OpenLegislation

The International Criminal Court Act 2001 (Elements of Crimes) Regulations 2004

S.I. 2004/1080 · Made 9 March 2004

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

CRIMINAL LAW, ENGLAND AND WALES

CRIMINAL LAW, NORTHERN IRELAND

Made 9th March 2004

Laid before Parliament 21st April 2004

Coming into force 4th May 2004

In exercise of the powers conferred on him by section 50(3) of the International Criminal Court Act 2001f1, the Secretary of State hereby makes the following Regulations:

Annotations to the whole text

Footnotes

f1

2001 c. 17.

Contents

  1. 1Citation, commencement and extent
  2. 2The Elements of Crimes
  3. 3The Elements of Crimes
  4. Signature
  5. Schedule Schedule
  6. 1General Introduction
  7. 2General Introduction
  8. 3General Introduction
  9. 4General Introduction
  10. 5General Introduction
  11. 6General Introduction
  12. 7General Introduction
  13. 8General Introduction
  14. 9General Introduction
  15. 10General Introduction
  16. Explanatory note

1Citation, commencement and extent

(1)

These Regulations may be cited as the International Criminal Court Act 2001 (Elements of Crimes) Regulations 2004 and shall come into force on .

(2)

These Regulations extend to England and Wales and Northern Ireland.

(3)

In so far as these Regulations may relate to proceedings in a service court these Regulations extend to any place at which those proceedings are held.

2The Elements of Crimes

The text of the Elements of Crimes adopted by the Assembly of States Parties on 9th September 2002 in accordance with Article 9(1) of the Rome Statute of the International Criminal Court and referred to in section 50(2) (a) of the International Criminal Court Act 2001 is set out in the Schedule to these Regulations.

3The Elements of Crimes

The International Criminal Court Act 2001 (Elements of Crimes) Regulations 2001f1 are hereby revoked.

Signature

Jack Straw

One of Her Majesty’s Principal Secretaries of State, Foreign and Commonwealth Office

9th March 2004

ELEMENTS OF CRIMESf1

Contents
Page
General introduction4
*

Explanatory note: The structure of the elements of the crimes of genocide, crimes against humanity and war crimes follows the structure of the corresponding provisions of articles 6, 7 and 8 of the Rome Statute. Some paragraphs of those articles of the Rome Statute list multiple crimes. In those instances, the elements of crimes appear in separate paragraphs which correspond to each of those crimes to facilitate the identification of the respective elements.

