borders between the concepts of peacekeeping and peace enforcement (traditionally regarded as Chapter VI operations and Chapter VII operations). This may ultimately have an effect on the interpretation of the term peacekeeping mission in the ICC statute. It is telling that the Trial Chamber in the RUF case found that the mandate of the UNAMSIL even after it has been expanded through the Resolution 1279 which clearly was decided under Chapter VII and included the expression “use of all necessary measures” was regarded a peacekeeping mission for the purpose of the crime of attacking personnel in such missions (RUF, para. 1888).

iii. Such personnel, installations, material, units or vehicles were entitled to the protection given to civilians or civilian objects under the international law of armed conflict
Personnel in humanitarian assistance and peacekeeping missions are presumed to be entitled to the protection of civilians. This is particularly so regarding humanitarian assistance personnel. The authority to use force by peacekeepers, in self-defence or based on a resolution adopted under Chapter VII of the UN Charter (depending on the definition of a peacekeeping mission) naturally raise questions if the use of force by peacekeepers could affect their protection as civilians under international humanitarian law. Personnel in humanitarian assistance and peacekeeping missions are entitled to the protection of civilians as long as they are not taking a direct part in hostilities. Their protection would not be affected by exercising their individual right of self-defence – nor the use of force “in self-defence in the discharge of their mandate, provided that it is limited to such use”. (RUF, para. 233) It should in this respect be noted that the use of force in defence of the mandate is inherently difficult to define. Determining whether peacekeeping personnel or objects of such a mission were entitled to the protection of civilians or civilian objects, the Trial Chamber in the RUF case found that it needed to consider the totality of circumstances existing at the time of the alleged offence including “inter alia, the relevant Security Council resolutions for the operation, the specific operational mandates, the role and practices actually adopted by the peacekeeping mission during the particular conflict, their rules of engagement and operational orders, the nature of the arms and equipment used by the peacekeeping force, the interaction between the peacekeeping force and the parties involved in the conflict, any use of force between the peacekeeping force and the parties in the conflict, the nature and frequency of such force and the conduct of the alleged victim(s) and their fellow personnel.” (RUF, para. 234) It can be questioned if indeed all these aspects are valid for the determination whether personnel or objects are entitled to the protection of civilians since this a question decided under international humanitarian law.
   The Majority in the ICC Pre-Trial exemplified “direct participation in hostilities” to include "bearing, using or taking up arms, taking part in military or hostile acts, activities, conduct or operations, armed fighting or combat, participating in attacks against enemy personnel, property or equipment, transmitting military information for immediate use of a belligerent, and transporting weapons in proximity to combat operations”. (Abu Garda, para 81). The determination of whether a person is directly participating in hostilities requires a case-by-case analysis (Abu Garda, para. 83).
   Based on the definition of civilian objects in Article 52(2) of AP I and the ICRC customary law study, the Majority in the ICC Pre-Trial Chamber found that “installations, material, units or vehicles involved in a peacekeeping mission the context of an armed conflict not of an international character shall not be considered military objectives, and thus shall be entitled to the protection given to civilian objects, unless and for such time as their nature, location, purpose or use make an effective contribution to the military action of a party to a conflict and insofar as their total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. (Abu Garda, para 89).
   Given the military structure and organisation of peacekeeping missions it may in fact be  questioned if such personnel should be regarded as civilians taking direct part in hostilities if they become involved in armed conflict. Military personnel organised and commanded by a state or an intergovernmental organisation within a traditional military structure may rather be regarded as members of a military force under command of party to an armed conflict than civilians directly participating in an armed conflict. The former has also the legal effect of a change in status of the personnel in a more permanent manner than the latter where civilians directly participating in hostilities only temporarily.

b) Subjective elements
i. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack
The Majority in the ICC Pre-Trial Chamber found that this subjective element was of similar character to that of the Elements of the Crimes for Articles 8 (2)(b)(i) and 8 (2)(e)(i) dealing with attacks on civilians in both international and non-international armed conflicts. The offence first and foremost encompasses dolus directus of the first degree. The finding of the Majority was also applicable in NIACs. (Abu Garda, para 93)

ii. The perpetrator was aware of the factual circumstances that established the
Protection
The necessary knowledge required by the perpetrator pertains to the facts establishing that the installations, materials, units or vehicles and personnel were involved in a peacekeeping mission but there is no need of legal knowledge regarding their protection.

iii. The perpetrator was aware of factual circumstances that established the existence of an armed conflict
There is no requirement on behalf of the perpetrator to conclude “on the basis of a legal assessment of the said circumstances, that there was an armed conflict.” (Abu Garda, para. 96) (RUF, para. 235)

Cross-references:
1. Article 8(2)(e)(iii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 412.
  2. Michael Cottier, "Attacks on Humanitarian Assistance or Peacekeeping Missions", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München, Oxford, Baden-Baden, 2008, pp. 330-338.
  3. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, ICRC/Cambridge University Press, Cambridge, 2003, pp. 453-456.
  4. Ola Engdahl, "Prosecution of Attacks against Peacekeepers in International Courts and Tribunals", Military Law and Law of War Review, vol. 249, 2012, p. 51.
  5. Daniel Frank, "Article 8(2)(b)(iii) - Attacking Personnel or Objects Involved in a Humanitarian Assistance or Peacekeeping Mission", in Roy S. Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, p. 146.
  6. Herman von Hebel/Darryl Robinson, "Crimes within the Jurisdiction of the Court", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, p. 110.

Author: Ola Engdahl

Updated: 30 June 2016

Article 8(2)(b)(iv)

[81] (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
The provision reflects the principle of proportionality (Articles 51(5)(b) and 85(3)(b) of Additional Protocol I)  and brings environment into the equation (Articles 35(3) and 55 of Additional Protocol I).

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 398-401.
  2. Roberta Arnols, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statue of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 338-341. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 349-352, MN 1040-1047.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(v)

[82] (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
A place is considered undefended when it is inhabited, located in a war zone or nearby, and open to occupation by an adverse party. Thus, the provision does not cover objects behind enemy lines, even if there are no combatants or weapons located in or nearby the objects.

Cross-references:
1. Starvation in Articles 6(c); 7(1)(b), (j)and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (xiii) and (xxv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 401-402.
  2. Roberta Arnold, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statue of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 341-344. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 352-354, MN 1049-1052.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vi)

  [83] (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
The scope of the provision protecting combatants not involved in combat, hors de combat, covers to a large extent the war crime of declaring that no quarter will be given, Article 8(2)(b)(xii). The mental element requires at least recklessness.

Cross-references:
1. Article 8(2)(b)(xii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 405-406.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 344-350.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 304-305, MN 879-884.

 

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vii)-1

[84] (vii) Making improper use of a flag of truce,
Envoys, identifying themselves by a white flag, authorized to negotiate with the enemy are protected.

Cross-references:
1. Articles 8(2)(b)(xi) and 8(2)(e)(ix)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 403-405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 350-357. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 358, MN 1064-1065.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vii)-2

[85] of the flag or of the military insignia and uniform of the enemy
According to the Elements of Crime the use of enemy flags, military insignias, and uniforms is prohibited while engaged in an attack, which makes the prohibition less strict in comparison with the use of protective emblems.

Cross-references:
1. Articles 8(2)(b)(xi) and 8(2)(e)(ix)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statue of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 403-405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 357-359. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 358, MN 1066-1067.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vii)-3

[86] or of the United Nations,
According to the wording only UN military insignia is included, which appears to be an editorial error. It is submitted that the provision also includes non-military UN personnel.

Cross-references:
1. Articles 8(2)(b)(xi) and 8(2)(e)(ix)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 403-405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 359-360.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 359, MN 1070.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vii)-4

[87] as well as of the distinctive emblems of the Geneva Conventions,
The distinctive emblems of the Geneva Conventions are the red cross, the red crescent, the red lion and sun, and the red crystal. The latter emblem was added by the adoption of a third additional Protocol to the Geneva Conventions, 8 December 2005. The Protocol was partly adopted in response to the Israeli argument that it should be able to use the red shield of David in national operations. The third additional Protocol enables the Israeli Society to continue to use its red shield of David as its sole emblem inside Israel. When working outside Israel the Society would need to work according to the requirements of the host country. Normally this would mean that it could display the red shield of David incorporated within the red crystal, or use the red crystal alone (article 3 of the third additional Protocol). The emblems mark medical and spiritual personnel, medical units and transports, equipment or supplies. The emblems may in principle only be used by persons who do not themselves participate in hostilities.

Cross-references:
1. Articles 8(2)(b)(xi) and 8(2)(e)(ix)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 403-405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 360-362. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 359, MN 1068-1069.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(vii)-5

[88] resulting in death or serious personal injury;
The conduct is only criminal under Article 8(2)(b)(vii) when it led to a person's death or injury.

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 403-405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. pp. 353 and 355. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 360, MN 1072.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(viii)

[89] (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;
The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies violates the principle of international law that an Occupying Power is only permitted to a position of trust as an interim military administrator. The material element requires the transfer of persons from one territory to another. Article 49(2) of the Fourth Geneva Convention allows the Occupying Power to undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

Cross-references:
1. Articles 7(1)(d), 8(2)(a)(vii) and 8(2)(e)(viii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395-397.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 362-375. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 327-328 and 329-331, MN 964-966 and 971-976.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(ix)

[90] Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
General remarks

With this Article the drafters of the Rome Statute included a provision criminalizing violations of the rules protecting cultural property, which have been established by international humanitarian law as well as several UNESCO treaties over the years. The purpose of this provision is to specifically criminalize the destruction of cultural property as opposed to civilian property and therefore, it constitutes a lex specialis to Articles 8(2)(a)(iv), 8(2)(b)(ii) and 8(2)(b)(xiii).

Analysis
i. Definition

Pursuant to the ICC Elements of Crime, the following criteria need to be met in order to fulfill the Article at hand: 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.

ii. Requirements
a. Material elements
The object of the offence has to be specially protected. The institutions enlisted in the Rome Statute can be classified into four main categories: cultural objects, places for the collection of those in need (e.g. hospitals), institutions dedicated to religion and others dedicated to education. The ICTY defined ‘cultural objects’ by referring the definition of cultural property in treaty law (e.g. the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict) (Prosecutor v. Strugar, (Case No. IT-01-42), ICTY T. Ch. Judgment of 31 January 2005, para. 230). According to the case law of the ICTY, religious and educational institutions are protected as long as they meet the special requirement of “cultural heritage of people”, meaning “objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people” (Prosecutor v. Martić, (Case No. IT-95-11), ICTY T. Ch. Judgment of 12 June 2007, para. 97). Additionally, these institutions must “clearly be identified as dedicated to religion or education” (Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY T. Ch. Judgment of 3 March 2000, para. 185).
   Furthermore, the object of the offence cannot be a military objective. Military objectives are defined by Article 52(3) Additional Protocol I as objects “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.
   Concerning the nature of the offence the Rome Statute penalizes the directing of attacks against such institutions. The term ‘attack’ is defined in Article 49(1) Additional Protocol I and means “acts of violence against the adversary, whether in offence or in defence”. Hence, the scope of the Article is extremely broad and almost all acts of hostility fall under this provision. Furthermore, no actual damage to the protected institutions is required. In order for the Article at hand to be fulfilled it is sufficient that the attack was directed against the respective protected institution.

b. Mental elements
Additionally to the mental elements concerning the general requirements of war crimes, the perpetrator has to fulfill the mental elements of the underlying offence at hand. Namely, the attack against the protected institutions has to be committed “intentionally”. A controversial issue while drafting the Rome Statute was whether the term “intentionally” was related solely to the directing of an attack or also to the object of the attack. The traxaux préparatoires adopted the latter approach. Therefore, the ICC Elements of the Crime require that the perpetrator must have known about the protected status of the institution. Additionally the perpetrator must have knowledge of the institution’s failure to qualify as a military objective, and nevertheless carry out the attack. However, he does not have to make a legal assessment of the protected status of the institutions. He merely needs to know the factual circumstances, which give the object a special status (see, Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY T. Ch. Judgment of 3 March 2000, para. 185).

Cross-references:
1.  Article 8(2)(b)(i), 8(2)(b)(ii), 8(2)(e)(i) and 8(2)(e)(iv)
2.  Elements of Crime
3.  Elements Digest
4.  Means of Proof Digest

Doctrine:

  1. Roberta Arnold, "Article 8, Paragraph 2 (b)(ix)", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 375-380.
  2. Gideon Boas et al., International Criminal Law Practitioner Library, Vol. II, Elements of Crime under International Criminal Law, Cambridge University Press, Cambridge, 2008.
  3. Caroline EhlertProsecuting the Destruction of Cultural Property in International Criminal Law, Martinus Nijhoff Publishers, Leiden, 2014, pp. 121-140.
  4. Micaela Frulli, "The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest of Consistency", European Journal of International Law, vol. 22, 2011, 203-217.
  5. Mireille Hector, "Enhancing Individual Criminal Responsibility for Offences Involving Cultural Property – The Road to the Rome Statute and the 1999 Second Protocol", in Nout Van Woudenberg/ Liesbeth Lijnzaad (Eds.), Protecting Cultural Armed Conflict – An Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Koninklijke Brill, Leiden, 2010, pp. 375-380.
  6. Theodor Meron, "The Protection of Cultural Property in the Event of Armed Conflict within the Case-law of the International Criminal Tribunal for the Former Yugoslavia", Museum International, vol. 57 (2005): 41-59.
  7. Roger O’Keefe, "Protection of Cultural Property under International Criminal Law", Melbourne Journal of International Law, vol. 11 (2010): 1-54.
  8. Rüdiger Wolfrum,  "Protection of Cultural Property in Armed Conflict", in Rüdiger Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2008.

Author: Caroline Ehlert

Updated: 30 June 2016

Article 8(2)(b)(x)-1

[91] (x) Subjecting persons who are in the power of an adverse party to physical mutilation
The term "physical mutilation" cover acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not an excusable defence.

Cross-references:
1. Articles 8(2)(c)(i) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford Univserity Press, Oxford, 2002, pp. 395-397.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 380-383.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 307-308, MN 895-897.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(x)-2

[92] or to medical or scientific experiments
The prohibition of medical or scientific experiments cover the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Cross-references:
1. Article 8(2)(a)(ii) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine: 

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395-397.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 382. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, pp. 308-310, MN 898-902.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(x)-3

[93] of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
The acts in Article 8(2)(b)(x) can only be justified if undertaken in the interest of the person concerned, for example amputations may be lawful if performed to save the live or overall health of the patient.

Cross-reference:
Article 8(2)(e)(xi)

Doctrine: Michael Bothe at p. 395-397 in

  1. Michael Bother, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395-397.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary to the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 382-383. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 308-310, MN 898-902.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xi)

[94] (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
Treachery, also synonymous with perfidy, involves a breach of good faith of the combatants. In practice, it is typically cases in which the accused in deception claims a right to protection for him or herself, and uses this for his or her advantage in the combat. It includes:
- pretending to be a civilian;
- fake use of a flag of truce, the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions;
- fake use of of the protective emblem of cultural property;
- fake use of other internationally recognized protective emblems, signs or signals; 
- pretending to surrender;
- pretending to be incapacitated by wounds or sickness;
- pretending to belong to a neutral state or other State not party to the conflict by the use of their signs;
- pretending to belong to the enemy by the use of their signs;
The wording of the provision indicates that the prohibition of threachery protect enemy combatants, as well as civilians. Perfidious acts are only punishable if the perpetrator intentionally killed or wounded an adversary.

Cross-references:
1. Articles 8(2)(b)(vii) and 8(2)(e)(ix)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 405.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 383-390. 
  3. Gerhard WerlePrinciples of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 354-356, MN 1054-1058.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xii)

[95] (xii) Declaring that no quarter will be given;
The offence covers "take no prisoners" warfare. The material element will typically be fulfilled by a declaration that any surrender by the enemy shall be refused even if it is reasonable to accept. In addition to declarations, the provision should be include order and threats that no quarter shall be refused. Combatants are not required to provide the enemy with the opportunity to surrender.

Cross-references:
1. Article 8(2)(b)(vi) and 8(2)(e)(x)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 391-395.
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 360-362, MN 1074-1079.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xiii)

[96] (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
The individual elements of the prohibition should be interpreted in light of the relevant rules of customary international law, such as those embodied inter alia in Articles 46, 52, 53, 54, 55 and 56 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land. Acts otherwise prohibited may me justified if "imperatively demanded by the necessities of war". The exception should be interpreted restrictively, not every situation of military necessity is covered.
    In Prosecutor v Katanga and Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, paras. 310-311, the Pre-Trial Chamber held "that the property in question - whether moveable or immoveable, private or public - must belong to individuals or entities aligned with or with allegiance to a party to the conflict adverse or hostile to the perpetrator. Article 8(2)(b)(xiii) of the Statute applies not only when the attack is specifically directed at a military objective but also when it targets and destroys civilian property". PTC I also stated that "in the view of the Chamber, the provision does not apply to incidental destruction of civilian property during an attack specifically directed at a military objective, as long as the destruction does not violate the proportionality rule provided for in Article 51 AP I and in Article 8(2)(b)(iv) of the Statute (para. 313)".

Cross-references:
1. Articles 8(2)(a)(iv), 8(2)(b)(xvi), 8(2)(e)(v) and 8(2)(e)(xii)
2. Starvation in Articles 6(c); 7(1)(b), (j)and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v)and (xxv)
3. Elements of Crime
4. Elements Digest
5. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 403.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 395-400.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 338-340, MN 1000-1004.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xiv)

[97] (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
The term "actions" is referring to the the right of access to courts of law. This provision is similar Article 8(a)(vi). The difference between the provisions would appear that the present provision covers civil claims as opposed to criminal cases.

Cross-references:
1. Articles 8(a)(vi) and 8(2)(c)(iv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 396.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 400-405. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 340-341, MN 1005-1007.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xv)

[98] (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
This offence can also be charged under  Article 8(a)(v). There is disagreement whether the prohibition covers more than compelling nationals to serve in the armed forces of the adversary, for example war-related work.

Cross-references:
1. Article 8(a)(v)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes, in Antonio Cassese et al. (Eds.), The Rome Statue of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 394.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 405-408. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 316-318, MN 924-931.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xvi)

[99] (xvi) Pillaging a town or place, even when taken by assault;
The term "pillage" means appropriation of property for private, personal use and embraces acts of plundering, looting and sacking. There is no substantive difference between appropriation and confiscation.  Article 8(2)(e)(v) is an identical provision to the present provision, but applies in non-international armed conflicts. In comparison with Articles 8(2)(a)(iv), 8(2)(b)(xiii) and 8(2)(e)(xii), pillage differs from appropriation and confiscation in regard to the perpetrator's intent to obtain the property for private or personal use.
    In Prosecutor v Katanga and Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 329, the Pre-Trial Chamber stated that the "war crime of pillaging under Article 8(2)(b)(xvi) of the Statute requires that the property subject to the offence belongs to an 'enemy' or 'hostile' party to the conflict".

Cross-references:
1. Articles 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(e)(v) and 8(2)(e)(xii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 413.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 408-410. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 334-338, MN 986-999.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xvii)

[100] (xvii) Employing poison or poisoned weapons;
This offence could for example include the poisoning of water supplies. The production and storage of poison is not prohibited. There is no agreement whether the prohibition on the use of poison covers poison gas. The provision does not prohibit chemical and biological weapons of mass destruction. Instead this is covered by Article 8(2)(b)(xx), but which is not yet in force. This may be explained the lack of agreement on the prohibition on of nuclear weapons and a following compromise during the Rome conference, with the result that weapons of mass destruction are not subject to an explicit and binding provision in the Rome Statute.

Cross-references:
1. Article 8(2)(b)(xviii) and 8(2)(b)(xx)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 406.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 410-414. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 369-372, MN 1100-1106.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xviii)

[101] (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
The wording of the present provision is basically identical the Geneva Protocol of 17 June 1925 for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare. It is generally understood that the wording "asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices" in the 1925 Geneva Protocol includes chemical weapons which nullifies the compromise mentioned in the previous commentary (Article 8(2)(b)(xvii)). Even though biological weapons are covered by the Geneva Protocol of 17 June 1925, it is doubtful that the present provision covers these weapons. This is supported by the fact that the relevant passage on biological weapons in the Geneva Protocol of 17 June 1925 was not included in Article 8(2)(b)(xvii).

Cross-references:
1. Article 8(2)(b)(xvii) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 414-420.
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 373-373, MN 1107-1110.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xix)

[102] (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
The "dum-dum" bullet is type of bullet covered by the present provision, as well as customary law. The prohibition equally applies to standard bullets converted on the battlefield by piercing them with incisions, as well as to other types of bullets which expand or flatten easily in the human body.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 408.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 420-423. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 373-374, MN 1111-1113. 

Author: Mark Klamberg

Updated: 30 june 2016

Article 8(2)(b)(xx)

[103] (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
This a catch-all prohibition which requires an amendment in the form of annex in order to be binding. Thus, the provision is at the present time not applicable. The present provision was part of the compromise mentioned in the commentary to Article 8(2)(b)(xvii). A great number of delegation at the Rome Conference wanted to include additional weapons such as biological weapons, chemical weapons, land mines and laser-blinding weapons. The provision may be amended in a future review conference.

Cross-references:
1. Article 8(2)(b)(xvii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 408-409.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 410-413 and 423-425, MN 179-181 and 185-188.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, p. 374, MN 1114-1115.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xxi)

[104] (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
The humiliating and degrading treatment is prohibited even if the victim overcomes the consequences relatively quickly. In Prosecutor v Katanga and Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 369, the Pre-Trial Chamber quoted ICTY jurisprudence when it stated that "there is no requirement that such suffering be lasting". There is no special intent requirement in addition to the general requirement of Article 30.

