The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach 9781472566355, 9781841137605

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To my parents

FOREWORD Actus non facit reum nisi mens sit rea is helpfully rendered, by ‘Google Translate’, as: ‘An act does not make the person guilty unless the mind be also guilty.’ I first heard of the idea several decades ago when an activist academic friend who was also quite a talented amateur lawyer advanced the concept in the magistrates’ court as a basis for anti-war demonstrators charged with disturbing the peace to take the stand in their own defence in order to make political speeches. When the judge challenged them as to the relevance of their motivation, which was to oppose American involvement in Viet Nam, the clever answer was that the absence of a guilty mind was surely germane to the case as it was to all criminal justice matters. The argument never led to an acquittal, but some judges were left unsettled by the argument and let the testimony proceed. Like most people trained in the law, the local magistrates knew that mens rea was a sacred principle in criminal law. Their understanding did not appear to go much further. They did not regularly deal with trials of serious crimes where distinctions between negligence, recklessness and full intent might be more likely to arise. A nuanced discussion of the mental element of crime rarely surfaced elsewhere than in landmark rulings of the Supreme Court and the Courts of Appeal. Inevitably, sophisticated explanations in the rulings of the highest courts were subsequently transformed into little more than slogans so that they could be used by lawyers and judges, and dutifully recited by students in bar school examinations. After a lull of several decades, international criminal law began to revive in the early 1990s. When in 1993 the Secretary-General of the United Nations proposed a draft statute and accompanying commentary for what became the International Criminal Tribunal for the former Yugoslavia to the Security Council in 1993, nothing was said about the mental element of crime. Presumably it was assumed that judges would know how to deal with the matter. It soon became evident that the limited volume of existing case law did not offer much help. The post-war trials at Nuremberg and Tokyo as well as isolated national cases like Eichmann formed the basis of initial understandings of general principles including the mens rea requirement. In reality, there was precious little to go on. The International Military Tribunal only came close to considering the concept when it dealt with the fitness to stand trial issues that arose with defendants Hess and von Krupp. Furthermore, some of the accused had suggested that they lacked criminal intent because they were only following orders, to which the judges replied that this excuse was formally excluded by the enabling statutes. When the accused suggested that they had behaved as vehicles for government policy, the ix

Foreword judges famously responded that ‘crimes against international law are committed by men, not by abstract entities’. The attention to the matter remained relatively perfunctory, however, until in 1994 the General Assembly established an Ad Hoc Committee to study the draft statute of the future International Criminal Court. For the first time in international criminal law, there was considerable momentum for a codification of general principles. A point-form outline indicating the matters to be addressed included ‘Mens rea’ as one of its headings. This was followed by a list of terms: ‘Intention (culpa, dolus/intentionally, knowingly, recklessly/dolus eventualis, gross negligence); General intention – specific intention? (motives)’. Most of the lawyers involved in these discussions would have been familiar with some of the vocabulary, but not all of it. This was a multi-cultural nomenclature, drawing upon notions used in different legal traditions. The more well-informed understood that dolus eventualis and gross negligence, for example, were not actually exact translations. Great attention to the matter followed. In the course of several sessions of the Preparatory Committee, specialists searched for a text on which some consensus might be reached. Some genuinely desired that a common standard be set out, melding the approaches used at the national level. There were significant schools of thought regarding the general perspectives of the common law and the Romano-Germanic and Islamic traditions, but it became evident that even within a particular system, there were huge differences. The common law in Australia does not always view the issue of mens rea in the same way as it does in the United States, Ireland and India. And even within Australia and the United States, where criminal law falls largely within the jurisdiction of the constitutive federal units, there are variations. This debate eventually led to a dedicated provision on the mental element in the Rome Statute. It begins with the words ‘Unless otherwise provided’, an exception whose scope will be debated by judges for decades to come. Article 30 of the Rome Statute goes on to state that ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge’. An explanation is offered for both ‘intent’ and ‘knowledge’. Of course, the Rome Statute’s definitions of crimes, as well as the modes of liability, contribute further. The immutable definition of genocide, taken without significant alteration from the 1948 Convention, sets out a crime that must be perpetrated with ‘intent to destroy’. The more lengthy provision on crimes against humanity requires acts to be perpetrated ‘with knowledge’ of a widespread or systematic attack on a civilian population. Some of the war crimes must be committed ‘wilfully’. Further guidance may be drawn from a secondary instrument, the Elements of Crimes. Alongside the International Criminal Court, whose case law is only beginning to explore the scope of the mental element, is an increasingly fertile discussion of dolus, specific intent, motive and related notions at the United Nations ad hoc x

Foreword tribunals and the various hybrid institutions. The debate is also taking place before national courts where international crimes figure increasingly on the docket. Mohamed Elewa Badar has taken this complex landscape of mens rea at the international level and prepared a thorough, well-structured monograph. Dr Badar’s rich grasp of international criminal law is uniquely informed by an extensive knowledge of comparative law. He masters several of the relevant languages, including Arabic and German, and in this respect alone he is the envy of academic commentators who are forced to work with simplistic translations. This book is destined to become an indispensable tool for lawyers and judges at the international tribunals. William A Schabas Professor of international law Middlesex University

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PREFACE This book is the culmination of more than a decade’s work and research, and consists of my analysis and observations on substantive criminal law issues with which I have been struggling during my work at the Egyptian judiciary, my work with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and throughout my participation in the judicial reform programme of the Islamic Republic of Afghanistan. During my work at the Public Prosecution Office in Egypt I was frequently confronted with the illusive concept of mens rea. In April 1998, a fatal car accident was reported to the Office of the North Court of Alexandria, Egypt. The defendant who was driving a bulldozer had crashed into the victim’s car causing some serious damages. The defendant realised that he would be in trouble if the traffic police arrived and asked about his driving licence. He tried to avoid arrest by fleeing the scene of the incident, but the victim (V) stepped in front of the bulldozer in an attempt to prevent him from escaping. The defendant continued driving and V took a few steps backwards but then grabbed onto the left-hand door of the bulldozer in a last attempt at stopping him. The defendant tried to push him away, but when that failed, continued driving regardless, until eventually V fell off the bulldozer and was killed by its back tyres. The defendant was arrested and when confronted with the evidence he admitted that he drove off in the bulldozer with the victim clinging onto it but denied having any intention to kill him. The case was assigned to me in my capacity as the public prosecutor for the Muharrambek district, Alexandria. In preparing the indictment, I found that the facts of the case did not fall under any of the provisions of the Egyptian Penal Code (EPC). I could not indict him under Article 234 of the EPC ‘Whoever kills a person deliberately without premeditation […]’, as the evidence indicated that this was not a deliberate murder. On the other hand, as some of you will agree, this was not merely a case of reckless driving which resulted in the death of a pedestrian as stated in Article 238 ‘Whoever causes by mistake the death of another person, as a result of his neglect, imprudence, carelessness […]’. The last resort was to indict him under Article 236 of the EPC ‘Whoever wounds or beats someone on purpose … without meaning to kill, but doing that had led to the death […]’ but it was difficult to prove that V was assaulted by the defendant while clinging onto the bulldozer. I came to the conclusion that a written code was perhaps not the most satisfactory approach to the complex issue of mens rea; due to their rigid nature, such codes fail to cover all possible scenarios that may arise for consideration before prosecutors and judges. They require facts to be moulded to fit the parameters of their provisions and leave little room for unpredicted scenarios. xiii

Preface I continued seeking clarification as to the concept of mens rea while working in other positions. I also had the chance to familiarise myself with other legal systems and explore the intricate rules of the guilty mind from different perspectives. During my post graduate studies, I had the chance to work as a legal intern at the Appeals Section of the Office of the Prosecutor (OTP) of the International Criminal Tribunal for the former Yugoslavia (ICTY). It was a good opportunity to work with lawyers who represented both common and continental legal systems and this added to my comparative criminal law skills. I am grateful to Norman Farrell of the OTP for his guidance and most valuable supervision during my short term with the ICTY. My participation in the judicial reform of the Islamic Republic of Afghanistan provided me with a great opportunity to sharpen my knowledge of the Islamic legal tradition. I was privileged to lecture more than 450 Afghan magistrates on comparative criminal law and to benefit from their expertise in return. I am most grateful to Professor Cherif Bassiouni of DePaul University, Chicago for allowing me such an opportunity. Two short study visits to Beijing in 2008 and 2009 provided me with a basic knowledge of Chinese criminal law. I am greatly indebted to Ms Bi Yi of the China University of Political Science and Law for her assistance, especially for her preparatory work and translation of relevant parts of textbooks and commentaries on the Chinese Criminal Code. In acquiring knowledge of the German legal system, particularly the concept of crime in German criminal law, I depended on the generous guidance of my colleague, Judge Dr Nora Karsten of the District Court of Hamburg. In gathering materials, I was fortunate to have the opportunity to work with the consummately professional librarians at the National University of Ireland (NUI), Galway. The Special Collection section at NUI, Galway allowed me to access old and rare materials which assisted me in writing the evolution of the mens rea concept in common law jurisdictions. While researching the theory of mens rea and writing this book, it was necessary to seek advice and guidance from a great number of people. I was constantly astounded by the generosity of the scholarly and legal community. I am grateful to Michael Bohlander, Ray Murphy, Otto Triffterer, William Schabas, Sharon Williams, Kai Ambos, Carsten Stahn, Roger Clark, Larissa van den Herik, Fabián Raimondo and Elies van Sliedregt. At this point I would particularly like to acknowledge the generous research assistance of Polona Florijančič of Brunel Law School, who worked tirelessly editing and commenting on several chapters of the book. A number of others have also generously read chapters of this book and commented on them. I would like to thank Dr Noelle Higgins of the National University of Ireland, Galway for her assistance and comments. I am also grateful for the kind support of Katherine Mills of Brunel Law School who read through the entire monograph at very short notice. Their attention has greatly improved this work, and any remaining errors are entirely my own. xiv

Preface Much of this research was done in Ireland in 2002 and 2007, and I would like to thank Dr Saber El Safty and John and Ann Cummins for their very kind support and encouragement. I would also like to thank Mohamed El Zeidy, Aly Mokhtar, Vivienne O’Connor, Lorraine Finn and all my colleagues and friends at Brunel Law School. Much gratitude goes to the excellent editorial skills of Ms Melanie Hamill and Ms Anne Bevan, copy editor at Hart Publishing. Special thanks go to Mr Richard Hart, Mr Tom Adams, Ms Rachel Turner and Ms Emma Swinden as they have all been a pleasure to work with. Last but not least, words cannot express my love and thanks to my wife, Patricia Gawenda, to my daughter, Mariam Elewa, to my in-laws Max and Ruth Gawenda, and to my sister Professor Lamia Salah Elewa. Mohamed Elewa Badar

London, 10 December 2012

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TABLE OF CASES International Criminal Court Situation in the Democratic Republic of Congo Katanga and Ngudjolo Situation in the Democratic Republic of Congo, Case No ICC-01/04-01/07, Judgement on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006 (Judgement on Prosecutor’s Application)........................................8 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/ 04-1/07, Defence Written Observations Addressing Matters that Were Discussed at the Confirmation Hearing, 28 July 2008..............................382, 383 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/ 04-01/07, PTC I, Decision on the Confirmation of Charges, 30 September 2008 (Katanga and Ngudjolo Chui Decision on the Confirmation of Charges)......................................................................................................382, 383

