Preparatory Commission for the International Criminal Court: the Elements of War Crimes
30-09-2000 Article, International Review of the Red Cross, No. 839, by Knut Dörmann
Grave breaches and violations of Article 3 common to the Geneva Conventions of 12 August 1949
Knut Dörmann is a legal adviser in the Legal Division of the International Committee of the Red Cross, and a member of the ICRC delegation to the Preparatory Commission for the International Criminal Court. This article reflects the views of the author and not necessarily those of the ICRC.
Two years after the adoption of the Statute of the International Criminal Court (ICC Statute) in Rome in July 1998 further important steps leading to the establishment of the Court have been taken. As at 15 July 2000, 14 States had ratified the Statute (Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana, Norway, Belize, Tajikistan, Iceland, Venezuela, France, Belgium and Canada). The Statute will enter into force once it has been ratified by 60 States. Given that many States are obliged to enact national legislation or even to change their constitution before ratification in order to comply with their obligations under the Statute, the required number of 60 ratifications will probably not be reached in the short term. It is very encouraging, however,
that many States have already made substantial progress towards ratification.
In addition to various activities taking place at the national level in preparation for ratification of the Statute and the elaboration of national implementing legislation, two important documents necessary for the functioning of the Court had to b e adopted by the Preparatory Commission for the International Criminal Court (PrepCom): [1 ] a document entitled “Elements of Crimes” (EOC), and the Rules of Procedure and Evidence. The requirement to draft these documents, which had to be finalized before 30 June of this year, is indicated in the Statute itself. The PrepCom has also started work on other outstanding issues, such as reaching agreement on a definition of the crime of aggression, including the conditions under which the ICC shall exercise its jurisdiction with respect to this crime; drafting a relationship agreement between the Court and the United Nations; developing basic principles governing a headquarters agreement; and drawing up financial rules and regulations. (The definition of aggression does not have to be agreed upon before the first review conference seven years after the Statute’s entry into force.)
This article will discuss the EOC Working Group’s findings with regard to the elements of war crimes, in particular the war crimes derived from the grave breaches provisions of the Geneva Conventions of 12 August 1949 on the protection of war victims and their common Article 3. This overview of the negotiations is not intended to be exhaustive, and the choice of some specific issues for the purpose of this article does not imply that the PrepCom has reached “perfect” solutions in other sections of the “Elements of Crimes”.
The PrepCom concluded the first reading of the draft EOC document at the end of 1999. The first draft read covered all the crimes listed in Articles 6 to 8 of the ICC Statute. At the fourth session of the PrepCom in March 2000 the second reading of Articles 6
(genocide) and 8 (war crimes) [2 ] was completed. The section on crimes against humanity (Article 7) was finalized and the whole document fine-tuned at the last session in June 2000.
The basis for the work on the elements of crimes is laid down in Article 9 of the ICC Statute, which stipulates that they “shall assist the Court in the interpretation and application of Articles 6 [genocide ] , 7 [crimes against humanity ] and 8 [war crimes ] ”, thereby clearly indicating that the elements themselves are to be used as an interpretative aid and are not binding upon the judges. [3 ] The “Elements” must “be consistent with this Statute”.
The negotiations of the Working Group were largely based upon a comprehensive document drafted by the United States, joint Swiss/Hungarian and Swiss/Hungarian/Costa Rican proposals and other documents, in particular those presented by the Japanese, Spanish and Colombian delegations. The ICRC prepared a study relating to all war crimes, which was tabled at the request of seven States (Belgium, Costa Rica, Finland, Hungary, Republic of Korea, South Africa and Switzerland). The document, which was submitted in seven parts, presented relevant sources based on extensive research on and analysis of international humanitarian law instruments, the relevant case law of international and national war crimes trials (Leipzig Trials after the First World War, post-Second World War trials, including the Nuremberg and Tokyo Trials, and national case law, as well as decisions by the ad hoc Tribunals for the former Yugoslavia and Rwanda), human rights law instruments and the case law of the UN Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights. [4 ]
Elements of war crimes
Relationship to Part 3 of the ICC Statute — General principles of criminal law
The relationship between these crimes and general principles of criminal law presented the Worki ng Group with a particularly difficult drafting problem. Long discussions on this issue were held during an intersessional meeting organized by the Italian government and the International Institute of Higher Studies in Criminal Sciences in Siracusa (Italy). The results of the Siracusa meeting provided a useful basis for the PrepCom discussions. [5 ] Several of the questions raised during the intersessional meeting are now addressed in a general introduction applicable to all crimes, which reads as follows:
“Pursuant to Article 9, the following Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7 and 8, consistent with the Statute. The provisions of the Statute, including Article 21, and the general principles set out in Part 3 are applicable to the Elements of Crimes.