Crossreferences:
1. Articles 7(1)(c) and 8(2)(c)(ii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 414-415.
  2. Patricia Viseur Sellers/Elizabeth Bennion, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 425-431.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 314-316, MN 917-923.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xxii)-1

[105] (xxii) Committing rape,
Rape is considered the most severe form of sexual violence. Sexual violence is a broad term that covers all forms of acts of a sexual nature under coercive circumstances, including rape. The key element that separates rape from other acts is penetration. The Elements of Crime provide a more specific definition of the criminal conduct. Rape falls under the chapeaus of genocide, crimes against humanity or war crimes under specific circumstances, confirmed both through the Rome Statute and through the case law of the ICTR and the ICTY. Rape as a war crime differs from the definition of rape as a crime against humanity only in terms of the context in which the crime is committed. The rape must have been perpetrated in the context of and in association with an international armed conflict.
   For the mental element of rape Article 30 applies. The perpetrator has to be aware of the factual circumstances that established the existence of an armed conflict. He or she must also have intended to penetrate the victim’s body and be aware that the penetration was by force or threat of force.
   The definition of rape is the same regarding rape as genocide, crimes against humanity and war crimes, albeit the contextual elements of the chapeaus differ. The actus reus of the violation is found in the Elements of Crimes. The definition focuses on penetration with 1) a sexual organ of any body part, or 2) with the use of an object or any other part of the body of the anal or genital opening of the victim, committed by force or threat or force or coercion. “Any part of the body” under point 1 refers to vaginal, anal and oral penetration with the penis and may also be interpreted as ears, nose and eyes of the victim. Point 2 refers to objects or the use of fingers, hands or tongue of the perpetrator. Coercion may arise through fear of violence, duress, detention, psychological oppression or abuse of power. These situations are provided as examples, apparent through the use of the term “such as”. Consent is automatically vitiated in such situations. The definition is intentionally gender-neutral, indicating that both men and women can be perpetrators or victims. The definition of rape found in the Elements of Crimes is heavily influenced by the legal reasoning in cases regarding rape of the ICTY and the ICTR. Such cases can thus further elucidate the interpretation of the elements of the crime, meanwhile also highlighting different approaches to the main elements of rape, including “force” and “non-consent”. See e.g. Furundzija, in which the Trial Chamber of the ICTY held that force or threat of force constitutes the main element of rape [Prosecutor v. Furundzija, (Case No. IT-95-17/1-T.) ICTY T. Ch. I. Judgement, 10 December 1998]. To the contrary, the latter case of Kunarac emphasized the element of non-consent as the most essential in establishing rape, in that it corresponds to the protection of sexual autonomy [Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23 and 23/122), ICTY T. Ch. I, Judgement, 22 February 2001]. As to the term “coercion” the ICTR Trial Chamber in Prosecutor v. Akayesu held that a coercive environment does not require physical force. It also adopted a broad approach to the actus reus, including also the use of objects, an approach that has been embraced also by the ICTY and the ICC [Prosecutor v. Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch. I, Judgement, 2 September 1998, para. 598].
   Rule 63 is of importance which holds that the Court’s Chambers cannot require corroboration to prove any crime within its jurisdiction, particularly crimes of sexual violence. Rule 70 further delineates the possibility of introducing evidence of consent as a defense. This is highly limited, emphasizing that consent cannot be inferred in coercive circumstances. Rule 71 forbids evidence of prior sexual conduct.
   In Prosecutor v Katanga and Chui, ICC PT. Ch, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 347, the Pre-Trial Chamber found sufficient evidence to affirm charges of rape as a war crime. This included the invasion of the body of civilian women by the penetration of the perpetrator’s sexual organ or other body parts, through force, threat or fear of violence or death. See. paras. 351-352.

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Antonio Cassese at pp. 374-375 and Michael Bothe at pp. 415-416, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, oxford, 2002.
  2. Macheld Boot, revised by Christopher K. Hall at pp. 206-211 and Michael Cottier at pp. 431-441, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, Münche/Oxford/Baden-Baden, 2008. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 248-250; 313, MN 723-727; 912-913. 
  4. Robert Cryer et al. (Eds.), An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, p. 292.
  5. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxii)-2

[106] sexual slavery,
Sexual slavery is a particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Although it is listed as a separate offence in the Rome Statute, it is regarded as a particular form of enslavement. However, whereas enslavement is solely considered a crime against humanity, sexual slavery may constitute either a war crime or a crime against humanity. It is partly based on the definition of enslavement identified as customary international law by the ICTY in the Kunarac case [See Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23 and 23/1), ICTY T. Ch. I, Judgement, 22 February 2001, para. 543]. Sexual slavery is thus considered a form of enslavement with a sexual component. Its definition is found in the Elements of Crimes and includes the exercise of any or all of the powers attached 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”. The person should have been made to engage in acts of a sexual nature. The crime also includes forced marriages, domestic servitude or other forced labour that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence. Sexual slavery as a war crime differs from the definition of sexual slavery as a crime against humanity only in terms of the context in which the crime is committed.
   In Prosecutor v Katanga and Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 431, The Pre-Trial Chamber held that "sexual slavery also encompasses situations where women and girls are forced into 'marriage', domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors. Forms of sexual slavery can, for example, be practices such as the detention of women in 'rape camps' or 'comfort stations', forced temporary 'marriages' to soldiers and other practices involving the treatment of women as chattel, and as such, violations of the peremptory norm prohibiting slavery". The Chamber found sufficient evidence to affirm charges of sexual slavery as a war crime in the form of women being abducted for the purpose of using them as wives, being forced or threatened to engage in sexual intercourse with combatants, to serve as sexual slaves and to work in military camps servicing soldiers. See para. 347.
   The SCSL Appeals Chamber in the Brima case has found the abduction and confinement of women to constitute forced marriage and consequently a crime against humanity. The Chamber concluded that forced marriage was distinct from sexual slavery. Accordingly, “While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the “husband” and “wife”, which could lead to disciplinary consequences for breach of this exclusive arrangement.” See Prosecutor v. Brima, SCSL A Ch., Judgment, 22 February 2008, para. 195. In 2012 the Court in a decision on the Charles Taylor case declared its preference for the term ‘forced conjugal slavery’. The Trial Chamber did not find the term “marriage” to be helpful in describing the events that had occurred, in that it did not constitute marriage in the universally understood sense (Prosecutor v. Charles Taylor, (Case No. SCSL-03-01-T), SCSL T. Ch. II, Judgement, 18 May 2012, para. 427).

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 415.
  2. Macheld Boot revised byChristopher K. Hall at pp. 211-212 and Michael Cottier at pp. 441-447, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 250-251 and 313, MN 728 and 914-916.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxii)-3

[107] enforced prostitution,
The Elements of Crimes requires the 1) causing or a person to engage in acts of a sexual nature 2) by force or threat of force or under coercive circumstances and 3) the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts. Primarily the latter point distinguishes it from sexual slavery. It can also be distinguished in that sexual slavery requires the exercise or any or all of the powers attaching to the rights of ownership. Enforced prostitution could, however, rise to the level of sexual slavery, should the elements of both crimes exist. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act. Enforced prostitution is prohibited in the Geneva Convention IV 1949 as an example of an attack on a woman’s honour and in Additional Protocol I as an outrage upon personal dignity. Forced prostitution as a war crime differs from the definition of forced prostitution as a crime against humanity only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, oxford, 2002, p. 415.
  2. Macheld Boot revised by Christopher K. Hall, pp. 212-213, MN 48-50 and Michael Cottier at pp. 447-448, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes. Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, at. pp. 251, 313, MN 729-730 and 914-916.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxii)-4

[108] forced pregnancy, as defined in Article 7, paragraph 2 (f),
Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. Unlawful confinement should be interpreted as any form of deprivation of physical liberty contrary to international law. The deprivation of liberty does not have to be severe and no specific time frame is required. The use of force is not required, but some form of coercion. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. The forcible impregnation may involve rape or other forms of sexual violence of comparable gravity. In addition to the mental requirements in Article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy. Forced pregnancy as a war crime differs from the definition of forced pregnancy as a crime against humanity only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 415.
  2. Macheld Boot revised by Christopher K. Hall, at pp. 213 and 255-256 and Michael Cottier at pp. 448-451, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 251-252 and 313, MN 731-732 and 914-916.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxii)-5

[109] enforced sterilization,
Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of Article 6(e). It is carried out without the consent of a person. Genuine consent is not given when the victim has been deceived. Enforced sterilization includes depriving a person of their biological reproductive capacity, which is not justified by the medical treatment of the person. It does not include non-permanent birth-control methods. It is not restricted to medical operations but can also include the intentional use of chemicals for this effect. It arguably includes vicious rapes where the reproductive system has been destroyed. The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element Article 30 applies. Enforced sterilization may also fall under the chapeau of genocide if such intent is present. Enforced sterilization as a war crime differs from the definition of enforced sterilization as a crime against humanity only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 415.
  2. Macheld Boot revised by Christopher K. Hall, at pp. 213-214 and Michael Cottier at p. 451, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 252 and 313, MN 733 and 914-916.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxii)-6

[110] or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in Article 8(2)(b)(xxii). It concerns acts of a sexual nature against a person through the use of force or threat of force or coercion. The importance of distinguishing the different forms of sexual violence primarily lies in the level of harm to which the victim is subjected and the degree of severity, and therefore becomes a matter of sentencing. Sexual violence as a war crime differs from crimes against humanity in terms of the context in which the crime is committed, in this case in the context of an international armed conflict.
   It is generally held to include forced nudity, forced masturbation or forced touching of the body. The ICTR in Akayesu held that “sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact…”. See Prosecutor v. Jean-Paul Akayesu, (ICTR-96-4-T), ICTR T. Ch. I, Judgement, 2 September 1998, para. 688. The Trial Chamber in the case confirmed that forced public nudity was an example of sexual violence within its jurisdiction (see para. 10 A). Similarly, the Trial Chamber of the ICTY in its Kvocka decision declared: “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation, and also covers sexual acts that do not involve physical contact, such as forced public nudity. See Prosecutor v. Miroslav Kvocka, (Case No. IT-98-30/1-T), ICTY T. Ch., Judgement, 2 November 2001, para. 180. To the contrary, in the decision on the Prosecutor’s application for a warrant of arrest in the Bemba case, the Pre-Trial Chamber of the ICC did not include a charge of sexual violence as a crime against humanity in the arrest warrant, which had been based on allegations that the troops in question had forced women to undress in public in order to humiliate them, stating that “the facts submitted by the Prosecutor do not constitute other forms of sexual violence of comparable gravity to the other forms of sexual violence set forth in Article 7(1)(g)” [The Prosecutor v. Jean-Pierre Bemba Gombo, ICC PT. Ch. III, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC-01/05-01/08), 10 June 2008, para. 40].
   In the Lubanga case of the ICC, evidence of sexual violence was presented during the trial, including various forms of sexual abuse of girl soldiers who were forcefully conscripted. However, no charges of sexual violence were brought. The Prosecution rather encouraged the Trial Chamber to consider evidence of sexual violence as an integral element of the recruitment and use of child soldiers. In the confirmation of charges in the Muthaura and Kenyatta case, Pre-Trial Chamber II chose not to charge forced male circumcision and penile amputation as sexual violence, but rather as inhumane acts. The Pre-Trial Chamber held that “the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice…” [The Prosecutor v. Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC PT. Ch. Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 266]. It argued that “not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence”. See para. 265.
   In Prosecutor v Katanga and Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 375 PTC I, the defendants were charged with outrages upon personal dignity, as defined in Article 8(2)(b)(xxi), rather than sexual violence for making a woman walk through town, dressed solely in a blouse, without underwear.

Cross-references:
1. Articles 7(1)(g) and 8(2)(e)(vi) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415-416.
  2. Macheld Boot revised by Christopher K. Hall at pp. 214-215 and Michael Cottier at pp. 451-454, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, Münche/Oxford/Baden-Baden, 2008. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 252-253 and 313, MN 734 and 914-916.
  4. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Cambridge, 2005, pp. 199-201.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(b)(xxiii)

[111] (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
In addition to civilians, it is prohibited to use the presence of prisoners of war and military medical personnel as a shield. If a party violates this provision, the attacking party must still uphold the rules of humanitarian law, including the rule of proportionality and consider additional incidental casualties which may arise due to an attack. In addition to mental requirement of Article 30 the perpetrator must act to protect, aid or prevent a military objective or operation.

Cross-references:
1. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Roberta Arnold, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 454-456. 
  2. Gerhard WerlePrinciples of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 365-367, MN 1090-1094.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xxiv)

[112] (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
The term "attack" corresponds to the offence of attacks on a civilian population (Article 8(2)(b)(i)). The recognized emblems are the emblem of the Red Cross, the red crescent, the red lion and the sun and the red crystal (the third additional Protocol).

Cross-references:
1. Articles 8(2)(b)(i) and 8(2)(e)(ii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Roberta Arnold, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 456-458.
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 348-349, MN 1035-1038. 

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xxv)

[113] (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
In addition to deprivation of food, the term "starvation" may include non-food objects indispensible to the survival of civilians, for example medicines, blankets or clothing. Acts prohibited under this provision may also be covered by Articles 6(c); 7(1)(b), (j)and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v) and (xiii). Stravation can take many forms, including removal or destruction of essential supplies, the prevention of the production of food, impeding relief supplies, and not fulfilling a duty under international law to provide supplies. In addition to mental requirement of  article 30 the perpetrator must intend to starve civilians as a method of warfare.

Cross-references:
1. Articles 6(c)7(1)(b), (j)and (k)7(2)(b)8(2)(a)(iii)8(2)(b)(ii), (v) and (xiii) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 458-466. 
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2005, pp. 362-365, MN 1081-1087.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(b)(xxvi)

[114] (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities
General remarks

Article 8(2)(b)(xxvi) concerns the conscription, recruitment or use of children younger than fifteen years of age, in the context of an international conflict. The crime also appears in Article 8(2)(b)(vii) to cover the same crime in the context of an internal conflict. The act of conscripting or enlisting a child under the age of fifteen years into a national or non-governmental force is therefore a crime, regardless of whether it is committed in the context of an international or internal armed conflict.

Preparatory Works
As the practice of child soldier recruitment/conscription/use had not been previously expressly recognised as criminalised, its inclusion was naturally a controversial point of debate during Statute negotiations.  The United States in particular was against the inclusion of the crime, arguing that it was not a crime under customary international law and represented an area of legislative action ‘outside the purview of the Conference’ [Committee of the Whole Meeting Records, 4th meeting (Wednesday, 17 June 1998), 54]. However, agreement on inclusion was eventually reached due to its position as a well-established treaty law provision [Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c) and Convention on the Rights of the Child, Article 38(3)]. In 2002 the crime was included as a serious violation of international humanitarian law in Article 4(c) of the Statute of the Special Court for Sierra Leone [Statute of the Special Court for Sierra Leone, UN Doc. S/2002/246]. In a split decision in May 2004, the Special Court held that the provision was already customary international law prior to the adoption of the Rome Statute in 1998; that is to say that the Statute codified an existing customary norm rather than forming a new one [Prosecutor v Sam Hinga Norman, (SCSL-04-14-AR72) SCSL App. Ch., Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004].

Analysis
i. Definition
According to Article 8(2)(b)(xxvi) the crime has three components: recruitment, conscription or use. This is in contrast to both Additional Protocol I and Article 38 of the Convention on the Rights of the Child, which make reference to the singular act of ‘recruiting’. The Elements of Crime provide further:

  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


The Pre-Trial Chamber in Prosecutor v. Thomas Lubanga determined that the term ‘conscripting’ refers to a forcible act, ‘enlisting’ encompasses a ‘voluntary’ decision to join a military force, and the act of ‘enlisting’ includes ‘any conduct accepting the child as part of the militia’ [Prosecutor v Thomas Dyilo Lubanga, ICC T. Ch. I, ICC-01/04-01/06, Decision on the Confirmation of Charges, 29 January 2007].

ii. Consent of the child as a mitigating factor
While alleged voluntariness may be negated by force or intimidation, the consent of the child creates the legal characterisation of the conduct as enlistment rather than conscription. Consent is therefore not irrelevant, but nonetheless places the admission of a child to the armed forces firmly within the realm of Article 8 regardless of the means of admission. The specific mode of admission, whether ‘the result of governmental policy, individual initiative or acquiescence in demands to enlist’ [Happold (2006) The Age of Criminal Responsibility in International Criminal Law p. 8] is, for the most part irrelevant. Happold suggests that this distinction between the means of committing the material element of this crime may become pertinent during sentencing [Happold p. 12]. In its judgment in Prosecutor v Thomas Lubanga Dyilo the ICC Trial Chamber intimated that it would follow this path when determining the sentence, but found no aggravating factors when delivering the sentencing order on 10 July 2012, instead finding that the factors that are relevant for determining the gravity of the crime cannot additionally be taken into account as aggravating circumstances [Prosecutor v Thomas Lubanga, ICC T. Ch. I, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 617; Prosecutor v Thomas Lubanga, ICC T. Ch, Sentencing Order, ICC-01/04-01/06-2901, 10 July 2012, paras. 78 and 96].

iii. Continuing crime
There are a number of different ways in which these two concepts are interrelated or occur concurrently in the context of the crime. Conscription and enlistment can be viewed as continuing crimes that begin from the moment a child joins an armed group and end upon demobilisation or attainment of 15 years of age, with all intermittent time additionally constituting ‘use’. This is therefore a continuing crime: a state of affairs where a crime has been committed and then maintained.  The crime is committed from the moment that a child is entered into an armed force or group, through enlistment or conscription, and continues for as long as that child remains a ‘child soldier’, ending either through demobilisation or the attainment of 15 years of age. This places liability on the person who recruited the child, whether by enlisting or conscripting, regardless of whether they were involved in the "use" of the child in an armed conflict. The act of recruitment triggers responsibility for all subsequent use, even if by other commanders. An alternative interpretation is that the crime is not a composite one, as it is capable of being committed by either the initial conscription or enlistment step, or through the subsequent ‘use’ of the given child, and not necessarily through demonstrating a combination of the two. This expands the liability for the crime to incorporate not just the person who actually undertakes the recruitment process of a given child, but also includes others who later use the child for military purposes.

iii. Requirements
In addition to the contextual elements required for all war crimes of an international nature set out in elements 4 and 5 of the above-listed Elements of Crimes, the following needs to be proven:

a. Material elements
The first two elements listed above set out the material elements of child soldier conscription/enlistment/use.

  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.

The war crimes established by the Rome Statute are limited to the conscription or enlistment and use of children under the age of fifteen years. However, the acts of ‘conscription’ and ‘enlistment’ are not defined in the Statute, nor in the Elements of Crimes, leaving elaboration to judicial interpretation. The Pre-Trial Chamber (Prosecutor v Lubanga, ICC PT. Ch, Decision on the Confirmation of Charges, ICC-01/04-01/06, 29 January 2007, paras. 246-247) determined that the term ‘conscripting’ refers to a forcible act, whereas ‘enlisting’ encompasses a ‘voluntary’ decision to join a military force. The act of ‘enlisting’ includes ‘any conduct accepting the child as part of the militia’ (Prosecutor v Lubanga, Decision on the Confirmation of Charges, para. 114). While alleged voluntariness may be negated by force or intimidation, the consent of the child creates the legal characterisation of the conduct as enlistment rather than conscription. Consent is therefore not irrelevant, but nonetheless places the admission of a child to the armed forces firmly within the realm of Article 8 regardless of the means of admission.
   Finally, Participation by combatant and non-combatant children are covered equally by the Rome Statute due to its use of the term ‘participate actively’. However, their participation must be within the context of an armed conflict. The Elements of Crime require that the participation be conduct ‘associated with an armed conflict’, while the travaux préparatoires  noted above specifies that participation in the armed confrontations is not necessary, but a link to combat is required [U.N. Doc. A/CONF.183/2/Add.1, (14 April 1998)].

b. Mental elements
3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.
While Article 30(3) provides that a perpetrator must have had positive knowledge of the child’s age, the Elements of Crimes merely require that he ‘knew or should have known’ that the child was under fifteen. In Prosecutor v Lubanga it was determined that the Elements of Crimes provides for situations where the perpetrator fails to possess knowledge of the given child’s age due to a failure to exercise due diligence in the circumstances, (Prosecutor v Lubanga, Decision on the Confirmation of Charges, para. 348). Therefore, the Pre-Trial Chamber considered this element of negligence to be an exception to the ‘intent and knowledge’ standard provided in Article 30(1).

Cross-references:
1. Article 8(2)(e)(vii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Julie McBride, The War Crime of Child Soldier Recruitment, Springer, New York, 2013.
  2. Matthew Happold, "Child Recruitment as a Crime under the Rome Statute of the International Criminal Court", in Doria et al. (Eds.) The Legal Regime of the International Criminal Court: Essays in Memory of Igor Blischenko, Brill, Leiden, 2009.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009.

Author: Julie McBride

Updated: 30 June 2016

Article 8(2)(c)

[115] (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
General Remarks

Two provisions in the ICC Statute relate to war crimes committed in non-international armed conflict, subparagraphs (c) and (e). A literal interpretation of these subparagraphs shows that there are two thresholds of applicability, i.e. two types of non-international armed conflicts. However it seems that the Court does not distinguish between the two types of non-international armed conflicts (Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, paras 216 and 224; Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103). This may be so because the subparagraph (d) (which explains subparagraph (c)) threshold appears lower, not requiring the conflict to be protracted. For example in Katanga the ICC only refers to Article 8(2)(f) to characterise the nature of the conflict (Prosecutor v. Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras 1183-1187) and yet probes offences under Article 8(2)(c) (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1231). The same occurs in Bemba (Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras 127-147) though some reference is made to Article 8(2)(c).
   Subparagraph (c) must be read in conjunction with Article 8(2)(d) as the latter removes specific situations from its scope of application. As a result, the following situations are not covered by subparagraph (c):

- international armed conflicts. This explains why the assessment of the characterisation of the conflict under Article 8(2)(c) takes place in a wider discussion, notably in contradistinction to international armed conflicts (see Article 8(2)(a) ICC Statute). The problem may arise in particular in armed conflicts where there is fighting between governmental forces on one side and organized armed groups on the other where at the same time a third State is involved in the conflict intervening in support of the organized armed groups. The way the Court distinguishes between a non-international and an international armed conflict is by using the "overall control" test as opposed to the "effective control" test that was established by the International Court of Justice in the Nicaragua Case (Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), ICJ Merits, Judgment, 27 June 1986, para. 115). The "overall control" test was devised and developed by the ICTY (Prosecutor v. Tadić, (Case No. IT-94-1-I), ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 137) and readily adopted by the ICC (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 211; Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1178; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para 130.).
- internal disturbances and tensions. This is confirmed by Article 8(3) which clearly states to ‘Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’ The aim of this Article is to ensure that acts committed in times of internal disturbances and tensions are not to be prosecuted as war crimes.