Lubanga Prosecutor v Thomas Lubanga Dyilo, Case No ICC-01/04-01/06-803, PTC I, Decision on the Confirmation of Charges, 29 January 2009 (Lubanga Decision on the Confirmation of Charges).............. 382, 383, 389, 391, 395, 396, 404, 406, 407, 413, 415, 416, 425 Prosecutor v Thomas Lubanga Dyilo, Case No ICC-01/04-01/06, Trial Chamber Judgement, 14 March 2012 (Lubanga Trial Judgement)...................383, 397, 407

Situation in Central African Republic Bemba Bemba Prosecutor v Jean-Pierre Bemba Gombo, Case No ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009 (Bemba Pre-Trial Chamber II Decision Pursuant to Article 61(a) and (b))...... 383 xxv



Table of Cases

Prosecutor v Jean-Pierre Bemba Gombo, Case No ICC-1/05-01/08, PTC II, Decision on the Confirmation of Charges, 15 June 2009.........................383, 397

International Criminal Tribunal for the former Yugoslavia Aleksovski Prosecutor v Zlatko Aleksovski, Case No IT-95-14/1-T, Judgement, 25 June 1999 (Aleksovski Trial Judgement)................ 305, 327, 337, 370, 374, 379 Prosecutor v Zlatko Aleksovski, Case No IT-95-14/1-A, Judgement, 24 March 2000 (Aleksovski Appeal Judgement)........ 305, 336, 337, 338, 341, 367 Blagojevi´c and Joki´c Prosecutor v Vidoje Blagojevi´c and Dragan Joki´c, Case No IT-02-06-T, Judgement, 17 January 2005 (Blagojevi´c and Joki´c Trial Judgement).................. 289, 295, 306, 308, 336, 337, 338, 341, 343, 372, 378 Prosecutor v Vidoje Blagojevi´c and Dragan Joki´c, Case No IT-02-60-A, Judgement, 9 May 2007 (Blagojevi´c and Joki´c Appeal Judgement).............. 337, 341, 343, 369

Blaški´c Prosecutor v Blaški´c, Case No IT-95-14-T, 22 July 1999 (Defence Final Trial Brief)...........................................................................................................316 Prosecutor v Tihomir Blaški´c, Case No IT-95-14-T, Judgement, 3 March 2000 (Blaški´c Trial Judgement)...............................2, 287, 297, 298, 318, 320, 322, 328, 329, 330, 334, 335, 338, 370, 374, 375, 376, 379 Prosecutor v Tihomir Blaški´c, Case No IT-95-14-A, 14 June 2002 (Blaški´c Prosecution’s Respondent Appeal Brief).............................................312 Prosecutor v Tihomir Blaški´c, Case No IT-95-14-A, Judgement, 29 July 2004 (Blaški´c Appeal Judgement)...................................... 295, 298, 312, 330, 332, 333, 335, 337, 338, 342, 367, 369, 374, 375, 376, 380, 387, 409, 413, 430, 431

Boškoski and Tarcˇulovski Prosecutor v Ljube Boškoski and Johan Tarcˇulovski, Case No IT-04-82-PT, Decision on Prosecution’s Motion to Amend the Indictment, 26 May 2006 (Boškoski Decision).............................................................................................367 Prosecutor v Ljube Boškoski and Johan Tarcˇulovski, Case No IT-82-A, Judgement, 19 May 2010 (Boškoski and Tarcˇulovski Appeal Judgement).............328, 329, 379 xxvi



Table of Cases

Brd-anin Prosecutor v Radoslav Brd-anin, Case No IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001 (Brd-anin Decision on Further Amended Indictment)...............347 Prosecutor v Radoslav Brd-anin, Decision on the Motion for Acquittal Pursuant to Rule 98 bis, Case No IT-99-36-T, 28 November 2003 (Brd-anin Decision on Motion for Acquittal) ...........................................................................349, 360 Prosecutor v Radoslav Brd-anin, Case No IT-99-36-A, Appeals Chamber Decision, 19 March 2004 (Brd-anin Decision on Interlocutory Appeal)................................................................................ 288, 326, 361, 374, 378 Prosecutor v Radoslav Brd-anin, Case No IT-99-36-T, Judgement, 1 September 2004 (Brd-anin Trial Judgement)........................293, 299, 301, 306, 307, 308, 314, 318, 320, 323, 328, 330, 331, 332, 334, 335, 336, 337, 338, 350, 352, 353, 372, 375, 378 Prosecutor v Radoslav Brd-anin, Case No IT-99-36-A, Judgement, 3 April 2007 (Brd-anin Appeal Judgement)........................ 339, 349, 350, 352, 353

Cˇelebi´ci Prosecutor v Zejnil Delali´c, Zdravko Muci´c, aka ‘Pavo’, Hazim Deli´c and Esad Landžo, aka ‘Zenga’, Case No IT-96-21-T, Judgement, 16 November 1998 (Čelebići Trial Judgement)................................ 294, 311, 312, 314, 316, 321, 366, 370, 372, 374, 375, 376 Prosecutor v Zejnil Delali´c, Zdravko Muci´c, aka ‘Pavo’, Hazim Deli´c and Esad Landžo, aka ‘Zenga’, Case No IT-96-21-A, Judgement, 20 February 2001 (Čelebići Appeal Judgement).................................... 315, 327, 336, 337, 366, 369, 370, 372, 375, 376

Ðord-evi´c Prosecutor v Vlastmir Ðord-evi´c, Case No IT-05-87/1-T, Judgement, 23 February 2011 (Ðord-evi´c Trial Judgement)..........................................349, 360

Erdemovi´c Prosecutor v Erdemovi´c, Case No IT-96-22-T, Ch I, Sentencing Judgement, 29 November 1996................................................................................................10 Prosecutor v Erdemovi´c, Case No IT-96-22-A, Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997.................9, 10 Prosecutor v Erdemovi´c, Case No IT-96-22-A, Judgement, Separate and Dissenting Opinion of Judge Stephen, 7 October 1997........................................9 xxvii



Table of Cases

Furundžija Prosecutor v Anto Furundžija, Case No IT-95-17/1-T, Judgement, 10 December 1998 (Furundžija Trial Judgement).........................9, 293, 327, 336, 337, 341, 347 Prosecutor v Anto Furundžija, Case No IT-95-17/1-A, Judgement, 21 July 2000 (Furundžija Appeal Judgement).........................................................................340

Gali´c Prosecutor v Stanislav Gali´c, Case No IT-98-29-S, Judgement and Opinion, 30 March 2004 (Gali´c Trial Judgement)........................... 289, 290, 291, 292, 315, 319, 328, 334, 346, 368, 375, 429 Prosecutor v Stanislav Gali´c, Case No IT-98-29-A, Judgement, 30 November 2006 (Gali´c Appeal Judgement)..................................290, 319, 426

Hadžihasanovi´c and Kubura Prosecutor v Enver Hadžihasanovi´c et al, Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (Hadžihasanovi´c Appeal Decision on Jurisdiction)...............................................................366, 372 Prosecutor v Enver Hadžihasanovi´c and Amir Kubura, Case No IT-01-47-T, Decision on Rule 98 bis Motion for Judgement of Acquittal, 27 September 2004 (Hadžihasanovi´c Rule 98 Trial Decision)..................................................321 Prosecutor v Hadžihasanovi´c and Kubura, Case No IT-01-47-A, Judgement, 22 April 2008 (Hadžihasanovi´c Appeal Judgement).........................370, 371, 373

Halilovi´c Prosecutor v Sefer Halilovi´c, Case No IT-01-48-T, Judgement, 16 November 2005 (Halilovi´c Trial Judgement)...................................... 315, 366, 368, 370, 372, 373, 374, 375, 376, 413

Jelisi´c Prosecutor v Goran Jelisi´c, Prosecutor’s Pre-Trial Brief, Case No IT-95-10-T, 19 November 1998..............................................................................................300 Prosecutor v Goran Jelisi´c, Prosecutor’s Appeal Brief (Redacted Version) Case No IT-95-10-A, 14 July 2000.....................................................................300 Prosecutor v Goran Jelisi´c, Case No IT-95-10-A, Judgement, 5 July 2001 (Jelisi´c Appeal Judgement)............................................................ 10, 300, 302, 358

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Table of Cases

Kordi´c and Cˇerkez Prosecutor v Dario Kordi´c and Mario Cˇerkez, Case No IT-95-14/2-T, Judgement, 26 February 2001 (Kordi´c and Cˇerkez Trial Judgement).................. 296, 297, 298, 299, 316, 318, 320, 321, 322, 323, 326, 327, 328, 329, 330, 331, 332, 334, 337, 345, 366, 370, 374, 375 Prosecutor v Dario Kordi´c and Mario Cˇerkez, Case No IT-95-14/2-A, Judgement, 17 December 2004 (Kordi´c and Cˇerkez Appeal Judgement)............ 295, 321, 322, 328, 329, 331, 332, 333, 335

Krajišnik Prosecutor v Momcˇilo Krajišnik, Case No IT-00-39-T, Judgement, 27 September 2006 (Krajišnik Trial Judgement)...............................................................306, 342 Prosecutor v Momcˇilo Krajišnik, Case No IT-00-39A, Judgement, 17 March 2009 (Krajišnik Appeal Judgement)...................................................................349

Krnojelac Prosecutor v Milorad Krnojelac, Case No IT-97-25-T, Judgement, 15 March 2002 (Krnojelac Trial Judgement)..................................... 293, 294, 295, 296, 311, 337, 338, 344, 347, 348, 377, 389 Prosecutor v Milorad Krnojelac, Case No IT-97-25-A, Judgement, 17 September 2003 (Krnojelac Appeal Judgement)................................. 295, 341, 348, 349, 353, 355, 356, 357, 358, 373

Krsti´c Prosecutor v Radislav Krsti´c, Case No IT-98-33-T, Judgement, 2 August 2001 (Krsti´c Trial Judgement).................................................... 300, 301, 306, 307, 314, 328, 330, 333, 334, 344, 389 Prosecutor v Radislav Krsti´c, Case No IT-98-33-A, Judgement, 19 April 2004 (Krsti´c Appeal Judgement)......................................... 308, 341, 342, 344, 355, 389

Kunara´c Prosecutor v Dragoljub Kunarac´ , Radomir Kovacˇ and Zoran Vukovi´c, Case No IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001 (Kunarac´ et al Trial Judgement)..........293, 303, 304, 305, 336, 337, 344, 370, 389 Prosecutor v Dragoljub Kunarac´ , Radomir Kovacˇ and Zoran Vukovi´c, Case Nos IT-96-23 and IT-96-23/1-A, Judgement, 12 June 2002 (Kunarac´ et al Appeal Judgement)...........................................................293, 294, 303, 304, 305, 306, 422

