Table of contents:
Element:
P.26. Evidence of awareness of only some facts determining the existence of an armed conflict.
§ Could be knew or should have known: This awareness could be of a lower standard than the normal mens rea coverage, which would follow from article 30.
§ Evidence showing that the perpetrator was aware of the nexus between his or her acts and the armed conflict.
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 311:
"311, The nullum crimen sine lege principle does not require that an accused knew the specific legal definition of each element of a crime he committed. It suffices that he was aware of the factual circumstances, e.g. that a foreign state was involved in the armed conflict. It is thus not required that Kordic could make a correct legal evaluation as to the international character of the armed conflict. Consequently, it is irrelevant whether Kordic believed that the effective control test constituted international customary law."
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p.21:
"On that basis one can conclude only that some form of knowledge is required, which is below the standard of Art. 30 ICC Statute. The words awareness of the factual circumstances that is implicit in the terms "took place in the context of and was associated with" seem to suggest that the perpetrator needs only to know the nexus between his/or acts and an armed conflict.
Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 123:
"On the other hand, however, most delegations were of the opinion that the perpetrator needed to be aware of some of the factual circumstances which establish the existence of an armed conflict. This awareness however could be of a lower standard than the normal mens rea coverage, which would follow from article 30. It was argued that is should be enough that the perpetrator knew or should have known of those factual circumstances. This would imply that, in practice, it would be so obvious that there was an armed conflict that no additional proof as to the awareness of the perpetrator would be required. There might, however, be exceptional instances where proof as to awareness would be required. In response to the concerns that requiring a mental element would create too high a threshold, it was furthermore pointed out, that paragraph 3 of the General Introduction to the Elements of Crimes specified that "[e]xistence of intent and knowledge can be inferred from relevant facts and circumstances."
In order to promote a compromise between these opposing views, an additional clarification was inserted in the third paragraph of the Introduction to war crimes, stating that "[t]here 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." Furthermore, it was also agreed that the mental contextual element for each crime would use "aware of factual circumstances" instead of "aware of the factual circumstances." The omission of the word "the" underlined that such awareness would not have to relate to the whole complexity of facts determining the existence of an armed conflict, but rather that only some facts should be known by the perpetrator, sufficient for him or her to be aware of the existence of some sort of armed conflict. This delicate compromise reached my be interpreted as indicating that the Prosecutor will normally not have to provide any additional proof on the knowledge of the perpetrator of the factual circumstances that relate to the existence of an armed conflict. If the Prosecutor provides the proof that is required to create a relationship between the conduct of the perpetrator and the armed conflict, this mental element will generally be satisfied as an inevitable "by-product.""
B. Evidentiary comment:
Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 123:
"This awareness however could be of a lower standard than the normal mens rea coverage, which would follow from article 30. It was argued that is should be enough that the perpetrator knew or should have known of those factual circumstances. This would imply that, in practice, it would be so obvious that there was an armed conflict that no additional proof as to the awareness of the perpetrator would be required.
[ ]
If the Prosecutor provides the proof that is required to create a relationship between the conduct of the perpetrator and the armed conflict, this mental element will generally be satisfied as an inevitable "by-product."
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p.21:
"This overall picture gives at least some guidance in determining the requisite level of knowledge. There are no indications that the prosecutor must prove knowledge of a higher level than that which is reflected in the majority view. Moreover, it appears that in most cases proving the nexus objectively will be sufficient. In such circumstances, a perpetrator cannot argue that he/she did not know of the nexus."
[1] For the purpose of the application of international humanitarian law, under the jurisprudence of ad hoc tribunals and the relevant provisions of the Rome Statute and Elements of Crimes, international armed conflict can be sub-categorised as (i) Inter-State armed conflict, (ii) Internationalised armed conflict, and (iii) Military occupation." For legal sources/authorities with regard to this categorisation, please see quoted legal text under 3.1.1 herein.
[2] Discussing the temporal and geographical scope issue in connection with armed conflict, the ICTY does not distinguish the term "temporal and geographical scope of armed conflict" and "temporal and geographical scope of the application of international humanitarian law." In this context, both terms are interchangeable.
[3] See footnote 1.
[4] Ibid
[5] wording was initially used in the Kunarac Appeals Judgement, and subsequently endorsed by a number of the ICTY and ICTR judgements. See Kunarac Appeals Judgement, para. 58; Strugar Trial Judgement, paras. 215 and 217; Vasiljevic Trial Judgement, para. 25; Kamuhanda Trial Judgement, paras. 735-6; Rutaganda Appeals Judgement, paras. 569-70; Semanza Trial Judgement, para. 517.
[6] This wording was initially used in the Kunarac Appeals Judgement, and subsequently endorsed by a number of the ICTY and ICTR judgements. See Kunarac Appeals Judgement, para. 58; Vasiljevic Trial Judgement, para. 25; Kamuhanda Trial Judgement, paras. 735-6; Rutaganda Appeals Judgement, paras. 569-70; Semanza Trial Judgement, para. 517; Stakic Trial Judgement, para. 569.
[7]. For the purpose of the application of international humanitarian law, under the jurisprudence of ad hoc tribunals and the relevant provisions of the Rome Statute and Elements of Crimes, international armed conflict can be sub-categorised as (i) Inter-State armed conflict, (ii) Internationalised armed conflict, and (iii) Military occupation." For legal sources/authorities with regard to this categorisation, please see quoted legal text under 3.1.1. herein.
[8] Ibid.
[9] See footnote 7.
[10]. Ibid.
[11]. This wording was initially used in the Kunarac Appeals Judgement, and subsequently endorsed by a number of the ICTY and ICTR judgements. See Kunarac Appeals Judgement, para. 58; Strugar Trial Judgement, paras. 215 and 217; Vasiljevic Trial Judgement, para. 25; Kamuhanda Trial Judgement, paras. 735-6; Rutaganda Appeals Judgement, paras. 569-70; Semanza Trial Judgement, para. 517.
[12]. This wording was initially used in the Kunarac Appeals Judgement, and subsequently endorsed by a number of the ICTY and ICTR judgements. See Kunarac Appeals Judgement, para. 58; Vasiljevic Trial Judgement, para. 25; Kamuhanda Trial Judgement, paras. 735-6; Rutaganda Appeals Judgement, paras. 569-70; Semanza Trial Judgement, para. 517; Stakic Trial Judgement, para. 569.
