DEFINED TERMS

I. GENERAL LEGAL TERMS

Rome Statute
Currently, the Rome Statute¹ does not directly allow corporate bodies to be brought before the ICC. That said, agents or employees of those corporate bodies may be brought before the court where they are charged with crimes within the Statute (genocide, crimes against humanity, and war crimes) and where the conduct was committed on the territory of a state party or the perpetrator is a national of a state party.²

123 states are party to the Rome Statute. As a ‘universal’ treaty on international criminal law, the Rome Statute constitutes the basis for the majority of international crimes legislation in the domestic legal systems of its state parties, and thus provides a useful foundation to explore the elements of international crimes. Importantly, prohibitions on crimes against humanity and genocide have been recognised as peremptory norms of international law (jus cogens), from which no derogation is permitted. This is a reflection of the seriousness and importance with which the international community views them. Violations of these norms give rise to obligations on all states (erga omnes), which include a duty to actively co-operate to bring to an end the illegal situation that results from these violations.³

II. TERMS AS APPLIED TO WAR CRIMES

War crimes are serious and specific violations of international humanitarian law. The Rome Statute categorizes offences according to the type of conflict in which the respective war crimes were committed, namely if they were committed in the context of an IAC or a NIAC. This determination is a factual one, based on what actually happens on the ground.

International armed conflict (IAC)
An IAC occurs when one or more states have recourse to armed force against another state⁴, regardless of the reasons or the intensity of this confrontation or whether there has been a formal declaration of war⁵. No formal declaration of war is required. This includes:

• where a part of or the entire territory of a state is occupied by (the army of) another state, even if the occupation is met with no armed resistance⁶;
• armed conflicts in which peoples are fighting against colonial domination, alien occupation, or racist regimes in the exercise of their right to self-determination;⁷ and
• situations where a third state intervenes in an internal armed conflict between a state and a non-state armed group (NSAG) and the third state exercises ‘overall control’ over the NSAG. ⁸

Non-international armed conflict (NIAC)
Non-international armed conflicts (IACs) are conflicts where a state is fighting against one or more non-state armed groups (‘NSAGs’), or NSAGs are fighting against one another within a state’s territory⁹. A NIAC will exist where: (i) NSAGs are involved in conflict and have a minimum level of organisation; and (ii) those armed confrontations must reach a certain level of intensity¹⁰. There is no fixed threshold as to what will be sufficient to satisfy the organisational requirement, although relevant factors will include:

• whether the group has a responsible command structure;
• whether the group has internal disciplinary rule and mechanisms;
• the existence of a headquarters owned by the group;
• the group’s control over a certain territory;
• the group’s access to, or ability to acquire, weaponry, other military equipment etc; and
• the group’s ability to plan, coordinate and carry out military operations.¹¹

Whether a particular conflict satisfies the intensity threshold necessary to establish a NIAC is also fact-specific, although relevant factors in making this determination include:

• the prevalence, duration, geographical scope and intensity of the armed confrontation;
• the type of weapons and other military equipment used;
• the amount and calibre of munitions used during the conflict;
• the number of persons and type of forces taking part in the fighting;
• the number of casualties and the level of material destruction that occurred during the conflict;
• the number of civilians fleeing combat zones;
• the fact that the conflict drew the attention of the UN Security Council.¹²

The crime was committed in the context of and associated with an armed conflict, either of an international or non-international character
In order to prosecute an act as a war crime the crime must be connected to the armed conflict (‘nexus’ requirement). It must be shown that:

• there was an armed conflict; and
• the perpetrator’s conduct took place in the context of and was associated with that conflict.

In assessing whether there is an armed conflict, practitioners should consider whether an IAC or a NIAC exist.