Article 6: Genocide
Introduction4
6(a)Genocide by killing4
6(b)Genocide by causing serious bodily or mental harm5
6(c)Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction5
6(d)Genocide by imposing measures intended to prevent births5
6(e)Genocide by forcibly transferring children6
Article 7: Crimes against humanity
Introduction6
7(1)(a)Crimes against humanity of murder6
7(1)(b)Crime against humanity of extermination7
7(1)(c)Crime against humanity of enslavement7
7(1)(d)Crime against humanity of deportation or forcible transfer of population7
7(1)(e)Crime against humanity of imprisonment or other severe deprivation of physical liberty8
7(1)(f)Crime against humanity of torture8
7(1)(g)-1Crime against humanity of rape8
7(1)(g)-2Crime against humanity of sexual slavery8
7(1)(g)-3Crime against humanity of enforced prostitution9
7(1)(g)-4Crime against humanity of forced pregnancy9
7(1)(g)-5Crime against humanity of enforced sterilization9
7(1)(g)-6Crime against humanity of sexual violence10
7(1)(h)Crime against humanity of persecution10
7(1)(i)Crime against humanity of enforced disappearance of persons10
7(1)(j)Crime against humanity of apartheid11
7(1)(k)Crime against humanity of other inhumane acts11
Article 8: War Crimes
Introduction12
Article 8(2)(a)
8(2)(a)(i)War Crime of wilful killing12
8(2)(a)(ii)-1War crime of torture13
8(2)(a)(ii)-2War crime of inhuman treatment13
8(2)(a)(ii)-3War crime of biological experiments13
8(2)(a)(iii)War crime of wilfully causing great suffering14
8(2)(a)(iv)War crime of destruction and appropriation of property14
8(2)(a)(v)War crime of compelling service in hostile forces14
8(2)(a)(vi)War crime of denying a fair trial14
8(2)(a)(vii)-1War crime of unlawful deportation and transfer15
8(2)(a)(vii)-2War crime of unlawful confinement15
8(2)(a)(viii)War crime of taking hostages15
Article 8(2)(b)
8(2)(b)(i)War crime of attacking civilians16
8(2)(b)(ii)War crime of attacking civilian objects16
8(2)(b)(iii)War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission16
8(2)(b)(iv)War crime of excessive incidental death, injury, or damage16
8(2)(b)(v)War crime of attacking undefended places17
8(2)(b)(vi)War crime of killing or wounding a person hors de combat17
8(2)(b)(vii)-1War crime of improper use of a flag of truce18
8(2)(b)(vii)-2War crime of improper use of a flag, insignia or uniform of the hostile party18
8(2)(b)(vii)-3War crime of improper use of a flag, insignia or uniform of the United Nations18
8(2)(b)(vii)-4War crime of improper use of the distinctive emblems of the Geneva Conventions19
8(2)(b)(viii)The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory19
8(2)(b)(ix)War crime of attacking protected objects19
8(2)(b)(x)-1War crime of mutilation20
8(2)(b)(x)-2War crime of medical or scientific experiments20
8(2)(b)(xi)War crime of treacherously killing or wounding20
8(2)(b)(xii)War crime of denying quarter21
8(2)(b)(xiii)War crime of destroying or seizing the enemy’s property21
8(2)(b)(xiv)War crime of depriving the nationals of the hostile power of rights or actions21
8(2)(b)(xv)War crime of compelling participation in military operations21
8(2)(b)(xvi)War crime of pillaging22
8(2)(b)(xvii)War crime of employing poison or poisoned weapons22
8(2)(b)(xviii)War crime of employing prohibited gases, liquids, materials or devices22
8(2)(b)(xix)War crime of employing prohibited bullets22
8(2)(b)(xx)War crime of employing weapons, projectiles or materials or methods of warfare listed in the Annex of the Statute23
8(2)(b)(xxi)War crime of outrages upon personal dignity23
8(2)(b)(xxii)-1War crime of rape23
8(2)(b)(xxii)-2War crime of sexual slavery23
8(2)(b)(xxii)-3War crime of enforced prostitution24
8(2)(b)(xxii)-4War crime of forced pregnancy24
8(2)(b)(xxii)-5War crime of enforced sterilization24
8(2)(b)(xxii)-6War crime of sexual violence24
8(2)(b)(xxiii)War crime of using protected persons as shields25
8(2)(b)(xxiv)War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions25
8(2)(b)(xxv)War crime of starvation as a method of warfare25
8(2)(b)(xxvi)War crime of using, conscripting or enlisting children25
Article 8(2)(c)
8(2)(c)(i)-1War crime of murder25
8(2)(c)(i)-2War crime of mutilation26
8(2)(c)(i)-3War crime of cruel treatment26
8(2)(c)(i)-4War crime of torture27
8(2)(c)(ii)War crime of outrages upon personal dignity27
8(2)(c)(iii)War crime of taking hostages27
8(2)(c)(iv)War crime of sentencing or execution without due process28
Article 8(2)(e)
8(2)(e)(i)War crime of attacking civilians28
8(2)(e)(ii)War crime of attacking objects or persons using the distinctive emblems of the Geneva Conventions28
8(2)(e)(iii)War crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission29
8(2)(e)(iv)War crime of attacking protected objects29
8(2)(e)(v)War crime of pillaging29
8(2)(e)(vi)-1War crime of rape30
8(2)(e)(vi)-2War crime of sexual slavery30
8(2)(e)(vi)-3War crime of enforced prostitution30
8(2)(e)(vi)-4War crime of forced pregnancy31
8(2)(e)(vi)-5War crime of enforced sterilization31
8(2)(e)(vi)-6War crime of sexual violence31
8(2)(e)(vii)War crime of using, conscripting and enlisting children31
8(2)(e)(viii)War crime of displacing civilians32
8(2)(e)(ix)War crime of treacherously killing or wounding32
8(2)(e)(x)War crime of denying quarter32
8(2)(e)(xi)-1War crime of mutilation33
8(2)(e)(xi)-2War crime of medical or scientific experiments33
8(2)(e)(xii)War crime of destroying or seizing the enemy’s property33

1General Introduction

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.

2General Introduction

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.

3General Introduction

Existence of intent and knowledge can be inferred from relevant facts and circumstances.

4General Introduction

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 personally completed a particular value judgement, unless otherwise indicated.

5General Introduction

Grounds for excluding criminal responsibility or the absence thereof are generally not specified in the elements of crimes listed under each crime.f1

6General Introduction

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.

7General Introduction

The elements of crimes are generally structured in accordance with the following principles:

  • As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order;

  • When required, a particular mental element is listed after the affected conduct, consequence or circumstance;

  • Contextual circumstances are listed last.

8General Introduction

As used in the Elements of Crimes, 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.

9General Introduction

A particular conduct may constitute one or more crimes.

10General Introduction

The use of short titles for the crimes has no legal effect.

Explanatory note

(This note is not part of the Regulations)

These Regulations, made under section 50(3) of the International Criminal Court Act 2001, set out the Elements of Crimes adopted by the Assembly of States Parties on 9th September 2002 in accordance with Article 9(1) of the Rome Statute of the International Criminal Court. 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.