The International Criminal Court Act 2001 (Elements of Crimes) Regulations 2001

The appropriation was without the consent of the owner.

4

The conduct took place in the context of and was associated with an armed conflict not of an international character.

5

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–1 — War crime of rape

Elements

1

The perpetrator invaded[^f00063] the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

2

The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person, or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent[^f00064].

3

The conduct took place in the context of and was associated with an armed conflict not of an international character.

4

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–2 — War crime of sexual slavery

Elements

1

The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty[^f00066].

2

The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.

3

The conduct took place in the context of and was associated with an armed conflict not of an international character.

4

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–3 — War crime of enforced prostitution

Elements

1

The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons' incapacity to give genuine consent.

2

The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.

3

The conduct took place in the context of and was associated with an armed conflict not of an international character.

4

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–4 — War crime of forced pregnancy

Elements

1

The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.

2

The conduct took place in the context of and was associated with an armed conflict not of an international character.

3

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–5 — War crime of enforced sterilization

Elements

1

The perpetrator deprived one or more persons of biological reproductive capacity[^f00067].

2

The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent[^f00068].

3

The conduct took place in the context of and was associated with an armed conflict not of an international character.

4

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vi)–6 — War crime of sexual violence

Elements

1

The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons' incapacity to give genuine consent.

2

The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions.

3

The perpetrator was aware of the factual circumstances that established the gravity of the conduct.

4

The conduct took place in the context of and was associated with an armed conflict not of an international character.

5

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vii) — War crime of using, conscripting and enlisting children

Elements

1

The perpetrator conscripted or enlised one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.

2

Such person or persons were under the age of 15 years.

3

The perpetrator knew or should have known that such person or persons were under the age of 15 years.

4

The conduct took place in the context of and was associated with an armed conflict not of an international character.

5

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(viii) — War crime of displacing civilians

Elements

1

The perpetrator ordered a displacement of a civilian population.

2

Such order was not justified by the security of the civilians involved or by military necessity.

3

The perpetrator was in a position to effect such displacement by giving such order.

4

The conduct took place in the context of and was associated with an armed conflict not of an international character.

5

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(ix) — War crime of treacherously killing or wounding

Elements

1

The perpetrator invited the confidence or belief of one or more combatant adversaries that they were entitled to, or were obliged to accord, protection under rules of international law applicable in armed conflict.

2

The perpetrator intended to betray that confidence or belief.

3

The perpetrator killed or injured such person or persons.

4

The perpetrator made use of that confidence or belief in killing or injuring such person or persons.

5

Such person or persons belonged to an adverse party.

6

The conduct took place in the context of and was associated with an armed conflict not of an international character.

7

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(x) — War crime of denying quarter

Elements

1

The perpetrator declared or ordered that there shall be no survivors.

2

Such declaration or order was given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors.

3

The perpetrator was in a position of effective command or control over the subordinate forces to which the declaration or order was directed.

4

The conduct took place in the context of and was associated with an armed conflict not of an international character.

5

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(xi)–1 — War crime of mutilation

Elements

1

The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage.

2

The conduct caused death or seriously endangered the physical or mental health of such person or persons.

3

The conduct was neither justified by the medical, dental or hospital treatment of the person or persons concerned nor carried out in such person’s or persons' interest[^f00069].

4

Such person or persons were in the power of another party to the conflict.

5

The conduct took place in the context of and was associated with an armed conflict not of an international character.

6

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(xi)–2 — War crime of medical or scientific experiments

Elements

1

The perpetrator subjected one or more persons to a medical or scientific experiment.

2

The experiment caused the death or seriously endangered the physical or mental health or integrity of such person or persons.

3

The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons' interest.

4

Such person or persons were in the power of another party to the conflict.

5

The conduct took place in the context of and was associated with an armed conflict not of an international character.

6

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(xii) — War crime of destroying or seizing the enemy’s property

Elements

1

The perpetrator destroyed or seized certain property.

2

Such property was property of an adversary.

3

Such property was protected from that destruction or seizure under the international law of armed conflict.

4

The perpetrator was aware of the factual circumstances that established the status of the property.

5

The destruction or seizure was not required by military necessity.

6

The conduct took place in the context of and was associated with an armed conflict not of an international character.

7

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Signed

P. Hain — On behalf of the Secretary of State for Foreign and Commonwealth Affairs — 2001-07-10

Explanatory note

(This note is not part of the Regulations)

These Regulations, made under the International Criminal Court Act 2001, set out the Elements of Crimes contained in the Report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000. In accordance with section 50(2) of the Act these shall be taken into account by a court considering offences under domestic law in Part 5 of the Act.

Footnotes

[^f00001]: 2001 c. 17.

[^f00002]: This paragraph is without prejudice to the obligation of the Prosecutor under article 54, paragraph 1, of the Statute.

