Table of contents:
Element:
2. The perpetrator was aware of the factual circumstances that established this status.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p.21:
"There was some fear that this mental element could create a threshold that was too high in relation to the problem of nationality. In this context, it must be emphasized that the ad hoc Tribunals have always determined the protected status on a purely objective basis. With the respect to the required factual knowledge, however, the PrepCom has specified in a footnote that the perpetrator needs only to know that the victim belonged to an adverse party.29 Knowledge concerning the nationality of the victim or the interpretation of the concept of nationality is not required."
"29. With respect to nationality, it is understood that the accused needs only to know that the victim belonged to an adverse party to the conflict. This footnote also applies to the corresponding element in each crime under article 8(2)(a)."
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p.21:
"In addition, the mentioned element recognizes the interplay between Arts 30 and 32 of the ICC Statute, emphasizing the general rule that while ignorance of the facts may be an excuse, ignorance of the law (in this case ignorance of the Geneva Conventions and their definitions of protected persons or property) is not. Although one might argue that this explicit statement is self-evident and therefore redundant, the PrepCom felt that such a clarification would be useful."