As stated in Article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e. intent, knowledge or both, set out in Article 30 applies. Exceptions to the Article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below.
Existence of intent and knowledge can be inferred from relevant facts and circumstances.
With respect to mental elements associated with elements involving value judgement, such as those using the terms
‘inhumane’ or ‘severe’, it is not necessary that the perpetrator [6 ] personally completed a particular value judgement, unless otherwise indicated.
Grounds for excluding criminal responsibilit y or the absence thereof are generally not specified in the elements of crimes listed under each crime.(...)
The requirement of ‘unlawfulness’ found in the Statute or in other parts of international law, in particular international humanitarian law, is generally not specified in the elements of crimes. (...).”
With regard to the content of this general introduction, the following comments may be made.
The first paragraph stresses the non-binding character of the EOC derived from Article 9(3) of the ICC Statute, and clarifies the relationship between the EOC and the provisions of the Statute.
Paragraph 2 of the introduction details the manner in which Article 30 of the ICC Statute is to be applied in relation to the EOC. [7 ] In particular, this paragraph explains the reason why little mention of the accompanying mental element is made in the elements of the various crimes. During the sessions of the PrepCom it became obvious that the relationship between Article 30 of the ICC Statute and the definition of the crimes is difficult to reflect adequately in the EOC document. Delegations struggled to find a coherent approach, and the questions of whether the mental element should be defined for every crime, whether Article 30 alone is sufficient or whether the judges should make their own determination were hotly debated, particularly as considerable differences in national legal systems make it almost impossible to address the mental element of war crimes in a consistent manner.
Probably the most problematic question as to the interpretation of Article 30 relates to what is meant by “unless otherwise provided”, i.e. what other legal sources are of relevance in this context. For example, does this formulation mean that Article 30 defines the mental element for every crime exclusively, unless the Statute it self otherwise provides, even if it is more restrictive than customary international law? Or does it mean that the mental element might also be specifically defined in the EOC? It appears that, in addition to the various standards explicitly set out in the Statute, most, if not all, delegations agreed that a deviation from the rule in Article 30 may be required by other sources of international law as defined in Article 21 of the Statute, in particular by applicable treaties and established principles of international humanitarian law. In this regard, the jurisprudence of the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) may provide valuable interpretative insights. In relation to the mental element applicable to grave breaches of the Geneva Conventions, which are discussed in greater detail below, the Trial Chamber of the ICTY held: “[According to the Trial Chamber, the mens rea constituting all the violations of Article 2 of the Statute [with the list of grave breaches ] includes both guilty intent and recklessness which may be likened to serious criminal negligence”. [8 ]
It will be up to the future judges of the ICC to determine how to bring this jurisprudence into line with the rule in Article 30. The judges might face a similar problem with the term “wilful”, which is used in some of the crimes listed in Article 8 and has not been repeated in the EOC. The Court will have to determine whether, in fact, the standard contained in Article 30 and the definition of “wilfulness” in the jurisprudence of the ad hoc Tribunals coincide.
The second interpretative problem is related to the notion of “material element”. Article 30 states that material elements must be committed with intent and knowledge, but does not clearly define what is meant by “material”. The provision itself gives some indications insofar as its paragraphs 2 and 3 mention three types of non-mental elements (conduct, consequence and circumstance), which might therefore b e considered as material elements in the sense of the Statute. However, Article 30 itself does not answer the question whether there are perhaps other elements, for example related to jurisdiction, which would require no accompanying mental element at all. This explains why there was considerable debate over the nature of some non-mental elements, in particular in relation to one specific element in the war crimes section which describes the context in which a crime must be committed in order to be considered a war crime. [9 ]
For many delegations, the third paragraph of the general introduction was of particular importance. They feared that some of the mental elements introduced in the EOC created an excessively heavy burden for the Prosecutor. It was thus considered necessary to emphasize that the actual knowledge or intent of the perpetrator can generally be inferred from the circumstances and that the Prosecutor will not be required to specifically prove these elements in every case.
Paragraph 4 gives some guidance for the judges on how to handle so-called value judgements. While the Siracusa Report emphasized that “[the issue was whether a statement was required in the Elements of Crimes clarifying that the Prosecutor is not obliged to prove that the accused personally completed the correct normative evaluation, i.e. that the accused considered his acts ‘inhumane’ or ‘severe’. There was a general view that this proposition was sufficiently evident and that further elaboration in the Elements of Crimes was not required”, it was nevertheless decided by the PrepCom that a clarification is needed in order to ensure that the standard of knowledge required by Article 30 of the ICC Statute does not apply to such elements. It is submitted here that on the basis of the clarification in the general introduction, it is the judges who must determine whether a particular form of conduct can be held to have been “inhumane” or “severe”. The perpetrator need not com e to the correct normative conclusion. The Prosecutor will therefore only be required to demonstrate that the perpetrator knew that harm would occur in the ordinary course of events as the result of his conduct. It would thus not be a valid defence for the accused to say: “I knew that I was going to cause harm, but I did not estimate that it would be severe”.
