Table of contents
Element
As commentators point out, since "it was agreed that the perpetrator need only be involved in one stage of the enforced disappearances; but both stages must of course occur in some way for the crime to be completed, [ ] this left the question of the requisite awareness by the perpetrator with respect to the other stages of the crime." The agreement reached was to "borrow the language from article 30(2) of the Statute, requiring only the awareness that a deprivation of freedom "would be followed in the ordinary course of events by a refusal". This would exclude from the scope of application, for example, the police officer acting in good faith, but would include those who are aware of the likelihood of a "disappearance" even if they do not know specifically of any subsequent refusal. [ ] Thus, element [5] was included along with footnote 27, clarifying that the inclusion of this element is without prejudice to article 30 and the default rule in the General Introduction." Lastly, "Footnote 28, attached to element [5](a), appeared to be necessary in light of the fact that "detention" according to footnote 25 also comprises the maintaining of an existing detention. In that case, indeed, the order of events can be modified and the awareness of the perpetrator, consequently, can either refer to a refusal that would follow in the ordinary course of events or to a refusal that had already taken place. (Georg Witschel and Wiebke Rückert in Roy S. Lee, The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, p. 103).