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Table of Cases

Kvocˇka Prosecutor v Miroslav Kvocˇka, Milojica Kos, Mlado Radi´c, Zoran Žigi´c and Dragoljub Prca´c, Case No IT-98-30/1-T, Judgement, 2 November 2001 (Kvocˇka et al Trial Judgement)............................331, 332, 336, 337, 341, 355, 356 Prosecutor v Miroslav Kvocˇka, Mlado Radi´c, Zoran Žigi´c and Dragoljub Prca´c, Case No IT-98-30/1-A, Judgement, 28 February 2005 (Kvocˇka et al Appeal Judgement)........................... 297, 314, 347, 348, 349, 355, 356, 357, 358, 360, 423

Limaj Prosecutor v Fatmir Limaj, Haradin Bala, and Isak Musliu, Case No IT-03-66-T, Judgement, 30 November 2005 (Limaj Trial Judgement).................................. 293, 294, 316, 328, 329, 330, 332, 333, 334, 335, 336, 337, 338, 340, 344, 345, 368, 373, 375, 389, 422 Prosecutor v Fatmir Limaj, Haradin Bala, and Isak Musliu, Case No IT-03-66-A, Judgement, 27 September 2007 (Limaj Appeal Judgement).............................349

Marti´c Prosecutor v Milan Marti´c, Case No IT-95-11-T, Judgement, 12 June 2007 (Marti´c Trial Judgement)............................................................................307, 314

Miloševi´c Prosecutor v Dragomir Miloševi´c, Case No IT-98-29/1-A, Judgement, 12 November 2009 (Miloševi´c Appeal Judgement)...........................328, 329, 331

Milutinovi´c Prosecutor v Milan Milutinovi´c et al, Case No IT-99-37-AR72, Decision in Dragoljub Ojdani´c’s Motion Challenging Jurisdiction: Joint Criminal Enterprise, 21 May 2003 (Milutinovi´c et al Decision on Ojdani´c’s Motion Challenging Jurisdiction: Joint Criminal Enterprise).......................................347

Naletili´c and Martinovi´c Prosecutor v Mladen Naletili´c and Vinko Martinovi´c, Case No IT-98-34-T, Judgement, 31 March 2003 (Naletili´c Trial Judgement)..........................315, 318, 320, 321, 322, 336, 370

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Table of Cases

Ori´c Prosecutor v Naser Ori´c, Case No IT-03-68-T, Judgement, 30 June 2006 (Ori´c Trial Judgement)..................................... 1, 287, 314, 323, 330, 331, 332, 333, 336, 337, 338, 339, 342, 367, 368, 369, 370, 372, 373, 376, 377, 379, 380, 387, 409, 425, 427, 430 Prosecutor v Naser Ori´c, Case No IT-03-68-A, Judgement, 3 July 2008 (Ori´c Appeal Judgement)...................................................................368, 370, 372

Periši´c Prosecutor v Momcˇilo Periši´c, Case No IT-04-81-T, Judgement, 6 September 2011 (Periši´c Trial Judgement)........................................... 306, 307, 308, 314, 315

Simi´c Prosecutor v Blagoje Simi´c, Miroslav Tadi´c and Simo Zari´c, Case No IT-95-9-T, Judgement, 17 October 2003 (Simi´c et al Trial Judgement).................................................................. 336, 344, 348, 349, 362, 389 Prosecutor v Blagoje Simi´c, Case No IT-95-9-A, Judgement, 28 November 2006 (Simi´c Appeal Judgement)................................. 341, 363, 364, 365, 366, 431

Staki´c Prosecutor v Milomir Staki´c, Case No IT-97-24-T, Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002 (Staki´c Rule 98 Trial Decision)............................................................................. 159, 291, 342, 377 Prosecutor v Milomir Staki´c, Case No IT-97-24-T, Judgement, 31 July 2003 (Staki´c Trial Judgement).....................................129, 295, 296, 297, 301, 306, 307, 308, 313, 314, 321, 328, 360, 362, 370, 429 Prosecutor v Milomir Staki´c, Case No IT-97-24-A, Judgement, 22 March 2006 (Staki´c Appeal Judgement).........295, 296, 306, 308, 348, 349, 359, 360, 363

Strugar Prosecutor v Pavle Strugar, Case No IT-01-42-T, Decision on Rule 98 bis Motion for Judgment of Acquittal, 21 June 2004 (Strugar Rule 98 Trial Decision).....313 Prosecutor v Pavle Strugar, Case No IT-01-42-T, Judgement, 31 January 2005 (Strugar Trial Judgement)......................................... 313, 314, 315, 317, 318, 321, 322, 333, 334, 366, 368, 375

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Table of Cases

Prosecutor v Pavle Strugar, Case No IT-01-42-A, Judgement, 17 July 2008 (Strugar Appeal Judgement).....................................................................................318, 319

Tadi´c Prosecutor v Duško Tadi´c aka ‘Dule’, Case No IT-94-1-AR-72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (Tadi´c Appeal Decision on Jurisdiction).....................................................10, 304 Prosecutor v Duško Tadi´c aka ‘Dule’, Case No IT-94-1-T, Opinion and Judgement, 7 May 1997 (Tadi´c Trial Judgement)..............................................295 Prosecutor v Duško Tadi´c aka ‘Dule’, Case No IT-94-1-A, Judgement, 15 July 1999 (Tadi´c Appeal Judgement)...................11, 327, 336, 338, 344, 346, 347, 348, 349, 353, 355, 356, 358, 359, 360, 361, 381, 389, 431 Prosecutor v Duško Tadi´c, Case No IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000.................304

Vasiljevi´c Prosecutor v Mitar Vasiljevi´c, Case No IT-98-32-T, Judgement, 29 November 2002 (Vasiljevi´c Trial Judgement)............................................. 295, 296, 306, 308, 337, 341, 344, 347, 389 Prosecutor v Mitar Vasiljevi´c, Case No IT-98-32-A, Judgement, 25 February 2004 (Vasiljevi´c Appeal Judgement).................................. 295, 326, 336, 337, 338, 347, 348, 349, 353, 360

International Criminal Tribunal for Rwanda Akayesu Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-T, Judgement, 2 September 1998 (Akayesu Trial Judgement).......................... 300, 322, 328, 330, 333, 334, 336, 337, 340, 341 Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-A, Judgement, 1 June 2001 (Akayesu Appeal Judgement).........................................................330

Bagosora et al Prosecutor v Théoneste Bagosora et al, Case No ICTR 98-41-T, Judgement, 18 December 2008 (Bagosora et al Trial Judgement)........................................337

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Table of Cases

Bagilishema Prosecutor v Ignace Bagilishema, Case No ICTR-95-1A-T, Judgement, 7 June 2001(Bagilishema Trial Judgement).............................. 301, 309, 310, 323, 328, 329, 330, 334, 338, 366, 376 Prosecutor v Ignace Bagilishema, Case No ICTR-95-1A-A, Judgement, 3 July 2002 (Bagilishema Appeal Judgement)............................ 374, 375, 376, 413

Bisengimana Prosecutor v Paul Bisengimana, Case No ICTR 00-60-T, Trial Judgement, 13 April 2006 (Bisengimana Trial Judgement)..................................309, 310, 325

Gacumbitsi Prosecutor v Sylvestre Gacumbitsi, Case No ICTR-2001-64-T, Judgement, 17 June 2004 (Gacumbitsi Trial Judgement).......328, 330, 331, 334, 336, 344, 389 Prosecutor v Sylvestre Gacumbitsi, Case No ICTR-2001-64-A, Judgement, 7 July 2006 (Gacumbitsi Appeal Judgement)............................ 156, 303, 304, 331, 345, 346, 364, 365, 366, 399

Kajelijeli Juvénal Kajelijeli v Prosecutor, Case No ICTR-98-44A-T, Judgement, 1 December 2003 (Kajelijeli Trial Judgement)................. 303, 309, 310, 328, 329, 330, 334, 336, 337, 338, 344, 372, 377

Kambanda Jean Kambanda v Prosecutor, Case No ICTR-97-23-S, Judgement and Sentence, 4 September 1998 (Kambanda Trial Judgement)..............300, 377, 426

Kamuhanda Prosecutor v Jean de Dieu Kamuhanda, Case No ICTR-95-54A-T, Judgement, 22 January 2004 (Kamuhanda Trial Judgement).............................. 303, 309, 310, 328, 330, 336, 337, 344, 389

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Table of Cases

Karemera Prosecutor v Édouard Karemera et al, Case No ICTR-98-44-T, Decision on Jurisdictional Appeals: Joint Criminal Enterprise, 12 April 2006 (Karemera Appeal Decision).................................................................................................347

Kayishema and Ruzindana Prosecutor v Clément Kayishema and Obed Ruzindana, Case No ICTR-95-1-T, Judgement, 21 May 1999 (Kayishema and Ruzindana Trial Judgement)........307, 309, 323, 336, 366, 370, 374, 377 Prosecutor v Clément Kayishema and Obed Ruzindana, Case No ICTR-95-1-A, Judgement (Reasons) 1 June 2001 (Kayishema and Ruzindana Appeal Judgement).................................................................................. 329, 338, 344, 389

Muhimana Prosecutor v Mikaeli Muhimana, Case No ICTR-95-1B-T, Judgement, 28 April 2005 (Muhimana Trial Judgement).....................................303, 323, 336

Musema Alfred Musema v Prosecutor, Case No ICTR-96-13-T, Judgement, 27 January 2000 (Musema Trial Judgement)............. 310, 322, 328, 366, 370, 377

Muvunyi Prosecutor v Tharcisse Muvunyi, Case No ICTR-2000-55A-A, Judgement, 1 April 2011 (Muvunyi Appeal Judgement)......................................................369

Nahimana Prosecutor v Nahimana et al, Case No ICTR-99-52-T, 3 December 2003 (Nahimana et al Trial Judgement).....................................................................377 Prosecutor v Nahimana et al, Case No ICTR-99-52-A, 28 November 2007 (Nahimana et al Appeal Judgement) ........................................................329, 369

Nchamihigo Prosecutor v Siméon Nchamihigo, Case No ICTR-2001-63-A, 18 March 2010 (Nchamihigo Appeal Judgement).......................................................................333

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Table of Cases

Ntagerura Prosecutor v André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Case No ICTR-99-46-T, Judgement and Sentence, 25 February 2004 (Ntagerura et al Trial Judgement)...............288, 310, 323, 367, 368, 369, 373, 377 Prosecutor v André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Case No ICTR-99-46-A, Judgement, 7 July 2006 (Ntagerura et al Appeal Judgement)..........................................................................................................377

Ntakirutimana Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos ICTR-96-10-T and ICTR-96-17-T, Judgement, 21 February 2003 (Ntakirutimana Trial Judgement)..............................................................336, 340 Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004 (Ntakirutimana Appeal Judgement)......................................... 306, 308, 310, 341, 342, 347, 348, 349, 353

Renzaho Prosecutor v Tharcisse Renzaho, Case No ICTR-97-31-T, Judgement, 14 July 2009 (Renzaho Trial Judgement)................... 333, 334, 337, 349, 369, 370

Rutaganda Prosecutor v Georges Anderson Nderubunwe Rutaganda, Case No ICTR-96-3, Judgement, 6 December 1999 (Rutaganda Trial Judgement)...................310, 322

