Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary

By Knut DÖrmann; Louise Doswald-Beck et al. | Go to book overview

4. Introduction to elements of war crimes
listed in Article 8 of the Rome Statute

In addition to the issues dealt with in the General Introduction, it was realised that certain points were particularly relevant to all crimes under Art. 8 ICC Statute. The PrepCom decided therefore to include in the EOC document an introduction which is specifically applicable to all these crimes. The substance must be read in conjunction with the elements defined for each crime. The introduction reads as follows:

The elements for war crimes under article 8, paragraph 2(c) and (e), are
subject to the limitations addressed in article 8, paragraph 2(d) and (f),
which are not elements of crimes.The elements for war crimes under article 8, paragraph 2, of the
Statute shall be interpreted within the established framework of the
international law of armed conflict including, as appropriate, the in-
ternational law of armed conflict applicable to armed conflict at sea.With respect to the last two elements listed for each crime:
There is no requirement for a legal evaluation by the perpetrator as
to the existence of an armed conflict or its character as international
or non-international;
In that context there is no requirement for awareness by the per-
petrator of the facts that established the character of the conflict as
international or non-international;
There is only a requirement for the awareness of the factual circum-
stances that established the existence of an armed conflict that is
implicit in the terms'tookplace in the context of and was associated
with'.

At this point it is worthwhile to discuss in some detail the second paragraph of the introduction. The other paragraphs will be dealt with in the context of those elements where they become relevant, i.e. the first

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