This article examines the concept of the contextual element as a mandatory characteristic of a war crime. The differentiating value of this element and its role in distinguishing general criminal and war crimes are analyzed.

It is suggested that the contextual element of a war crime should be understood through two signs: establishing that the perpetrator’s behavior took place in the context and was connected with an international armed conflict, and that the perpetrator was aware of the actual circumstances that established the existence of an armed conflict. This understanding corresponds to generally accepted international approaches used during the criminal legal assessment of acts as war crimes under international criminal law.

Also, the practice of international tribunals was separately studied and those factors that could indicate the fact that a person committed a war crime, and not a general criminal crime, were singled out.

It is emphasized that the contextual element must necessarily be reproduced in procedural decisions in specific criminal proceedings.

Bibliography

Authored books

1. Dörmann Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2003) (in English).

2. Koval D, Avramenko R, Voienni zlochyny. Osoblyvosti rozsliduvannia mizhnarodnykh zlochyniv, skoienykh v konteksti zbroinoho konfliktu na Donbasi (HO Truth Hounds, Feniks 2019) (in Ukrainian).

Journal articles

3. Hutnyk V, ‘Zbroinyi konflikt u kolyshnii Yuhoslavii: do problemy pravovoi kvalifikatsii’ (2020) 23 Almanakh mizhnarodnoho prava 165 (in Ukrainian).

Websites

4. Antoniuk N, ‘Naiavnist kontekstualnoho elementu vidrizniaie voienni zlochyny vid “zahalno kryminalnykh”’ <https://supreme.court.gov.ua/supreme/pres-centr/ news/1339593> (accessed: 05.05.2023).