Rwamakuba Prosecutor v André Rwamakuba, Case No ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004 (Rwamakuba Appeal Decision).....348

Semanza Prosecutor v Laurent Semanza, Case No ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (Semanza Trial Judgement)................ 303, 310, 323, 330, 334, 336, 338, 341, 367, 369, 373

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Table of Cases

Prosecutor v Laurent Semanza, Case No ICTR-97-20-A, Judgement, 20 May 2005 (Semanza Appeal Judgement)..............................................334, 338

Seromba Prosecutor v Athanase Seromba, Case No ICTR-01-66-T, Judgement, 13 December 2006 (Seromba Trial Judgement).................................................306 Prosecutor v Athanase Seromba, Case No ICTR-01-66-A, Judgement, 12 March 2008 (Seromba Appeal Judgement)...................................................345

Serushago (Prosecutor v Omar Serushago) Case No ICTR 98-39-S, Sentence, 5 February 1999 (Serushago Sentence)..............................................................377

Simba Prosecutor v Aloys Simba, Case No ICTR-01-76-T, Judgement and Sentence, 13 December 2005 (Simba Trial Judgement) ........................... 310, 348, 349, 358 International Military Tribunal at Nuremberg Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 1 October 1946.................................232, 233

Post World War II Cases under Control Council Law No. 10 Becker and Others Trial of Gustav Becker, Wilhelm Weber and 18 Others, Permanent Military Tribunal at Lyon, (1947), UNWCC, Law Reports of Trials of War Criminals, Vol. VII ........................................................................................................249, 252

Buck and Ohers Trial of Karl Buck and Ten Others, British Military Court, Wuppertal, Germany, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. V ....................256

Buhler Trial of Dr Joseph Buhler, Supreme National Tribunal of Poland, (1948), UNWCC, Law Reports of Trials of War Criminals, Vol. XIV .............................250 xxxvi



Table of Cases

Einsatzgruppen Case United States v Otto Ohlendorf et al, US Military Tribunal, Nuremberg, (1947–1948), (Washington DC: US Government Printing Office, 1951) .......244

Golkel et al Trial of Karl Adam Golkel and 13 Others, British Military Court, Wuppertal, Germany, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. V ...247

High Command Case United States v Wilhelm von Leeb et al, US Military Tribunal, Nuremberg (1947– 1948) UNWCC, Law Reports of Trials of War Criminals, Vol. XII. ...........252, 255

Hostage Case United States v Wilhelm List et al, US Military Tribunal, Nuremberg (1948) UNWCC, Law Reports of Trials of War Criminals, Vol. VIII .....................253, 420

IG Farben Case United States v Carl Krauch & Others, US Military Tribunal, Nuremberg, (1948), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol. VIII (Washington DC: US Government Printing Office, 1953)...................................................................236

Justice Case United States v Alstötter et al, US Military Tribunal, Nuremberg, (1947), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol. III (Washington DC: US Government Printing Office, 1951)................................................................................ 237, 241, 247, 249

Krupp Trial United States v Krupp and Others, US Military Tribunal, Nuremberg, (1948), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol. IX, Part 2 (Washington DC: US Government Printing Office, 1948)...................................................238, 419, 422 xxxvii



Table of Cases

Medical Case United States v Karl Brandt et al, US Military Tribunal, Nuremberg, (1946–1947), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol. II (Washington DC: US Government Printing Office, 1951).................................................................................238, 239

Oswald Pohl and Others United States v Oswald Pohl and Others, (1947), United States Military Tribunal, Nuremberg, Law Reports of Trials of War Criminals, Vol. XV, Digest of Laws and Cases (London: His Majesty’s Stationary Office, 1949) ...................244, 250

Peleus Case Trial of Eck and Others (Peleus Case) British Military Court, Hamburg, (1945), Annual Digest and Reports of Public International law Cases, Vol. XIII (1946) ..................................................................................................255

Rohde and Ohers Trial of Werner Rohde and Eight Others, British Military Court, Wuppertal, Germany, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. V....248

Rusha Case United States v Ulrich Greifelt, Creutz et al, US Military Tribunal, Nuremberg, (1948), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol. V (Washington DC: US Government Printing Office, 1949) ........................................................................................350

Schonfeld and Others Trial of Franz Schonfeld and Nine Others, British Military Court, Essen, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. XI................................248

The Scuttled U-Boats Case Trial of Oberleutnant Gerhard Grumpelt, British Military Court, Hamburg, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. I......................256 xxxviii



Table of Cases

Zyklon B Case Trial of Bruno Tesch et al, British Military Court, Hamburg, (1946), UNWCC, Law Reports of Trials of War Criminals, Vol. I. ..................................................251

Other Trials Related to Nazi Crimes Eichman Attorney-General of the Government of Israel v Adolf Eichmann, Supreme Court of Israel, (1962) 36 International Law Reports 275 ...................................................256

Finta R v Finta [1994] 1 RCS (on Appeal from the Court of Appeal for Ontario) 701–877 Cass crim (27 November 1992); 1 Recueil de la Cour Supreme 701..422

Case Law of England and other Common Law Systems England Andrew v DPP [1937] 2 All ER 552 (HL) ................................................................68 Attorney-General v Able and Others [1984] QB 795................................................71 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 (CA).........................71 B (A Minor) v DPP [2000] 4 LRC 405......................................................................92 Chan Wing-Siu and Others v The Queen [1985] AC 168...................................82, 83 Chan Wing-Siu v R [1985] 80 Cr App R 117.....................................................81, 83 Churchill v Walton [1967] 2 AC 224.........................................................................73 DPP v Beard [1920] AC 479......................................................................................64 DPP v Majewski [1977] AC 443, 478 (HL)........................................................64, 65 DPP v Morgan [1975] 2 All ER 347....................................................................51, 92 DPP v Smith [1961] AC 290 (HL)........................................................ 34, 35, 95, 422 Du Cros v Lambourne [1907] 1 KB 40......................................................................72 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830 (HL).............................................................72 Hui Chi-Min v R [1992] 1 AC 34 (PC)..............................................................81, 83 Hui Chi-Ming v R [1992] 94 Cr App R 236, [1992] 1 AC 34..................................81 Hyam v DPP [1975] AC 55 (HL)..................................................................34, 36, 38 JF Alford Transport Ltd [1997] 2 Cr App R 326.......................................................72

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Table of Cases

Johnson v Youden and Others [1950] 1 KB 544..................................................72, 73 Leslie George Griffiths v R [1974] 60 Cr App R 14 (CA) .........................................62 Maxwell v DPP for Northern Ireland [1978] 3 All ER 1140.....................................73 Maxwell v DPP for Northern Ireland [1978] 1 WLR 1350 (HL).......................73, 74 Metropolitan Police Commissioner v Caldwell [1982] AC 341 (HL)................. 52, 54 Morgan [1975] All ER 347 (HL)...............................................................................51 National Coal Board v Gamble [1959] 1 QB 11.................................................75, 97 Powell and Daniels, English [1999] 1 AC 1...............................................................84 R v A and Others [2010] EWCA Crim 1622.............................................................80 R v A and Others [2011] 2 WLR 647........................................................................80 R v A, B, C and D [2010] EWCA Crim 1620; [2011] 2 WLR 647...........................79 R v Anderson and Morris [1966] 2 QB 110 (CA).........................................82, 87, 88 R v Bainbridge [1960] 1 QB 129...............................................................................73 R v Betty (1963) 48 Cr App R 6................................................................................87 R v Briggs (Note) [1977] 1 WLR 605 (CA) .............................................................53 R v Bryce [2004] 2 Cr App R 592...................................................... 68, 71, 72, 81, 82 R v Bryce [2004] EWCA Crim 1231.................................................................73, 245 R v Caldwell [1982] AC 341 (HL)................................................................51, 52, 54 R v Clarkson [1971] 3 All ER 344.......................................................................74, 75 R v Cogan and Leak [1976] 1 QB 217 (CA).............................................................70 R v Coney (1882) 8 QBD 534....................................................................................74 R v Cunningham [1957] 2 QB 396.....................................................................52, 53 R v Daryl Parker [1977] 1 WLR 600 (CA).........................................................51, 53 R v G and Another [2004] 1 AC 1034 (HL)..................................................51, 56, 57 R v Hancock and Shankland [1986] 1 AC 455 (HL).................... 2, 34, 38, 39, 40, 95 R v Hyde [1991] 92 Cr App R 131, [1991] 1 QB 134...............................................81 R v Kimber [1983] 1 WLR 1118................................................................................92 R v Lawrence [1982] AC 510 (HL)...........................................................................55 R v Luffman [2008] EWCA Crim 1739..................................................................245 R v Matthews and Alleyne [2003] 2 Cr App Rep 461 (CA) ....................................42 R v Mendez and Another [2010] EWCA Crim 516.............................. 79, 81, 86, 245 R v Moloney [1985] AC 905 (HL)....................................................... 2, 31, 34, 37, 39 R v Moloney [1985] 1 All ER 1025................................................................37, 38, 39 R v Nedrick [1986] 83 Cr App R 267 CA (Crim Div)........................................34, 40 R v Nedrick [1986] 1 WLR 1025 (CA) .....................................................................40 R v Powell and Another; R v English [1997] 4 All ER 545 (HL)............. 79, 82, 83, 87 R v Rahman [2009] AC 129......................................................................................81 R v Rahman and Others [2007] EWCA Crim 342...................................................85 R v Rahman and Others [2008] HL 45.....................................................................88 R v Rahman and Others [2008] 4 All ER 351 ..............................................86, 87, 88 R v Rook [1993] 97 Cr App R 327.............................................................................81 R v Rook [1993] 1 WLR 1005....................................................................................81 R v Sleep 169 ER 1296, 1302 (CCR 1861)................................................................61 R v Smith (1963) 1 WLR 1200..................................................................................87 xl



Table of Cases

R v Stephenson [1979] 1 QB 695...............................................................................53 R v Stewart and Schofield [1995] 1 Cr App R 441 (CA)..........................................79 R v Tolson [1886–90] All ER Rep 26.........................................................................91 R v Tolson (1889) 23 QBD 185–87...........................................................................27 R v Woollin [1999] 1 AC 82 (HL)............................................... 2, 34, 37, 41, 43, 105 R v Yemoh [2009] EWCA Crim 930.........................................................................86 Rook [1993] 2 All ER 955 .........................................................................................81 Roper v Taylor’s Central Garage (Exeter) Ltd (1951) 2 TLR 284 (KBD)................................................................................................ 60, 61, 62, 427 Rubie v Faulkner [1940] 1 KB 571............................................................................72 Tuck v Robson [1970] 1 A11 ER 1171.......................................................................72 Tyler and Price (1883) 8 C & P 616, 172 ER 643......................................................70 Walker and Hayles [1990] 90 Cr App R 226 ............................................................39 Westminster City Council v Croyalgrange Ltd and Another [1986] 2 All ER 353 (HL).........................................................................................59, 378

