Roy S.

  Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and
Evidence (2001), p. 123:

"On the other hand, however, most delegations were of the opinion that the perpetrator needed to be aware
of some of the factual circumstances which establish the existence of an armed conflict. This awareness
however could be of a lower standard than the normal mens rea coverage, which would follow from article
30. It was argued that is should be enough that the perpetrator knew or should have known of those factual
circumstances. This would imply that, in practice, it would be so obvious that there was an armed conflict
that no additional proof as to the awareness of the perpetrator would be required. There might, however, be
exceptional instances where proof as to awareness would be required. In response to the concerns that
requiring a mental element would create too high a threshold, it was furthermore pointed out, that
paragraph 3 of the General Introduction to the Elements of Crimes specified that "[e]xistence of intent and
knowledge can be inferred from relevant facts and circumstances."

Djordjevic Case

NEXUS REQUIREMENT

1527. In determining whether a nexus between the acts of the accused and the armed conflict exists,
reliance may be placed, inter alia, upon whether the perpetrator was a combatant, whether the victim
was a noncombatant, whether the victim was a member of the opposing party, whether the act may be
said to have served the ultimate goal of a military campaign, and whether the crime is committed as part
of or in the context of the perpetrator’s official duties.57

1527. The nexus requirement serves to distinguish war crimes from purely domestic crimes and also
prevents purely random or isolated criminal occurrences from being characterized as war crimes.

Djordjevic Case

PRELIMINARY REQUIREMENTS

1521. The Accused is charged with murder, a violation of the laws or customs of war punishable under
Article 3 of the Statute.5735 There are several preliminary requirements which must be satisfied for the
applicability of Article 3 of the Statute. It must be established that there was an armed conflict, whether
international or internal, at the time material to the Indictment and that the acts of the Accused are
closely related to this armed conflict.5736 In addition, the following so called Tadi} conditions should be
met: there must be a serious infringement of a rule of international humanitarian law, whether
customary or treaty law, which entails individual criminal responsibility.5737

Naletilic and Martinovic Case

PRELIMINARY REQUIREMENTS

225. For a crime to be adjudicated under Article 3 of the Statute, two preliminary requirements must be
satisfied.596 First, there must have been an armed conflict,597 whether internal or international in
character,598 at the time the offences were allegedly committed.599 Secondly, there must be a close
nexus between the armed conflict and the alleged offence, meaning that the acts of the accused must
be “closely related”600 to the hostilities. As was previously found, those requirements have been met in
the present case.601

Naletilic & Martinovic

HAD REASON TO KNOW

74. The Chamber finds that a superior “had reason to know” when the following criteria as adopted by
the Celebici Trial Chamber are met: a superior can be held criminally responsible only if some specific
information was in fact available to him which would provide notice of offences committed by his
subordinates. This information need not be such that it by itself was sufficient to compel the conclusion
of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the
information, or, in other words, that it indicated the need for additional investigation in order to
ascertain whether offences were being committed or about to be committed by his subordinates.187

75. To interpret “had reason to know”, the Celebici Trial Chamber considered the phrasing of Article
86(2) of the Additional Protocol I. The provision states that superiors can be held criminally or
disciplinarily responsible if “they knew, or had information, which should have enabled them to
conclude in the circumstances at the time, that the [subordinate] was committing or was going to
commit such a breach”.