Contextual elements of war crimes

How should courts approach the question of nexus between the alleged act and the armed conflict?

The requirement to establish the link between the conduct (act) and the armed conflict, also called establishing the ‘nexus’, is a contextual element of all war crimes. The contextual elements of war crimes must always be established for an act to qualify as a war crime.

The ‘nexus’ requirement means that the conduct of the accused has to (1) take place in the context and (2) be associated with the armed conflict (international armed conflict [IAC] or non-international armed conflict [NIAC], the requirement applies to both).

This requirement stems from the fact that not all criminal conduct that takes place during conflict is due to/in advancement of the armed conflict. Ordinary crimes continue to be committed and should be qualified as such under national laws. For instance, ‘if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime’ (Rutaganda, Appeal Judgment, para.570).  

However, establishing the nexus does not require criminal conduct to take place as part of the hostilities: it may be temporally or geographically removed from the actual fighting (Kunarac et al., Appeal Judgment, paras 57-59). Likewise, armed conflict does not need to have been causal to the commission of the crime, but there must be a ‘sufficient link to the hostilities, namely that the conflict played a substantial part in the perpetrator’s ability to commit the crime, decision to commit it, or with regard to the purpose of its commission.’ (Benchbook, para.196, see also Stakic, Appeal Judgment, para.342). The factors that may help in making this assessment (as per Benchbook, para.197):

  • the perpetrator is a combatant;
  • the victim is a non-combatant or is a member of the opposing party; and
  • the crime may be said to serve the ultimate goal of a military campaign;
  • the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.

In the context of IACs, the question of identifying the nexus between a criminal offence and an armed conflict is more straightforward than in NIACs. Usually, in IACs, it is easier to identify combatants and protected persons – any offence against a protected person by a combatant would as such provide the nexus.

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