Australia Ancuta (1990) 49 A Crim R 307...............................................................................77 Boughey v The Queen [1986] 161 CLR 10................................................................46 Clayton v R [2006] HCA 58........................................................................89, 90, 381 Darkan [2006] HCA 34............................................................................................45 Gillard v The Queen (2003) 219 CLR 1....................................................................89 Gillard v R (2003) 139 A Crim R 100.......................................................................88 Giorgianni v R [1985] HCA 29.................................................................................75 Johns v The Queen [1980] 143 CLR 108 (HCA)......................................................89 Keenan [2009] HCA 1 ..............................................................................................91 McAuliffe v The Queen [1995] 183 CLR 108 (HCA)...............................................89 R v Barlow (1997) 188 CLR 1...................................................................................88 R v Crabbe (1985) 156 CLR 464...............................................................................45 R v Harwood (2002) 188 ALR 296............................................................................88 R v Jervis [1993] 1 Qd R 643.....................................................................................87 Stokes and Difford (1990) 51 A Crim R 25...............................................................77 Vallance v R [1961] 108 CLR 56...............................................................................48 Ward v Western Australia (1997) 19 WAR 68...........................................................77

Canada Buzzanga (1979) 49 CCC (2d) 369 (Ont CA).................................................47, 393 Chartrand (1994) 31 CR (4th) 1 (SCC)...................................................................47 Currie v The Queen (1976) 24 CCC (2d) 292 (Ont CA).................................61, 428 Duong [1998] 15 CR (5th) 209 (Ont CA)................................................................63 xli



Table of Cases

FW Woolworth Co (1974) 18 CCC (2d) 30 (Ont CA).....................................61, 428 Pappajohn v The Queen [1980] 2 Can SCR 120 ......................................................93 R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411...........................................................62 R v Dunlop and Sylvester [1979] 2 SCR 811.............................................................78 R v Jackson [1993] 4 SCR 573...................................................................................88 R v Jorgensen [1995] 4 SCR 55..................................................................................62 R v Keegstra [1990] 3 SCR 697..................................................................................47 R v Kirkness [1990] 3 SCR 74........................................................................................ 78 R v Lagacé (2003) 181 CCC (3d) 12 (Ont CA)........................................................62 R v Logan [1990] 2 SCR 731.............................................................................91, 381 R v Martineau [1990] 2 SCR 633..............................................................................47 R v Nixon (1990) 57 CCC (3d) 97 (BCCA).............................................................78 R v Roach [2004] OJ No 2566, 192 CCC (3d) 557 (Ont CA).................................78 R v Rodney [1990] 2 SCR 687.................................................................................381 R v Sit [1991] 3 SCR 124...........................................................................................47 R v Vaillancourt [1987] 2 SCR 636...........................................................................47 Sansregret v The Queen [1985] 45 CR (3d) 193 (SCC)...........................................58 Sansregret v The Queen [1985] 1 SCR 570............................................. 62, 63, 93, 96

Ireland DPP v Bryan Ryan [2011] IECCA 6.........................................................................88 DPP v McBridge [1996] 1 IR 312..............................................................................44 People v Murray [1977] IR 360.................................................................................44 R v Gilmore [2000] 2 Cr App R 407..........................................................................87 The People (DPP) v Douglas and Hayes [1985] ILRM 25 .......................................44

United States Backun v United States, 112 F 2d 635 (4th Cir 1940)....................................124, 126 Bryan v United States, 118 US S Ct 1939 (1998)............................................111, 112 Commonwealth v Malone, 354 Pa 180, 47 A 2d 445, 447 (1946)...........................116 Commonwealth v Woodward, 7 Mass 449 (1997), 694 NE 2d 1277 (Mass 1998)...99 Conroy v State, Court of Appeal of Texas, 843 SW 2d 67 (1992)............................116 Farmer v Brennan, 511 US 825 (1994)...................................................................113 Fields v United States, United States Court of Appeals, District of Columbia, 164 F 2d 97 (1947) .............................................................................................111 Hanauer v Doane, 79 US 342, 20 LEd 439 (1870).................................................124 Haupt v United States, 330 US 631, 641 (1947).....................................................105 Hill v Commonwealth, 239 Ky 646, 40 SW 2d 261 (1931).....................................116 McBoyle v United States, 283 US 25 (1931) .............................................................98 Morissette v United States, 342 US 246 (1952).........................................................29 Myrick v State, 199 Ga 244, 34 SE 2d 36, 40 (1945)...............................................116 xlii



Table of Cases

People v Hood, 1 Cal 3d 444, 456, 82 Cal Rptr 618, 625, 462 P 2d 370, 377 (1969)..................................................................................................................102 Ratzlaf v United States, 510 US 135, 137 (1994)....................................................112 State v Elton, 680 P 2d 727, 730–31 (Utah Sup Ct 1984) .....................................123 State v Howard, Supreme Court of Utah, 597 P 2d 878 (1979)............................117 State v Hernandez, Missouri Court of Appeals, 815 SW 2d 67 (1991) ................118 State v Taylor, 70 Vt 1, 39 A 447 (1989)..................................................................126 Townsend v United States, 68 App DC 223, 229, 95 F 2d 352, 358 (1938) ...........111 United States v Albers, 226 F 3d 989, 995 (9th Cir 2000).......................................113 United States v Bailey et al, 444 US 394, 100 S Ct 624, 62 L Ed 2d 575 (1980)....................................................................................................98, 106, 390 United States v Eberhardt, 417 F 2d 1009 (4th Cir 1969)......................................124 United States v Falcone, 109 F 2d 579, 581 (2nd Cir), 311 US 205 (1940) ...........126 United States v Hilliard, 31 F 3d 1509 (10th Cir 1994)..................................107, 388 United States v Jewell, 532 F 2d 697 (9th Cir 1976) ..............................109, 110, 128 United States v Leary 395 US 6 (1969) ..................................................................109 United States v Maria Cordoba-Hincapie and Libardo Buelvas-Castro, CR 92-650, CR 92-1366 – US Dist Court for the Eastern District of New York 825 F Supp 485; 1993 US Dist Lexis 9504.................................100, 123 United States v Peoni, 100 F 2d 401, 402 (2d Cir 1938).........................................124 United States v Turner 396 US 398 (1970) ............................................................109 United States v United States Gypsum Co, 438 US 422, 445 (1978) ......105, 106, 390 United States v Valle-Valdez, 554 F 2d 911, 914 (9th Cir 1977).....................109, 110 US v Trinidad-Aquino, 259 F 3d 1140, 1146 (9th Cir 2001).........................112, 113

Germany BGH NStZ-RR 2010, 144................................................................................141, 144 BGH NStZ 2011, 210 .............................................................................141, 142, 144 BGHSt 2, 194 (201).................................................................................................134 BGHSt 21, 283.................................................................................................139, 393 BGHSt 7, 363...................................................................................................140, 142 BGHSt 7, 368...........................................................................................................140 BGH NStZ 2000, 165..............................................................................................141 BGHSt 36, 1.....................................................................................................141, 313 BGHSt 7, 363...................................................................................................140, 142 BGHSt 3, 248...........................................................................................................149 BGHSt 34.................................................................................................................151 BGHSt GrS (Great Senate), 2, 194..........................................................................152 BGH 2, 194......................................................................................................147, 153 BGH 5, 111..............................................................................................................153 BGH 20, 342............................................................................................................153 BGHSt 32.................................................................................................................156 xliii



Table of Cases

BGHSt 40, 218.................................................................................................156, 158 BGHSt 18, 87...........................................................................................................160

xliv

1 Introduction The time has come, perhaps, to discard or limit the visionary goal of ‘one law’ or ‘one code’ for the whole world, and to substitute for it the more realistic aim of crystallising a common core of legal principles.1

I The Mens Rea Enigma Mens rea, the most significant factor in determining criminal responsibility, is still one of the most complex areas of criminal law, in most part, because so many imprecise and vague terms are used to define the mental element. Part of this problem was created by ‘discordant opinions voiced by judges, which reflect the failure of the legal profession to agree upon the meaning of elementary terms’.2 Soon after the establishment of the International Military Tribunal at Nuremberg (IMT), the International Military Tribunal for the Far East (IMTFE) and other trials conducted under Control Council Law No 10, the mens rea enigma was transferred from the national to the international sphere. The jurisprudence of the IMT and IMTFE as well as those of the two ad hoc Tribunals mirrors the difficulty of identifying the various forms and shades of mens rea in international criminal law.3 One reason for this is the lack of a general definition of the mental element in either the Nuremberg and Tokyo Charters,4 or the statutes of the two ad hoc Tribunals.5 Some judges have interpreted criminal intent to encompass a cognitive element of knowledge and a volitional element of acceptance,6 whereas others have been of the opinion that mere foreseeability of 1   Rudolf B Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’ (1957) 51 American Journal of International Law 734–53, 741. 2   See Glanville Williams, The Mental Element in Crime (Jerusalem: The Magnes Press, 1965) 9. 3   See Mohamed Elewa Badar, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2006) 6 International Criminal Law Review 313–48. 4   Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the major War Criminals of the European Axis, 8 August 1945, 59 Stat 1544, 82 UNTS 279; Charter of the International Military Tribunal for the Far East, 19 January 1946, TIAS No 1589. 5   Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc S/RES/827; Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955. 6  See Oric´ Trial Judgement, para 279.

1

Introduction harm is sufficient to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. In several judgments, judges lowered the mens rea threshold to reach the one of negligence or gross negligence. 7 Common law terms such as direct intent, oblique intent8 and recklessness have been employed by judges sitting at international tribunals, whereas other judges adhered to continental law terms such as dolus specialis, dolus directus and dolus eventualis, regardless of the vast diversity between these terms.9 In some cases, a subjective test was adopted in order to ascertain the guilt of the accused, while in others the objective test was clearly employed. As a result of the general uncertainty regarding the definition of various categories of mens rea and the absence of a conventional or customary rule regarding these issues, the drafters of the Rome Statute of the International Criminal Court (ICC) decided to include a special provision on the subject.10 However, it is doubtful that this provision – which is described in Article 30 of the Rome Statute – adequately covers all the significant variations of subjective elements of international crimes.11 Soon after the ICC began operating, Article 30 has been subject to different interpretations by the Chambers of the same Court.12 Some view Article 30 as encompassing the three categories of dolus, namely, dolus directus of the first and second degree and dolus eventualis. Others hold the opinion that the plain meaning of Article 30 is confined to dolus directus of the first degree (intent in stricto sensu) and dolus directus of the second degree (indirect or oblique intent).13 The same controversy took place in the realm of international criminal law when establishing the subjective requirements of each form of perpetration and participation in international crimes as well as the interrelation between the mental element and mistake of law and mistake of fact. 7   Surprisingly, the Blaškic´ Trial Chamber stretched the fault element required for serious violations of Art 2 of the ICTY Statute to reach the boundaries of criminal negligence; see Blaškic´ Trial Judgement, para 152. 8  See for instance, Brd–anin Decision on Interlocutory Appeal, Separate Opinion of Judge Shahabudeen, para 6, referring to English case law, namely, R v Moloney [1985] AC 905 (HL); Hancock and Shankland [1986] 1 AC 455 and R v Woollin [1999] 1 AC 82. These cases, among others, will be discussed and examined in ch 3 of this volume. 9   See Mohamed Elewa Badar, ‘Drawing the Boundaries’ above (n 3) 313–48. See also Thomas Weigend, ‘The Harmonization of General Principles of Criminal Law: The Statutes and Jurisprudence of the ICTY, ICTR, and the ICC: An Overview’ (2004) 19 Nouvelles études pénales 319, 326. 10   Art 30 of the Rome Statute of the International Criminal Court, UN Doc A/CONF 183/9 (17 July 1998) entered into force on 1 July 2002. 11   See Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) 159–60. Schabas noted that ‘article 30 of the Rome Statute is not only confusing and ambiguous, it is also superfluous, and that judges of the International Criminal Court, like their colleagues at the ICTY, would easily have understood the mental element of crimes without them having to be told’. William A Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’ (2003) 37 New England Law Review 1015, 1024. 12   See Mohamed Elewa Badar, ‘Some Reflections on Article 30 of the Rome Statute in Light of the Lubanga and Katanga Decisions on the Confirmation of Charges’ in O Triffterer, J Vogel and C Burchard (eds), The Review Conference and the Future of the International Criminal Court (The Hague: Kluwer Law International, 2010) 109–30. 13   See Mohamed Elewa Badar, ‘Dolus Eventualis and the Rome Statute without it?’ (2009) 12(3) New Criminal Law Review 433–67.

