elements of a war crime
Order to transfer civilians to NIAC
An order to relocate civilians for conflict-related reasons without a legal basis under IHL.
Matrix of legal qualifications
- Construction type
- an independent component of a war crime
- IAC / NIAC
- NIAC
- Protected status
- civilian population
- Rome Statute
- Article 8(2)(e)(viii)
- 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
- Classify armed conflict and determine the temporal and territorial limits of applicable IHL.
- Name a specific contractual or customary norm, the violation of which is blamed.
- Establish the protected status of a person or object at the time of the act.
- Prove a specific action, consequence and causal relationship without replacing the element with a general description of the context.
- Prove the connection of the act with the armed conflict (nexus).
- Establish the required form of guilt and knowledge of the actual circumstances.
- Individualize the contribution of a specific person and do not derive responsibility only from the position or belonging to the unit.
- Check the form of complicity or command responsibility separately from the composition itself.
- 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
| Question | What to check | Typical weakness |
|---|---|---|
| The context of the conflict | Documents 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 status | The 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 reus | Primary materials, testimonies, examinations, digital traces and their cross-checking. | The conclusion is based on a transfer, an incomplete file, or an unreproducible method. |
| Mens rea | Information 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 contribution | Reliable attribution of person, unit, facility, order, and specific action. | Group membership has been replaced by proof of personal participation. |
| Origin of proof | Original, 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 caseControlled thematic connections
Materials by topic
Primary legal sources
The Rome Statute of the International Criminal Court
The official Ukrainian text of the main treaty of the ICC. Ukraine has been a member state since January 1, 2025.
Abstract and sourceICC Elements of Crimes
The official Elements of Crimes detail the material and subjective features of crimes under the Rome Statute.
Abstract and sourceWar crimes under the Rome Statute and their sources in IHL
A concise bridge between the list of war crimes in the Statute and their contractual and customary sources.
Abstract and sourceUkrainian-language explanations
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,…
Abstract and sourceDeportation and illegal transfer of population: war crimes
Ukrainian-language certificate on the movement of protected persons, coercion, legal grounds for evacuation and connection with occupation or armed conflict.
Abstract and sourceUkrainian judicial practice and analysis
War crimes: an algorithm for the analysis of verdicts in the provision of legal aid
Algorithm for checking the contextual element, specific provision of IHL, protected status, actus reus, mens rea, propriety and admissibility of…
Abstract and sourceUnified 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,…
Abstract and sourceSources of interpretation of Article 438 of the Criminal Code of Ukraine
Legal analysis of the blanket nature of Article 438, the requirement to specify violations of IHL and the limits of the use of the Rome Statute,…
Abstract and sourceProofs, matrices and practical tools
Guide "Using Battlefield Evidence in Cases of the Most Serious International Crimes"
A practical guide on the role of the military in the discovery, recording, preservation and transfer of information that may become…
Abstract and source