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

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

The Elements of Crimes provide a common mental element for each war crime under article 8(2)(a): The accused was aware of the factual circumstances that established the existence of an armed conflict.

This element is supplemented by the following interpretive clarifications as to mental element in the Introduction to the war crimes section of the Elements of Crimes text.

- 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 perpetrator 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 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"

Therefore, the Pre-Trial Chamber in Katanga and Chui stated that:

"[...] it is not necessary for the perpetrator to have made the necessary value judgement to conclude that the victim did in fact have protected status under andy of the 1949 Geneve Conventions."[1]