2

The Mens Rea Enigma Schabas, who studied the evolutionary process of these institutions, observed that jurists at the Yugoslavia Tribunal ‘were experts in the legal system they had been educated in, but as a general rule the common lawyers had virtually no background, training, or familiarity with so-called civil law systems’.14 Bassiouni once observed: The judicial process in the cases of the IMT, IMTFE, ICTY and ICTR was, for all practical purposes, an intuitive judicial method of ascertaining and applying what they believe to be part of general principles of law. The term intuitive means that the judges in a given case acting on the basis of their knowledge and individual research reach a conclusion without following a method recognized in comparative criminal law technique. The haphazard nature of the process, however, did not necessarily exclude the reaching of correct outcomes which are consonant with what a proper methodology would have reached. But that also meant that the process was unpredictable and the outcomes not always consistent with a given theory of law. The absence of pre-existing norms of a general part also meant that the prosecution was frequently uncertain as to what it had to prove, and the defence equally uncertain as to its ability to challenge it, or advance argument for exoneration.15

Mireille Delmas-Marty called for a pluralist conception of international criminal law based on a comparative criminal law which incorporates national legal principles into international criminal law.16 Bassiouni noted that ‘one of the most challenging exercises in comparative criminal law is trying to reconcile, let alone combine, concepts of different legal systems into the general part of criminal law’.17 Together with a group of comparative criminal law experts, he tried this exercise in 1987. He admitted that any comparative study ‘can never achieve a satisfactory synthesis of the world’s diverse criminal law concepts’.18 As Cassese suggested, coming to grips with the present dilemma requires that one must start from the assumption that what matters is to identify the possible existence of general rules of international law or principles common to the major legal systems of the world.19 Thus, knowledge of fundamental principles in both ‘common’ and ‘continental’ legal systems and other legal systems has become a must. Failing to acquire such knowledge may lead to a breakdown in communication between jurists appearing before international criminal courts. Writers on international criminal law have used the comparative method, but have drawn almost exclusively on Western experience. This practice is not 14  William A Schabas, ‘The Influence of International Law and International Tribunals on Harmonized or Hybrid Systems of Criminal Procedure’ (2005) 4 Washington University Global Studies Law Review 651, 653. 15  M Cherif Bassiouni, Introduction to International Criminal Law (New York: Transnational Publisher, 2003) 282 (emphasis added). 16  Mireille Delmas-Marty, ‘The Contribution of Comparative Law to a Pluralist Conception of International Law’ (2003) 1 Journal of International Criminal Justice 13. 17  M Cherif Bassiouni, The Legislative History of the International Criminal Law: Introduction, Analysis and Integrated Text, vol I (Ardsley, New York: Transnational Publisher, 2005) 158. 18  ibid. 19  Cassese, International Criminal Law, above (n 11) 159–60.

3

Introduction justified in a time when the family of nations is no longer made up principally of Western nations. The utmost value of this research is its broad and all-encompassing legal analysis of substantive laws of several representatives of major world legal jurisdictions which undoubtedly reveals those much sought-after ‘universal values’ in diverse criminal justice systems that Fletcher spoke of. By examining the concept of a crime in selected legal jurisdictions with the particular focus on the mens rea doctrine, this work reveals common denominators that exist in all major world jurisdictions and warns against the technical comparison of legal terms, which leads to nothing less than confusion. The major findings of this study are of particular interest to international criminal lawyers due to the lack of in-depth comparative analysis of substantive law notions in the jurisprudence of international criminal courts and tribunals, which has obviously affected the quality and strengths of court findings. It appears that the transposition of legal terms into the terrain of international criminal law has been mostly of a technical nature rather than accompanied by the meticulous comparative legal analysis. As noted by Raimondo, ‘the international criminal courts and tribunals have not adopted any particular methodology to choose the national legal systems to be examined for driving general principles of law’.20 It is only the emphasis on general principles derivative from the major legal systems of the world accompanied by the careful comparative analysis that could truly attest to the fact that international criminal law is a unique amalgam of world legal practices without undermining its status as a distinct area of international law.

II  General Principles of Law In any system of law a situation may arise where the court in considering a case before it realises that there is no law covering the exact issue.21 ‘Such a situation is perhaps even more likely to arise in international law because of the relative underdevelopment of the system in relation to the needs with which it is faced’.22 It is here that general principles of law come into play by filling the gaps. Many national codes recognise the recourse to general principles of law, sometimes transcending national territories in the search of a common core of laws.23 20   Fabián O Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, PhD Thesis (University of Amsterdam, 2007) 186–87. 21   Malcolm N Shaw, International Law, 6th edn (Cambridge: Cambridge University Press, 2008) 98; See also Frances T Freeman Jalet, ‘The Quest for the General Principles of Law Recognized by Civilized Nations – A Study’ (1963) 10 UCLA Law Review 1041. 22  ibid. 23   Schlesinger, above (n 1) 742, giving the example of the Egyptian Code, which in referring to the principles of Islamic law looks beyond the borders of a single country and invokes the common core of the laws of all Islamic nations.

4



General Principles of Law

According to scholars and practitioners of international law, general principles mentioned in Article 38 of the Statute of the International Court of Justice (ICJ), which lays down the sources of international law, are a primary source, often the only source of international law in the absence of an applicable treaty and even where there is a treaty its interpretation may require their application.24 In this regard Raimondo states three different functions of general principles in international law: ‘(i) to fill legal gaps, (ii) to interpret legal rules, and (iii) to confirm a decision based on other legal rules, as to reinforce the legal reasoning’.25 General principles have to be derived from national law that is in force and are therefore ‘capable of undergoing a process of orderly change, as the municipal laws on which they are based are amended. In this way they respond to changing needs without throwing the law into uncertainty’.26 According to Lauterpacht, recourse to general principles of law should not take place if the settlement of a given legal issue can be easily found in individual cases by filling the gap with ‘logical deductions from existing rules of international law or of analogy to them’.27 The International Criminal Tribunal for the Former Yugoslavia (ICTY)28 in Kupreškic´ and others set the order of reference to different levels of general principles as follows: (ii) general principles of international criminal law; or, lacking such principles, (iii) general principles of criminal law common to the major legal systems of the world; or, lacking such principles, (iv) general principles of law consonant with the basic requirements of international justice.29

The subsidiary role of general principles does not however establish between the sources any additional hierarchy to the one created by the principles of lex posterior derogat legi priori, lex specialis derogat legi generali and lex posterior generalis non derogat legi priori speciali.30 Only jus cogens is above these principles. In this regard, Judge Fernandes at the ICJ claimed in his dissenting opinion in the case of the Right of Passage over Indian Territory that although it is true that in principle special rules prevail over general rules . . . there are exceptions to this principle. Several rules cogentes prevail over any special rules. And the general   ibid, 735.   Raimondo, above (n 20) 48 (fns omitted). 26   Michael Akehurst, ‘Equity and General Principle of Law’ (1976) 25 International and Comparative Law Quarterly 815. 27   Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longman, Green and Co, 1927) 85. 28   With the exception of particularistic and limited examples of Nuremberg, Tokyo, the US Military and German Cases after the Second World War, and some sporadic national war crimes prosecution, there is not much state practice in the last half-century giving rise to custom in international criminal law. For an analysis of its sources one has to turn therefore to the present systems of international criminal justice and in particular the mandate ratione temporis of the ICTY. See Michael Bohlander and Mark Findlay, ‘The Use of Domestic Sources as a Basis for International Criminal Law Principles’ (2002) 1 The Global Community Yearbook of International Law and Jurisprudence 6. 29   Kupreškic´ et al Trial Judgement, para 591. 30   Raimondo, above (n 20) 47 with reference to scholarly writing who oppose the idea of hierarchy among sources of international law. 24 25

5

Introduction principles to which I shall refer later constitute true rules of ius cogens, over which no special practice can prevail.31

It appears that uncertainty still exists regarding the nature of this source. A fivejudge pre-trial of the Extraordinary Chambers in the Courts of Cambodia expressed that ‘it is unclear whether the “general principles of the law recognized by civilized nations” should be recognized as a principal or auxiliary source of international law’.32 However, the Cambodia Pre-Trial Chamber recognised that ‘such general principles have been taken into account, notably by the ICTY, when defining the elements of an international crime or the scope of a form of responsibility otherwise recognized in customary international law’.33

A  The Determination of General Principles of Law Once an international criminal court or tribunal has decided to draw on general principles of law as a source of international criminal law, the question arises as to how judges sitting at these courts will determine the existence, contents and scope of application of applicable general principles of law.34 When it comes to the question, by whom does a legal principle have to be recognised to be a general principle of law applicable at the international level, scholars mostly give nuances of the same answer: ‘States’,35 ‘the community of nations’,36 ‘the Member-States of the United Nations’.37 Post-Second World War military tribunals as well as contemporary international judicial bodies such as the European Court of Justice have accepted that for a domestic principle to be recognised as a general principle it must be recognised by most and not all the legal systems of the world.38 Thus, in the Hostage case a US war crimes tribunal described the search for general principles as follows: In determining whether. . . a fundamental principle of justice is entitled to be declared a principle of international law, an examination of the municipal laws of States in the family of nations will reveal the answer. If it is found to have been accepted generally as 31   Right of Passage over Indian Territory (Merits) Judgement, Dissenting Opinion of Judge Fernandes [1960] ICJ Rep 29. 32   Extraordinary Chambers in the Courts of Cambodia, Public Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 002/19-09-2007-ECCC/OPIJ (PTC38) 20 May 2010, para 53 33   Public Decision on the Appeals against the CO-Investigative Judges Order on Joint Criminal Entreprise (JCE), 002/19-09-2007-ECCC/OPIJ (PTC38) 20 May 2010, para 53 (fns omitted). 34   Raimondo above (n 20) 48. 35   Prosper Weil, ‘Le droit international en quête de son identité. Cours général de droit international public’ (1992-VI) 237 RCADI 148–49, cited by Raimondo, above (n 20) fn 218. 36   Antonio Cassese, International Criminal Law, 2nd edn (Oxford: Oxford University Press, 2008) 188 cited by Raimondo, above (n 20) fn 217. 37   M Cherif Bassiouni, ‘A Functional Approach to General Principles of International Law’ (1990) 11 Michigan Journal of International Law 768–818, 768. 38  Ilias Bantekas and Susan Nash, International Criminal Law, 3rd edn (London: RoutledgeCavendish, 2007) 4.