Secondly, in order to establish that the crime was committed ‘in the context of and was associated’ with an armed conflict, practitioners must show that the crime under consideration has a sufficient, close, or obvious nexus to the armed conflict¹³. It is worth noting that the Rome Statute provides that the ICC shall have jurisdiction in respect of war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”¹⁴. But while such factors (i.e. that the acts were committed as part of a plan or policy) will especially compel exercise of the ICC’s jurisdiction in respect of war crimes, they are not exhaustive of the factors the ICC will consider when determining whether war crimes have been established. Some other factors that may be indicative of the commission of war crimes include the following:

• the conduct occurred during an armed conflict and/or on a territory in which there is an armed conflict (however crimes can be temporally and geographically remote from the actual fighting);¹⁵
• the existence of an armed conflict played a substantial part in the accused’s ability to commit the crime, his/her decision to commit it, the manner in which it was committed, or the purpose for which it was committed;
• the accused acted in furtherance or under the guise of the armed conflict;
• the fact that the accused is a combatant;
• the fact that the victim is a non-combatant;
• the fact that the victim is a member of the opposing party;
• the fact that the act may be said to serve a goal of a military campaign; and
• the fact that the crime is committed as part of or in the context of the accused’s official duties.¹⁶

The perpetrator was aware of the factual circumstances that established the existence of an armed conflict
There is no requirement for legal evaluation by the accused as to the existence of an armed conflict or its character as international or non-international¹⁷. Therefore, for this element to be satisfied, only some form of knowledge of the existence of an armed conflict is required on the part of the accused. This element is generally easy to establish since it is hard to imagine a situation where there is a nexus between the crime and the armed conflict, but the perpetrator is unaware of the factual circumstances that establish such conflict.¹⁸

III. TERMS AS APPLIED TO CRIMES AGAINST HUMANITY

Crimes against humanity
Pursuant to the Rome Statute, crimes against humanity are defined as any of the following acts when committed as part (or in the context) of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity;
• persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3 [of the Statute], or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• enforced disappearance of persons;
• the crime of apartheid; or
• other inhumane acts of a similar character intentionally causing great suffering, or serious injury to mental or physical health.¹⁹

Widespread or systematic attack directed against a civilian population
One must establish that (i) there was an attack directed against a civilian population;²⁰ (ii) this attack was widespread or systematic; and (iii) the attack was committed pursuant to or in furtherance of a state or organisational policy to commit such an attack.

First, in order to demonstrate that there was an attack directed against a civilian population²¹, the evidence must demonstrate that the attack involved a course of conduct comprising the multiple commission of acts referred to in article 7(1) of the Rome Statute, against a civilian population. This

attack may, but is not required to be, military in nature and may involve any violence carried out in the form of a campaign/operation against a civilian population²². This is an important consideration in corporate contexts where crimes may be committed in a broad range of situations, e.g., as part of security operations. That said, civilians must be the primary target of the attack²³ as opposed to members of armed forces or other combatants²⁴. Where populations comprised primarily of civilians are attacked, it should be noted that the presence of non-civilians (e.g., members of armed forces or other combatants) within that population does not alter their civilian status.²⁵

Second, the evidence must show that the attack was either widespread or systematic²⁶. There is no fixed threshold in this regard as to when an attack will be widespread, and in making this determination, practitioners may consider the following factors:

• the number of criminal acts committed during the attack;
• the logistics and resources involved in the attack;
• the number of victims;
• the temporal and geographical scope of the attack; or
• the cumulative effect of the attack on the population.²⁷

Whether an attack was systematic will depend upon whether the evidence demonstrates that it consisted of organised acts of violence, rather than spontaneous or random criminal acts²⁸. Relevant factors in making this assessment will include:

• the existence of a pattern of criminal conduct;
• temporally and geographically repeated and coordinated attacks;
• the involvement of political or military authorities in the attack;
• the existence of a plan or policy targeting a civilian population or part of a civilian population (e.g., local protest groups);
• the adoption and institutionalisation of discriminatory procedures against a civilian population; or
• the means and methods used during the attack.²⁹

Thirdly, Art. 7(2)(a) of the Rome Statute requires that the attack was ‘pursuant to or in furtherance of a State or organisational policy to commit such attack’. This is a separate and distinct ingredient of the contextual legal requirements of crimes against humanity.  Accordingly, it must be shown that the attack was deliberately committed in pursuance or in furtherance of a policy, as opposed to being spontaneous, random, or isolated in character. ³⁰

Whether a group qualifies as an organisation under the Rome Statute, capable of issuing ‘policy’, will be determined on a case-by-case basis. However, indications that the group qualifies as an organisation for the purpose of crimes against humanity under the Rome Statute include the following: the group evidences a responsible command structure/established hierarchy; the group has the capacity to carry out a widespread or systematic arrack on a civilian population; the group exercises control over part of the State’s territory; the group has criminal activities against a civilian population as part of its primary purpose; the group either explicitly or implicitly articulates an intention to attack a civilian population; the group is part of a larger group that fulfils the above criteria³¹. These need not be exhaustively established.