The fifth paragraph clarifies that grounds for excluding criminal responsibility are dealt with in the EOC only in exceptional cases.
Paragraph 6 is one of the most crucial paragraphs of the introduction. It is drafted in a somewhat ambiguous manner and can be explained only by reference to the negotiating history of the EOC. The term “unlawful” does not refer to grounds for excluding criminal responsibility in the sense of the Statute. It was instead intended to act as a “place marker” that refers back to relevant provisions of international humanitarian law. For example, the war crime of deportation (ICC Statute, Art. 8(2)(a)(vii)) can only occur in situations where the Fourth Geneva Convention’s Article 49(2) and (3) describing lawful evacuations is not applicable. The war crime of “appropriation and destruction” in the sense of Article 8(2)(a)(iv) of the ICC Statute must be read in conjunction with the provisions dealing with different kinds of protected property in the Geneva Conventions. The term “unlawful” serves grosso modo the same purpose as the terms “in violation of the relevant provisions of this Protocol” and “in violation of the Conventions or the Protocol” in Article 85(3) and (4) of Additional Protocol I of 8 June 1977.
During the intersessional meeting in Siracusa there was also a debate over whether it was necessary to elaborate on other forms of criminal responsibility, such as those which are defined in the ICC Statute’s Articles 25 (dealing with, for example, different forms of participation in the commission or attempted commission of a crime, etc .) and 28 (dealing with command and superior responsibility). Despite the fact that a t the first session of the PrepCom, the United States submitted a proposal on this issue, the general view was that the provisions in the Statute are sufficient and no additional elements addressing those forms of criminal responsibility are needed. The text of the EOC therefore addresses only the direct perpetrator; it does not deal with other forms of individual criminal responsibility.
War crimes as contained in Article 8(2)(a) of the ICC Statute — Grave breaches of the Geneva Conventions
a) Material and personal field of application
The elements of each crime listed in Article 8(2)(a) of the ICC Statute contain four common elements describing the material and personal scope of application as well as the accompanying mental elements. Both non-mental elements are derived from the introductory paragraph of Article 8(2)(a): “Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention.” The first common element reads as follows: “The conduct took place in the context of and was associated with an international armed conflict.”
The words “in the context of and was associated with” are meant to draw a clear distinction between war crimes and ordinary criminal behaviour. The PrepCom clearly derived this formulation from the jurisprudence of the ad hoc Tribunals. The words “in the context of” followed the concept as developed by the ICTY according to which “international humanitarian law applies from the initiation of (...) armed conflicts and extends beyond the cessation of hostilities unti l a general conclusion of peace is reached”, [10 ] and “at least some of the provisions of the [Geneva ] Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities (...) particularly those relating to the protection of prisoners of war and civilians”. [11 ]
The words “in association with” were meant to reflect the jurisprudence of the ad hoc Tribunals which states that a sufficient nexus must be established between the offences and the armed conflict. Acts unrelated to an armed conflict, for example a murder for purely personal reasons such as jealousy, are not considered to be war crimes.
The ad hoc Tribunals have used an objective test to determine the existence and character of an armed conflict, as well as the nexus to it. Taking this approach, the ICTY has apparently treated this element as being merely jurisdictional. For example, in the Tadic Judgement the Trial Chamber held that:
“The existence of an armed conflict or occupation and the applicability of international humanitarian law to the territory is not sufficient to create international jurisdiction over each and every serious crime committed in the territory of the former Yugoslavia. For a crime to fall within the jurisdiction of the International Tribunal a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law.” [12 ]
On the basis of this jurisprudence, some delegations to the PrepCom argued persuasively that the Prosecutor need not demonstrate that the perpetrator had any knowledge of the existence of, or of the international or non-international character of, an armed conflict. Other delegations took the view that the cases decided by the Tribunals so far have clea rly taken place in the context of an armed conflict and that the requirement of knowledge has therefore never been an issue.
After long and delicate negotiations at the PrepCom, the Working Group accepted the following package. For each crime the following elements are spelled out:
“The conduct took place in the context of and was associated with an international armed conflict. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.” [13 ]
In the general introduction, there is the following interpretative clarification, which must be seen as an integral part of the set of elements: “With respect to [these ] elements listed for each crime:
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;
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;
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’.”