Analysis
Article 8(2)(c) reads: “In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”.

i) Scope of Application: Existence of an Armed Conflict not of an International Character
For this subprovision to apply the ICC must determine that the acts were committed in the context of an armed conflict not of an international character, which means that the Court will examine first (1) whether the conflict is international or has been internationalised and then (2) whether a number of criteria to consider the events as a non-international armed conflict are fulfilled (see Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, paras. 220-237).
   In Bemba, the Court after reviewing the limits set by the ICC Statute to Article 8(2)(c) and (e) by Article 8(2)(d) and (f) respectively (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, paras 224-226), Common Article 3 (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 227), AP II (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 228), the ICTY case-law (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 229 referring to Tadić, ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70) and ICTR case-law (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424,  15 June 2009, para. 230 referring to Prosecutor v. Akayesu, (Case No. ICTR-96-4-T), ICTR Ch. I, Judgement, 2 September 1998, para. 620) states that a non-international armed conflict is characterised by the following elements (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 231):

1) The armed hostilities reach “a certain level of intensity, exceeding that of internal disturbances and tensions, such as riots, isolated acts of violence or other acts of a similar nature” (see also Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103);
2) The armed hostilities take “place within the confines of a State territory” (see also Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103);
3) The armed hostilities break out either “between government authorities and organised dissident armed groups” or “between such groups” (see also Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103). Whilst subparagraph (d) does not refer to two opposing sides to the conflict the ICC in Bemba explained that this element also applies as a matter of customary law (Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras 132-133). The notion of “organised armed group” is understood as covering armed groups that

a) have the ability to plan and carry out military operations for a prolonged period of time; Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 234, Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 233). The existence of a centre that coordinates the operations of the different actors attests to the group’s ability to plan and carry out military operations (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 259); and
b) must be under responsible command. This notably entails the capacity to impose discipline and the ability to plan and carry out military operations (Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 232; Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 234). The group must have a hierarchical structure and a high level of internal organisation (Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 104) which means that a group that is structured like a conventional army easily fulfils this requirement (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, paras 258 and 261). Constitutive instruments as well as the existence and knowledge by the members of the group of disciplinary and military codes demonstrate that the group has an internal disciplinary system (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 104; Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 261).

It is unclear whether the requirement of “protracted armed conflict” that is expressly mentioned in subparagraph (f) as a limitation to subparagraph (e) also applies as a limitation to subparagraph (c). A literal approach of the ICC Statute would conclude that there is no need for an Article 8(2)(c) conflict to be protracted. In Mbarushimana the ICC simply mentioned the requirement of “protracted” without giving any justification for its application (Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103). However in Bemba the Trial Chamber explains that this divergence in wording is only problematic if the conflict is not protracted (Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 138). The Court then notes that as the duration of the conflict is a factor in the framework of the assessment of the intensity of the conflict there is no need to adopt two carry out two assessments (para. 139). Indeed, whether the conflict is protracted can be assessed at the same time and so, in the application of the law, the ICC specifically indicates specifies that the threshold of 'protracted' is also reached (para. 663). That being said there is no requirement under the ICC Statute for the armed group “to exert control over a part of the territory” (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 236).
   Since 2012 the Court has consistently defined a non-international armed conflict by reference to Article 8(2)(e) and (f) and it is unclear what has happened to the Bemba and Mbarushimana jurisprudence. The commentaries of subparagraphs (e) and (f) examine in detail the current state of the law regarding the definition of a non-international armed conflict.

ii) Serious Violations of Article 3 common to the four Geneva Conventions of 12 August 1949
As specified in Article 8(2)(c) and acknowledged by the case-law (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 785) the crimes listed thereunder are the acts specified under (a), (b), (c) and (d) of Common Article 3 (1) of the Geneva Conventions, though not in the same order. Such crimes are also prohibited under customary international law all the more as Common Article 3 is viewed as a “mandatory minimum code applicable to internal conflict” (Prosecutor v. Delalic, (Case No. IT-96-21-A), ICTY A. Ch., Judgement, 20 February 2001, para. 140).

iii) Acts Committed against Persons Taking No Active Part in the Hostilities
The offences listed in Article 8(2)(c) must be committed against persons taking no active part in the hostilities and these include “members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”. As the word “including” is used it means that this list is only illustrative. Indeed the Elements of Crime refers to “persons [who are] either hors de combat, or […] civilians, medical personnel, or religious personnel taking no active part in the hostilities”. (Elements of Crimes, Article 8, page 33; see also Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 786)
   The ICC examines the status of individuals on a case-by-case basis, as a constituent element of the offences (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 237). To define the concept of a civilian the Trail Chamber in Bemba refers to the Geneva Convention III and the Additional Protocols I and II (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 93). Generally, civilians are persons who are not members of State and non-
State armed forces (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras. 788 and 801).
   In Katanga, the ICC, after noting that whilst Article 8(2)(c) refers to “direct participation” the Elements of Crimes use the terminology of “active participation”, explains that as Article 8(2)(c) reflects offences under Common Article 3 the concept that applies under Article 8(2)(c) is that of “direct participation”, an interpretation further supported by the case-law of the ICTY and ICTR that does not distinguish between “direct” and “active” participation (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 789). In other words persons protected under Article 8(2)(c) only lose their protection if they take a direct, rather, than an active part in the hostilities and for the duration of their participation (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para.  790). In the absence of a treaty or customary definition of direct participation in hostilities, the ICC uses the Commentary to Article 13(3) AP II that states that these are “acts of war that by their nature or purpose struck at the personnel and ‘matériel’ of enemy armed forces” (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 790). Yet, to determine whether these civilians were indeed not taking part in the hostilities, the ICC, relying on ICTY case-law (eg Prosecutor v Halilovic, ICTY T. Ch., Judgment, (Case IT-01-48), 16 November 2005, paras 33-34) has spelled the following factors "the location of the [individuals], whether the victims were carrying weapons, and the clothing, age, and gender of the victims." (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 94).
   The persons specifically included in the list in Article 8(2)(c) are known as persons hors de combat, i.e. members of the armed forces who have surrendered and/or are sick, wounded or detained. Whilst it is clear that those who have surrendered or are detained are no threat to the opposing party anymore and thus hors de combat it must be noted that under international humanitarian law combatants who are sick or wounded are only considered hors de combat if they refrain from hostile conduct (Sandoz Yves et al. (Eds) Commentary on the Additional Protocols to the Geneva Conventions, Martinus Nijhoff, Geneva, 1987, para. 1409). So far the ICC has not had the opportunity to examine any such cases.
   The Elements of Crime further refer to medical and religious personnel, the latter being defined as “non-confessional non-combatant military personnel carrying out a similar function”. (Elements of Crimes, Article 8, footnote 56)

iv) Awareness
The ICC Statute requires 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’”, i.e. there must be a nexus between the act and the conflict (Elements of Crimes, Article 8, page 34; Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 263; Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras 791, 794, 1176 and 1231). The Trial Chambers in Katanga, and Bemba explains that "the armed conflict must play a major part in the perpetrator’s decision, in his or her ability to commit the crime or the manner in which the crime was ultimately committed." (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1176; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 142). In this regard it does not matter that the act was committed away from the hostilities or that the act was motivated by further reasons (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1176; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 142). To ascertain concretely such a nexus, factors such as "the status of the perpetrator and victim; whether the act may be said to serve the ultimate goal of a military campaign; and whether the crime is committed as part of, or in the context of, the perpetrator’s official duties" are used by the ICC (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 143). Further the perpetrator must be aware that the acts were perpetrated in the context of a non-international armed conflict (Elements of Crimes, Article 8, page 34).
   What is more the perpetrator must be aware of “the factual circumstances that established the [status of the persons against whom the acts were committed]” (Elements of Crime, Article 8, page 34). In other words, the perpetrator could easily draw from the circumstances that the individuals had e.g. civilian status (see e.g. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, paras 191 and 219).

Cross-references:
1. Article 8(2)(e)
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", in Elizabeth Wilmhurst (Ed.)International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 32-79.
  2. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 417-418.
  3. Cassese et al. (Eds.), International Criminal Law, Oxford University Press, Oxford, 2013, pp. 62-83.
  4. Robert Cryer et al. (Eds.), Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, 264-284.
  5. Anthony Cullen, "War Crimes", in William Schabas/Nadia BernazRoutledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154.
  6. Knut DörmannElements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, pp. 382-393.
  7. Leena GroverInterpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2014, pp. 279-285.
  8. William SchabasAn Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 142-144.
  9. William SchabasThe International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.
  10. Sandesh SivakumaranThe Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, pp. 192-195; 273-280.
  11. Andreas Zimmermann, "Article 8, War Crimes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 476-488.

Author:
Noëlle Quénivet

Updated:
23 March 2017

Article 8(2)(c)(i)-1

[116] (i) Violence to life and person, in particular murder of all kinds,  
The term "killed" in the Elements of Crime is interchangeable with the term "caused death". The mens rea for murder is neither fully clarified in the present provision nor in the Elements of Crime. The standard of Article 30 applies to mental element. The main question is whether to apply the common law concept of "wilful blindness" and "recklessness" or civil law concepts such as "dolus eventualis". During the negotiations of the Statute and the Elements of Crime it was decided to leave such details for the Court to interpret Article 30. Murder as a war crime differs from the definition of murder as a crime against humanity only in terms of the context in which the crime is committed.

Cross-references:
1. Article 7(1)(a) and 8(2)(a)(i)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Law: A Commentary, Oxford University Press, Oxford. 2002. pp. 395-397;419.
  2. Christopher K. Hall, Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 183-190, 489. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 232-233 MN 674-677; 302-303 MN 875-878.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(i)-2

[117] mutilation,
The term "mutilation" should be understood to have synonymous meaning as "physical mutilation"  in Article 8(2)(b)(x), covering acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not an excusable defence.

Cross-references:
1. Article 8(2)(b)(x) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395-397; 419.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 489-490. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 307-308, MN 895-897.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(i)-3

[118] cruel treatment
The offence of cruel treatment carries the same meaning as inhuman treatment (Article 8(2)(a)(ii), namely the infliction of severe physical or mental pain or suffering upon one or more persons. The protected interest is the human dignity. For the mental element Article 30 applies.
    In Prosecutor v Katanga and Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 364, PTC I was of the "that there is sufficient evidence to establish substantial grounds to believe that the war crime of inhuman treatment, as defined in Article 8(2)(a)(ii) of the Statute".

Cross-references:
1. Articles 7(1)(k) and article 8(2)(a)(ii) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 392-393; 419.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 205-206, 490. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 310-311, MN 903-906.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(i)-4

[119] torture;
Torture is the infliction of severe physical or mental pain or suffering upon one or more persons. The standard for torture is set in the Torture Convention. In contrast to the aforementioned convention, it is not necessary that perpetrator acted in an official capacity. The Elements of Crime provides a non-exclusive listing of which purposes the torture serve, which distinguishes it from torture as a crime against humanity which does not require a purpose.

Cross-references:
1. Articles 7(1)(f) and 8(2)(a)(ii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 393-393; 419.
  2. William J. Fenrick/Andreas Zimmerman, in Otto Triffterer (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 205-206 and 490. 
  3. Gerhard WerlePrinciples of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 305-306, MN 887-890.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(ii)

[120] (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
The humiliating and degrading treatment is prohibited even if the victim overcomes the consequences relatively quickly. In Prosecutor v Katanga and Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 369, PTC I quoted ICTY jurisprudence when it stated that "there is no requirement that such suffering be lasting". There is no special intent requirement in addition to the general requirement of Article 30. The wording of the provision is identical to Article 8(2)(b)(xxi).

Cross-references:
1. Articles 7(1)(c) and 8(2)(b)(xxi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 414-415; 419.
  2. Patricia Viseur Sellers, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 425-431.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 314-316, MN 917-923.
  4. Andreas Zimmerman, in Otto Triffterer (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 491. 

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(iii)

[121] (iii) Taking of hostages;
Hostage taking involves the seizure and detainment of one or more protected persons and a threat to kill, injure or continue to detain such person or persons. In addition to the general mental requirement in Article 30 the purpose of the hostage taking is 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. The wording of the provision is identical to Article 8(2)(a)(viii).

Cross-references:
1. Article 8(2)(a)(viii) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395; 419.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 491.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 325-327, MN 958-962.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(c)(iv)

[122] (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
The provision guarantees certain minimum due process rights before a sentence is passed or an a execution against a protected person takes place. The Elements of Crime distinguishes three separate criminal acts, namely i) there was no previous judgement pronounced by a court, ii) the court was not regularly constituted, and iii) the court that rendered judgement did not afford other generally recognized judicial guarantees. The provision offers similar, but not identical protection as Article 8(2)(a)(vi). State authorities retains the right to criminally prosecute fighters or civilians for crimes committed in connection with internal armed conflicts.

Cross-references:
1. Articles 8(2)(a)(vi) and 8(2)(b)(xiv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 395; 419.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 491-492.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 322-323, MN 944-949.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(d)

[123] (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
General Remarks

Article 8(2)(d) limits the application of subparagraph (c) to certain situations (Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 225). As subparagraph (c) which relates to crimes committed in situations of a non-international armed conflict lacks any definition subparagraph (d) appears welcome. Further it must be noted that subparagraph (d) is repeated verbatim as the first sentence of subparagraph (f).

Analysis
Article 8(2)(d) states that “Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature".

Scope of Application
For a situation to fall within the purview of subparagraph (c) it must be above the lower threshold specified in subparagraph (d). The lower threshold differentiates a non-international armed conflict from “situations of internal disturbances and tensions”. In other words it excludes specific situations from the realm of application of subparagraph (c). The provision provides some examples: riots, isolated and sporadic acts of violence or other acts of a similar nature.
   Case-law in relation to subparagraph (d) exclusively is rather sparse. In Bemba whilst the Court explains that a certain level of intensity must be reached for subparagraph (c) to apply (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 225) it considers this a limitation on its jurisdiction (para. 225) rather than a description of an armed conflict of a non-international character. In contrast, in Mbarushimana the Court, whilst also considering that subparagraph (d) requires the conflict to be of a certain level of intensity, examines the subparagraph in a broader discussion on the nature of the armed conflict (Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103). In fact it seems that the criterion of intensity is an element in the determination of a conflict of non-international armed conflict as well as a jurisdictional requirement. 
   Further although subparagraph (c) covers acts listed in Common Article 3 to the Geneva Conventions, subparagraph (d) directly stems from Article 1(2) AP II which is deemed to have a higher threshold of applicability than Common Article 3. In other words there does not seem to be a distinction between non-international armed conflicts falling under the purview of subparagraph (c) limited by subparagraph (d) on the one hand and of subparagraph (e) limited by subparagraph (f) on the other. As a result, bearing in mind that the first sentences of subparagraphs (d) and (f) are identical ICC case-law relating to subparagraph (f) can be used. In Lubanga (Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06,14 March 2012, para. 538) the Court refers to the ICTY jurisprudence, holding that the intensity of the conflict is used to distinguish an armed conflict from situations that are not subject to international humanitarian law (Prosecutor v. Ðorđević, (Case No. IT-05-87/1-T), ICTY T. Ch., Public Judgment with Confidential Annex – Volume I of II, 23 February 2011, para. 1522). In the same paragraph of the judgment (which refers to Prosecutor v. Mrkšić et al., (Case No. IT-95-13/1-T), ICTY T. Ch., Judgment, 27 September 2007, para. 407) the Court also accepts that indicators of intensity are “the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and, if so, whether any resolutions on the matter have been passed”. These indicators are spelled out (para. 1187) and applied (paras 1216-1218) in Katanga (Prosecutor v. Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014) and in Bemba (para. 137 for the law and para. 662 for the application, Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 143).
   In addition, the Court has read into Article 8(2)(d) the requirement that for a non-international armed conflict to be established there must be two opposing sides to the conflict (Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 132). In Bemba it examininged whether the stricter requirement of the conflict being “protracted” (that applies in the context of subparagraph (e) limited by subparagraph (f)) applies to subparagraph (c) limited by subparagraph (d) as part of the intensity of the hostilities but specifically stressed that this criterion had been met (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 663) (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 235) It was also applied in other cases (Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103 and Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1217). Moreover, this threshold of applicability cannot be used to cease the applicability of Article 8(2)(d) if there is a lull in the hostilities as violence does not need to be continuous and uninterrupted (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 140 and 650). "The essential criterion is that it go beyond 'isolated or sporadic acts of violence'". (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 140)


Cross-references:
Article 8(2)(f)

Doctrine:

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", Elizabeth Wilmhurst (Ed.)International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 32-79.
  2. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 417-418.
  3. Antonio Cassese et al. (Eds.), International Criminal Law, Oxford University Press, Oxford, 2013, pp. 62-83.
  4. Robert Cryer et al. (Eds.), Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, pp. 264-284.
  5. Anthony Cullen, "War Crimes", in William Schabas/Nadia BernazRoutledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154; 264-284.
  6. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, pp 382-393.
  7. Leena GroverInterpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2014, pp. 279-285.
  8. William SchabasAn Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 142-144.
  9. William SchabasThe International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.
  10. Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, pp. 192-195; 273-280.
  11. Andreas Zimmermann, "Article 8, War Crimes", in Otto Triffterer (Ed.)Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 476-488.

Author:
Noëlle Quénivet

Updated:
23 March 2017

Article 8(2)(e)

[124] (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

General Remarks
Two provisions in the ICC Statute relate to war crimes committed in non-international armed conflict, subparagraphs (c) and (e). A literal interpretation of these subparagraphs shows that there are two thresholds of applicability, i.e. two types of non-international armed conflicts. Whilst at first sight it seems that the Court does not distinguish between the two types of non-international armed conflicts (Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, paras 216 and 224; Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 6 December 2011, para. 103) specified in subparagraphs (c) and (e) the Trial Chamber in Bemba has underlined the requirement of 'protracted' armed conflict in Bemba (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 663). 
   Subparagraph (e) must be read in conjunction with subparagraphs (f) and Article 8(3). As a result the following situations are not covered by subparagraph (e):

- international armed conflicts. This explains why the assessment of the characterisation of the conflict under Article 8(2)(e) takes place in a wider discussion, notably in contradistinction to international armed conflicts (see Article 8(2)(a) ICC Statute). The problem may arise in particular in armed conflicts where there is fighting between governmental forces on one side and organized armed groups on the other where at the same time a third State is involved in the conflict intervening in support of the organized armed groups. The way the Court distinguishes between a non-international and an international armed conflict is by using the "overall control" test as opposed to the "effective control" test that was established by the International Court of Justice in the Nicaragua Case (Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), ICJ Merits, Judgment, 27 June 1986, para. 115). The "overall control" test was devised and developed by the ICTY (Prosecutor v. Tadić, (Case No. IT-94-1-I), ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 137) and readily adopted by the ICC (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, para. 211; Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 541; Prosecutor v. Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1178; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 130).
- internal disturbances and tensions. This is confirmed by Article 8(3) which clearly states to ‘Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’ The aim of this article is to ensure that acts committed in times of internal disturbances and tensions are not to be prosecuted as war crimes.

Analysis
Article 8(2)(e) states that “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts”.

i) Scope of Application: Existence of an Armed Conflict not of an International Character
For this subprovision to apply the ICC must determine that the acts were committed in the context of an armed conflict not of an international character.
   The Court's case-law is unfortunatley rather confusing. Initially, the Court seemed to have considered that there were two types of non-international armed conflicts, subparagraph (c) and subparagraph (e). Indeed in some instances the Court’s approach to subparagraph (e) is that explained in the Commentary to Article 8(2)(c). With the difference that the Court explained that for subparagraph (e) to apply the conflict must be protracted (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 235; Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103).
   Then from Lubanga (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014; Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision on the Confirmation of Charges, ICC-01/04-02/06-309, 9 June 2014) onwards, the Court extensively refers to the ICTY case-law (thereby using an interpretation “within the established framework of international law” specified in subparagraph (e)) and follows Article 8(2)(f) as explained in the Commentary to subparagraph (f). In its latest jurisprudence the Court seems to revert to its earlier case-law by clarifying that (e) is in fact a combination of the relevant criteria for (c) and (f). However, because of the way 'protracted' is defined (see Commentary on (f)) this criterion is almost always fulfilled when the requirements for (c) are met.
   The relevant criteria are:

(1)The hostilities must be between governmental authorities and organized armed groups or between such groups within a State (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 533). In Katanga the Court specifies that this provides for two types of non-international armed conflicts: those opposing the authorities of the government of the State where the hostilities occur against organised armed groups and those opposing organised armed groups, the former also encompassing situations where a State intervenes on a foreign territory in a conflict opposing the governmental authorities to armed opposition group(s), yet  with the consent of the governmental authorities (Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras 1184 and 1228; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 653 and 658).

(2) The 'organized armed groups' "must have a sufficient degree of organisation, in order to enable them to carry out protracted armed violence” (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 536; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1185). There is however no express requirement for the group to be “under a responsible command” as expounded in Bemba (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 234) and in Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 536; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1186) though this element is viewed as one factor to be taken into account when determining whether the group is organised (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 135-136). In this respect whether the group must present a certain level or organisation such that it is able to implement humanitarian law relating to non-international armed conflicts (Katanga, ICC Tr. Ch. II, Judgement, ICC-01/04-01/07-3436, 7 March 2014, para. 1185) or be able to impose discipline are only one aspect of the test relating to the group's organisation (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 136). There is no requirement under the ICC Statute for the armed group “to exert control over a part of the territory” (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 236; Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 536; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1186). As noted by the Court itself (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, 15 June 2009, para. 236; Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 536) this clearly departs from Article 1(1) AP II. The ICC has drawn a non-exhaustive list of factors that assist in determining whether the group was organised. The list includes: “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement” and each criterion is to be applied with some flexibility and each situation must be assessed on a case-by-case basis (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 537; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1186; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 134 and 136) 

(3) The conflict must reach a certain level of intensity (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 538; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1187; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 137). Again, referring back to the ICTY jurisprudence in line with the “within the established framework of international law” requirement set out in subparagraph (e) the Court explains that this minimum threshold spelled out in subparagraph (f) removes sporadic and isolated situations which are not subject to international humanitarian law (Prosecutor v. Ðorđević, (Case No. IT-05-87/1-T), ICTY T. Ch., Public Judgment with Confidential Annex – Volume I of II, 23 February 2011, para. 1522) from the jurisdiction of the ICC and that a number of factors must be taken into account (Prosecutor v. Mrkšić et al., (Case No. IT-95-13/1-T), ICTY T. Ch., Judgment, 27 September 2007, para. 407) when assessing the intensity of the conflict. These are “the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and, if so, whether any resolutions on the matter have been passed”. (Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 538; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1187; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 137) Control of the territory is not a requirement but an indication of the intensity of the conflict (Prosecutor v. Ahmad Al Faqi Ali Mahdi, ICC T. Ch. VIII, Judgment, ICC-01/12-01/15, 27 September 2016, para. 49). It is in this framework of relevant factors determining the intensity of the conflict that the 'protracted' element of the conflict is analysed (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 139).

ii) Crimes
The crimes that are mentioned in Article 8(2)(e) are serious violations prohibited by either or both customary and treaty law. The word “other” relates to serious violations of Common Article 3, thereby indicating that the roots of the provision stem from other sources (see also Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 224), including Additional Protocol II.  However whilst the list is mainly drawn from AP II not all violations contained in the treaty have been included in subparagraph (e) and whilst the list is exhaustive for ICC jurisdiction purposes it does not provide an exhaustive list of war crimes in non-international armed conflict. This is recognised by Article 10 ICC Statute that explains that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” In fact Resolution RC/Res. 5 has expanded the list to includes Articles 8(2)(e) (xiii), (xiv) and (xv), thereby proving that the list is exhaustive for ICC jurisdiction purposes only and that further crimes can and could be added onto the list.

iii) Awareness
The ICC Statute requires 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’”, i.e. there must be a nexus between the act and the conflict (see for example Elements of Crime in relation to Article 8(2)(e)(i); Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 263; Katanga, ICC Tr. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, paras 1176 and 1231). The Trial Chambers in Katanga and Bemba explains that "the armed conflict must play a major part in the perpetrator’s decision, in his or her ability to commit the crime or the manner in which the crime was ultimately committed." (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1176; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 142). In this regard it does not matter that the act was committed away from the hostilities or that the act was motivated by further reasons (Katanga, ICC T. Ch. II, Judgment, ICC-01/04-01/07-3436, 7 March 2014, para. 1176; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 142). To ascertain concretely such a nexus, factors such as "the status of the perpetrator and victim; whether the act may be said to serve the ultimate goal of a military campaign; and whether the crime is committed as part of, or in the context of, the perpetrator’s official duties" are used by the Court (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 143 and 664-665). Further the perpetrator must be aware that the acts were perpetrated in the context of a non-international armed conflict (see for example Elements of Crime in relation to Article 8(2)(e)(i)).