This requirement that the policy pursued or furthered is a State policy or organisational policy is particularly important in the corporate context in that corporate actors may be linked to crimes against humanity where they participate or are otherwise complicit in attacks perpetrated by both state and non-state groups.³²

A ‘policy’ means that a state or organisation intended to carry out an attack against a civilian population, whether through its actions or deliberate omissions³³. An attack that was planned, directed, organised, promoted, or actively encouraged by a state or organisation would satisfy this criterion, even if a policy was not formally adopted³⁴. It may be that a corporation satisfies the contextual elements of crimes against humanity where it helped to plan or otherwise facilitated (e.g., by financing) an attack, or where it failed to avoid the commission of conduct amounting to crimes against humanity where it had the ability to do so, but intentionally chose not to do so (e.g., because those actions were beneficial to its operations).

The conduct was part of a widespread or systematic attack
This element might be referred to as the nexus requirement: it must be shown that the proscribed act(s) were committed as part of the attack on the civilian population. Practitioners will need to focus on information that shows that the specific act was similar in nature, aim, and consequence to other acts committed during the relevant attack on a civilian population³⁵, such that it can be said to have been committed as part of the overall attack.

I.V. TERMS AS APPLIED TO GENOCIDE

Genocide
Genocide is a crime defined by its ‘intention’ requirement: that a perpetrator intentionally seek to destroy an entire national, ethnic, racial, or religious group. Genocide is defined, prohibited and criminalised under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention)³⁶. It is also prohibited under customary international law, and is a prohibition from which no member of the international community may derogate (‘jus cogens’), and which all states must take steps to uphold (‘erga omnes’)³⁷. Article 6 of the Rome Statute repeats the definition of the crime of genocide contained in the Genocide Convention.³⁸

The victims belonged to a particular national, ethnical, racial or religious group
Neither the Genocide Convention nor the Rome Statute provide an internationally recognised definition of any of these four terms due to the difficulty in attributing a distinct meaning to, and the overlap between, each of them³⁹. In identifying the four groups, practitioners may therefore consider both the objective particulars of a given social or historical context, and the subjective perceptions of the accused.⁴⁰

While courts have considered objective characteristics of a group in order to determine that a protected group is specifically targeted, increasingly there is recognition that an approach directed at establishing subjective perceptions should be determinative: that the perceptions of the victim group and more especially the perceptions of the perpetrators of the crimes are critical in establishing whether a protected group is targeted⁴¹. The question to be asked is whether the perpetrator perceived those whom he intended to target and destroy as belonging to a group protected under the Genocide Convention. That said, the Genocide Convention exclusively protects four groups and an extension of this protection to include any group identifiable only in terms of the perpetrator’s perceptions has consistently been rejected by international courts.⁴²

The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial, or religious group
The crime of genocide is classified as a crime of ‘special intent’, meaning that the crime will not be established unless it is proven that an accused had the requisite intention ‘to destroy in whole or in part [a protected group] as such’⁴³. This special intent operates in addition to the ordinary mental elements provided in article 30 of the Rome Statute, and must be established on a case-by-case basis.⁴⁴

Since it is difficult to find direct evidence of genocidal intent, it is acceptable for practitioners to establish intent from circumstantial evidence. Historically, courts and tribunals have accepted the following circumstantial evidence, which, when taken cumulatively, can determine whether the element of special intent has been established:

• type of the attack(s) committed by the accused;
• discriminatory animus;
• use of derogatory slurs;
• attacks on religious sites;
• the scale of the atrocities committed;
• targeting of leaders for death or slander;
• targeting deliberately and systematically victims on account of their membership of a particular group.⁴⁵

To destroy
The accused will only be alleged to have committed genocide if the intention was to destroy a protected group physically or biologically⁴⁶. Therefore, attacks on cultural and religious property, for example, cannot amount to genocide, although may amount to evidence establishing intent to destroy⁴⁷