The wording of this package is rather confusing and ambiguous, perhaps even contradictory, as the definition of the mental element creates the impression that full knowledge of the facts that established an armed conflict is required. This impression, which would contradict the intention of the drafters, is not really attenuated by the third paragraph of the introduction or chapeau to the war crimes section. From there one can only conclude that some specific form of knowledge is required. Apparen tly, the perpetrator needs only to know the nexus between his acts and an armed conflict. However, what does this mean in practice? Does the Prosecutor need to prove the motives of the perpetrator (personal motives or motives related to an armed conflict) in every case? In order to clarify the intentions of the drafters, it is therefore worthwhile to indicate the assumptions underlying the clarification as summarized by the sub-coordinator of the EOC Working Group:
There is no need to prove that the perpetrator made any legal evaluation as to the existence of an armed conflict or its character as international or non-international.
There is no need to prove that the perpetrator was aware of the factual circumstances that made the armed conflict international or non-international.
This conception as to the degree of knowledge in relation to the element describing the context was shared by almost every delegation. As to the awareness of the factual circumstances that made a situation an armed conflict and as to the proof of the nexus, the views were divided into two groups. The majority felt that it does need to be shown that the perpetrator was aware of at least some factual circumstances. Those who hold that view agreed that the mental requirement as to those factual circumstances is lower than the Article 30 standard and should be “knew or should have known”. They recognized that in most situations, it would be so obvious that there was an armed conflict that no additional proof as to awareness would be required; there might, however, be some instances where proof of mens rea may be required. The other side insisted that no mental element is required at all. This 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.
The third and fourth common elements of the crimes under Article 8(2)(a), which define those persons who may be victims of grave breaches of the Geneva Conventions and the requisite mental element, are drafted as follows: “Such person or persons were protected under one or more of the Geneva Conventions of 1949. The perpetrator was aware of the factual circumstances that established that protected status.” [14 ] The latter element recognizes the interplay between Articles 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 is not.
During the negotiations some concern was expressed about whether the recent jurisprudence of the ICTY on protected persons under the Fourth Geneva Convention should be specifically reflected in the elements. Article 4 of that Convention defines protected persons as “those who (...) find themselves (...) in the hands of a Party to the Conflict or Occupying Power of which they are not nationals”.
The ICTY has held that, in the context of present-day inter-ethnic conflicts, Article 4 should be given a wider construction so that a person may be accorded protected status, notwithstanding the fact that he or she is of the same nationality as his or her captors. [15 ] In the Tadic Judgement, the Appeals Chamber concluded that “not only the text and the drafting history of the Convention but also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to the conflict and correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test”. [16 ] This formulation relies on a teleological approach to the interpretation of Article 4 of the Fourth Geneva Convention, that emphasizes that the object of the Convention is “the protection of civilians to the maximum extent possible”. In the words of the Tadic Judgement, the primary purpose of Article 4 “is to ensure the safeguards afforded by the Convention to those civilians who do not enjoy the diplomatic protection, and correlatively are not subject to the allegiance and control, of the State in whose hands they may find themselves. In granting its protection, Article 4 intends to look to the substance of relations, not to their legal characterisation as such.” [17 ]
After some discussion, the PrepCom decided that no closer specification of the objective element was necessary, and the future ICC will thus be free to adopt the views expressed by the ICTY in relation to the protected status of persons under Article 4 of the Fourth Geneva Convention. There was some fear that the required mental element could create a threshold which is too high in relation to this particular problem. In this context, it must be emphasized that the ad hoc Tribunals have always determined protected status on a purely objective basis. However, as to the factual knowledge required, the PrepCom has specified in a footnote that the perpetrator needs only to know that the victim belonged to an adverse party. [18 ] Knowledge as to the nationality of the victim or the interpretation of the concept of nationality is not required.
b) Elements of specific war crimes — an overview
The following is an overview of some of the contentious issues discussed during the PrepCom in relation to particular war crimes.
An especially thorny problem as to specific grave breaches existed with regard to the crime of torture. Torture is defined in the Statute as a crime against humanity (Art. 7(2)(e)): “‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”
In several decisions, however, the ad hoc Tribunals based their definition of the war crime of torture on the definition given in the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which they considered to reflect customary international law also for the purposes of international humanitarian law [19 ] and defined the elements accordingly. [20 ] The Torture Convention contains the following elements, which are not included in the ICC Statute: “[the ] pain or suffering, [must be ] inflicted on a person for such purposes as obtaining (…) information or a confession, punishing (…), or intimidating or coercing (…), or for any reason based on discrimination of any kind,” and “[the ] pain or suffering [must be ] inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Some delegations to the PrepCom felt that either the purposive element or the element of official capacity or both were necessary in order to distinguish torture from the crime of inhuman treatment. Others argued that in line with the case law of the European Court of Human Rights, it is the severity of the pain or suffering inflicted that should be used to draw a distinction between the two crimes.
