Element:
[1] La Haye, E. "Violations of Common Article 3," in Lee (2001), 213; this is supported by the jurisprudence of the ICTY: see Kordic and Cerkez Trial Judgement, para 320: "the elements of the offence of taking hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage described by Article 2(h)."
''468. In addition to fulfilling the chapeau requirements for Article 3, the offence of hostagetaking requires the following elements. The actus reus of this offence is the detention of persons and the use of a threat concerning the detained persons, including a threat to kill, injure or continue to detain, in order to obtain a concession or gain an advantage. The Appeals Chamber has held that the prohibition on the taking of hostages pursuant to Common Article 3 applies to “all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants”. The mens rea required for hostage-taking is the intention to compel a third party to act or refrain from acting as a condition for the release of the detained persons. Because the essential feature of the offence of hostagetaking is the use of a threat to detainees to obtain a concession or gain an advantage, which may happen at any time during the detention, the requisite intent may be formed at the time of the detention or it may be formed at some later time, after the person has been detained. The erroneous belief that detained combatants are not entitled to Common Article 3 protections is not a defence should the elements of hostage-taking be met.''