6



General Principles of Law a fundamental rule of justice by most nations in their municipal law its declaration as a rule of international law would seem to be fully justified.39

Francesco Capotorti, however, suggests a more practical approach with a reference to ‘the legal systems of States, which are the most representative of the different conceptions of law’.40 Raimondo finds the latter the most appropriate test for the following reasons: First, it makes clear that the survey should be pluralistic, that is, it should not be limited to national legal systems of one legal family. Second, it articulates that the survey must not necessarily encompass all the national legal systems belonging to each legal family, but it can be limited to some of them – the most representative one.41

Furthermore, Allan Pellet pointed out that the drafters of the ICC Statute rightly made reference not to national laws as such, but to the ‘national laws of legal systems of the world … This implies that it is not necessary to make a systematic comparison of all national legal systems, but only to ensure, by polling, that the norms in question are effectively found in the ‘principal legal systems of the world’.42 These, according to Pellet, can probably be reduced to a small number in the contemporary world: the family of civil-law countries, the common law and Islamic legal tradition.43 However, looking at the statute of the ICC, it states after the reference to ‘national laws of legal systems of the world’ that those laws would include ‘as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’.44 This wording reflects the result of negotiations during the drafting of the Rome Statute where views diverged widely on the direct applicability of national law. During the deliberations some delegations45 were strongly of the view that national law was directly applicable, while the majority thought national law should only be an indirect source, with the Court deriving common principles from the different legal systems.46 The solution now found in the Statute was proposed by Norway at the Rome Conference.47 Saland points to the deficiency of accepting such a formula, stating that there is 39   USA v List (Hostages case) (1949) 8 LRTWC 34, 49 (1948) 15 Annual Digest 632, 633 in Akehurst, above (n 26) 813 (emphasis added). 40   Francesco Capotori, ‘Cours general de droit international public’ (1994) 248 RCADI 9–344, 118, quoted in and cited by Raimondo, above (n 20) 56, fn 219. 41   Raimondo, above (n 20) 57. 42   Alain Pellet, ‘Applicable Law’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I (Oxford: Oxford University Press, 2002) 1051–84, 1073. 43   ibid, 1074–75, with reference to Philipe Kirch, ‘The Development of the Rome Statute’ in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999) 456. 44   Art 21(1)(c) ICC Statute. 45   Japan, China, some Arab countries and Israel. 46   See Per Saland, ‘International Criminal Law Principles’ in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999) 214–15. 47  ibid.

7

Introduction a certain contradiction between the idea of deriving general principles, which indicates that this process could take place before a certain case is adjudicated, and that of looking also to particular national laws of relevance to a certain case: but that price had to be paid in order to reach a compromise.48

B  The Process of Establishing a General Principle Once the ‘database’ is established, Raimondo describes the process of finding general principles as a double operation: The first operation – the vertical move – consists in abstracting a legal principle of the legal rules from national legal systems . . . The second operation . . . the horizontal move . . . consists of verifying that the principle thus obtained is generally recognized by nations. The task . . . should not consist in looking mechanically for coincidences among legal rules, but in determining their common denominator. Hence, in ascertaining general principles of law it is crucial to identify the ratio legis and the fundamental principles that are common to a particular institution within different national legal systems.49

Differences of detail between municipal laws do not prevent the application of general principles of law, when there is an underlying common principle and one can also say that there is a general principle of law when different systems of municipal law achieve the same result by different means.50 In this regard, the decision of the Appeals Chamber at the ICC in the situation of the Democratic Republic of Congo is questionable, since the Court asserted that there was no general principle of law on the issue of the right to appeal, because the modalities for the exercise of such a right differ and vary from one national legal system to another.51

C  Abstracting a Legal Principle from National Laws Sorensen claims that the contents of general principles are different from the contents of legal rules from which they are derived, because principles consist of the abstractions of legal rules deprived of their particular elements.52 Akehurst, on the other hand, points to the fact that although general principles of law often exist at a very high level of abstraction, there is no reason why detailed rules which happen to be common to different systems of municipal law should not be applied as  ibid.   Raimondo, above (n 20) 49, 52 (fns omitted). 50   Akehurst, above (n 26) 814. 51   Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Case No ICC-01/04, App Ch, 13 July 2006 Decision Denying Leave to Appeal, Case No ICC-01/04, App Ch, 13 July 2006. 52   Max Sorensen, ‘Principles de droit international public. Cours général’ (1960-III) 101 RCADI 25, cited in Raimondo, above (n 20) 52. 48 49

8



General Principles of Law

general principles of law.53 A difference of opinion could also be seen at the ICTY, between Judge McDonald and Judge Vohrah on one side, who claimed that in determining general principles the outcome should be a concrete legal rule, and Judge Stephen on the other, who stated that the outcome should not be a concrete legal rule, but a general rule that embodies the reason for the creation of a norm.54 Different levels of general principles, in fact, exhibit different levels of abstraction. General principles of international criminal law and general principles of international law are very abstract and thus may prove to be of scant assistance for the regulation of a specific issue, while general principles of criminal law recognised by the community of nations are more likely to provide a normative standard applicable to a case at issue.55 This is why international courts prefer the latter to the former.56 The Furundžija case at the ICTY is an illustration of this. The Trial Chamber could not discern any element of the crime of rape from the general principles of international criminal law or the general principles of international law. In the hope of finding a rather specific definition of rape as a general principle, ie, the forcible penetration of the mouth by the penis, it turned to national legislations. Only after observing major discrepancies regarding the criminalisation of forced oral penetration, it stated: Faced with this lack of uniformity, it falls to the Trial Chamber to establish whether an appropriate solution can be reached by resorting to the general principles of international criminal law or, if such principles are of no avail, to the general principles of international law.57

The Court thus revisited the more abstract categories of principles, somewhat confusing the order in which sources are to be applied, and squeezed a camel through the eye of a needle, by finding that forced oral penetration should be classified as rape due to the fact that it is a humiliating and degrading attack on human dignity and the essence of international humanitarian law and human rights law lies in the protection of that dignity.58

D  Verifying whether the Principle is ‘Generally Recognised’ What Raimondo calls the ‘horizontal move’ has been poorly applied at the international criminal courts and tribunals. Looking at the ICTY, the Court is at times referring to principles expressed in ‘numerous national laws’, but only   Akehurst, above (n 26) 815.   Prosecutor v Erdemovic´, Case No IT-96-22-A, Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para 27; Prosecutor v Erdemovic´, Case No IT-96-22-A, Judgement, Separate and Dissenting Opinion of Judge Stephen, 7 October 1997, para 63, cited in Raimondo, above (n 20) 107. 55  Cassese, International Criminal Law, 2nd edn, above (n 36) 21. 56  ibid. 57   Furundžija Trial Judgement, para 182. 58   ibid, 183. 53 54

9

Introduction giving the example of one legal system, one jurisdiction or failing to indicate any national law from which it derived the principle at all.59 The joint opinion of Judge McDonald and Judge Vohrah in Erdemović is the first wide-ranging comparative law research carried out in relation to the practice of the Court: it included 30 national legal systems classified in ‘civil law systems’, ‘common law systems’ and ‘criminal law of other States’.60 In subsequent case law one finds a mix of superficial and in-depth research into various legal systems. Even when considering the different aspects of a same issue the Court uses different standards in determining whether the principles are generally recognised. Furthermore, there is an absence of providing the legal context in which a particular concept is framed, and thus a failure to demonstrate whether the concept is indeed common in essence or just in name in two or more nations.61 Judges and prosecutors failing to understand the other traditions often distort the existing differences and force uncomfortable compromises.62

E  Adapting the General Principle to the International Sphere Pellet claims that the general principles of law require a triple mental operation. After a comparison between national systems and the search for common ‘principles’, the third step is their transposition to the international sphere.63 In this regard, the ICTY Appeals Chamber stated in Tadic´ that the general principle found in national jurisdictions which demands that courts be established by law, cannot be applied as such when it comes to the international sphere. Since there is no legislative, executive and judicial division of powers in the international law regime, ‘the separation of powers element of the requirement that a tribunal be “established by law” finds no application in an international law setting’.64 In Delalic´ the Trial Chamber similarly found regarding the principle nulla poena sine lege, that 59  See Prosecutor v Erdemovic´, Case No IT-96-22-T, Ch I, Sentencing Judgement, 29 November 1996, para 19, fn 13, the Trial Chamber giving the only example of French criminal law on the conditions of application of the defences of duress, state of necessity, and superior orders; ibid, para 31, the Trial Chamber claiming there is a general principle common to all nations, whereby the severest penalties apply for crimes against humanity, but failing to indicate the national law in question; Jelisic´ Appeal Judgement, a total of 31 footnotes in the judgment and the dissenting opinions with references to national laws, however these are almost exclusively the law of England and Wales and the United States. 60   Prosecutor v Erdemovic´, Joint Separate Opinion of Judge McDonald and Judge Vohrah, above (n 54) under civil law it examined France, Belgium, the Netherlands, Spain, Germany, Italy, Norway, Sweden, Finland, Venezuela, Brasil, Nicaragua, Chile, Panama, Mexico, Former Yugoslavia, Poland; under common law it examined England, the United States, Australia, Canada, South Africa, India, Malaysia and Nigeria; under criminal law of other states it examined Japan, China, Morocco, Somalia and Ethiopia. Cited in Raimondo, above (n 20) 108. 61   Bantekas and Nash, above (n 38) 5. 62   Bohlander and Findlay, above (n 28) 25. 63   Pellet, above (n 42) 1073. 64   Tadic´ Appeal Decision on Jurisdiction, para 43.