The compromise found at the end of the PrepCom’s discussion of the issue respects, to a large extent, the case law of the ad hoc Tribunals. It incorporates the purposive element by repeating the illustrative list of the Torture Convention [21 ] and drops the reference to the official capacity. The elements as drafted do not preclude taking into consideration any further clarifications given by the ICTY. With regard to the purposive element the ICTY emphasized that “there is no requirement that the conduct must be solely perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the c onduct and need not to be predominating or sole purpose.” [22 ]
Given that the list of prohibited purposes in the EOC is not exhaustive, the fact that the purpose of “humiliating”, as suggested by the ICTY in the Furundzija case, [23 ] has not been added is not harmful.
With regard to the omission of the element of official capacity, the PrepCom went a step further than the ad hoc Tribunals, but clearly followed the trend set by them, which had already softened the standard contained in the Torture Convention to a certain extent. In the Delalic case the ICTY held that:
“Traditionally, an act of torture must be committed by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity. In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities.” [24 ]
Another controversial point concerned the elements of “inhuman treatment” (ICC Statute, Art. 8(2)(a)). Some delegations expressed the view that the criminal conduct should not be limited to the infliction of severe physical or mental pain, but should also include conduct constituting “a serious attack on human dignity”. This opinion is largely based on the jurisprudence of the ICTY which has recognized that serious attacks on human dignity may constitute inhuman treatment. [25 ] In the end, the PrepCom decided not to include attacks on human dignity in the definition of acts constituting inhuman treatment, because the crime of “outrages upon personal dignity, in particular humiliating and degrading treatment” would cover such conduct. This interpretation is not problematic in the context of the ICC, but may have unintended implications for the interpretation of the Geneva Conventions. If serious attacks on human dignity are included in the concept of inhuman treatment, then the grave breaches regime and mandatory universal jurisdiction will apply, which means that States are obliged to search for and prosecute alleged perpetrators independently of their nationality and of where the act has been committed. If, however, such attacks are covered only by the crime of “outrages upon personal dignity”, the concept of permissive universal jurisdiction applies and States are obliged to suppress such conduct only on their territory or by their nationals.
The discussions on Article 8(2)(a)(iv) of the ICC Statute in relation to the crime of “extensive destruction and appropriation of property” have been very significant for the negotiations on crimes derived from the grave breaches provisions of the Geneva Conventions.
Article 8(2)(a) repeats established language from the Geneva Conventions; nevertheless, it proved difficult to draft the elements, possibly because the grave breaches provisions refer back to various articles of the Conventions which establish different levels of protection. In the case of appropriation or destruction they define different standards for specific protected property. This may be illustrated by the protection accorded to civilian hospitals on the one hand and to property in occupied territories on the other.
Article 18 of the Fourth Convention defines the protection of civilian hospitals against attacks, i.e. against destruction, in the following terms:
“Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict.”
Article 19 specifies the strict condition s under which civilian hospitals lose their protection:
“The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.”
Article 53 of the same Convention defines the protection of property in occupied territory in a different manner:
“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations .” (Emphasis added.)
Considering these examples, the drafting of the elements of crime had to be done in a way that properly reflected these standards. The meaning of “not justified by military necessity” as contained in Article 8(2)(a)(iv) of the ICC Statute is crucial in this regard. It is important to indicate that military necessity covers only measures that are lawful in accordance with the laws and customs of war. Consequently, there can be no derogation on grounds of military necessity from a rule of the law of armed conflict unless this possibility is explicitly provided for by the rule in question. It would have been desirable to clearly express this understanding in the EOC document.
For the war crime of “Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power” (Art. 8(2)(a)(v)), the PrepCom decided to combine the language of the grave breaches provisions with Article 23 of the 1907 Hague Regulations respecting the Laws an d Customs of War on Land. The prohibited conduct is described as: “The perpetrator coerced one or more persons [protected under one or more of the Geneva Conventions ] , by act or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of a hostile power.” The word “otherwise” indicates that the aspect dealt with in the Hague Regulations — “to take part in the forces of a hostile power” — is just one particular example of the prohibited conduct described in the Geneva Conventions, i.e. to “serve in the forces of a hostile power”. There is a large overlap between the crime defined in Article 8(2)(a)(v) of the ICC Statute and the crime defined in its Article 8(2)(b)(xv), which is solely based on Article 23 of the 1907 Hague Regulations.
