elements of a war crime

Attack on the civilian population or civilians

Deliberate targeting of an attack on the civilian population as such or on individual civilians who do not directly participate in hostilities.

Type: an independent component of a war crime Conflict: IAC / NIAC - depending on the specific form and legal basis The legal framework has been checked: 20.08.2026
Construction type
an independent component of a war crime
IAC / NIAC
IAC / NIAC - depending on the specific form and legal basis
Protected status
civilian population or individual civilian
Rome Statute
Article 8(2)(b)(i); Article 8(2)(e)(i)
Contractual IHL
Geneva Conventions of 1949 and/or Additional Protocols — depending on the type of conflict and the facts.
Conventional IHL
The relevant customary norm of IHL is checked in the ICRC database together with practice and opinio juris.
Route according to Article 438
The blanket part of Article 438 of the Criminal Code of Ukraine; the specific prohibition of IHL, the seriousness of the violation and the wording of the law must be established for the episode.

Disclaimer: national qualification requires specifying the applicable norm of IHL, the seriousness of the violation, the nexus with the armed conflict, the form of guilt and the wording of the law at the time of the act. The material is not individual legal advice.

What to check

  1. Classify armed conflict and determine the temporal and territorial limits of applicable IHL.
  2. Name a specific contractual or customary norm, the violation of which is blamed.
  3. Establish the protected status of a person or object at the time of the act.
  4. Prove a specific action, consequence and causal relationship without replacing the element with a general description of the context.
  5. Prove the connection of the act with the armed conflict (nexus).
  6. Establish the required form of guilt and knowledge of the actual circumstances.
  7. Individualize the contribution of a specific person and do not derive responsibility only from the position or belonging to the unit.
  8. Check the form of complicity or command responsibility separately from the composition itself.
  9. Apply the version of the criminal law in force at the time of the act, taking into account the prohibition of aggravating retroactive action.

Evidence matrix

QuestionWhat to checkTypical weakness
The context of the conflictDocuments parties, intensity, organization, territory control, and date of episode.A general description of the war without reference to a specific time, place or side.
Protected statusThe function, behavior and use of a person or object at the moment of the event.Status is derived only from name, profession, form, or the effect of a blow.
Actus reusPrimary materials, testimonies, examinations, digital traces and their cross-checking.The conclusion is based on a transfer, an incomplete file, or an unreproducible method.
Mens reaInformation available to the person ex ante, orders, communications, behavior before and after the event.The intention is automatically deduced from the actual consequence or position.
Identification and contributionReliable attribution of person, unit, facility, order, and specific action.Group membership has been replaced by proof of personal participation.
Origin of proofOriginal, metadata, receipt log, chain of custody, analysis tool and version.Missing original, transmission gaps, or the original data is not open to the party.

Defence Perspective

Questions to check the prosecution's version

  • What is the norm of International Criminal Law and what form of action is named in the suspicion and the indictment?
  • Has the applicability of this norm been proven to the type of conflict, time, territory and parties?
  • On the basis of what facts was established the protected status of a person or an object at the time of the event?
  • What primary sources support each material element, and are they open to defense?
  • Is the actual effect separated from the intent or knowledge to be proved?
  • What information was available to the accused person before the event, and did not become known only ex post?
  • What confirms the identification of the person and his specific contribution, besides the position or belonging to the group?
  • Are the originals, metadata, transmission log, and ability to independently repeat expert or OSINT analysis preserved?
  • What alternative explanations of the facts were checked by the investigation and why were they rejected?
  • Did the actual boundaries of the prosecution change during the trial without a real opportunity to prepare a defense?

Ukrainian case brief

Prosecutor v. Bosco Ntaganda

Right
ICC-01/04-02/06
Actual context
Events in Itura, DR Congo, in 2002-2003; the indictment covered war crimes and crimes against humanity.
Legal position
In 2019, the Trial Chamber found Ntaganda guilty of 18 counts, including attacks on civilians, murder, sexual violence, displacement, looting and exploitation of children.
Defense position / controversial issues
Transfer of findings requires review of the specific charge, factual basis, form of liability, and mens rea standard; the overall result of the case does not replace the reading of the decision.
The result of the appeal
The Appeals Chamber in 2021 confirmed the verdict and sentence.
Value for article 438
It is useful as an international reference for the structure of proof of multiple compositions and the delineation of personal contribution, but is not a direct source of national criminalization.

Please open the full solution and provide the exact point before quoting. The differences between Article 8 of the Rome Statute and Article 438 of the Criminal Code of Ukraine must be analyzed separately.

Open the official page of the case

Ukrainian case brief

Prosecutor v Dominic Ongwen

Right
ICC-02/04-01/15
Actual context
Crimes in northern Uganda 2002-2005 in the context of LRA activities, including attacks on internally displaced persons camps and sexual and gender-based crimes.
Legal position
In 2021, the Trial Chamber found Ongwen guilty of 61 offences; the case details evidence of attacks on civilians, persecution, forced pregnancy, sexual slavery and other forms of violence.
Defense position / controversial issues
The defense raised the issue of coercion, mental state and personal history of the accused; their evaluation is tied to the legal framework of the ICC and the evidence of this case.
The result of the appeal
The Appeals Chamber in 2022 rejected the grounds of appeal and confirmed the decision and the cumulative sentence of 25 years.
Value for article 438
Guideline on the structure of the analysis of sexual and gender-based crimes and attacks on the civilian population.

Findings of crimes against humanity should not be automatically transferred to war crimes or national qualifications.

Open the official page of the case

Controlled thematic connections

Materials by topic

Primary legal sources

legal text of the ICC reference or educational material professional analysis

ICC Elements of Crimes

The official Elements of Crimes detail the material and subjective features of crimes under the Rome Statute.

current edition · English and other official languages · Official external source

Abstract and source

Ukrainian-language explanations

monograph reference or educational material In Ukrainian neutral professional explanation professional analysis

War crimes: problems of qualification and sentencing

Ukrainian-language monograph by Z. A. Zaginei-Zabolotenko and A. V. Shevchuk on the qualification of war crimes and punishment; 270 pages,…

2025 · Ukrainian · External primary source

Abstract and source

Ukrainian judicial practice and analysis

database reference or educational material In Ukrainian professional analysis

Unified state register of court decisions

Official register of court decisions. For cases under Article 438 of the Criminal Code of Ukraine, use combinations of article number,…

updated base · Ukrainian · Official external source

Abstract and source

Proofs, matrices and practical tools

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