Cross-references:
1. Article 8(2)(c)
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", in Elizabeth Wilmhurst (Ed.)International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 32-79.
  2. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 417-418.
  3. Antonio Cassese et al. (Eds.), International Criminal Law, Third Edition, Oxford University Press, Oxford, 2013, p. 62-83.
  4. Robert Cryer et al. (Eds.), Introduction to International Criminal Law and Procedure, Third Edition,  Cambridge University Press, Cambridge, 2014, pp. 264-284.
  5. Anthony Cullen, "War Crimes", in William Schabas/Nadia BernazRoutledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154.
  6. Knut DörmannElements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, pp. 382-393.
  7. Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2014, pp. 279-285.
  8. William SchabasAn Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 142-145.
  9. William SchabasThe International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.
  10. Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, pp. 192-195; 481-483.
  11. Sylvain Vité, "Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations", International Review of the Red Cross, vol. 91, (2009), pp. 69-94.
  12. Andreas Zimmermann, Preliminary Remarks on para. 2(c)-(f) and para. 3: "War crimes Committed in an Armed Conflict not of an International Character", in Otto Triffterer (Ed.)Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 475-478.

Author:
Noëlle Quénivet

Updated:
23 March 2016

 

 

Article 8(2)(e)(i)

[125] (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
General Remarks
The war crime of attacking the civilian population and civilians not taking direct part in hostilities “belongs to the category of offences committed during the actual conduct of hostilities by resorting to prohibited methods of warfare” (Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision on the Confirmation of Charges, ICC-01/04-02/06-309, 9 June 2014, para. 45).
   Article 8(2)(e)(i) is a reflection of the principle of distinction in attack in a non-international armed conflict. Whilst the principle is enshrined in Article 13(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) it is also of customary nature (Rule 1 of the ICRC Study on Customary International Humanitarian Law; Prosecutor v. Galić, (Case No. IT-98-29-A), ICTY A. Ch., Judgement, 30 November 2006, para. 87). The International Court of Justice has stressed that deliberate attacks on civilians are absolutely prohibited by international humanitarian law (Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at 257 (para. 78)). Further, as the ICTY highlighted “the principles underlying the prohibition of attacks on civilians, namely the principles of distinction and protection … incontrovertibly form the basic foundation of international humanitarian law and constitute ‘intransgressible principles of international customary’” (Galić, ICTY A. Ch., 30 November 2006, para. 87).
   Article 8(2)(e)(i) mirrors Article 8(2)(b)(i) that applies in an international armed conflict. Both Articles give the Court jurisdiction over attacks against civilians and the civilian population. That being said there is no equivalent in Article 8(2)(e) to Article 8(2)(b)(ii) that prohibits attacks against civilian objects. Given that Article 8(2)(e)(i) specifically refers to the “civilian population” and “individual civilians”, i.e. individuals, it cannot be interpreted so as to cover also civilian objects.

Analysis
Article 8(2)(e)(i) states that the ICC has jurisdiction overs acts of “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”.

i) Material Elements
In Katanga (Prosecutor v. Katanga, ICC Tr. Ch. II, Jugement, ICC-01/04-01/07-3436, 7 March 2014, para. 796) the Court has expounded that the material elements of the crime are:
- The perpetrator has launched an attack;
- The aim of the attack was the civilian population or civilians not taking direct part in hostilities.

a. Definition of an Attack
The first element of the Elements of Crimes requires that “the perpetrator directed an attack” (Elements of Crimes, page 34). Yet, neither the Statute nor the Elements of Crimes define the term “attack”. Referring to the “established framework of international law” mentioned in the chapeau of Article 8(2)(e) the Court has used Article 49 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts and applied it by analogy to Article 13(2) AP II to define an attack as “acts of violence against the adversary, whether in offence or in defence” (Prosecutor v. Abu Garda, ICC PT. Ch. I, Public Redacted Version, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-red, 8 February 2010, para. 65; Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 798; Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 45). To establish the link between the attack and the conduct of the hostilities, the Court has stipulated that these civilians must be those “who have not fallen yet into the hands of the attacking party” (Prosecutor v. Katanga, (Case No. ICC-01/04-01/07), ICC PT. Ch. I, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, ICC-01/04-01/07-55, 7 July 2007, para. 37; Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, paras 45 and 47). Acts committed against civilians who have fallen into the hands of the enemy or are committed far from the combat area cannot be classified as attacks as they are not methods of warfare. They can however be prosecuted under other appropriate legal provisions (Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 47).
   The Court has spelled out that in order to characterise a certain conduct as an attack it is important to look at the intended and foreseeable consequences (Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 46). In other words there must be a causal link between the perpetrator’s conduct and the consequence of the attack (Abu Garda, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-02/05-02/09-243-red, 8 February 2010, para. 66). Examples of acts falling within the purview of an attack under Article 8(2)(e)(i) are “shelling, sniping, murder, rape, pillage, attacks on protected objects and destruction of property” provided they are linked to the conduct of hostilities (Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 46).
   As the ICC Statute does not provide for a specific offence of acts whose primary purpose is to spread terror among the civilian population, it is likely that such acts fall within the broad scope of Article 8(2)(e)(i). As Article 8(2)(e)(i) is a reflection of the principle of distinction enshrined in Article 13(2) AP II and Article 8(2)(e) must be read “within the established framework of international law” it is likely that it will also cover the second sentence of the Article 13(2) AP II: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. This approach was espoused by the ICTY inasmuch as it explained that the prohibition of terror amounts to “a specific prohibition within the general (customary) prohibition of attack on civilians” (Prosecutor v. Galić, (Case No. IT-98-29-T), ICTY T. Ch. I, Judgment and Opinion, 5 December 2003, para. 98, upheld in Prosecutor v. Galić, ICTY App. Ch., 30 November 2006, para. 87).
   The attack does not need to lead to civilian casualties; it is sufficient to prove that the author directed the attack towards the civilian population or individual civilians. This is in line with Article 13(2) AP II which specifies that “the civilian population as such, as well as individual civilians, shall not be the object of attack”, thereby not requiring for harm to occur. As the Court explained “the crime provided for under Article […] 8(2)(e)(i) of the Statute does not require any harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack […]” (Katanga, ICC PT. Ch. I, ICC-01/04-01/07-55, 6 July 2007, para. 37; see also Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 799). It is the intention that counts as the Elements of Crimes require that “the perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack”. This stands in contrast to the ICTY jurisprudence that required the attack to result in death, serious bodily injury or equivalent harm (Prosecutor v. Kordić and Čerkez, (Case No. IT-95-14/2-A), ICTY A. Ch., Judgment, 17 December 2004, paras 55-68).

b. Object of the Attack is a Civilian Population and Civilians Not Taking Direct Part in the Hostilities
The second element of the Elements of Crimes specifies that “the object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities” (Elements of Crimes, page 34). This is an absolute prohibition that cannot be counterbalanced by military necessity (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 800). This position is reinforced by the fact that the ICC has, in contrast to the ICTY Kupreskic case (Prosecutor v Kupreškić et al., (Case No. IT-95-16-R), ICTY T. Ch., Judgment, 14 January 2000, paras 527-535), indicated in clear terms that reprisals are prohibited in all circumstances (Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 143), relying notably on the ICTY Martic decision (Prosecutor v. Martic, (Case No. IT-95-11-R61), ICTY T. Ch., Decision, 8 March 1996, paras 15-17).
   As there is no definition of a combatant in a non-international armed conflict there is no definition of a civilian under the treaties. Whilst the ICTY defined a civilian as “anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict” (Galić, ICTY T. Ch. I, 5 December 2003, para. 47) the ICC considers as a civilian anyone who is not a member of the State or non-State armed forces (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 788) and a civilian population as “all civilians as opposed to members of armed forces and any other legitimate combatants” (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148; Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 78). In case of doubt an individual must be considered a civilian (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148; Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 94)). The presence amongst the civilian population of individuals who do not fit within the definition of a civilian, however, does not deprive the entire population of its civilian character ( Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148) though the Court will take into account factors such as the number and the behaviour of the fighters present amongst the population (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 801).
   Article 8(2)(e)(i) refers to “individual civilians not taking direct part in direct hostilities”, thereby introducing the concept of direct participation in hostilities in a non-international armed conflict (which also appears in the chapeau of Article 8(2)(c)). There is no customary or treaty law definition of the concept (Abu Garda, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-02/05-02/09-243-red, 8 February 2010, para. 80; Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 789 (though in the context of Article 8(2)(c))). Such participation leads to a temporary loss of protection of civilian status, unless the act is in self-defence (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148). It is indeed recognised that a civilian is allowed to defend him/herself (Prosecutor v. Bagosora et al., (Case No. ICTR-98-41-T), ICTR T. Ch. I, Judgement and Sentence, 18 December 2008, paras 2238-2239).
   The Court has stressed that in line with the Commentary of Article 13(3) AP II which explains that “[h]ostilities have been defined as ‘acts of war’ that by their nature or purpose struck at the personnel and ‘matériel’ of enemy armed forces” there must be a sufficient causal relationship between the act and its immediate consequences (Abu Garda, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-02/05-02/09-243-red, 8 February 2010, para. 80; Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 790). The assessment of whether an individual takes a direct part in hostilities must be carried out on a case-by-case basis (Abu Garda, ICC PT. Ch. I, ICC-02/05-02/09-243-red, 8 February 2010, para. 83). The Trial Chamber in Bemba has outlined the following factors "the location of the [individuals], whether the victims were carrying weapons, and the clothing, age, and gender of the victims." (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 94). For example, the Court has spelled out that “using weapons or other means to commit violence against human or material enemy forces” will qualify as direct participation in hostilities whilst supplying food and shelter, sympathising with one belligerent party will not (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 148).
   The ICC has explained that in cases where the attack is directed towards a legitimate military objective and simultaneously the civilian population or civilians not taking direct part in the hostilities, the author can still be prosecuted under Article 8(2)(e)(i) (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 802; Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, para. 142). It must however be proven that the principal target of the attack was the civilian population (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 802). This situation must nonetheless be distinguished from attacks against military objectives with the awareness that they will or may result in the incidental loss of life or injury to civilians (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, paras 142 and 218). The Court has thus distinguished between a violation of the principle of discrimination and a violation of the principle of proportionality. Whilst in an international armed conflict the violation of the principle of proportionality can be prosecuted under Article 8(2)(b)(vi) this is not the case in a non-international armed conflict, despite the fact that the principle is recognised to be of customary nature in both international and non-international armed conflicts (see discussion in Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, footnote 290). That being said the Court has also argued that in some instances the incidental effect on the civilian population or civilians not taking direct part in hostilities might be so disproportionate that it amounts to a direct attack against such a population or individuals, thereby revealing the author’s intention to make the civilian population the object of his/her attack (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 802).

ii) Subjective Elements
In Katanga (Prosecutor v. Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 808) the Court explained that for the subjective element to be fulfilled four requirements must be present.

a. “[I]ntentionally” Directing an Attack
The crime must be committed with intention and knowledge, as indicated in Article 30 ICC Statute. The Court has however noted that Article 8(2)(e)(i) specifies that the crime has to be committed “intentionally”. Whilst in some cases (those relating to Article 8(2)(b)(i)) the Court has explained that this intention to attack the civilian population is in addition to the standard mens rea requirement provided in Article 30 ICC Statute, i.e. there must be a dolus directus of first degree, i.e. a concrete intent (Abu Garda, Decision on the Confirmation of Charges, ICC PT. Ch. I, ICC-02/05-02/09-243-red, 8 February 2010, para. 93; Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 271), in other cases it has argued that the word “intentionally” is nothing but a repetition of Article 30(2)(a) (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 806). The Court has argued that the third element in the Elements of Crimes (Elements of Crimes, page 34) does not constitute a specific dolus but is justified by the use of the word “intentionally” at the beginning of the sentence and by the need to distinguish this crime from other acts violating the principles of proportionality and/or precautions (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, footnote 1851).

b. Intention that the Object of the Attack Is the Civilian Population or Civilians
The Court has stated that this requirement, which is the second element in the Elements of Crimes (Elements of Crimes, page 34), must be analysed as a behaviour (Prosecutor v Chui, (Case No. ICC-01/04-01/07), ICC PT. Ch. I, Sous scellés Décision concernant les éléments de preuve et les renseignements fournis  par l’Accusation aux fins de délivrance d’un mandat d’arrêt   à l’encontre de Germain Katanga, ICC-01/04-01/07-4-tFRA, 6 July 2007, para. 41). Elements assisting in ascertaining the intention are the means and methods used during the attack, the number and status of victims, the discriminatory character of the attack and the nature of the act (Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 807). For example, in Mbarushimana (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011) intention could be inferred from the fact that the armed group wanted to exact revenge on both civilians and soldiers (dubbed operation “eye for eye”, para. 144), the orders were to kill all individuals (e.g. “everything that moves should be killed”, “everything which has breath shouldn’t be there at all”) (para. 144) and the troops were congratulated for achieving the objective, i.e. killing civilians (para. 150).

c. Awareness of the Civilian Status of the Population or Individuals
The Court further requires that the perpetrator attacking the civilian population or individual civilians not taking direct part in the hostilities must be aware of the civilian status of the victims (Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-465-Red, 16 December 2011, paras 151 and 219; Katanga, ICC Tr. Ch. II, ICC-01/04-01/07-3436, 7 March 2014, para. 808).

d. Awareness of the Circumstances that Established the Existence of the Armed Conflict
According to element 5 of the Elements of Crimes for the war crime of attacking civilians, the perpetrator must be aware of factual circumstances that established the existence of an armed conflict (Elements of Crimes, page 34).

Cross-references:
1. Article 8(2)(b)(ii), 8(2)(b)(ix), 8(2)(b)(i) and 8(2)(c)
2. Elements of Crimes
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 397.
  2. Knutt Dörmann at pp. 323-327, and Andreas Zimmerman at p. 494, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
  3. Gerhard Werle/Florian Jessberger, Principles of International Criminal Law, Oxford University Press, Oxford, 2014, pp. 475-487, MN 1278-1304.
  4. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, PP. 188-257.
  5. Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, PP. 338-341.

Author:
Noëlle Quénivet

Updated:
23 March 2016

Article 8(2)(e)(ii)

[126] (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
The term "attack" corresponds to the offence of attacks on a civilian population (Article 8(2)(e)(i)). The recognized emblems are the emblem of the Red Cross, the red crescent, the red lion and the sun and the red crystal (the third additional Protocol). The provision is identical to Article 8(2)(b)(xxiv) and differs only in terms of the context in which the crime is committed.
   

Cross-references:
1. Articles 8(2)(e)(i) and 8(2)(b)(xxiv)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Roberta Arnold at pp. 456-458, and Andreas Zimmerman at p. 494, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. 
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 348-349, MN 1035-1038.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(iii)

[127] (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
General remarks
Attacking personnel or objects involved in humanitarian assistance or peacekeeping missions, entitled to the protection of civilians or civilian objects, is not a new crime under international humanitarian law. It is rather evidence of the need to specify a group of civilians that because of its missions deserves a specific protection (Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc., S/2000/915 4 October 2000, para.16). During the negotiations of the ICC Statute, the Convention on the Safety of United Nations and Associated Personnel was included in the Draft Statute as one out of three treaty crimes. When decided that no treaty crime would be included in the Statute the delegations began to concentrate on treating and including attacks against UN personnel as a war crime. The crime of attacking peacekeepers was the only one of the three treaty crimes that "survived" this change, which is evidence of its strong symbolic character. A crime with the same definition as in the ICC Statute was in included in the Statute of the Special Court for Sierra Leone.
 
Analysis
a) Objective Elements
i. The perpetrator directed an attack
The Elements of Crimes do not include a definition of the term “attack”. The ICC Pre-Trial Chamber has, by reference inter alia to the “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict” in Article 21 (1)(b) of the Statute found guidance in Article 49 of AP I, applicable in international armed conflicts (IACs) where the term “attack” is defined as “acts of violence against the adversary, whether in offence or in defence”. The term has been given the same definition in Article 13(2) of AP II applicable in non-international armed conflicts (NIACs). There is no requirement of any harmful impact on the personnel or material. There is a need to establish a causal link between the conduct of the perpetrator and the consequence “so that the concrete consequence, the attack in this case, can be seen as having been caused by the perpetrator”. (Prosecutor v. Abu Garda. Decision on the Confirmation of Charges, ICC-02/05- 02/09, PT. Ch., 8 February 2010, para. 64-66).

ii. 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.
There is no generally accepted definition on the notion "humanitarian assistance", but it includes measures taken with the purpose of preventing or alleviating human suffering of victims of an armed conflict. In practice the object of attacks has so far been personnel and objects involved in a peacekeeping mission. The term “peacekeeping” is not mentioned in the UN Charter but has developed in practice. The reference to “in accordance with the Charter of the United Nations” does not mean that the mission needs to be established by the UN but includes also missions established by regional organisations. (Abu Garda, para 124). While the term lack a simple definition three basic principles are accepted as constituting a peacekeeping mission; consent of the parties; impartiality; and use of force only in self-defence, (Prosecutor v. Abu Garda, para. 71) although there is now a change in UN doctrine regarding definition of such missions (Sesay, Kallon and Gbao (RUF), Case No. SCSL-04-15-T, Judgement, 2 March 2009 (RUF, paras. 224-225). Consent of the host state is a legal requirement but in practice the consent of the main parties to the conflict is also sought to ensure the effectiveness of the operation. Regarding impartiality, the Report of the Panel of the United Nations Peace Operations (UN Doc., A/55/305-S/2000/809 (the Brahimi Report)) states inter alia that "impartiality for such operations must therefore mean adherence to the principles of the Charter and to the objectives of a mandate that is rooted in those Charter principles. Such impartiality is not the same as neutrality or equal treatment of all parties in all cases for all time, which can amount to a policy of appeasement". (Brahimi Report para. 50 and Prosecutor v. Abu Garda, para 73 not 106). The Majority in the ICC Pre-Trial Chamber noted that peacekeeping missions were only entitled to use force in self-defence compared to peace enforcement missions decided under Chapter VII of the UN Charter which may use force beyond the concept of self-defence in order to achieve their mandates. (Prosecutor v. Abu Garda, para. 74). In UN doctrine the right of self-defence includes a “right to resist attempts by forceful means to prevent the peacekeeping operation from discharging its duties under the mandate of the Security Council” although it is doubtful if it has developed to become settled law (international or national) (RUF, para. 228).
   The development in practice where operations are often authorized by the Security Council under Chapter VII to use all necessary measures for certain purposes is reflected in the UN doctrine by references to robust peacekeeping. Recent UN doctrine considers that the tendency to refer to peacekeeping operations as Chapter VI operations and peace enforcement operations as Chapter VII operations is somewhat misleading. It is now the usual practice, both in peacekeeping and in peace enforcement, "for a Chapter VII mandate to be given" and a distinction is instead made between "operations in which the robust use of force is integral to the mission from the outset [...] and operations in which there is a reasonable expectation that force may not be needed at all" (A More Secure World: Our Shared Responsibility, UN Doc., A/59/565 (2004) para. 211). The Capstone Doctrine, as it is known, draws a distinction between peace enforcement and robust peacekeeping. Peacekeeping operations with a robust mandate have been authorized to "use all necessary means to deter forceful attempts to disrupt the political process, and/or assist the national authorities in maintaining law and order. The concept of robust peacekeeping is defined as involving "the use of force at the tactical level with the authorization of the Security Council and consent of the host nation and/or the main parties to the conflict". A peace enforcement operation on the other hand "does not require the consent of the main parties and may involve the use of military force at the strategic level, which is generally prohibited for Member States under Article 2(4) of the Charter, unless authorized by the Security Council" (United Nations Peacekeeping Operations: Principles and Guidelines (2008) p. 34).
   The difference between these types of operation is thus not whether they have been established under Chapter VII of the UN Charter, but whether they are dependent on the existence of consent and the use of force at a strategic level. The concept of robust peacekeeping therefore challenges the traditional borders between the concepts of peacekeeping and peace enforcement (traditionally regarded as Chapter VI operations and Chapter VII operations). This may ultimately have an effect on the interpretation of the term peacekeeping mission in the ICC statute. It is telling that the Trial Chamber in the RUF case found that the mandate of the UNAMSIL even after it has been expanded through the Resolution 1279 which clearly was decided under Chapter VII and included the expression “use of all necessary measures” was regarded a peacekeeping mission for the purpose of the crime of attacking personnel in such missions (RUF, para. 1888).