With regard to the crime “Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” (Art. 8(2)(a)(vi)), the prohibited conduct is defined as “The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the Third and Fourth Geneva Convention of 1949.” It must be emphasized that a clear majority of States supported the view that the crime may also be committed if judicial guarantees other than those explicitly defined in the Geneva Conventions (for example, the presumption of innocence and other guarantees contained only in the 1977 Additional Protocols) are denied. This view is reflected in the use of the words “in particular”.
Concerning the crime “Unlawful deportation or transfer” (Art. 8(2)(a)(vii)), the PrepCom adopted the interpretation that Article 147 of the Fourth Geneva Convention, which must be read in conjunction with Article 49 thereof, prohibits all forcible transfers, including those within an occupied territory, as well as deportations of protected persons from occupied territory. [26 ]
In relation to the crime of “Unlawful confinement” (Art. 8(2)(a)(vii)), one clarification of the elements seems to be pertinent. The prohibited conduct is defined as: “The perpetrator confined or continued to confine one or more persons to a certain location.” The words “continued to confine” are intended to cover cases where a protected person has been lawfully confined in accordance with, in particular, Articles 27, 42 and 78 of the Fourth Geneva Convention but whose confinement becomes unlawful at a certain moment. Pursuant to the ICTY’s ruling in the Delalic case, a confinement remains lawful only if certain procedural rights, which may be found in Article 43 of the Fourth Convention, are granted to the persons detained. Since that Convention leaves the initiation of such measures of confinement largely to the discretion of the respective party, the Tribunal concluded, as does the Convention, that “the [detaining ] party’s decision that [internment or placing in assigned residence of an individual ] are required must be ‘reconsidered as soon as possible by an appropriate court or administrative board’”. [27 ] It added that the judicial or administrative body must bear in mind that such measures of detention should only be taken if absolutely necessary for security reasons. If this was initially not the case, the body would be bound to rescind them. The Tribunal concludes that “the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely requires”. [28 ]
Referring to Article 78 of the Fourth Geneva Convention, which safeguards the basic procedural rights of civilians confined in occupied territories, the Tribunal found that “respect for these procedural rights is a fundamental principle of the convention as a whole”. [29 ] Therefore, “[an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained per sons and does not establish an appropriate court or administrative board as prescribed in Article 43, Fourth Geneva Convention”, [30 ] or, in the case of confinement of civilians in occupied territory, as prescribed in Article 78.
These considerations expressed by the ICTY in the Delalic case are now clearly covered in the EOC document.
With regard to the war crime of “Taking of hostages” (Art. 8(2)(a)(viii)), it is worth noting that the elements of this offence are largely based on the definition taken from the 1979 International Convention against the Taking of Hostages, which is not a treaty of international humanitarian law and was drafted in a different legal context. However, as in the case of the crime of torture, the definition of the crime of hostage-taking was adapted by the Working Group to the context of the law of armed conflict. The Hostage Convention defines hostage-taking in Article 1, paragraph 1, as “any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (the ‘hostage’) in order to compel a third party, namely a State, an international organisation, a natural or judicial person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage”.
Taking into account the case law from the Second World War, this definition was considered to be too narrow. The text in the EOC, therefore, defines the specific mental element in the following terms, adding the emphasized element:
“The perpetrator intended to compel a State, an international organisation, a natural or legal person or a group of persons, to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons.” [31 ]
War crimes as contained in Article 8(2)(c) of the ICC Statute — Violations of Article 3 common to the Geneva Conventions
The elements for the crimes listed in Article 8(2)(c) of the ICC Statute contain four common elements, describing the material and personal scope of application, that are repeated for each crime. The non-mental elements are derived from the introductory paragraph of Article 8(2)(c). The first common element reads as follows: “The conduct took place in the context of and was associated with an armed conflict not of an international character.” As in the case of Article 8(2)(a), the mental element — “The perpetrator was aware of factual circumstances that established the existence of an armed conflict” — is added as the second common element. The general introduction to the war crimes section described above is also applicable.
The third and fourth common elements are drafted in the following way: “Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities. The perpetrator was aware of the factual circumstances that established this status.” These elements define, for the purposes of Article 8(2)(c) of the ICC Statute, those who may be victims of a war crime and the required knowledge of the perpetrator. The wording as to the victims differs from that of common Article 3 and the introductory paragraph of the ICC Statute’s Article 8(2)(c). However, many States took the view that this formulation reflects the correct interpretation of Article 3 common to the Geneva Conventions and avoids ambiguity. It was the understanding of the drafters in informal consultations that the term “hors de combat” should not be interpreted in a narrow sense. In addition to the examples contained in common Article 3, reference was made to Articles 41 and 42 of Additional Protocol I.
