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.

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"146. In this respect, the Introduction to Article 8 of the Elements of Crimes provides the following clarification: (a) 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; (b) 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; (c) 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".

147. As in the case of the contextual elements of crimes against humanity, the relevant awareness for these purposes is that of the perpetrators of the crimes." [1]

ICTY

In Naletilić and Martinović ("Tuta and Štela"), the Appeals Chamber stated that

"It is a general principle of criminal law that the correct legal classification of a conduct by the perpetrator is not required. The principle of individual guilt, however, demands sufficient awareness of factual circumstances establishing the armed conflict and its character."[2]

The Trial Chamber held in Mrkšić et al that

"As this is the first case of this nature before the Tribunal, there is no case law defining the required mens rea in these circumstances. The jurisprudence has hitherto only considered the mens rea required in relation to the armed conflict (the nexus requirement) and the attack. As the civilian status of the victims is only a jurisdictional requirement and not an element of the crime, the Chamber believes that it is sufficient for the perpetrator to have been aware of the factual circumstances that established the status of the victim"."[3]

In Boškoski and Tarčulovski the Trial Chamber stated that

"It was held that the Prosecution was obliged to prove the accused's knowledge of the facts pertinent to the internationality of an armed conflict. More fully it was said that this requires "at least that [the accused] had knowledge of the factual circumstances" on which Judges later concluded that an armed conflict was an international one. In this context what is required is that the accused has "sufficient awareness" of those factual circumstances. [...] the Chamber records its finding that, by virtue of their official functions and involvement in events, both Accused knew, or had reason to know of, the factual circumstances which demonstrate that there was an armed conflict in FYROM at the relevant time in 2001"."[4]

ECCC

According to the Kaing Trial Chamber,

"In some instances, the Accused ordered S-21 trucks and personnel to transport Vietnamese detainees from combat zones to the S-21 complex, and sent the blood of S-21 detainees to the General Staff Hospital for transfusions for RAK soldiers wounded in battle in 1977 or 1978. He knew of the ongoing purges of Cambodian nationals on account of their perceived allegiance with Vietnam, as well as SON Sen's battlefield deployment in August 1977. The Accused also reviewed, summarised and amended the confessions of Vietnamese detainees as early as April 1976.

"The Chamber concludes that the Accused was aware of the armed conflict with Vietnam at least from 7 February 1976. Further, the Accused knew that S-21 detainees included protected persons, namely Vietnamese civilians and prisoners of war, as well as Cambodians considered to be Vietnamese sympathisers."[5]