In whole or in part
In order to establish this aspect, it must be shown that the accused intended to destroy more than a small number of members of a group. This intention need not amount to an intention to destroy the whole of the group: it may be satisfied where the accused intended to destroy a substantial part of it⁴⁸. In determining whether a ‘substantial part’ of a group was targeted, practitioners should consider both quantitative and qualitative criteria. Indicative criteria proving that the targeted part of the group was significant enough to have an impact on the entire group, include:

• the numeric size of the targeted part of the group;
• the relative proportion of targeted individuals in relation to the overall size of the group; and
• the prominence of the targeted part within the entire group (e.g., whether the targeted part of the group is emblematic or essential to the survival of the overall group).⁴⁹

Protected group
The term protected groups covers national, ethnical, racial, or religious groups.

As such
This term makes it clear that in order to constitute genocide, the proscribed act must have been committed with the intention to destroy a group because of their protected characteristic, rather than by reason of an individual’s specific identity. In this sense, discriminatory purpose in committing the crimes is central to establishing this element of the offence.⁵⁰

The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction
In order to satisfy the contextual element of a genocidal act, it must be shown that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Manifest pattern of similar conduct
This requirement, specific to the Rome Statute’s Elements of the  Crime of Genocide, reflects a situation where the accused is/was acting within a broader context in which others are/were also committing acts of genocide (or crimes against humanity) against the targeted group⁵¹. The term ‘manifest’ is an objective qualification and means that there must be a clear pattern of large scale, systematic criminality⁵² that presents a concrete threat to the existence of the targeted group or a part thereof⁵³. This serves to underline the special gravity of genocide and separate genocidal acts from patterns of less systematic, smaller scale criminality that may consist of isolated crimes occurring over a period of years, for example.⁵⁴

Conduct that could itself effect such destruction
The second clause of the element reflects the less likely situation in which a group is particularly small, or where the accused has access to powerful means of destruction (e.g., nuclear or biological weapons) and is consequently in a position by themselves to pose a real threat to a protected group⁵⁵. The requirements for this scenario to materialise are that: (i) the accused had the intent to destroy the protected group; (ii) this intent existed and materialised in an isolated act; and (iii) it is irrelevant whether the conduct of the accused, accompanied by the said intent, had materialised into a concrete threat to the existence of that group in whole or in part⁵⁶. Thus, if the accused had the means to destroy the group but for whatever reason managed to cause only a single or a few deaths, that fact is irrelevant for the purposes of proving that his/her conduct could itself realise such destruction.⁵⁷

V. TERMS AS APPLIED TO MENTAL STATE

Accused committed act with intent and knowledge
Article 30 of the Rome Statute sets out the default mental elements that must be established in relation to each physical element of war crimes, crimes against humanity and genocide.

Under article 30(1), a person shall be criminally responsible and liable for punishment for a crime only if each material element is committed with ‘intent and knowledge’. Under article 30(2), a person has intent where: (a) in relation to conduct, that person means to engage in the conduct; or (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. Under article 30(3) ‘knowledge’ means awareness that a circumstance exists, or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ are construed accordingly.

Article 30(2): an accused intended to engage in the conduct or bring about a consequence (intent)
To prove intent, the evidence must establish that an accused either: (a) meant to engage in conduct; or (b) meant to cause a consequence or was aware that it would occur in the ordinary course of events. Whether or not an accused is required to have intent in relation to conduct or a consequence will depend upon the elements of the crime in question. The physical element of the crime of murder, for example, is that an accused killed or caused the death of a victim. ‘Killing’ refers to conduct, whilst ‘causing death’ refers to a consequence. The mental elements of murder can therefore be proven in relation to both conduct and/or a consequence⁵⁸

Conduct
‘Conduct’ is an act or omission that the accused must do (or not do) to be responsible for a crime⁵⁹. Pursuant to article 30(2)(a), where the material (physical) elements of a crime amount to ‘conduct’, the evidence must establish that the accused deliberately (or voluntarily) engaged in that conduct⁶⁰

Consequence
The ‘consequence’ of a crime refers to either a completed result, or the creation of a state of harm or risk of harm as required by a physical element of the crime⁶¹. Where the physical element of a crime constitutes a consequence, the evidence must demonstrate that the accused intended to bring about that consequence, either because they:

• meant to cause that consequence (Rome Statute, article 30(2(b)); or
• were aware that it would occur in the ordinary course of events (Rome Statute, articles 30(2)(b) and 30(3)).

