elements of a war crime

Illegal deprivation of liberty

Illegal imprisonment or other serious deprivation of physical freedom of the protected person.

Type: independent composition / serious violation of IHL Conflict: IAC; check with NIAC for the applicable prohibition against arbitrary deprivation of liberty The legal framework has been checked: 20.08.2026
Construction type
independent composition / serious violation of IHL
IAC / NIAC
IAC; check with NIAC for the applicable prohibition against arbitrary deprivation of liberty
Protected status
civilian or other protected person; prisoner of war
Rome Statute
Article 8(2)(a)(vii) — unlawful confinement
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?

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

Related materials