The specific elements of most war crimes under sub- paragraph (c) are defined more or less in the same manner as for those in Article 8(2)(a) of the ICC Statute. It was the view of States that there can be no difference between wilful killing and murder, between inhuman and cruel treatment, between torture or the taking of hostages in international or in non-international armed conflicts. This approach seems to be in conformity with the case law of the ICTY. [32 ]
With regard to Article 8(2)(c)(iv), it is worthwhile indicating that the drafting of the elements of this crime was largely influenced by the content of Article 6(2) of Additional Protocol II. The specific elements in the text read now as follows:
“Article 8(2)(c)(iv): War crime of sentencing or execution without due process
1. The perpetrator passed sentence or executed one or more persons. (...)
4. There was no previous judgment pronounced by a court, or the court that rendered judgment was ‘not regularly constituted’, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law.
5. The perpetrator was aware of the absence of a previous judgment or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. (…).”
On the basis of Article 6 of Additional Protocol II, the term “regularly constituted court”, as contained in Article 3 common to the Conventions and in Article 8(2)(c)(iv) of the ICC Statute, is defined as a court that affords the essential guarantees of independence and impartiality. The issue of whether a list of fair trial guarantees should be incl uded as suggested in the Swiss/Hungarian/Costa Rican proposal has been controversial. [33 ] Some States feared that even an illustrative list would suggest that rights omitted were not indispensable, others feared that there could be a discrepancy between this list of fair trial guarantees and those contained in the Statute, and a third group took the view that violation of only one right would not necessarily amount to a war crime. Instead of weakening the value of such a list of fair trial guarantees by an introductory paragraph defining what is to be considered indispensable, States preferred not to include such a list. In addition, the concerns of the third group of States are reflected in a footnote which reads as follows: “With respect to elements 4 and 5, the Court should consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial.”
The PrepCom had an enormous task to accomplish over the two years it took to finalize a document on the elements of war crimes. The document had to be more specific than the definitions of the crimes themselves, without unduly tying the hands of the judges or reducing the scope of their judicial discretion. Trying to be as specific as possible and providing useful guidance always involves a risk that something is left out. This risk is most likely to occur in relation to international humanitarian law. As has been shown in this article concerning the example of “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, the grave breaches provisions refer back to various articles of the Geneva Conventions which establish a different level of protection and define different standards for specific protected property. Contrary to crimes against humanity, which have now been defined for the first time in the ICC Statute, the relevant humanitarian law treaties, in particular the Geneva Conventions, provide the necessary framework to enable the judges to “find the law”.
In spite of the misgivings expressed in this article, it can be said that the “Elements of Crimes” appear to a very large extent to be drafted in accordance with existing international humanitarian law. Nevertheless, some problematic and contentious issues are indicated which might need further reflection. This task must and will be performed by the judges themselves, using the “Elements” for guidance. These should not be an absolute strait-jacket for the judges, who will still need to look into the pertinent legal instruments and to analyse State practice and opinio iuris in order to determine existing rules of customary international law. It is a task that the judges of the ad hoc Tribunals have accomplished so far even without having a document entitled “Elements of Crimes”.
1 See UN General Assembly Resolution 53/105 of 8 December 1998 and Resolution F adopted by the United Nations Diplomatic Conference on the Establishment of an International Criminal Court on 17 July 1998.
2 The text, which is the basis for this article, is contained in: PCNICC/2000/WGEC/L.1 and Corr.1, PCNICC/2000/WGEC/L.1/Add.2 and Corr.1.
3 Dörmann/Kress , “Verfahrens- und Beweisregeln sowie Verbrechenselemente zum Römischen Statut des Internationalen Strafgerichtshofs: Eine Zwis chenbilanz”, Humanitäres Völkerrecht – Informationsschriften , No. 4, 1999, p. 303.
4 PCNICC/1999/WGEC/INF.1, PCNICC/1999/WGEC/INF.2, PCNICC/1999/WGEC/INF.2/Add.1, PCNICC/1999/WGEC/INF.2/Add.2, PCNICC/1999/WGEC/INF.2/Add.3.
5 See report reproduced in PCNICC/2000/ WGEC/INF.1*.
6 “As used in these Elements, the term ‘perpetrator’ is neutral as to guilt or innocence. The elements, including the appropriate mental elements, apply, mutatis mutandis, to all those whose criminal responsibility may fall under articles 25 and 28 of the Statute.” See para. 8 of the general introduction, PCNICC/2000/WGEC/L.1 and corr.