iii. Such personnel, installations, material, units or vehicles were entitled to the protection given to civilians or civilian objects under the international law of armed conflict
Personnel in humanitarian assistance and peacekeeping missions are presumed to be entitled to the protection of civilians. This is particularly so regarding humanitarian assistance personnel. The authority to use force by peacekeepers, in self-defence or based on a resolution adopted under Chapter VII of the UN Charter (depending on the definition of a peacekeeping mission) naturally raise questions if the use of force by peacekeepers could affect their protection as civilians under international humanitarian law. Personnel in humanitarian assistance and peacekeeping missions are entitled to the protection of civilians as long as they are not taking a direct part in hostilities. Their protection would not be affected by exercising their individual right of self-defence – nor the use of force “in self-defence in the discharge of their mandate, provided that it is limited to such use”. (RUF, para. 233) It should in this respect be noted that the use of force in defence of the mandate is inherently difficult to define. Determining whether peacekeeping personnel or objects of such a mission were entitled to the protection of civilians or civilian objects, the Trial Chamber in the RUF case found that it needed to consider the totality of circumstances existing at the time of the alleged offence including “inter alia, the relevant Security Council resolutions for the operation, the specific operational mandates, the role and practices actually adopted by the peacekeeping mission during the particular conflict, their rules of engagement and operational orders, the nature of the arms and equipment used by the peacekeeping force, the interaction between the peacekeeping force and the parties involved in the conflict, any use of force between the peacekeeping force and the parties in the conflict, the nature and frequency of such force and the conduct of the alleged victim(s) and their fellow personnel”.(RUF, para. 234) It can be questioned if indeed all these aspects are valid for the determination whether personnel or objects are entitled to the protection of civilians since this a question decided under international humanitarian law.
   The Majority in the ICC Pre-Trial exemplified “direct participation in hostilities” to include "bearing, using or taking up arms, taking part in military or hostile acts, activities, conduct or operations, armed fighting or combat, participating in attacks against enemy personnel, property or equipment, transmitting military information for immediate use of a belligerent, and transporting weapons in proximity to combat operations”. (Abu Garda, para 81). The determination of whether a person is directly participating in hostilities requires a case-by-case analysis (Prosecutor v. Abu Garda, para. 83).
   Based on the definition of civilian objects in Article 52(2) of AP I and the ICRC customary law study, the Majority in the ICC Pre-Trial Chamber found that “installations, material, units or vehicles involved in a peacekeeping mission the context of an armed conflict not of an international character shall not be considered military objectives, and thus shall be entitled to the protection given to civilian objects, unless and for such time as their nature, location, purpose or use make an effective contribution to the military action of a party to a conflict and insofar as their total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. (Abu Garda, para 89).
   Given the military structure and organisation of peacekeeping missions it may in fact be  questioned if such personnel should be regarded as civilians taking direct part in hostilities if they become involved in armed conflict. Military personnel organised and commanded by a state or an intergovernmental organisation within a traditional military structure may rather be regarded as members of a military force under command of party to an armed conflict than civilians directly participating in an armed conflict. The former has also the legal effect of a change in status of the personnel in a more permanent manner than the latter where civilians directly participating in hostilities only temporarily.

b) Subjective elements
i. The perpetrator intended such personnel, installations, material, units or vehicles so involved to be the object of the attack
The Majority in the ICC Pre-Trial Chamber found that this subjective element was of similar character to that of the Elements of the Crimes for Articles 8 (2)(b)(i) and 8 (2)(e)(i) dealing with attacks on civilians in both international and non-international armed conflicts. The offence first and foremost encompasses dolus directus of the first degree. The finding of the Majority was also applicable in NIACs. (Abu Garda, para 93)

ii. The perpetrator was aware of the factual circumstances that established the
Protection
The necessary knowledge required by the perpetrator pertains to the facts establishing that the installations, materials, units or vehicles and personnel were involved in a peacekeeping mission but there is no need of legal knowledge regarding their protection.

iii. The perpetrator was aware of factual circumstances that established the existence of an armed conflict
There is no requirement on behalf of the perpetrator to conclude “on the basis of a legal assessment of the said circumstances, that there was an armed conflict”. (Prosecutor v. Abu Garda, para. 96) (RUF, para. 235)

Cross-references:
1. Article 8(2)(b)(iii) 
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford, Oxford University Press, 2002, p. 412.
  2. Michael Cottier, "Attacks on Humanitarian Assistance or Peacekeeping Missions", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 330-338.
  3. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, ICRC/Cambridge University Press, Cambridge, 2003, pp. 453-456.
  4. Ola Engdahl, "Prosecution of Attacks against Peacekeepers in International Courts and Tribunals", Military Law and Law of War Review, vol. 51, 2012, p. 249.
  5. Daniel Frank, "Article 8(2)(b)(iii) - Attacking Personnel or Objects Involved in a Humanitarian Assistance or Peacekeeping Mission", in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Ardsley, New York, 2001, p. 146.
  6. Herman von Hebel/Darryl Robinson, Crimes Within the Jurisdiction of the Court, in Roy S. Lee (Ed.), The International Criminal Court: the Making of the Rome Statute, Kluwer Law International, The Hague, 1999, p. 110.

Author: Ola Engdahl

Updated: 30 June 2016

Article 8(2)(e)(iv)

[128] Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
General remarks

With this Article the drafters of the Rome Statute included a provision criminalizing violations of the rules protecting cultural property, which have been established by international humanitarian law as well as several UNESCO treaties over the years. The purpose of this provision is to specifically criminalize the destruction of cultural property as opposed to civilian property and therefore, it constitutes a lex specialis to Article 8(2)(e)(xii).

Analysis
i. Definition

Pursuant to the ICC Elements of Crime, the following criteria need to be met in order to fulfill the Article at hand: 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.

ii. Requirements
a. Material elements
The object of the offence has to be specially protected. The institutions enlisted in the Rome Statute can be classified into four main categories: cultural objects, places for the collection of those in need (e.g. hospitals), institutions dedicated to religion and others dedicated to education. The ICTY defined ‘cultural objects’ by referring the definition of cultural property in treaty law (e.g. the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict) (Prosecutor v. Strugar, (Case No. IT-01-42), ICTY T. Ch. Judgement of 31 January 2005, para. 230). According to the case law of the ICTY, religious and educational institutions are protected as long as they meet the special requirement of “cultural heritage of people”, meaning “objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people” (Prosecutor v. Martić, (Case No. IT-95-11), ICTY T. Ch. Judgement of 12 June 2007, para. 97). Additionally, these institutions must “clearly be identified as dedicated to religion or education” (Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY T. Ch. Judgement of 3 March 2000, para. 185).
   Furthermore, the object of the offence cannot be a military objective. Military objectives are defined by Article 52(3) Additional Protocol I as objects “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.
   Concerning the nature of the offence the Rome Statute penalizes the directing of attacks against such institutions. The term ‘attack’ is defined in Article 49(1) Additional Protocol I and means “acts of violence against the adversary, whether in offence or in defence”. Hence, the scope of the Article is extremely broad and almost all acts of hostility fall under this provision. Furthermore, no actual damage to the protected institutions is required. In order for the Article at hand to be fulfilled it is sufficient that the attack was directed against the respective protected institution.

b. Mental elements
Additionally to the mental elements concerning the general requirements of war crimes, the perpetrator has to fulfill the mental elements of the underlying offence at hand. Namely, the attack against the protected institutions has to be committed “intentionally”. A controversial issue while drafting the Rome Statute was whether the term “intentionally” was related solely to the directing of an attack or also to the object of the attack. The traxaux préparatoires adopted the latter approach. Therefore, the ICC Elements of the Crime require that the perpetrator must have known about the protected status of the institution. Additionally the perpetrator must have knowledge of the institution’s failure to qualify as a military objective, and nevertheless carry out the attack. However, he does not have to make a legal assessment of the protected status of the institutions. He merely needs to know the factual circumstances, which give the object a special status (see Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY T. Ch. Judgment, 3 March 2000, para. 185).

Cross-references:
1.  Article 8(2)(b)(ix) 
2.  Elements of Crime
3.  Elements Digest
4.  Means of Proof Digest

Doctrine:

  1. Roberta Arnold, "Article 8, Paragraph 2 (b)(ix)", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 375-380.
  2. Gideon Boas et al., International Criminal Law Practitioner Library, Vol. II, Elements of Crime under International Criminal Law, Cambridge University Press, Cambridge, 2008.
  3. Caroline Ehlert, Prosecuting the Destruction of Cultural Property in International Criminal Law, Martinus Nijhoff Publishers, Leiden, 2014.
  4. Micaela Frulli, "The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest of Consistency", European Journal of International Law, vol. 22, 2011, pp. 203-217.
  5. Mireille Hector, "Enhancing individual criminal responsibility for offences involving cultural property – the road to the Rome Statute and the 1999 Second Protocol", in Nout Van Woudenberg/Liesbeth Lijnzaad (Eds.), Protecting Cultural Armed Conflict – An Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Koninklijke Brill, Leiden, 2010, pp. 21-42.
  6. Theodor Meron, "The Protection of Cultural Property in the Event of Armed Conflict within the Case-law of the International Criminal Tribunal for the Former Yugoslavia", Museum International, vol. 57, 2005, pp. 41-59.
  7. Roger O’Keefe, "Protection of Cultural Property under International Criminal Law", Melbourne Journal of International Law, vol. 11, 2010, pp. 1-54.
  8. Rüdiger Wolfrum, "Protection of Cultural Property in Armed Conflict", in Rüdiger Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2008.

Author: Caroline Ehlert

Updated: 30 June 2016

Article 8(2)(e)(v)

[129] (v) Pillaging a town or place, even when taken by assault;
The term "pillage" means appropriation of property for private, personal use and embraces acts of plundering, looting and sacking. There is no substantive difference between appropriation and confiscation. Article 8(2)(b)(xvi) is an identical provision to the present provision, but applies in international armed conflicts. In comparison with Articles 8(2)(a)(iv), 8(2)(b)(xiii) and 8(2)(e)(xii), pillage differs from appropriation and confiscation in regard to the perpetrator's intent to obtain the property for private or personal use.
    In Prosecutor v. Katanga and Chui, the Pre-Trial chamber stated that the "war crime of pillaging under Article 8(2)(b)(xvi) of the Statute requires that the property subject to the offence belongs to an 'enemy' or 'hostile' party to the conflict." [ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07, 30 September 2008, para. 329.]

Cross-references:
1. Articles 8(2)(a)(iv), (8)(2)(b)(xiii), 8(2)(b)(xvi) and 8(2)(e)(xii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, "War Crimes", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 413, 422.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 408-410, 495. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 334-338, MN 986-999.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(vi)-1

[130] (vi) Committing rape,
Rape is considered the most severe form of sexual violence. Sexual violence is a broad term that covers all forms of acts of a sexual nature under coercive circumstances, including rape. The key element that separates rape from other acts is penetration. The Elements of Crime provide a more specific definition of the criminal conduct. Rape falls under the chapeaus of genocide, crimes against humanity or war crimes under specific circumstances, confirmed both through the Rome Statute and through the case law of the ICTR and the ICTY. Rape as a war crime differs from the definition of rape as a crime against humanity only in terms of the context in which the crime is committed. The rape must have been perpetrated in the context of and in association with a non-international armed conflict. In Kunarac, a sufficient nexus to the armed conflict was considered to exist in a situation where combatants took advantage of their positions of military authority to rape individuals, whose displacement was an express goal of the military campaign of which they were part. See Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Case No. IT-96-23 & IT-96-23/1-A), Appeal Judgement, 12 June 2002, paras. 58-59.
   For the mental element of rape Article 30 applies. The perpetrator has to be aware of the factual circumstances that established the existence of an armed conflict. He or she must also have intended to penetrate the victim’s body and be aware that the penetration was by force or threat of force. The definition of rape is the same regarding rape as genocide, crimes against humanity and war crimes, albeit the contextual elements of the chapeaus differ. The actus reus of the violation is found in the Elements of Crimes. The definition focuses on penetration with 1) a sexual organ of any body part, or 2) with the use of an object or any other part of the body of the anal or genital opening of the victim, committed by force or threat or force or coercion. “Any part of the body” under point 1 refers to vaginal, anal and oral penetration with the penis and may also be interpreted as ears, nose and eyes of the victim. Point 2 refers to objects or the use of fingers, hands or tongue of the perpetrator. Coercion may arise through fear of violence, duress, detention, psychological oppression or abuse of power. These situations are provided as examples, apparent through the use of the term “such as”. Consent is automatically vitiated in such situations. The definition is intentionally gender-neutral, indicating that both men and women can be perpetrators or victims. The definition of rape found in the Elements of Crimes is heavily influenced by the legal reasoning in cases regarding rape of the ICTY and the ICTR. Such cases can thus further elucidate the interpretation of the elements of the crime, meanwhile also highlighting different approaches to the main elements of rape, including “force” and “non-consent”. See e.g. Furundzija, in which the Trial Chamber of the ICTY held that force or threat of force constitutes the main element of rape. See Prosecutor v. Furundzija, (Case No. IT-95-17/1-T. 10), ICTY T. Ch, Judgement, 10 December 1998. To the contrary, the latter case of Kunarac emphasized the element of non-consent as the most essential in establishing rape, in that it corresponds to the protection of sexual autonomy. See Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23 and 23/122) ICTY T. Ch, Judgement, 22 February 2001. As to the term “coercion” the ICTR Trial Chamber in Akayesu held that a coercive environment does not require physical force. It also adopted a broad approach to the actus reus, including also the use of objects, an approach that has been embraced also by the ICTY and the ICC [Prosecutor v. Jean-Paul Akayesu, (Case No. ICTR-96-4-T), ICTR T. Ch, Judgement, 2 September 1998, para. 598].
   Rule 63 is of importance which holds that the Court’s Chambers cannot require corroboration to prove any crime within its jurisdiction, particularly crimes of sexual violence. Rule 70 further delineates the possibility of introducing evidence of consent as a defense. This is highly limited, emphasizing that consent cannot be inferred in coercive circumstances. Rule 71 forbids evidence of prior sexual conduct.
   The ICC has in several arrest warrants found reasonable grounds to believe that rape as a war crime within the meaning of Article 8(2)(e)(vi) has been committed. See Second Arrest Warrant against Ntaganda, where the Chamber found reasonable grounds to believe that rape and sexual slavery were committed in different locations in Ituri, The Prosecutor v. Ahmad Harun and Ali Kushayb (Case No. ICC-02/05-01/07), ICC PT. Ch. I, Warrant of Arrest against Ahmad Harun and Ali Kushayb, 27 April 2007; reasonable grounds to believe that Harun, through the direction of the Sudanese Armed Forces and the Janjaweed committed rapes of women and girls. See also Warrant of Arrest against Joseph Kony, (Case No. ICC-02/04-01/05), PT. Ch. II, 27 September 2005; Warrant of Arrest against Vincent Otti, (Case No.ICC-02/04), PT. Ch. II, 8 July 2005, para. 17, Prosecutor v. Sylvestre Mudacumura, Decision on the Prosecutor's Application under Article 58, ICC-01/04-01/12, 13 July 2012, para. 47.

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)
2. Elements of Crime 
3. Elements Digest 
4. Means of Proof Digest 

Doctrine:

  1. Antonio Cassese in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 374-375.
  2. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415-416, 422. 
  3. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 206-211.
  4. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court- Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 431-447.
  5. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496.
  6. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 248-250, 313, MN 723-727; 912-913.
  7. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, New York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vi)-2

[131] sexual slavery,
Sexual slavery is a particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Although it is listed as a separate offence in the Rome Statute, it is regarded as a particular form of enslavement. However, whereas enslavement is solely considered a crime against humanity, sexual slavery may constitute either a war crime or a crime against humanity. It is partly based on the definition of enslavement identified as customary international law by the ICTY in the Kunarac case. See Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23 and 23/1), ICTY T. Ch, Judgement, 22 February 2001,, para. 543. Sexual slavery is thus considered a form of enslavement with a sexual component. Its definition is found in the Elements of Crimes and includes the exercise of any or all of the powers attached 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.” The person should have been made to engage in acts of a sexual nature. The crime also includes forced marriages, domestic servitude or other forced labour that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence. The provision is identical to Article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.
   In Prosecutor v. Katanga and Chui, the Pre-Trial held that "sexual slavery also encompasses situations where women and girls are forced into 'marriage', domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors. Forms of sexual slavery can, for example, be practices such as the detention of women in 'rape camps' or 'comfort stations', forced temporary 'marriages' to soldiers and other practices involving the treatment of women as chattel, and as such, violations of the peremptory norm prohibiting slavery". [Prosecutor v. Katanga and Chui, ICC PT. Ch, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September, para. 431] 
   The SCSL Appeals Chamber in the Brima case has found the abduction and confinement of women to constitute forced marriage. The Chamber concluded that forced marriage was distinct from sexual slavery. Accordingly, “While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the “husband” and “wife”, which could lead to disciplinary consequences for breach of this exclusive arrangement”. See Prosecutor v. Brima, (Case No. SCSL-2004-16-A), SCSL A Ch, Judgment, 22 February 2008, para. 195. In 2012 the Court in a decision on the Charles Taylor case declared its preference for the term ‘forced conjugal slavery’. The Trial Chamber did not find the term “marriage” to be helpful in describing the events that had occurred, in that it did not constitute marriage in the universally understood sense (Prosecutor v. Charles Taylor,(Case No. SCSL-03-01-T), SCSL T. Ch, Judgement, 18 May 2012, para. 427).

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)  
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415, 422.
  2. Machteld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 211-212.
  3. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 441-447. 
  4. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496. 
  5. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 250-251, 313, MN 728; 914-916.
  6. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, New York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vi)-3

[132] enforced prostitution,
The Elements of Crimes requires the 1) causing or a person to engage in acts of a sexual nature 2) by force or threat of force or under coercive circumstances and 3) the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts. Primarily the latter point distinguishes it from sexual slavery. It can also be distinguished in that sexual slavery requires the exercise or any or all of the powers attaching to the rights of ownership. Enforced prostitution could, however, rise to the level of sexual slavery, should the elements of both crimes exist. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act. Enforced prostitution is prohibited in the Geneva Convention IV 1949 as an example of an attack on a woman’s honour and in Additional Protocol I as an outrage upon personal dignity. The provision is identical to  Article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)  
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al.(Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415, 422.
  2. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 212-213.
  3. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 447-448.
  4. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496. 
  5. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 251 313, MN 729-730; 914-916.
  6. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, New York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vi)-4

[133] forced pregnancy, as defined in Article 7, paragraph 2 (f),
Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. Unlawful confinement should be interpreted as any form of deprivation of physical liberty contrary to international law. The deprivation of liberty does not have to be severe and no specific time frame is required. The use of force is not required, but some form of coercion. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. The forcible impregnation may involve rape or other forms of sexual violence of comparable gravity. In addition to the mental requirements in Article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy. The provision is identical to Article 8(2)(b)(xxii)and differs only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)  
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415, 422.
  2. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 213 and 255-256.
  3. Michael Cottier at p. 253, MN 209 in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 448-50.
  4. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496. 
  5. Gerhard WerlePrinciples of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 251-252, 313, MN 731-732; 914-916.
  6. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, New York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vi)-5

[134] enforced sterilization,
Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of article 6(e). It is carried out without the consent of a person. Genuine consent is not given when the victim has been deceived. Enforced sterilization includes depriving a person of their biological reproductive capacity, which is not justified by the medical treatment of the person. It does not include non-permanent birth-control methods. It is not restricted to medical operations but can also include the intentional use of chemicals for this effect. It arguably includes vicious rapes where the reproductive system has been destroyed. The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element Article 30 applies. Enforced sterilization may also fall under the chapeau of genocide if such intent is present. The provision is identical to Article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)  
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 415, 422.
  2. Macheld Boot revised by Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court, Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford, Baden-Baden,2008, pp. 213-214.
  3. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminl Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 451. 
  4. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Crminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496. 
  5. Gerhard Werle, Principles of International Criminl Law, T.M.C Asser Press, The Hague, 2009, pp. 252, 313, MN 733; 914-916.
  6. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, New York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vi)-6

[135] and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions;
The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in Article 8(2)(e)(vi). It concerns acts of a sexual nature against a person through the use of force or threat of force or coercion. The importance of distinguishing the different forms of sexual violence primarily lies in the level of harm to which the victim is subjected and the degree of severity, and therefore becomes a matter of sentencing. Common Article 3 is considered part of customary international law.
   It is generally held to include forced nudity, forced masturbation or forced touching of the body. The ICTR in Akayesu held that “sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact…”. See Prosecutor v. Jean-Paul Akayesu, I(Case No. CTR-96-4-T), iICTR T. Ch, Judgement, 2 September 1998, para. 688. The Trial Chamber in the case confirmed that forced public nudity was an example of sexual violence within its jurisdiction. See para. 10 A. Similarly, the Trial Chamber of the ICTY in its Kvocka decision declared: “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation, and also covers sexual acts that do not involve physical contact, such as forced public nudity. See Prosecutor v. Miroslav Kvocka, (Case No. IT-98-30/1-T), ICTY T. Ch, Judgement, 2 November 2001, para. 180. To the contrary, in the decision on the Prosecutor’s application for a warrant of arrest in the Bemba case, the Pre-Trial Chamber of the ICC did not include a charge of sexual violence as a crime against humanity in the arrest warrant, which had been based on allegations that the troops in question had forced women to undress in public in order to humiliate them, stating that “the facts submitted by the Prosecutor do not constitute other forms of sexual violence of comparable gravity to the other forms of sexual violence set forth in Article 7(1)(g)”. See Prosecutor v. Jena-Pierre Bemb Gombo, ICC PT. Ch. I, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 10 June 2008, para. 40. In the Lubanga case of the ICC, evidence of sexual violence was presented during the trial, including various forms of sexual abuse of girl soldiers who were forcefully conscripted. However, no charges of sexual violence were brought. The Prosecution rather encouraged the Trial Chamber to consider evidence of sexual violence as an integral element of the recruitment and use of child soldiers. In the confirmation of charges in the Muthaura and Kenyatta case, Pre-Trial Chamber II chose not to charge forced male circumcision and penile amputation as sexual violence, but rather as inhumane acts. The Chamber held that “the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation. Instead, it appears from the evidence that the acts were motivated by ethnic prejudice…" It argued that “not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence”. See para. 265.

Cross-references:
1. Articles 7(1)(g) and 8(2)(b)(xxii)  
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 41-416, 422.
  2. Macheld Boot revised by christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 214-215.  
  3. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International CriminalCourt -Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 451-454. 
  4. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 495-496. 
  5. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 252-253, 313, MN 734; 914-916.
  6. Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence, Intersentia, Nw York, 2005, pp. 202-220.

Author: Maria Sjöholm

Updated: 30 June 2016

Article 8(2)(e)(vii)

[136] (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
General Remarks
Article 8(2)(e)(vii) concerns the conscription, recruitment or use of children younger than fifteen years of age, in the context of an internal conflict. The crime also appears in Article 8(2)(b)(xxvi) to cover the same crime in the context of an international conflict.

Preparatory Works
As the practice of child soldier recruitment/conscription/use had not been previously expressly recognised as criminalised, its inclusion was naturally a controversial point of debate during Statute negotiations.  The United States in particular was against the inclusion of the crime, arguing that it was not a crime under customary international law and represented an area of legislative action ‘outside the purview of the Conference’ [Committee of the Whole Meeting Records, 4th meeting (Wednesday, 17 June 1998), 54]. However, agreement on inclusion was eventually reached due to its position as a well-established treaty law provision [Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c) and Convention on the Rights of the Child, Article 38(3). In 2002 the crime was included as a serious violation of international humanitarian law in Article 4(c) of the Statute of the Special Court for Sierra Leone [Statute of the Special Court for Sierra Leone, UN Doc. S/2002/246]. In a split decision in May 2004, the Special Court held that the provision was already customary international law prior to the adoption of the Rome Statute in 1998; that is to say that the Statute codified an existing customary norm rather than forming a new one (Prosecutor v. Sam Hinga Norman, Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-04-14-AR72, 31 May 2004).