[^f00003]: The term “killed” is interchangeable with the term “caused death”.

[^f00004]: This conduct may include, but not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.

[^f00005]: The term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.

[^f00006]: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.

[^f00007]: A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.

[^f00008]: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.

[^f00009]: The conduct could be committed by different methods of killing, either directly or indirectly.

[^f00010]: The infliction of such conditions could include the deprivation of access to food and medicine.

[^f00011]: The term “as part of” would include the initial conduct in a mass killing.

[^f00012]: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

[^f00013]: The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.

[^f00014]: “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.

[^f00015]: It is understood that no specific purpose need be proved for this crime.

[^f00016]: The concept of “invasion” is intended to be broad enough to be gender-neutral.

[^f00017]: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 7(1)(g)–3, 5 and 6.

[^f00018]: Given the complex nature of this crime, it is recognised that its commission could involve more than one perpetrator as a part of a common criminal purpose.

[^f00019]: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

[^f00020]: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.

[^f00021]: It is understood that “genuine consent” does not include consent obtained through deception.

[^f00022]: This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.

[^f00023]: It is understood that no additional mental element is necessary for this element other than that inherent in element 6.

[^f00024]: Given the complex nature of this crime, it is recognised that its commission will normally involve more than one perpetrator as a part of a common criminal purpose.

[^f00025]: This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute.

[^f00026]: The word “detained” would include a perpetrator who maintained an existing detention.

[^f00027]: It is understood that under certain circumstances an arrest or detention may have been lawful.

[^f00028]: This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction to the Elements of Crimes.

[^f00029]: It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place.

[^f00030]: It is understood that “character” refers to the nature and gravity of the act.

[^f00031]: It is understood that “character” refers to the nature and gravity of the act.

[^f00032]: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts.

[^f00033]: This mental element recognises the interplay between articles 30 and 32. This footnote also applies to the corresponding element in each crime under article 8(2)(a), and to the element in other crimes in article 8(2) concerning the awareness of factual circumstances that establish the status of persons or property protected under the relevant international law of armed conflict.

[^f00034]: With respect to nationality, it is understood that the perpetrator 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).

[^f00035]: The term “international armed conflict” includes military occupation. This footnote also applies to the corresponding element in each crime under article 8(2)(a).

[^f00036]: As element 3 requires that all victims must be “protected persons” under one or more of the Geneva Conventions of 1949, these elements do not include the custody or control requirement found in the elements of article 7(1)(e).

[^f00037]: The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.

[^f00038]: As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.

[^f00039]: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaing law and order does not by itself render the locality a military objective.

[^f00040]: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.

[^f00041]: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.

[^f00042]: This mental element recognizes the interplay between article 30 and article 32. The “should have known” test required in the other offences found in article 8(2)(b)(vii) is not applicable here because of the variable and regulatory nature of the relevant prohibitions.

[^f00043]: “Combatant purposes” in these circumstances means purposes directly related to hostilities and not including medical, religious or similar activities.

[^f00044]: This mental element recognizes the interplay between article 30 and article 32. The term “prohibited nature” denotes illegality.

[^f00045]: The term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law.

[^f00046]: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.

[^f00047]: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same element for article 8(2)(b)(x)–2.

[^f00048]: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.

[^f00049]: Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.

[^f00050]: For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.

[^f00051]: The concept of “invasion” is intended to be broad enough to be gender-neutral.

[^f00052]: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 8(2)(b)(xxii)–3, 5 and 6.

[^f00053]: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.

[^f00054]: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

[^f00055]: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.

[^f00056]: It is understood that “genuine consent” does not include consent obtained through deception.

[^f00057]: The term “religious personnel” includes those non-confessional non-combatant military personnel carrying out a similar function.

[^f00058]: For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradion or other violation. This element takes into account relevant aspects of the cultural background of the victim.

[^f00059]: The elements laid down in these documents do not address the different forms of individual criminal responsibility, as enunciated in articles 25 and 28 of the Statute.

[^f00060]: 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.

[^f00061]: The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective.

[^f00062]: As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging.

[^f00063]: The concept of “invasion” is intended to be broad enough to be gender-neutral.

[^f00064]: It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements in article 8(2)(e)(vi)–3, 5 and 6.

[^f00065]: Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.

[^f00066]: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Conventions on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

[^f00067]: The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.

[^f00068]: It is understood that “genuine consent” does not include consent obtained through deception.

[^f00069]: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the similar element in article 8(2)(e)(xi)–2.

Editorial notes

[^key-f8e4c4c8aa1e9b1c2c9f0b7c97a327e1]: Reg. 1 in force at 1.9.2001, see reg. 1(1)

[^key-f65485593d7d2f54b50fbfc32d392b79]: Reg. 2 in force at 1.9.2001, see reg. 1(1)