7 Art. 30 reads as follows: “1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.”
8 The Prosecutor v. Tihomir Blaskic , ICTY Trial Chamber, Judgement, IT-95-14-T, para. 152.
9 See below in more detail.
10 The Prosecutor v. Dusko Tadic , ICTY Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, IT-94-1-AR72, para. 70.
11 Ibid ., para. 68.
12 The Prosecutor v. Dusko Tadic , ICTY Trial Chamber, Judgement, 7 May 1997, IT-94-1-T, para. 572 (emphasis added). See also Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda , 2nd edition, Ardsley, NY, 2000, p. 51.
13 The original proposal on the mental element read as follows: “The accused was aware of the factual circumstances that established the existence of an armed conflict” (emphasis added). The definite article was dropped in order to indicate that the perpetrator needs only to know some factual circumstances, but definitely not all the factual circumstances that would permit a judge to conclude that an armed conflict was going on.
14 Given that Art. 8(2)(a)(iv) deals not with crimes committed against protected persons, but against protected property, the elements read as follows: “Such property was protected under one or more of the Geneva Conventions of 1949. The perpetrator was aware of the factual circumstances that established that protected status.”
15 The Prosecutor v. Dusko Tadic , ICTY Appeals Chamber, Judgement, 15 July 1999, IT-94-1-A, para. 166.
17 Ibid ., para. 168.
19 The Prosecutor v. Zejnil Delalic and others , ICTY Trial Chamber, Judgement, 16 November 1998, IT-96-21-T, para. 459.
20 Ibid . and para. 494:
“(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical,
(ii) which is inflicted intentionally,
(iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind,
(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.”
In a later judgement, the ICTY described some specific elements that pertain to torture as “considered from the specific viewpoint of international criminal law relating to armed conflicts”. Thus, the Trial Chamber considers that the elements of torture in an armed conflict require that torture:
“(i) consists of the infliction by act or omissio n of severe pain or suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.”
The Prosecutor v. Furundzija , ICTY Trial Chamber, Judgement, 10 December 1998, IT-95-17/1-T, para. 162.
21 The ICTY held in this regard: “The use of the words ‘for such purposes’ in the customary definition of torture [the definition contained in the Torture Convention ] , indicates that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative”, loc. cit. (note 19), para. 470. However, the ICTR seemed to suggest an exhaustive list by formulating “for one or more of the following purposes”. The Prosecutor v. Jean Paul Akayesu , ICTR Trial Chamber, Judgement, ICTR-96-4, para. 594. In the Musema Judgement it defined torture along the lines of the Torture Convention with a non-exhaustive list. The Prosecutor v. Alfred Musema, ICTR Trial Chamber, Judgement, ICTR-96-13, para. 285.
22 Loc. cit. (note 19), para. 471.
23 With respect to the addition of the purpose “humiliating” under (iii), the ICTY held in the above-mentioned judgement that it is “warranted by the general spirit of international humanitarian law; the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such international treaties as the Geneva Conventions and Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from ‘outrages upon personal dignity’. The notion of humiliation is, in any event, close to the notion of intimidation, which is explicitly referred to in the Torture Convention’s definition of torture.” Loc. cit. (note 20), para. 163.
24 Loc. cit. (note 19), para. 473.
25 Loc. cit . (note 19), para. 544 and loc. cit. (note 8), para. 155.
26 The relevant element reads as follows: “The perpetrator deported or transferred one or more persons to another State or to another location ” (emphasis added). See in this regard commentary to Art. 85, Sandoz/ Swinarski/Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 , ICRC, Geneva, 1987, No. 3502, p. 1,000, especially note 28.
27 Loc. cit. (note 19), para. 580.
28 Ibid ., para. 581.
29 Ibid ., para. 582.
30 Ibid ., para. 583.
31 Emphasis added. — In the Blaskic case the ICTY has been less specific and defined the crime in the following terms: “Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death. However... detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.” Loc. cit. (note 8), para. 158.
32 The ICTY concluded — with regard to any difference between the notions of “wilful killing” in the context of an international armed conflict on the one hand, and “murder” in the context of a non-international armed conflict on the other — that there “can be no line drawn between ‘wilful killing’ and ‘murder’ which affect their content”, loc. cit. (note 19), paras 422 and 423. According to the Tribunal, “cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering ors injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purpose of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions” , ibid., para. 552. Concerning any difference between the notion of “torture” in the context of an international armed conflict on the one hand, and in the context of a non-international armed conflict on the other, the ICTY concluded that “[t ] he characteristics of the offence of torture under common article 3 and under the ‘grave breaches’ provisions of the Geneva Conventions, do not differ”, ibid ., para. 443. As to the taking of hostages in an international armed conflict the ICTY held: “Les éléments de cette infraction sont similaires à ceux de l’article 3 b) des Conventions de Genève qui sont couverts par l’article 3 du Statut”, loc. cit . (note 8), para. 158.