Analysis
i. Definition
According to Article 8(2)(b)(xxvi) the crime has three components: recruitment, conscription or use. This is in contrast to both Additional Protocol I and Article 38 of the Convention on the Rights of the Child, which make reference to the singular act of ‘recruiting’. The Elements of Crime provide further:

  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.

   The perpetrator was aware of factual circumstances that established the existence of an armed conflict.The Pre-Trial Chamber in Prosecutor v. Thomas Lubanga determined that the term ‘conscripting’ refers to a forcible act, ‘enlisting’ encompasses a ‘voluntary’ decision to join a military force, and the act of ‘enlisting’ includes ‘any conduct accepting the child as part of the militia’.. (Prosecutor v. Thomas Dyilo Lubanga, ICC PT. Ch, Decision on the Confirmation of Charges, ICC-01/04-01/06, 29 January 2007).

ii. Consent of the child as a mitigating factor
While alleged voluntariness may be negated by force or intimidation, the consent of the child creates the legal characterisation of the conduct as enlistment rather than conscription. Consent is therefore not irrelevant, but nonetheless places the admission of a child to the armed forces firmly within the realm of Article 8 regardless of the means of admission. The specific mode of admission, whether ‘the result of governmental policy, individual initiative or acquiescence in demands to enlist’ [Happold, p. 8] is, for the most part irrelevant. Happold suggests that this distinction between the means of committing the material element of this crime may become pertinent during sentencing [Happold p. 12]. In its judgment in Prosecutor v. Thomas Lubanga Dyilo the ICC Trial Chamber intimated that it would follow this path when determining the sentence, but found no aggravating factors when delivering the sentencing order on 10 July 2012, instead finding that the factors that are relevant for determining the gravity of the crime cannot additionally be taken into account as aggravating circumstances. (Prosecutor v. Thomas Lubanga, ICC T. Ch. I, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 617; Prosecutor v. Thomas Lubanga, Sentencing Order, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 78 and 96).

iii. Continuing crime
There are a number of different ways in which these two concepts are interrelated or occur concurrently in the context of the crime. Conscription and enlistment can be viewed as continuing crimes that begin from the moment a child joins an armed group and end upon demobilisation or attainment of 15 years of age, with all intermittent time additionally constituting ‘use’. This is therefore a continuing crime: a state of affairs where a crime has been committed and then maintained.  The crime is committed from the moment that a child is entered into the armed forces, through enlistment or conscription, and continues for as long as that child remains a ‘child soldier’, ending either through demobilisation or the attainment of 15 years of age. This places liability on the person who recruited the child, whether by enlisting or conscripting, regardless of whether they were involved in the use of the child in an armed conflict. The act of recruitment triggers responsibility for all subsequent use, even if by other commanders. An alternative interpretation is that the crime is not a composite one, as it is capable of being committed by either the initial conscription or enlistment step, or through the subsequent ‘use’ of the given child, and not necessarily through demonstrating a combination of the two. This expands the liability for the crime to incorporate not just the person who actually undertakes the recruitment process of a given child, but also includes others who later use the child for military purposes.

iii. Requirements
In addition to the contextual elements required for all war crimes of an international nature set out in elements 4 and 5 of the above-listed Elements of Crimes, the following needs to be proven:

a. Material elements
The first two elements listed above set out the material elements of child soldier conscription/enlistment/use.

  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.

The war crimes established by the Rome Statute are limited to the conscription or enlistment and use of children under the age of fifteen years. However, the acts of ‘conscription’ and ‘enlistment’ are not defined in the Statute, nor in the Elements of Crimes, leaving elaboration to judicial interpretation. The Pre-Trial Chamber, (Prosecutor v. Lubanga, ICC PT. Ch, Decision on the Confirmation of Charges, ICC-01/04-01/06, 29 January 2007) determined that the term ‘conscripting’ refers to a forcible act, whereas ‘enlisting’ encompasses a ‘voluntary’ decision to join a military force (Lubanga, Decision on the confirmation of charges, paras. 246–247). The act of ‘enlisting’ includes ‘any conduct accepting the child as part of the militia’ (Lubanga, Decision on the Confirmation of Charges, para. 114). While alleged voluntariness may be negated by force or intimidation, the consent of the child creates the legal characterisation of the conduct as enlistment rather than conscription. Consent is therefore not irrelevant, but nonetheless places the admission of a child to the armed forces firmly within the realm of Article 8 regardless of the means of admission.
   Finally, Participation by combatant and non-combatant children are covered equally by the Rome Statute due to its use of the term ‘participate actively’. However, their participation must be within the context of an armed conflict. The Elements of Crime require that the participation be conduct ‘associated with an armed conflict’, while the travaux préparatoires  noted above specifies that participation in the armed confrontations is not necessary, but a link to combat is required [U.N. Doc. A/CONF.183/2/Add.1, (14 April 1998)].

b. Mental elements
The perpetrator knew or should have known that such person or persons were under the age of 15 years.

While Article 30(3) provides that a perpetrator must have had positive knowledge of the child’s age, the Elements of Crimes merely require that he ‘knew or should have known’ that the child was under fifteen. In Lubanga it was determined that the Elements of Crimes provides for situations where the perpetrator fails to possess knowledge of the given child’s age due to a failure to exercise due diligence in the circumstances (Prosecutor v. Lubanga Decision on the Confirmation of Charges, para. 348). Therefore, the Pre-Trial Chamber considered this element of negligence to be an exception to the ‘intent and knowledge’ standard provided in Article 30(1).

Cross-references:
1. Article 8(2)(b)(xxvi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Julie McBride, The War Crime of Child Soldier Recruitment, Springer, New York, 2013.
  2. Matthew Happold, "Child Recruitment as a Crime under the Rome Statute of the International Criminal Court", in Doria et al. (Eds.) The Legal Regime of the International Criminal Court: Essays in Memory of Igor Blischenko, Brill, Leiden, 2009.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009.

Author: Julie McBride

Updated: 30 June 2016

Article 8(2)(e)(viii)

[137] (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
Article 8(2)(e)(viii), parallel to Article 8(2)(b)(viii), prohibits the displacement of the civilian population in the context of a non-international armed conflict, unless the security of the civilians involved or imperative military reasons so demand. This conduct is prohibited under the same terms in Article 17 Additional Protocol II and reflects customary international humanitarian law [Rule 129 of the ICRC Study, see also Henckaerts and Doswald-Beck, 2005].
    The ICC Elements of Crimes clarify that to prove the war crime of displacing a civilian population it is necessary that 1. the perpetrator ordered a displacement of a civilian population; 2. such an 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 and was associated with a non-international armed conflict; and 5. the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
    The term “displacement” shall be interpreted in light of international humanitarian law as to include the evacuation of the civilian population both within and outside the national territory. Article 17(2) AP II proscribes the displacement of civilians outside their national territory.
    Differently from the wording used in the Rome Statute, the Elements of  Crimes refer to the displacement of  “a civilian population” as opposed to “the civilian population”. This discrepancy shall be construed as to criminalize conducts of displacement of civilians not necessarily involving the whole civilian population [on the point, cf. Dörmann, 2003, p. 473].
    However, the number of civilians involved in the displacement shall exceed individual occurrences. This results from the systemic reading of the Elements of Crimes where, e.g., Article 8(2)(a)(vii) refers to “one or more persons” as opposed to “a civilian population” [cf. Dörmann, 2003, p. 472]. Arguably, since the letter of Article 8(2)(e)(vii) does not resort to the same expression, only the civilian population and not individual civilians shall be affected by the displacement in order for the conduct to fall under the scope of the provision. This proposition finds support in the travaux préparatoires to the Rome Statute where the expression “civilian population” was deliberately chosen against the “one or more civilians” as the drafters considered the displacement of one civilian to be insufficient to constitute the war crime of displacement of civilians [Dörmann, 2003, p. 472].
   A salient issue which has been recently elucidated by the ICC case law relates to the existence of an actual order to displace a civilian population as a constitutive element of the war crime under Article 8(2)(e)(viii). In the case Prosecutor v. Bosco Ntaganda, the Pre-Trial Chamber has clarified what follows:

the conduct by which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an order, as referred to in element 1 of the relevant Elements of Crimes. The Chamber considers that, should this not be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted. This is specifically reflected in the general introduction to the Elements of Crimes, which states that “[t]he elements […] apply ‘mutatis mutandis’ to all those whose criminal responsibility may fall under Articles 25 and 28 of the Statute”. [Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, para. 64].

Nothing in the Elements of Crimes indicates the nature of the position which the alleged perpetrator has to cover in order to effect the displacement of civilians under Article 8(2)(e)(viii). Yet, the wording “to effect the displacement” seems to privilege a de facto appraisal of such a position. Therefore, both de jure and de facto positions can be reasonably contemplated under the terms of the provision. This finds support in the pronouncement of the Pre-Trial Chamber in the case Prosecutor v. Bosco Ntaganda [Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, para. 68] stating “(…) the means used (…) and the modus operandi show that the UPC/FPLC soldiers were in a position to displace civilians, as further demonstrated by the large number of civilians who were in fact displaced”.
   Article 8(2)(e)(viii) admits the displacement of a civilian population for reasons connected to the conflict only in two exceptional circumstances: 1. When the security of the civilians involved so demands, (e.g. when the civilians are located in areas likely to be subjected to bombings; 2. When imperative military reasons so demand, where the term “imperative” imposes a restrictive interpretation of this exception [Dörmann, 2003, pp. 474-475].

Cross-references:
1. Articles 7(1)(d), 8(2)(a)(vii) and 8(2)(b)(viii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court – Sources and Commentary, Cambridge University Press, Cambridge, 2003.
  2. Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, ICRC, Cambridge University Press, 2005, reprint 2009.

Author: Letizia Lo Giacco

Updated: 30 June 2016

Article 8(2)(e)(ix)

[138] (ix) Killing or wounding treacherously a combatant adversary;
Treachery, also synonymous with perfidy, involves a breach of good faith of the combatant adversaries. In practice, it is typically cases in which the accused in deception claims a right to protection for him or herself, and uses this for his or her advantage in the combat. It includes:
- pretending to be a civilian;
- fake use of a flag of truce, the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions;
- fake use of of the protective emblem of cultural property;
- fake use of other internationally recognized protective emblems, signs or signals; 
- pretending to surrender;
- pretending to be incapacitated by wounds or sickness;
- pretending to belong to the enemy by the use of their signs;
The provision is simliar, but not identical to Article 8(2)(b)(xi). The prohibition on prefidy in the present only extends to "combatant adversaries", while Article 8(2)(b)(xi) also prohibits the killing and wounding of civilians. The use of the notion "combatant adversary" should be distinguished from "enemy combatants", indicating that there is notion "combatant" is not applicable in internal armed conflicts. Perfidious acts are only punishable if the perpetrator intentionally killed or wounded an adversary.

Cross-references:
1. Article 8(2)(b)(vii) and 8(2)(b)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 405 and 421.
  2. Michael Cottier, pp. 383-390 and Andreas Zimmerman, pp. 498-499, in Otto Triffterer (Ed.) Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 354-357, MN 1054-1060.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(x)

[139] (x) Declaring that no quarter will be given;
The offence covers "take no prisoners" warfare. The material element will typically be fulfilled by a declaration that any surrender by the enemy shall be refused even if it is reasonable to accept. In addition to declarations, the provision should be including order and threats that no quarter shall be refused. Combatant adversaries are not required to provide the enemy with the opportunity to surrender.

Cross-references:
1. Article 8(2)(b)(vi) and 8(2)(b)(xii)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al.(Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 421.
  2. Michael Cottier, pp. 391-395 and Andreas Zimmerman, p. 499, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C Asser Press, The Hague, 2009, pp. 360-362, MN 1074-1079.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xi)-1

[140] (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation
The term "physical mutilation" cover acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not an excusable defence.

Cross-references:
1. Articles 8(2)(b)(x) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 422.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 499. 
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 307-308, MN 895-897.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xi)-2

[141] or to medical or scientific experiments
The prohibition of medical or scientific experiments cover the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Cross-references:
1. Article 8(2)(a)(ii) and 8(2)(e)(xi)
2. Elements of Crime
3. Elements Digest
4. Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 422.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 383, 499.
  3. Gerhard Werle, Principles of International Criminal Court, T.M.C. Asser Press, The Hague, 2009, pp. 308-310, MN 898-902.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xi)-3

[142] of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
The acts in Article 8(2)(e)(xi) can only be justified if undertaken in the interest of the person concerned, for example amputations may be lawful if performed to save the live or overall health of the patient. Any physical mutilation or unwarranted medical or scientific experiments undertaken of either governmental authorities or on non-state groups are covered by Article 8(2)(e)(xi).

Cross-references:
Articles 8(2)(b)(x)

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 422.
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 382-383, 499.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C Asser Press, The Hague, 2009, pp. 308-310, MN 898-902.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xii)

[143] (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
This provision is parallel, mutatis mutandis, to Article 8(2)(b)(xiii) Rome Statute and reflects customary international humanitarian law [Rule 50 ICRC Study, see also Henckaerts and Doswald-Beck, 2005].
   The ICC Elements of Crimes set out the constitutive elements of the war crime of destroying or seizing the enemy’s property: 1. The perpetrator destroyed or seized certain property; 2. such a property was of an adversary; 3. such property was protected from the 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; the destruction of the property was not required by military necessity; 5. the conduct took place in the context 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) has been invoked as ground of charges against, inter alios, Callixte Mbarushimana, [Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011] and Bosco Ntaganda [Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, para. 72 ff.]. Likewise, the crime of destruction of enemy’s property has been imputed to German Katanga and Mathieu Ngudjolo Chui under Article 8(2)(b)(xiii). Such a legal basis was subsequently modified into Article 8(2)(e)(xii) after the re-qualification of the conflict from international to non-international.
   In the judgment in the case Prosecutor v. Katanga [Prosecutor v. Germain Katanga, ICC T. Ch. II, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 889 ff.], the Trial Chamber clarified the scope of Article 8(2)(e)(xii) stating that “rien n’indique que les éléments constitutifs du crime visé à l’Article 8-2-e-xii sont différents de ceux du crime de destruction des biens de l’ennemi commis dans le cadre d’un conflit armé international et visé à  l’Article 8-2-b-xiii” [para. 889]. Such a statement is supported by authoritative doctrine [see Dörmann, pp. 485-486]. Based on this, the analysis of Article 8(2)(e)(xii) may occur by analogy with Article 8(2)(b)(xiii) Rome Statute.
   The provision criminalizes the destruction or seizure of enemy’s property protected by the law of armed conflicts. There exists a plurality of ways in which the destruction of property may be carried out. The Trial Chamber has exemplified some of them, namely, “par des acts tels que l’incendie, le démantèlement ou toute autre forme de dégradation de biens” [Prosecutor v. Katanga, T. Ch. II, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 891], concluding that property heavily damaged can be assimilated to partly destroyed property and can thus fall under the terms of Article 8(2)(e)(xii) [Prosecutor v. Katanga, T. Ch. II, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436,  March 2014, para. 891]. In the case Prosecutor v. Bosco Ntaganda, the Pre-Trial Chamber confirmed the charge of destruction of property against the defendant for having destroyed houses, buildings and other permanent structures, set on fire houses or removed their metal roofs, destroyed fields, destroyed and burned villages [Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, paras 72-73]. Similarly, destruction of property may occur by “setting fire to, pulling down, or otherwise damaging the adversaries’ property” [Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 171].
   As to the “seizure” of property, neither the ICC Statute nor the Elements of Crimes help clarify the meaning of the term. According to the ICRC Commentary, seizure is to be distinguished from requisition because the former relates to public property and is a temporary sequestration followed by restitution and indemnity; the latter affects private property and consists in a passage of ownership [Pictet, 1958, p. 296]. However, this point remains debated in literature and unclarified by the ICC case law [for a recollection of relevant positions, cf. Dörmann, 2003, pp. 256-257].
   The notion of property is quiet broad. It includes property of natural and legal persons, moveable and immoveable, public and private, provided that they are of the adverse party [Prosecutor v. Katanga, Jugement, para. 892]. The Trial Chamber has shed light of the meaning of adverse, notably, “alliées ou faisant allégeance à une partie au conflit opposéee ou hostile à l’auteur du crime” [in Katanga Judgment, para. 892]. Such an adverse character can be established by virtue of the ethnic origin of the persons whose property has been destroyed (or partly destroyed) or seized or based on their place of residence [Prosecutor v. Katanga, Jugement, para. 892].
   Article 8(2)(e)(xii) applies to individual acts of destruction or seizure of enemy’s property which are protected by the law of armed conflict and does not require any element of extensiveness as opposed to Article 8(2)(a)(iv)) [“Extensive destruction and appropriation of property (…) carried out unlawfully and wantonly].
   The destruction of enemy property does not constitute a crime under the terms of the Statute if such a destruction was “imperatively demanded by the necessities of the conflict”. Such an expression has been regarded as substantively equivalent to “military necessity” and interpreted in line with the ICTY case law [Prosecutor v. Katanga, T. Ch. II, Jugement rendu en application de l’Article 74  du Statut, ICC-01/04-01/07-3436,  March 2014, para. 894]. Military necessity is therefore meant as “nécessité de measures indispensables pour attaindre les buts de guerre, et légales selon les lois et coutumes de la guerre” [Lieber Code, Article 14, cited in Prosecutor v. Katanga, T. Ch. II, Jugement rendu en application de l’Article 74  du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 894].

Cross-references:
1. Articles 8(2)(a)(iv), (8)(2)(b)(xiii), 8(2)(b)(xvi) and 8(2)(e)(v)
2. Elements of Crime
2. Elements Digest
3. Means of Proof Digest

Doctrine:

  1. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court – Sources and Commentary, Cambridge University Press, Cambridge, 2003.
  2. Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, ICRC, Cambridge University Press, 2005, reprint 2009.
  3. Jean Pictet, Commentary to I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1958.

Author: Letizia Lo Giacco

Updated: 30 June 2016

Article 8(2)(e)(xiii)

[144] (xiii) Employing poison or poisoned weapons;
This offence could for example include the poisoning of water supplies. The production and storage of poison is not prohibited. There is no agreement whether the prohibition on the use of poison covers poison gas. Article 8(2)(b)(xvii) is an identical provision to the present provision, but applies in international armed conflicts.
   The provision does not prohibit chemical and biological weapons of mass destruction. This may be explained the lack of agreement on the prohibition on of nuclear weapons and a following compromise during the Rome conference, with the result that weapons of mass destruction are not subject to an explicit and binding provision in the Rome Statute.

Cross-references:
1.  Article 8(2)(b)(xvii), 8(2)(b)(xviii) and 8(2)(b)(xx)
2.  Elements of Crime
3.  ICC Case Matrix Elements Digest
4.  ICC Case Matrix Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 406.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 413-414.  
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 369-372, MN 1100-1106.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xiv)

[145] (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
The wording of the present provision is basically identical the Geneva Protocol of 17 June 1925 for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare. Article 8(2)(b)(xviii) is also an identical provision to the present provision, but applies in international armed conflicts.
    It is generally understood that the wording "asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices" in the 1925 Geneva Protocol includes chemical weapons which nullifies the compromise mentioned in the previous commentary (Article 8(2)(e)(xiv)). Even though biological weapons are covered by the Geneva Protocol of 17 June 1925, it is doubtful that the present provision covers these weapons. This is supported by the fact that the relevant passage on biological weapons in the Geneva Protocol of 17 June 1925 was not included in Article 8(2)(b)(xvii).

Cross-references:
1.  Article 8(2)(b)(xvii) and 8(2)(b)(xviii) 
2.  Elements of Crime
3.  ICC Case Matrix Elements Digest
4.  ICC Case Matrix Means of Proof Digest

Doctrine:

  1. Michael Cottier, in Otto Triffterer(Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 414-420.  
  2. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 372-373, MN 1107-1110.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(e)(xv)

[146] (xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.
The "dum-dum" bullet is type of bullet covered by the present provision, as well as customary law. The prohibition equally applies to standard bullets converted on the battlefield by piercing them with incisions, as well as to other types of bullets which expand or flatten easily in the human body. Article 8(2)(b)(xix) is an identical provision to the present provision, but applies in international armed conflicts.

Cross-references:
1.  Article 8(2)(b)(xix)
2.  Elements of Crime
3.  ICC Case Matrix Elements Digest
4.  ICC Case Matrix Means of Proof Digest

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2008, p. 408.
  2. Michael Cottier, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 420-423.
  3. Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press, The Hague, 2009, pp. 373-374, MN 1111-1113.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8(2)(f)

[147] (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
General Remarks

Subparagraph (f) is an express limitation to the scope of application of subparagraph (e) that enumerates crimes committed in a non-international armed conflict (Prosecutor v. Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 225). It is undoubtedly the most discussed Article in academic literature as:

(1) It conveys the impression that there are two types of non-international armed conflicts under the ICC Statute, Article 8(2)(c) conflicts as limited by subparagraph (d) and Article 8(2)(e) conflicts as limited by subparagraph (f).
(2) It appears to adopt the Tadić jurisprudence (Prosecutor v. Tadić, (Case No. IT-94-1-AR72), ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70) though with a difference in the wording.

Analysis
Article 8(2)(f) states that “Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”.

i) Scope of Application
Article 8(2)(f) limits the application of subparagraph (e) by first providing a minimum threshold of applicability and secondly spelling out the requirements for a conflict to be characterised as an armed conflict of a non-international nature. The first sentence is identical to that expressed in subparagraph (d) and has been interpreted in the same way (Prosecutor v. Katanga, ICC Tr. Ch. II, Judgment rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436, 7 March 2014, paras  1187 and 1216; Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, ICC-01/04-01/06, 14 March 2012, para. 538; Prosecutor v. Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 138).
   The second sentence was initially considered by the Court as adducing an additional requirement (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 235), raising the threshold of a non-international armed conflict. Yet, later case-law suggests that this was not the case and there was only one type of non-international armed conflict (see Commentaries on subparagraph (c) and (e)). Yet, recent case-law reverts to the idea that there are two thresholds,  clarifying that because of the way 'protracted' is defined this criterion is almost always fulfilled when the requirements for (c) are met (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 138-139).