To establish that the accused meant to cause a consequence, it must be shown that they voluntarily acted to achieve the desired result⁶². This requires the accused to have acted or failed to act deliberately in order to cause the consequence⁶³. Alternatively, intent can also be shown if the accused was aware that the consequence would occur in the ordinary course of events⁶⁴. In these cases, it need only be demonstrated that:

• it was foreseeable that the accused’s conduct would cause the consequence of the crime in the ordinary course of events (i.e., unless an unforeseen or unexpected intervention prevented its occurrence)⁶⁵. While this does not require the consequence  be an ‘absolute certainty’ following the accused’s conduct, the evidence should demonstrate a ‘very high probability’ (or ‘virtual certainty’) that the consequence in question would occur following this conduct⁶⁶; and
• the accused, based on their knowledge of how the events ordinarily develop, was consciously aware of such a high probability (or virtual certainty) and anticipated the occurrence of the consequence in the future.⁶⁷

Article 30(3): An accused knew that a circumstance existed or that a consequence would occur in the ordinary course of events (knowledge)
Some war crimes require that a certain circumstance exists (in addition to the background nexus requirement to international or non-international armed conflicts) — for instance, that a combatant killed has previously laid down arms⁶⁸. Where this is the case, the evidence must demonstrate that the accused was aware that the specific circumstance existed⁶⁹. Awareness requires knowledge on behalf of the accused⁷⁰. Where a circumstance involves a legal conclusion or value judgment, it is not required that the accused completed a legal evaluation, but simply that they were aware of the relevant facts that established the specific circumstance.⁷¹

Knowledge of circumstance is also required in the context of crimes against humanity where it must be shown that the perpetrator committed the proscribed act aware that there was a widespread or systematic attack directed against a civilian population and intending that their conduct be part of the attack.⁷² Accordingly, it must be shown that the accused knowingly participated in the attack⁷³. That said, evidence in this regard need not establish that the accused had knowledge of all of the characteristics of the attack, nor the precise details of the plan or policy of the state or organisation. Motive is also irrelevant, and it is sufficient that the accused knowingly participated in the attack, i.e., that they knew that their actions were part of an attack on a civilian population.⁷⁴

VI. MODES OF LIABILITY

Complicity – aiding, abetting or otherwise assisting in the commission of the crime
The Rome Statute hold liable those who directly perpetrate the international crimes of genocide, war crimes and crimes against humanity. But it also holds liable those who aid, abet or otherwise assisted in the commission or attempted commission of the crimes. The terms ‘aiding’, ‘abetting’ or ‘otherwise assisting’ all signify the same types of conduct,⁷⁵ that is, the provision of aid that assists the commission of a crime⁷⁶. Assistance may be given before, during, or after the offence has been perpetrated taking the form of practical or material aid⁷⁸. It is not essential that the perpetrator was personally present during the commission of the offence, or that they offered their support or assistance directly to the direct perpetrator in order to establish liability under article 25(3)(c) of the Rome Statute. A perpetrator may still be held liable for aiding and abetting where they provided their support indirectly through an intermediary, including through supply chains.⁷⁹

Providing assistance for the purpose of facilitating the commission of a crime
For this element to be established, it must be shown that the perpetrator provided such assistance intending to assist in the commission of a crime. This entails a twofold intent requirement for the accessory: firstly, in respect of the principal offence (intending, for example, that it be a crime against humanity) and secondly, in respect of his or her own conduct⁸⁰. Such purpose or aim of assisting can be inferred from the surrounding circumstances including both direct and circumstantial evidence. Therefore, if a company representative provides funds to a recipient organisation, for the purpose that such funds be used for the commission of crimes against humanity, the company representative can be held criminally responsible.

Unlike the Rome Statute, where criminal liability arises only if the accessory’s wrongful conduct was ‘for the purpose of assisting’ in the commission of a crime, the jurisprudence of other international criminal tribunals provides that the perpetrator’s knowledge that a crime might be committed suffices to establish complicity in international crimes. Under this standard, liability may be attributed to a company that aids or abets a direct perpetrator in the commission of a grave crime foreseeing that such crime might be committed and that  the assistance it renders might materially contribute to the commission of the crime.⁸¹