Elements common to all crimes under Article 8(2)(b) ICC Statute

Text adopted by the PrepCom

• 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.

Commentary

These two elements describing the subject-matter jurisdiction for war crimes under Art. 8(2)(b) of the ICC Statute, i.e. ‘other serious violations of the laws and customs applicable in international armed conflict’, are drafted in the same way for all crimes in this section. They are defined in exactly the same manner as for the crimes defined under Art. 8(2)(a). Reference may therefore be made to the commentary on that section (5.1.).

In this context, some clarification as to the notions ‘war crimes’, ‘grave breaches’ and ‘other serious violations’ used in the Statute seems to be warranted. It is important to emphasise that not all war crimes are in fact grave breaches, which are specifically listed in the Geneva Conventions, and in AP I for the States Party to it. War crimes cover both ‘grave breaches’ and other serious violations of the laws and customs applicable in armed conflict – be that conflict international or non-international. While this distinction is not important in the context of the ICC Statute because the Statute does not stipulate different consequences for the two categories, it is relevant for the national implementation of international humanitarian law.