   Subparagraph (f) second sentence requires:
- the armed conflict to take place between governmental authorities and organised armed groups or between such groups (see Commentary on subparagraph (e)); and
- the armed conflict to be protracted (see also Lubanga, ICC T. Ch. I, Judgment, ICC-0/04-01/06, 14 March 2012, para. 536; Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 138-140). Whilst in subparagraph (f) it is the armed conflict that needs to be protracted, in the ICTY case-law it is the violence that must be protracted (Tadić, ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70). The temporal connotation of "protracted" as often been overlooked (as acknowledged by the ICTY in Prosecutor v. Boškoski and Tarčulovski, (Case No IT-04-82-T), T. Ch. Judgement, 10 July 2008, para. 186); yet, it is implied in two separate, though related contexts:

(1) Linked to the requirement that the conflict be of a certain intensity. The Trial Chamber in Bemba explains that whilst the concept of "protracted armed conflict" has not been expressly addressed in the case-law it features as part of the assessment of the intensity of the conflict (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 139). Indeed when discussing the intensity requirement, the Court examines the length of the conflict as one (i.e. “the spread [of attacks] […] over a period of time” (Lubanga, ICC T. Ch. I, Judgment, ICC-0/04-01/06, 14 March 2012, para. 538) of many other elements. It has found that hostilities covering a period of four and a half months (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, paras. 663), five months (Bemba, ICC PT. Ch. II, 15 June 2009, paras 235 and 255), seven months (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803, 29 January 2007, paras 236-327), 12 months (Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red,16 December 2011, para. 107), 16 months (Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, para. 33) and 17 months (Katanga, ICC Tr. Ch. II, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 1217) are protracted but this may not solely be due to the length of the conflict. Other factors play a role in deciding whether the conflict has reached the required intensity (see Commentary on subparagraph (e)).

(2) Linked to the requirement that the armed group be organised: Directly referring to the adjective “protracted” in subparagraph (f) the ICC explains that the organised armed group must “have the ability to plan and carry out military operations for a prolonged period of time” (Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-0106-803, 29 January 2007, para. 234 (emphasis added); Mbarushimana, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 103; see also Katanga, ICC Tr. Ch., Judgment rendu en application de l’Article 74  du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 1185; Lubanga, ICC T. Ch. I, Judgement, ICC-0/04-01/06, 14 March 2012, para. 536). This interpretation is based on Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts that requires the dissident armed forces to be able “to carry out sustained and concerted military operations”, albeit decoupled from the requirement of territorial control, and the Tadić definition of an armed conflict (Tadić, ICTY A. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70). It must be added that the words “prolonged” and “protracted” have both been translated into French as “prolongé” but do not seem to have been given a specific temporal connotation. 

The Court has specifically mentioned that there is no requirement under the ICC Statute for the armed group “to exert control over a part of the territory” (Bemba, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 236; Lubanga, ICC T. Ch. I, Judgment, ICC-0/04-01/06, 14 March 2012, para. 536; Katanga, ICC Tr. Ch. II, Judgment rendu en application de l’Article 74  du Statut, ICC-01/04-01/07-3436, 7 March 2014, para. 1186). As noted by the Court itself (Bemba, ICC PT. Ch. II, ICC-01/05-01/08-44, 15 June 2009, para. 236; Lubanga, ICC T. Ch. I, Judgment, ICC-0/04-01/06, 14 March 2012, para. 536) this clearly departs from Article 1(1) AP II. That being said, territorial control is sometimes mentioned (e.g. Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, para. 34) but as an element of the degree of the intensity of the conflict (Prosecutor v. Ahmad Al Faqi Ali Mahdi, ICC T. Ch. VIII, Judgment, ICC-01/12-01/15, 27 September 2016, para. 49). Likewise, the Court has specified that there is no express need for the organised armed group to be under responsible command (Lubanga, ICC T. Ch. I, Judgment, ICC-0/04-01/06, 14 March 2012, para. 536) as it is only one of the elements to to determine whether the group is organised (Bemba, ICC T. Ch. III, Judgment, ICC-01/05-01/08, 21 March 2016, para. 136).

Cross-reference:
Article 8(2)(d)

Doctrine:

  1. Dapo Akande, "Classification of Armed Conflicts: Relevant Legal Concepts", in Elizabeth Wilmhurst (Ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, PP. 32-79.
  2. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 417-418.
  3. Antonio Cassese et al. (Eds.) International Criminal Law, Third Edition, Oxford University Press, Oxford, 2013, pp. 62-83.
  4. Cryer et al. (Eds.), An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, pp. 264-284.
  5. Anthony Cullen, "War Crimes", in William Schabas/Nadia Bernaz, Routledge Handbook of International Criminal Law, Routledge, London, 2011, pp. 139-154.
  6. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, pp. 82-393.
  7. Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2014, pp. 279-285.
  8. William Schabas, An Introduction to the International Criminal Court, 4th edition, Cambridge University Press, Cambridge, 2011, pp. 142-144.
  9. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 188-257.
  10. Sandesh Sivakumaran, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2014, pp. 192-195.
  11. Sylvain Vité, "Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations", International Review of the Red Cross, vol. 91, 2009, pp. 69-94.
  12. Andreas Zimmermann, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 475-478.

Author:
Noëlle Quénivet

Updated:
23 March 2017

Article 8(3)

[148] 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
Paragraph 3 is a saving clause taken from Article 3(1) of the second additional protocol. The provision may justify legitimate actions taken on behalf of the Government of a State in which an internal armed conflict is taking place and its armed forces, but not actions taken by non-state groups. The reference to "legitimate means" should be interpretated in a way that the saving clause does not destroy the object and purpose of sub-paragraphs 2(c) and (e).

Doctrine:

  1. Michael Bothe, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 423-424. 
  2. Andreas Zimmerman, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 502-503.

Author: Mark Klamberg

Updated: 30 June 2016

Article 8 bis

[149] Crime of aggression
General remarks
The crime of aggression criminalizes the planning, preparation, initiation and execution of aggressive use of force from one State against another. The crime of aggression is a leadership crime, requiring the perpetrator to have been in a powerful position in the State that committed the act of aggression. Unlike other crimes in the Rome Statute, it is without application to leaders of non-state groups. The Court will exercise jurisdiction of the crime of aggression in accordance with Articles 15 bis and 15 ter. The definition of aggression in this Article is based largely on the Definition of Aggression annexed to United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974.

Preparatory Works
The crime of aggression has been listed as a crime under Article 5 of the Rome Statute since 1998, however the Court’s jurisdiction over the crime was made dependent on the Assembly of State Parties (ASP) agreeing on a definition in accordance with the now deleted Article 5(2). In 2002 the ASP decided to establish a Special Working Group on the Crime of Aggression (SWGCA), which was to submit proposed provisions to a future Review Conference [Resolution on Continuity of Work in Respect of the Crime of Aggression, 2002]. The SWGCA draft amendments were the starting point for the discussions at the Kampala Review Conference in 2010, where Articles 8 bis, 15 bis, 15 ter and 25 (3) bis were adopted.
   The main areas of controversy for the SWGCA, and later for the Review Conference, were the definition of ‘an act of aggression’; the individual conduct within the act; and the exercise of jurisdiction. The first two sets of issues are covered by this Article, whereas the question of jurisdiction is dealt with under Articles 15 bis and 15 ter.
   The challenge for the SWGCA when defining ‘act of aggression’ for the purpose of the ICC Statute was to find a definition inclusive enough to be effective, but narrow enough to exclude potentially justifiable uses of force. It was also considered as important that it should remain close to the definition under customary international law.
   Acts of aggression have long been held to be grave violations of the prohibition of the use of force as regulated in Article 2(4) of the UN Charter. While it has been agreed that not all acts prohibited by Article 2(4) constitute aggression, it has proven difficult to draw the line between aggression and ‘mere uses of force’. This has not been made easier by the uncertainty surrounding the scope and definition of prohibition of the use of force and its exceptions. However, despite significant disagreements, there are some uses of force that lie outside of this sphere of uncertainty and it has been possible to reach at least some agreement on how to define 'act of aggression'.
   In 1974, the General Assembly unanimously agreed on the definition of aggression annexed to Resolution 3314 (XXIX) of 14 December 1974 (hereafter ‘3314 Definition’), which sought to define aggression for the purposes of determinations by the Security Council under Chapter VII of the UN Charter. While most agreed that the 3314 Definition was the most effective starting point for finding a definition of aggression for the purpose of this Statute, it was held to be problematic since it was written for the determination of State acts rather than for individual criminal responsibility. The use of the 3314 Definition as a starting point was further questioned due to its ambiguity and questionable status as customary international law. Despite suggestions to find a generic definition in customary international law on the crime of aggression, or to leave for the Security Council to determine whether an act of aggression had been committed, the solution was to keep the core Articles of the 3314 Definition in Article 8 bis (2) and to contextualize the definition for the purpose of the ICC Statute [Barriga, 2012, 18-20].
   The second set of issues for the SWGCA to consider was the individual elements of the crime. As an act of aggression generally is committed by a collective, it is essential to have tools to ascertain that every person is treated fairly in relation to his or her individual conduct. To agree on the individual elements proved to be less difficult than agreeing on a definition of ‘act of aggression’, partly because the customary crime of aggression here could provide more guidance. The requirements for a perpetrator to have been involved in 'the planning, preparation, initiation or execution' of the act was based on Article 6a of the Charter of the International Military Tribunal in Nuremberg with ‘execution’ being held to be a modern synonym of ‘waging’. Still, there was some discussion on the level of influence that the leader needed to have over the acts of the State to be in a position to commit a crime of aggression. The crime of aggression has historically been a leadership crime, and with few exceptions it was also widely held in the negotiations that its application should be limited to leaders of States, rather than of non-State entities such as armed rebel groups [Kress and Holtzendorff, 2010, p. 1090]. While the majority promoted the now adopted ‘control or direct’ test, some favored the broader ‘power to shape or influence’ test which was held to be more consistent with the customary definition of the crime of aggression [Heller, 2007, p. 479].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Crime of aggression

[150] C. Analysis of provision and sub-provisions 
1. For the purpose of this Statute, “crime of aggression”
Article 8 bis (1) is to be read together with Article 8 bis (2), which defines ‘act of aggression’ for the purpose of this Statute.
   The first paragraph aims to define the role that a person played in the act of aggression and the level of power he or she had within the State. The wording in Article 8 bis (1) reflects that a perpetrator does not have to take part of the whole process from beginning to end, but rather he or she needs to have planned, prepared, initiated or executed the act. The conduct verbs are taken directly from the London Charter’s Article 6(a), as well as from the ICL Draft Code on Crimes against the Peace and Security of Mankind, with the exemption of ‘execution’, which has replaced ‘waging’ in order to take into account the modernization of the language. In assessing the individual conduct, Article 8 bis (1) should be read together with Article 25(3), 25(3) bis and Article 28, although the latter has been held to be very unlikely to apply in practice [McDougall, 2013, p. 184].
   There is some uncertainty regarding the scope of the different modes of participation, and it has been considered difficult to receive much guidance from the Post-World War II Tribunals in Nuremberg and Tokyo, which took a very broad approach to the interpretation of these verbs. It will be for the Court to make a more detailed determination of the nature and scope of the conduct verbs, while taking into account Article 22(2) in cases of ambiguity.

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Planning

[151] planning,
The planning of an act of aggression can for example consist of participation in meetings where plans to attack another State are formulated. While it does not require the person to be alone in planning the act, it seems not to be sufficient that a person in a powerful position has verbally supported a plan that was already under way, unless in a way their conduct would be caught by Article 25(3) [McDougall, 2013, p. 187].

Author:
Marie Aronsson

Updated:
10 April 2017

Article 8 bis(1) - Preparation

[152] preparation,
The preparation of an act of aggression includes a wide range of activities leading to a State having the capacity and possibility to commit the act. This includes military, economic, and diplomatic conduct and can for example consist of traditional assembling of troops on a border to the State to be attacked, as well as acts such as acquisition of weapons, and the liquidation of state assets in order to fund such purchases when this is done for the purpose of committing the act of aggression. It further includes diplomatic attempts to conceal the State’s intentions to gain military advantage before an attack [Shukri, 2010, p. 528; United States et al v. Göring et al, IMT, 1 October 1946, pp. 108-109].

Author: 
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Initiation

[153] initiation
The initiation of an act of aggression refers to the decision taken immediately before the act to actually move ahead and commit it. This covers decisions on a strategic level, but not necessarily on an operational or tactical level. It may for example criminalize the conduct of a defence minister, military leader, or a president giving final orders to commit the act [Shukri, 2010, p. 528; McDougall, 2013, p. 188].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Execution

[154] or execution,
The execution of an act of aggression includes decisions taken after commencement of the act, such as annexing occupied territory or to occupy territory after an initial aggressive act. This can notably include conduct by persons who were not at all involved in the initial stages of the act [McDougall, p. 188].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Leadership crime

[155] by a person in a position effectively to exercise control over or to direct the political or military action of a State,
The leadership requirement in Article 8 bis (1) states that a ‘perpetrator was a person 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’. That leaders can be convicted under the Rome Statute is not exclusive for the crime of aggression, but it is the only crime where the perpetrator has to be in a leadership position.
   ‘In a position to effectively exercise’ requires the perpetrator to be in a de facto position, and includes not only people in formal positions, but rather anyone with a certain level of influence over the act of the State. It also excludes formal holders of office who are lacking real power. Suggested examples of non-governmental figures with de facto influence are prominent figures in business and religion. It should be noted, however, that the requirement that they should be in a position to ‘exercise control over or to direct the political and military action of the State’ has been held to be a very high threshold for non-formal office holders, making it unlikely that Article 8 bis will apply to such actors [McDougall, 2013, p. 181; Heller, 2007 p. 490; Politi, 2012 p. 285].
   There are some uncertainties as to the application of the 'control or direct' test. Whereas, the ICJ, with regard to a state’s level of control over an armed group, has applied an ‘effective control’ test in Nicaragua [Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United States of America), ICJ, Judgment, 27 June 1986] with regard to a State’s level of control over an armed group, and used it again in the Genocide Case [Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007], the ICTY instead preferred an ‘overall control’ test in Tadic' [Prosecutor v. Tadić, (Case No IT-94-1-A), ICTY, Judgment, 15 July 1999]. It remains to be seen to what extent the ICCt will take guidance from these judgements when applying the ‘control or to direct’ test in Article 8 bis (1).
   A further requirement under this paragraph is that a perpetrator needs to have had the certain position in the State which committed the act of aggression, and in cases where an entities status as a State will need to be decided upon, it will be for the Court to do so. The exclusion of non-State actors from the crime of aggression is an important difference from the other crimes in the Statute and, despite being a largely undisputed solution, it has been criticized for not accounting for the reality of contemporary uses of force [Weisbord, 2009, p. 7].

Author: 
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Character, gravity and scale

[156] of an act of aggression which, by its character, gravity and scale,
According to Understanding 7, the three components of character, gravity and scale ‘must be sufficient to justify a “manifest” determination’, and the presence of one component will not suffice on its own [Resolutions RC/Res.6, Annex III, Understanding 7]. While some argue that the ‘and’ in ‘character, gravity and scale’ should be read as though they all must reach the ‘manifest violation’ threshold, the majority of scholars hold as sufficient that two of the three components are present, as long as they together are strong enough to satisfy the standard [McDougall, 2013, pp. 128-130; Kress and von Holtzendorff, 2010, p. 1207].

Author: 
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(1) - Manifest violation and mens rea

[157] constitutes a manifest violation of the Charter of the United Nations.
In order for a crime of aggression to have been committed, an act of aggression as defined in Paragraph 2 must have constituted a ‘manifest violation’ of the UN Charter by its character, gravity and scale. According to the drafted elements, this is an objective qualification, and the subjective experience of the victim State as a manifest violation is not sufficient. As the elements also state that ‘any of the acts referred to in Article 8 bis (2), qualify as an act of aggression’, there has been some debate as to whether or not the ‘manifest violation’ requirement changes the threshold compared to the 3314 Definition of Aggression, and compared to customary international law. Some argue that since the 3314 Definition already has a high threshold, and as only grave violations of the prohibition of the use of force constitutes aggression under jus ad bellum, it is not inconsistent with the law applicable on State conduct to require a violation to be ‘manifest’. Others similarly suggest that the ‘manifest violation’ requirement is a safeguard to make sure to exclude ‘grey areas’ of the law on the use of force, especially with regard to Humanitarian Intervention [O’Connell and Niyazmatov, 2012, pp. 203-204; Cryer et al., 2014, p. 321]. The influence of discussions on Humanitarian Intervention can also be seen in Understanding 6, which states that a determination of an act of aggression shall take into consideration the ‘circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations' [Resolutions RC/Res.6, Annex III, Understanding 6]. While a suggestion to have an explicit exclusion for Humanitarian Interventions failed to gain support of the majority, this understanding aims to exclude acts with positive humanitarian consequences. It should be noted that the legal value of the understandings in Annex III is contested, and although it seems to be clear that they are not considered to be part of the text of the Rome Statute itself, there is disagreement on to what extent they bind the Court [Heinsch, 2010, p. 729-730; Heller, 2012, pp. 230-231; McDougall, 2013, pp. 113-119; Van Schaack, 2011, p. 487]. According to some scholars the understandings are purely suggestions for interpretation, whereas others hold them as part of the context in which the crime of aggression is to be interpreted. It remains to be seen how they will be treated by the Court.
   Another ‘grey area’ of jus ad bellum is the right to anticipatory self-defense. Despite some still arguing Article 51 of the UN Charter requires the actual occurrence of an armed attack, and that the adoption of the Article overrode the previous customary right to anticipatory self-defense, there is growing acceptance of the right to use force in anticipatory self-defense as long as it is conducted as a last resort where no peaceful means are available [Wilmshurst, 2005, pp. 4-5, Green, 2015, p. 106]. The significant uncertainties around the temporality requirement of self-defence mean that it is possible that anticipatory self-defense adhering to the principle of necessity and conducted in a proportionate manner will not be considered a ‘manifest violation’ of the Charter rules.

Mens rea
The mens rea requirement is found in Article 30 with some clarifying notes on the interpretation with regards to the Crime of Aggression in Annex II. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether or not the use of armed force was inconsistent with the UN Charter  [Resolution RC/Res.6, 2010, Annex II, Paragraph 2]. There is also no need to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the UN Charter. [Resolution RC/Res.6, 2010, Annex II, Paragraph 4]. What is required is that the perpetrator was aware of the factual circumstances that established that the use of armed force was not only inconsistent with, but also a manifest violation of, the UN Charter [Resolution RC/Res.6, 2010, Annex II, Elements 5 and 6]. A mistake of fact leading to a lack of mens rea is a ground for excluding criminal responsibility in accordance with Article 32.

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

 

Article 8 bis(2)

[158] 2. For the purpose of paragraph 1, “act of aggression” means 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. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
Article 8 bis (2) defines ‘act of aggression’ for the purpose of the Rome Statute. In deciding what constitutes an act of aggression, the Paragraph relies heavily on Article 1 and 3 of the 3314 Definition and should be read together with Article 8 bis (1), which requires the act to be a ‘manifest violation’ of the rules of the UN Charter. Although there has been some discussion on how to interpret the insertion of ‘in accordance with Resolution 3314…’, this is not held to mean that the parts of the 3314 Definition that are not repeated in Article 8 bis (2) are directly applicable to the Court [Kress and Holtzendorff, 2010, p. 1191].
   The examples of acts of aggression listed in Article 3 of the 3314 Definition and in the present Paragraph have previously been criticised for not being consistent with the definition of aggression under customary international law. While there seem to be little debate on whether occupation following a military intervention, bombardment of another State’s territory, and the sending of armed groups to use substantial force on another State’s territory, all constitute aggression under customary international law, other acts such as the allowance of territory to be used for act of aggression against third state are held to be more uncertain [Armed Activities on the territory of the Congo (Democratic Republic of the Congo V. Uganda), ICJ, Judgement, 19 December 2005, Separate Opinions of Judge Kooijimans and Judge Elaraby]. This is not problematic with regard to States Parties, though it can create a potential defense for individuals from non-States Parties, where a situation has been referred to the Court by the Security Council in accordance with Article 15 ter [Milanovic, 2012, pp. 174-175]. While the adoption of Article 8 bis strengthens the status of the listed examples as acts of aggression under customary international law, especially if it is ratified by a high number of States, this is not necessarily sufficient to change the customary definition.
   Even though determinations of an act of aggression are not binding upon the Court, in accordance with Article 15 bis (9) and Article 15 ter (4), determinations by the Security Council and the International Court of Justice (ICJ) can still serve as significant guidance for the ICC when assessing whether an act of aggression has been committed. Still, it is important to remain careful when interpreting judgments and decisions of acts of aggression by the Security Council and the ICJ, as they are made in the context of jus ad bellum, rather than under international criminal law. It is often not necessary for the Security Council to determine whether there has been an act of aggression, as it is sufficient that it has been a ‘threat or breach to the peace’ in accordance with Article 39 of the UN Charter for the full spectrum of Chapter VII measures to be available to the Council. That the Security Council or the ICJ has labelled an act as unlawful 'use of force' or 'threat or breach of the peace' rather than ‘act of aggression’ should therefore not be taken as a negative determination of whether an act of aggression has been committed.
   The definition of acts as 'armed attacks' for the purpose of Article 51 of the UN Charter might provide some guidance. The ICJ has referred to the 3314 Definition in determining whether there has been an armed attack giving right to self-defense both in Nicaragua and in Armed Activities [Case concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. United States of America), ICJ, Judgement, 27 June 1986; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Judgement, 19 December 2005]It should be noted, however, that while the ICJ has used the . 3314 Definition when assessing the existence of an armed attack, the relationship between ‘act of aggression’ and ‘armed attack’ is contested. Some consider the difference between ‘act of aggression’ and ‘armed attack’ to be purely contextual [O’Connell and Niyazmatove, 2012, p. 198], whereas others hold that an ‘armed attack’ triggering a right to self-defense not necessarily would constitute an ‘act of aggression’ [Ruys, 2010, p. 139]. 
   Though there was initially some discussion of whether or not the list in Article 8 bis (2) should be considered exhaustive, the list is by most read as open ended, a view supported by the wording of the Article. However, as regard all crimes, care shall still be taken in accordance with the principle of Nullum Crime sine Lege, found in Article 22 of the Statute [McDougall, 2013, p. 103; Kress and Holzendorff, 2010, p. 1191].
   One area of particular interest with regard to the reading of the list in this Paragraph is that of cyber-attacks. Since such attacks do not fit directly with any of the examples given in the list below, it has been suggested that they might be covered under Article 8 bis with the use of analogy, or alternatively through the application of a broad interpretation of ‘armed attack’ to include cases where a cyber-attack is a manifest violation of the rules of the UN Charter [Weisbord, 2009, pp. 19-20]. It is to be seen which approach the Court will take to cyber-attacks in the future.

Author:
Marie Aronsson -Storrier

Updated:
10 April 2017

Article 8 bis(2)(a)

[159] (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
Invasion by armed forces, military occupation, or annexation of territory through the use of force are uncontroversial types of aggression. It has, however, been suggested that the requirement for an occupation to follow from an ‘armed attack’ is limiting and would exclude occupation following from threats and other coercive means [McDougall, 2013, p. 76].
   The General Assembly explicitly referred to Article 3(a) of the 3314 Definition in a series of Resolutions from 1981 to 1992, when holding that Israel’s occupation of the Syrian Golan Heights constituted an act of aggression. It also referred to the 3314 Definition of Aggression regarding South Africa’s occupation of Namibia in 1982 [General Assembly Resolution 37/43, 3 December 1982].
   The Security Council, which often avoids the term ‘aggression’, has used it on a number of occasions such as Resolution 546 [Security Council Resolution 546, 6 January 1984] regarding the military occupation and bombings by South Africa in Angola and Resolution 424 on Southern Rhodesia’s invasion of Zambia [Security Council Resolution 424, 17 March 1978].
   Even though the Security Council did not describe Iraq’s invasion of Kuwait in 1990 as aggression, but merely as an illegal use of force triggering the need for collective action, [Security Council Resolution 660, 2 August 1990], the invasion is still widely held as an act of aggression [Cassese, 2007, p. 845]. The same is true for the invasion of Falkland Islands by Argentina in 1982, which was deemed a ‘breach of peace’ by the Security Council [Security Council Resolution 502, 3 April 1982].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(2)(b)

[160] (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
The use of any weapons against the territory of another State which meets the criteria of manifest violation in Article 8 bis (1) constitutes an act of aggression. There are numerous examples of acts deemed as aggression that would fall under this section should the Court hold them to be sufficiently severe. Some examples are the Israeli bombing of the Osirak nuclear reactor in Iraq 1981 [General Assembly Resolution 36/27, 13 November 1981], the attacks by Southern Rhodesia into Zambia [Security Council Resolution 424, 17 March 1978], and the air raid by Israel over Tunisia [Security Council Resolution 573, 4 October 1985].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(2)(c)

[161] (c) The blockade of the ports or coasts of a State by the armed forces of another State;
A blockade of ports and coasts are activities that halt the maritime transport to and from another State. A common example of this is the presence of warships controlling traffic in and out of a harbour or of coastal, territorial waters, as well as the mining of a harbour stopping boats and ships from entering or leaving. Two examples of blockade are those by the US of Cuba during the Missile Crisis 1962 and again of the Dominican Republic in 1965 [Glennon, 2010, p. 93].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(2)(d)

[162] (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
This sub-paragraph concerns the attack of the forces or fleets of a State, even where they are stationed in, or in transit through, a third State. There is no set requirement for the level of damage, or for the size of the force or fleet that is subject for attack, in order for this provision to apply. The ICJ has not ruled out the possibility for the destruction of a 'single military vessel' to constitute an 'armed attack' for the purpose of Article 51 of the UN Charter [Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ, Judgment, 6 November 2003, para 72]. It has, however, been suggested that the use of the term 'fleets' in this provision aims to exclude attacks on a single, or a small group of, commercial vessels [Dinstein, 2011, p. 217].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(2)(e)

[163] (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
Article 8 bis (2)(e) is applicable in situations where a State initially has consented to the presence of the armed forces of another State, but where the second state either overstays its welcome, or in other ways uses its armed forces in breach of this agreement. A contravention of conditions can include both geographical scope and activities [Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ, Judgment, 19 December 2005].

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 8 bis(2)(f)

[164] (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
This provision establishes responsibility where a State has approved the use of its territory by another State for the purpose of attacking a third State. The provision has been criticised for confusing the use of force with assistance of the use of force by the means of State action [McDougall, 2013, p. 76]. It should be noted that acts under this provision also includes cases where a state allows another state to attack a third State’s forces or fleets as regulated under Article 8 bis (2)(d).

Author:
Marie Aronsson -Storrier

Updated:
10 April 2017

Article 8 bis(2)(g)

[165]  The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Article 8 bis (2)(g) regulates ‘indirect aggression’, where a state instead of using its armed troops uses armed bands, groups, irregulars or mercenaries to conduct the act of aggression. Similar provisions can be found in the Friendly Relations Declaration of 1970, as well as in the ILC Draft Code on Offences against the Peace and Security of Mankind of 1954. The inclusion of both groups and mercenaries shows that the aims of the group, whether political, ideological or economical, are unimportant for the application of this Statute; what matter is the extent to which the State in question has control over their actions.
   While many violent activities by non-State actors do not meet the requirement of gravity and scale, this section asserts that when they do, a State controlling the non-State actor should not avoid responsibility because its own troops did not conduct the violent act [Weisbord, 2009, p. 13]. Further, while it is uncommon for non-State actors to commit acts that in themselves meet the threshold for an act of aggression, the ICJ has held that a series of incidents breaching the prohibition of the use of force can collectively amount to an armed attack. This might provide some guidance for the interpretation of this sub-paragraph [Dinstein. 2005, p. 202; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ, Judgment, 19 December 2005, para 146]. 
   With regard to attribution, the ICJ, in Nicaragua, invented and applied the ‘effective control’ test in examining the required level of control for actions being attributable for the State [Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment, 27 June 1986]. The test was later rejected by the ICTY in Tadic' which favored a test of ‘overall control’ since it held the ‘effective control’ test to lack flexibility, but was reinforced by the ICJ in the Genocide Case in 2007, then acknowledging the importance of flexibility as to the circumstances of each case [Tadic' [Prosecutor v. Tadic' (Case No. IT-94-1-A)ICTY, Judgment, 15 July 1999]; [Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007]. The alternative basis ‘or substantial involvement therein’ seems to open up for less direct involvement in the activities of an armed group and include activities such as financing, providing of arms or other means, and training. Such activities failed to meet the threshold for an ‘armed attack’ in Nicaragua, which was criticized in the dissenting opinion of Judge Schwebel for failing to account for ‘the realities of the use of force in international relations’ [Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment, 27 June 1986, Dissenting, Opinion of Judge Schwebel, para 155]. It remains to be seen how the ICC will interpret ‘substantial involvement’ in relation to the requirements in Article 8 bis (1).

Cross-references:
Article 5(1)(d), 15 bis, 15 ter and 25(3) bis

Doctrine: 

  1. Stefan Barriga, "Negotiating the Amendments on the Crime of Aggression", in Stefan Barriga/Claus Kress (Eds.), The Traveaux Preparatoires of the Crime of Aggression, Cambridge University Press, Cambridge, 2012, pp. 3-57.
  2. Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Third Edition, Cambridge University Press, Cambridge, 2014, p. 321. 
  3. Yorah Dinstein, War, Aggression and Self-Defence, Fifth Edition, Cambridge University Press, Cambridge, 2011, p. 217.
  4. Michael Glennon, "The Blank-Prose Crime of Aggression", Yale Journal of International Law, vol. 35, 2010, PP. 71-114. 
  5. James A. Green, "The ratione temporis elements of self-defence", Journal on the Use of Force and International Law, vol. 2, 2015, pp. 97-118.
    Robert Heinsch, "The Crime of Aggression After Kampala: Success or Burden for the Future?", Goettingen Journal of International Law, vol. 2, no. 2, 2010, pp. 713-743. 
  6. Kevin Jon Heller, "The Uncertain Legal Status of the Aggression Understandings", Journal of International Criminal Justice, vol. 10, 2012, pp. 229-248. 
  7. Kevin Jon Heller, "Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression", European Journal of International Law, vol. 18, 2007, pp. 477-497.
  8. Claus Kress/Leonie von Holtzendorff, "The Kampala Compromise on the Crime of Aggression", Journal of International Criminal Justice, vol. 8, no. 5, 2010, pp. 1179-1217. 
  9. Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2013, pp. 76, 103, 113-119, 128-130, 181, 184, 187-188. 
  10. Marko Milanovic, "Aggression and Legality Custom in Kampala", Journal of International Criminal Justice, vol. 10, 2012, pp. 165-187. 
  11. Mary Ellen O’Connell/Mirakmal Niyazmatov, "What is Aggression? Comparing the Jus ad Bellum and the ICC Statute", Journal of International Criminal Justice, vo.l 10, 2012, pp. 189-207.
  12. Mauro Politi, "The ICC and the Crime of Aggression: A Dream that Came Through and the Reality Ahead", Journal of International Criminal Justice, vol. 10, 2012, pp. 267-288.
  13. Tom Ruys, ‘Armed attack’ and Article 51 of the UN Charter, Evolutions in Customary Law and Practice, Cambridge University Press, Cambridge, 2010, p. 139.
  14. Muhammad Aziz Shukri, "Individual Criminal Responsibility for the Crime of Aggression", in Roberto Bellelli (Ed.), International Criminal Justice – Law and Practice from the Rome Statute to Its Review, Ashgate Publishing, Farnham, 2010, pp. 477-494. 
  15. Beth Van Schaack, "Crime of Aggression and Humanitarian Intervention on Behalf of Women", International Criminal Law Review, vol. 11, 2011, pp. 477-494
  16. Noah Weisbord, "Conceptualizing Aggression", Duke Journal of Comparative & International Law, vol. 20, 2009, pp. 1-48.
  17. Elisabet Wilmshurst, Principles of International Law on the Use of Force by States in Self-Defence, Chatham House, ILP WP 05/01, 2005, pp. 4-5.

Author:
Marie Aronsson-Storrier

Updated:
10 April 2017

Article 9(1)

[166] Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7, 8 and 8 bis. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties
The main purpose of the Elements of Crime is to define the crimes with clarity, precision and specificity in order to meet the principle of legality, required for by criminal law. 
   In both civil and common law systems a crime consists of material elements (the objective requirements, the actus reaus) and mental elements (the subjective requirements: intent and/or knowledge, or mens rea).
   The Elements of Crime include material elements of three different types, which relate to conduct, consequence and circumstance (see reference in Article 30). 
   Unless otherwise provided, Article 30 provides the mental requirement. Thus, the principal mental elements in the Elements of Crime stem from Article 30.
   The wording "shall assist the Court" makes clear the non-binding nature of the Elements of Crime. The provision appears to contradict Article 21(1)(a) which states that: "The Court shall apply: In the first place, this Statute, Elements of Crime and its Rules of Procedure and Evidence". However, in light of the negotiating history, the Elements of Crime should be understood to have only persuasive value rather than binding force.
   The present provision should be contrasted to Article 112(7)(a) which states that: "Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting". The wording of Article 9(1) makes it clear that a two-thirds majority of the total members of the Assembly of States Parties, not just the States present and voting, is required for the adoption of the Elements of Crime.

Author: Mark Klamberg

Updated: 30 June 2016

Article 9(2)(a)

[167] 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party;
The right for any State Party to propose an amendment to a treaty stems from the sovereign equality of States. It should be noted that the Elements of Crime are subject to a different procedure than the one designed designed for amendments of the Rome Statute. 
   It is not specified in regulation 5(1) whether proposals from State Parties should be submitted to the Advisory Committee on Legal Texts. It appears likely that a State Party would submit a proposal for an amendment to an organ of the Assembly of States Parties. One alternative would be to adopt the same procedure as used for amendments of the Rules of Procedure and Evidence (Rule 3), whereby State Parties submit their proposals to the President of the Bureau of the Assembly of States Parties.

Cross-reference:
Regulation 5(1) Amendments to the Rules and Elements of Crime

Author: Mark Klamberg

Updated: 20 June 2016

Article 9(2)(b)

[168] (b) The judges acting by an absolute majority;
Provided that there are 18 judges, an absolute majority requires the support of 10 judges. According to regulation 5(1) any proposal for amendments to the Elements of Crime pursuant to Article 9 shall be submitted by a judge to the Advisory Committee on Legal Texts.

Cross-reference:
Regulation 5(1) Amendments to the Rules and Elements of Crime

Author: Mark Klamberg

Updated: 30 June 2016

Article 9(2)(c)-1

[169] (c) The Prosecutor.
In contrast to proposals from the Judges, the use of the word "may" instead of "shall" in regulation 5(1) appear to indicate that proposals for amendments to the Elements of Crime can be submitted by the Prosecutor both to the Advisory Committee on Legal Texts and the appropriate organ of the the Assembly of States Parties.

Cross-reference:
Regulation 5(1) Amendments to the Rules and Elements of Crime

Author: Mark Klamberg

Updated: 30 June 2016

Article 9(2)(c)-2

[170] Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.
The procedure for amending the Elements of Crime is identical for the procedure of the adoption of the Elements of Crime stated in paragraph 1. Thus, it is clear that a two-thirds majority of the total members of the Assembly of States Parties, not just the States present and voting, is required for the amendment of the Elements of Crime.

Author: Mark Klamberg

Updated: 30 June 2016

Article 9(3)

[171] 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.
The present provision indicates the relation between the Rome Statute and the Elements of Crime is lex superior derogat legi inferiori, rather than lex posterior derogat legi prori. In other words, in the event of an conflict between the Rome Statute and the Elements of Crime, the Rome Statute shall prevail. Thus, the non-binding nature of the Elements of Crime is affirmed.

Doctrine:

  1. Erkin Gadirov, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 505-529.
  2. Herman von Hebel/Maria Kelt, in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Pulishers, Ardsley, New York, 2001, pp. 7-14.
  3. Alain Pellet, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1059-1062; 1077-1078.

Author: Mark Klamberg

Updated: 30 June 2016

Article 10

[172] Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

General remarks
Article 10 has no heading that would enlighten the purpose of the provision or clarify its content. When draft Article Y – eventually adopted as Article 10 – was suggested, it was namely envisaged that the provision could be a sub-paragraph to Article 5 (enumerating the crimes within the jurisdiction of the Court) and as such it would not have needed a heading. [UN Doc. A/CONF.183/2, p. 20. See further Triffterer, 2008, p. 532]. The formulation “for purposes other than this Statute”, however, gives forth that the provision was adopted to affect the status given to Part 2 of the Rome Statute outside the ICC context. According to Sadat, the desire was to ensure that “the codification of [...] international criminal law in the ICC Statute would not negatively impact either the existing customary international framework or the development of new customary law” [Sadat, 2000, pp. 910-911]. Draft Article Y hence made the ICC negotiations easier by emphasizing that the goal of the negotiations was to adopt crime definitions for the purpose of ICC proceedings only and not to influence international law more generally. Article 10 is thus an Article that postulates the “existence of two [...] regimes or corpora of international criminal law” [Cassese, 1999, p. 157], that is, an ICC regime and a customary international law regime.
    While there is general agreement that the pivotal function of draft Article Y was to preserve existing international law in situations where the ICC Statute fell short of it (most notably in relation to war crimes), there are different opinions about the extent to which the goal also was to prevent other types of legal changes. In this regard, Sadat has held that “the framers apparently intended that only the restrictive portions of the definitions of the crimes would remain locked within the ICC structure, not more progressive elements” [Sadat, 2000, p. 918]. Bennouna, on his part, has argued that the aim of Article 10 was not only to “protect the position of the countries favouring a broader definition of war crimes”, but also to hinder “unease among those adhering to a more restrictive definition of crimes against humanity” [Bennouna, 2002, p. 1102]. Bennouna's interpretation finds support in the fact that the provision does not only address existing rules of international law, but also applies to developing rules. Sadat's, on the other hand, in that the Article only refers to limiting or prejudicing interpretation [Sadat, 2002, p. 269]. While the drafters’ intention with the provision is open to debate, the present author finds Sadat's interpretation to be more functional in that it entails that international criminal law is not unnecessarily fragmented. To preserve the unity of international criminal law is important in that the ICC may have jurisdiction over individuals based on Security Council referrals of situations [Article 13] in which cases it is problematic if the ICC law departs from customary international law [see further Milanović, 2011, p. 25 ff., and Sadat, 2002, pp. 262 and 269-271]. It should also be noted that when amendments to the ICC Statute were adopted in 2010, including a definition of the crime of aggression, an understanding was attached to the amendment in which it was reaffirmed that the crime of aggression also can be prosecuted in relation to situations referred by the Security Council. At the same time, however, Article 10 is mentioned in relation to domestic jurisdiction over the crime of aggression, and it is emphasized that the ICC definition of the crime has been accepted "for the purpose of [..., the] Statute only". [Resolution RC/Res. 6, Annex III]. As such, the understanding sends a conflicting message about the customary law relevance of ICC law and does not really answer how Article 10 should be interpreted.
    The fact that the Article’s primary addressees are actors outside the Court makes it necessary to ask to what extent such actors are bound to follow provisions in the ICC Statute. It is, for sure, possible to have treaty provisions explaining the drafters’ intentions and to try to influence interpretations (see also Articles 22(3), 25(4) and 80). This being said, the behaviour of States in connection to the negotiation and ratification of international treaties plays a central role when State practice and opinio juris are assessed in connection to customary international law. As such, the participation of numerous States in the ICC negotiations and their subsequent ratification of the Rome Statute is something that cannot be completely ignored when the content of customary international law is considered [see e.g., Bennouna, 2002, p. 1106]. The same also applies to State behaviour in treaty amendment procedures. From this perspective, it is not surprising that the case law of many international and regional courts contain references to Part 2 of the ICC Statute [for such references, see Schabas, 2010, p. 271]. In the Furundžija case, a Trial Chamber of the ICTY explicitly commented upon the legal relevance of Article 10 and found that:

[The Rome Statute] was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the General Assembly’s Sixth Committee on 26 November 1998. In many areas the Statute may be regarded as indicative of the legal views, i.e. opinio juris of a great number of States. Notwithstanding Article 10 of the Statute, the purpose of which is to ensure that existing or developing law is not “limited” or “prejudiced” by the Statute’s provisions, resort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States. [Prosecutor v Furundžija, ICTY T. Ch., 10 December 1998, para. 227. See also Cryer, 2006, p. 251]



   The case law of the various international and regional courts has made Schabas submit that “Article 10 appears to be largely ignored by the very bodies to whom it is directed, namely specialized tribunals engaged in the interpretation of international law” [Schabas, 2010, p. 271].
    As Article 10 of the Rome Statute primarily is directed to actors outside the Court, it is rarely mentioned in the case law of the ICC. In the Al Bashir case, the majority of the Pre-Trial Chamber, however, found that the Article “becomes meaningful insofar as it provides that the definition of the crimes in the Statute and the Elements of Crimes shall not be interpreted ‘as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.’” [Prosecutor v Al Bashir, ICC PT. Ch., 4 March 2009, para. 127]. What the judges exactly meant by this reference to Article 10 is not evident to the present commentator. Schabas, however, interprets the pronouncement to mean that the judges held that Article 10 supported their claim that it was not necessary to take into consideration customary international law when interpreting the ICC provision on genocide [Schabas, 2011, p. 93]. Furthermore, Article 10 has been mentioned in a dissenting opinion by Judge Kaul, where he found that Article 10 “reinforces the assumption that the drafters of the Statute may have deliberately deviated from customary rules” [Situation in the Republic of Kenya, ICC PT. Ch. (Diss. Op. Kaul), ICC-01/09-19, 31 March 2010, para. 32]. As noted above, Article 10 indeed envisages a fragmented international criminal law.  
    Finally, it should be noted that Article 10 limits its applicability to “this Part” referring to Part 2 of the Rome Statute containing provisions on jurisdiction, admissibility and applicable law. The international crimes definitions are placed in Part 2, but, for example, the provisions on individual criminal responsibility and grounds for excluding criminal responsibility are situated elsewhere (in Part 3). This gives rise to the question of to what extent the implications of the Rome Statute on the existing or developing rules of international law are different in other parts of the Statute. In this regard, Triffterer has argued that the legal principle enshrined in Article 10 is applicable to the whole Statute. He bases his argument of the drafting process of the provision:

by its drafting process it may be assumed that a limiting or prejudicing interpretation of all Articles outside Part 2, adopted as a compromise or those describing a status quo, should equally not bar the interpretation of “existing or developing rules of international law for purposes other than this Statute”. This goes without saying, for instance, with regard to Article 25 [on individual criminal responsibility.] [Triffterer, 2008, p. 535, see also p. 537]

    While a detailed analysis of the relationship between customary international law and the Rome Statute lies beyond the scope of this commentary, the following should be noted: Firstly, Part 3 of the Rome Statute contains a provision similar to Article 10, namely Article 22(3), which stipulates that the nullum crimen sine lege provision shall not affect the characterization of any conduct as criminal under international law independently of the Statute [on the relationship between Article 10 and 22(3), see Broomhall, 2008, p. 726, and Lamb, 2002, p. 754]. Secondly, when it comes to the modes of responsibility and grounds for excluding criminal responsibility, it is generally accepted that customary international law and ICC law do not always concur. For example, in connection to commission responsibility, the ICC has not adopted the joint criminal enterprise doctrine of the ad hoc tribunals [Prosecutor v Lubanga, ICC PT. Ch., 29 January 2007, paras 329, 335 and 338] and the ICTY, on its part, has found that co-perpetratorship responsibility à la ICC Article 25(3)(a) “does not have support in customary international law” [Prosecutor v Stakić, ICTY A. Ch., 22 March 2006, paras 59 and 62]. As, however, the today functioning ad hoc international criminal tribunals primarily have addressed atrocities that have occurred before the adoption of the Rome Statute, these tribunals have not had any reason to in detail consider to what extent, if any, the State Practice in connection to the adoption and ratification of the Rome Statute, or its amendment procedures, have changed customary international law.

Cross-references:
Articles 21(3) and 22(3)

Doctrine:

  1. Mohamed Bennouna, "The Statute’s Rules on Crimes and Existing or Developing International Law", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1101-1107.
  2. Bruce Broomhall, "Article 22, Nullum Crimen Sine Lege", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 713-729.
  3. Antonio Cassese, "The Statute of the International Criminal Court: Some Preliminary Reflections", European Journal of International Law, vol. 10, no. 1, 1999, pp. 144-171.
  4. Robert Cryer, "Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study", Journal of Conflict and Security Law, vol. 11, no. 2, 2006, p. 239-263.
  5. Susan Lamb, "Nullum Crimen, Nulla Poena Sine Lege", in Antonio Cassese et al. (Eds.)The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 733-766. 
  6. Marko Milanović, "Is the Rome Statute Binding on Individuals? (And Why We Should Care)", Journal of International Criminal Justice, vol. 9, no. 1, 2011, pp. 25-52.
  7. Leyia Nadya Sadat, "Custom, Codification and Some Thoughts about the Relationship between the Two: Article 10 of the ICC Statute", DePaul Law Review, vol. 49, 2000, pp. 909-923.
  8. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, Transnational Publishers, Ardsley, New York, 2002.
  9. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
  10. William A. SchabasAn Introduction to the International Criminal Court, Fourth Edition, Cambridge, Cambridge University Press, 2011.
  11. Otto Triffterer, "Article 10", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 531-537.

Author: Mikaela Heikkilä

Updated: 30 June 2016

Commentary continued - Part 2, Articles 11-21

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