10



General Principles of Law [w]hereas the criminalisation process in a national criminal justice system depends upon legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions or after a customary practice of the unilateral enforcement of a prohibition by States. It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards.65

F  The Role of General Principles As observed before, the most important and powerful role of general principles is that of filling legal lacunae. In the context of international criminal law, an established general principle of law can mean the difference between conviction and acquittal, as was the case in Erdemović. Had the Court found a general principle of duress as a general and complete defence for murder (as a crime against humanity), the accused would have been acquitted and released. On the contrary, it found that ‘there are legal systems admitting duress as a general and complete defence, while other legal systems admit it as a mere mitigating circumstance’ and therefore a general principle was not established on which the defence could rely.66 The second important role of general principles is that of the interpretation of existing legal rules. For example, in Delalić et al the general principle of law that the establishment of criminal culpability requires an analysis of both the actus reus and mens rea, was used for interpreting Articles 2 and 3 of the ICTY Statute.67 The third role, ie, that of enforcing legal reasoning, appears somewhat less crucial. An example can be found in Tadić. In referring to the principle of personal culpability, although found in international criminal law, inter alia, in Article 7(1) of the ICTY Statute itself, the Court invoked its existence in national systems as laid down in constitutions, solely for the purpose of enforcing the legal reasoning.68 The words of the Trial Chamber at the ICTY illustrate quite well the situation in the international criminal courts and tribunals, regarding the use of general principles: In this search for and examination of the relevant legal standards, and the consequent enunciation of the principles applicable at the international level, the Trial Chamber might be deemed to set out a sort of ius praetorium. However, its powers in finding the law are of course far more limited than those belonging to the Roman praetor: under the International Tribunal’s Statute, the Trial Chamber must apply lex late i.e. existing law, although it has broad powers in determining such law.69   Čelebic´i Trial Judgement, paras 404, 405.   Separate and Dissenting Opinion of Judge Haopei Li. Prosecutor v Erdemovic´, Case No IT-9622-A, Judgement, 7 October 1997, para 3. 67   Čelebic´i Trial Judgement, para 424. 68   Tadic´ Appeal Judgement, para 186, cited in Raimondo, above (n 20) 121. 69   Kupreškic´ et al Trial Judgement, para 669. 65 66

11

Introduction This reflects the conflict between general principles as lex lata and the power a court has in determining them, which can give rise to arbitrary decisions in establishing a general principle of law when there is an absence of a clear and consistently applied method of doing so. Even if there is a treaty, its interpretation may require the application of general principles of law recognised by the civilised nations particularly where the treaty employs broad terms.70 In this situation, the interpretation of these broad terms acquires concrete meaning by reading into them the general standards of decency which civilised nations recognise in their municipal legal systems.71 Although it may seem that there is little in common between comparative law and public international law, it is the former which is essential to a more genuine understanding of ‘the general principles of law recognized by civilized nations’.72

III  The Study Based on this methodological consideration, this work will examine the general principles that underlie the various approaches to the mental elements of crimes as well as the subjective element required in perpetration and participation in crimes and the interrelation between mistake of law and mistake of fact with the subjective element. The study commences with a brief discussion of the history and development of the mens rea concept. The examination and analysis of the concept of mens rea in both common and continental legal systems, the Chinese and Russian legal systems as well as Islamic legal tradition, constitute part one of the present study. This survey of the major legal systems of the world will allow for a better and more complete comprehension of this concept in international criminal law. Part two consists of four chapters. An examination of the concept of mens rea in the jurisprudence of the post-Second World War trials, its contours in the travaux préparatoires of the Genocide Convention and its development through the work of the International Law Commission is the focal point of chapter eight. Chapters nine and ten discuss the boundaries of mens rea in the jurisprudence of the International Criminal Tribunals for Rwanda and the former Yugoslavia in light of the comparative study undertaken in part one of the present monograph. Chapter eleven examines the definition of the mental element as provided for in Article 30 of the Statute of the International Criminal Court in light of the decisions and judgments rendered by the Court from a comparative law perspective. The study concludes with general observations and a number of recommendations on how the international criminal courts and tribunals can, and indeed should, deal with this complex notion of mens rea in its future jurisprudence.   Schlesinger, above (n 1) 735 (citing other scholars fn 7).   ibid, 735–36. 72   K Zweigert and H Kötz (trans T Weir) An Introduction to Comparative Law, 3rd edn (Oxford: Oxford University Press, 1998) 7–8. 70 71

12

2 From Vengeance to Mens Rea to Mentes Reae A knowledge of the history of the branch of law with which any principle is connected is indeed absolutely necessary before its true bearings and the limits of its application can be fully understood.1

I  The Mental Requisites for Criminality in the Early Law ‘No conception can be understood except through its history’2 and no legal conception is of more fundamental importance or has proved more baffling through the centuries than the determination of the precise mental element necessary for crime.3 To a large extent, the ambiguities surrounding this fundamental concept are the product of an ongoing historical process which this chapter attempts to clarify. It is evident that the mental element of crime is not as old as the criminal law itself. Indeed, crime was recognised and penalised in ancient legislation before the legislator accepted the mens rea as one of the fundamental requisites of criminality. Penal liability was imposed for the harmful act, regardless of the wrongdoer’s frame of mind.4 Tracing a few of the early fragments bearing on the mental element requisite for criminality, Wigmore observed that before the dissolution of the clanorganisation and the development of the state, all wrongs were originally violations of rights between one clan and another.5 He noted that ‘every wrong done 1   Richard R Cherry, Lectures on the Growth of Criminal Law in Ancient Communities (London: Macmillan, 1890) 4. Cherry further noted that: ‘The study of law in ordinary text-books, without an acquaintance with its history, is apt to encourage in the student one of the greatest faults in practice, namely, rash generalization’. 2   John Henry Wigmore, ‘Responsibility for Tortious Acts: Its History’ (1909) 3 Selected Essays in Anglo American Legal History 476. This essay first appeared in (1894) 7 Harvard Law Review 315, 383, 441. 3   Francis B Sayre, ‘Mens Rea’ (1931–32) 45 Harvard Law Review 974. 4   Franz von Liszt, Traité de Driot Pénal Allemand (Traduction Lobstein) vol I, § 36, 2 (1911), quoted in Mahmoud Naguib Hosney, Al nazariah al ’amah lel qasd al jenaie (General Theory of Criminal Intent) (Cairo: Dar El Nahda El Arabia, 1988) 1. 5   Wigmore, above (n 2) 479.

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From Vengeance to Mens Rea to Mentes Reae

by an individual creates an obligation for his clan towards that of the injured persons’.6 ‘There was no such doctrine’, Wigmore observed, ‘in civil wrongs, about intent, negligence, guilt, capacity, voluntariness, mistake, fear, or the like’.7 In his treatise on the History of English Law, William Holdsworth noted that ‘the principles upon which liability for wrong-doing is based are the logical outcome of a system dominated by the ideas of the blood feud’.8 He added: [W]hen the main object of the law is to suppress the blood feud by securing compensation to the injured person or his kin, it is to the feelings of the injured person or his kin that attention will be directed, rather than to the conduct of the wrongdoer.9

Most of the records agree that early criminal law developed out of the blood feud and rested on the desire for vengeance. Law in its earliest days tried to make men answer for all the ills of an obvious kind that their deeds brought upon their fellows.10 A man, who has killed another by misadventure, though he may deserve a pardon, is guilty of a crime. The same rule applies even if the act is accidental, or if it is necessary for self-defence. Even those who had acted under duress in times of war or rebellion did not escape scot-free.11 Dealing with sentiment characteristic of primitive justice universally, Wigmore observed: The doer of the deed was responsible whether he acted innocently or inadvertently, because he was the doer; the owner of an instrument which caused harm was responsible, because he was the owner, though the instrument had been wielded by a thief; the owner of an animal, the master of a slave, was responsible because he was associated with it as owner, as master; the master was liable to his servant’s relatives for the death, even accidental, of the servant, when his business had been the occasion of the evil; the rachimburgius, or popular judge, was responsible for a wrong judgment, without regard to his knowledge or his good faith; the oath-helper who swore in support of the party’s oath was responsible, without regard to his belief or his good faith; one who merely attempted an evil was not liable because there was no evil result to attribute to him; a mere counsellor or instigator of a wrong was not liable, because the evil was sufficiently avenged by taking the prime actor, and where several cooperated equally, a lot was cast to select which one should be held amenable; while the one who harboured or assisted the wrong-doer, even unwittingly, was guilty, because he had associated himself with one tainted by the evil results.12

 ibid.   ibid. Wigmore added: ‘The victim of the harm knows nothing but the harm done to him. He does not concern himself with the intent of the doer. . .. He therefore revenges himself for the harm-causing act, even though it may have been unintentional.. . . Moreover, for the same reason, the victim takes his revenge even where the immediate author of the harm is not capable of intending it, where it is not a human being, but an animal, or an inanimate object’, ibid, 480. 8   William Holdsworth, A History of English Law, vol II (London: Sweet & Maxwell, 1966) 50. 9   ibid, 50–51. 10   Frederick Pollock and William Maitland, The History of English Law before the Time of Edward I, 2nd edn (London: Cambridge University Press, 1923) 470. 11   William Holdsworth, A History of English Law, vol III (London: Sweet & Maxwell, 1966) 371. 12   Wigmore, above (n 2) 480–81. 6 7

14



Ancient Hebrew Law

II  The Babylonians – The Code of Hammurabi With the development of the state, the adherence to the principle of strict liability was no longer the general rule. The historical investigation of the matter proves to us that from about 2270 bc, the Babylonians were evidencing a deep concern regarding the mens rea, or the mental attitude of the doer.13 Sections 206–07 of the Code of Hammurabi provide that ‘If one man strike another in a quarrel and wound him, he shall swear, “I did not strike him wittingly” and he shall pay the physician’.14 And ‘if the man die of his wounds, he shall likewise swear, and if he (the victim) be a free-born man, he shall pay one-half mina of silver’.15

III  Ancient Hebrew Law Tracing the Ancient Hebrew Law, we find definite distinctions made between intentional and unintentional injuries.16 The Deuteronomic Codes are explicit on the subject of our inquiry. In cases where the death was entirely by accident, the doer was entitled to flee to one of the cities of refuge. There it is written: This is the case of the manslayer, which shall flee thither and live; whoso killeth his neighbour unawares, and hated him not in time past; as when a man goeth into the forest with his neighbour to hew wood, and his hand fetcheth a stroke with axe to cut down the tree, and the head slippeth from the helve, and lighteth upon in his neighbour, that he die; he shall flee unto one of these cities, and live.17

What might be inferred from the above-quoted passage is that the doer will not be executed, and he is entitled to a city of refuge provided that his harmful act was done unintentionally, and no bad motive was behind its commission. Even if the death was caused in sudden attack or in the heat of a quarrel, a resort to a city of 13   A Kocourek and JH Wigmore, Evolution of Law, vol I (Boston: Little Brown, 1915) quoted in Gerhard OW Mueller, ‘Tort, Crime, and the Primitive’ (1956) 46 Journal of Criminal Law, Criminology & Police Sciences 303, 328. 14   In 1902 a French archaeological expedition found a pillar of dark stone, eight feet high and two feet across, at Susa near the Persian Gulf. This find turned out to be the most amazing discovery of an ancient legal document. The pillar bore inscribed the 282 sections of what is now known as the Code of Hammurabi. 15   Mueller, ‘Tort, Crime, and the Primitive’, above (n 13) 13. 16   It is to be noted that there is no trace of a judicial process of any kind, as Cherry observes, before the execution, in the Jewish Law. ‘Whenever he meeteth him he shall be put to death’. There was no need to justify the execution at any subsequent time before any assembly of any kind. Where death was caused the avenger of blood was always justified in retaliating. Whether the murder was premeditated or not, the avenger of blood had the same right of inflicting summary execution. Even in case of accidental infliction of death, the unwilling slayer must be killed with impunity if he did not succeed in escaping to a city of refuge (Deuteronomy xix. 6) quoted in Cherry, above (n 1) 44. 17   Deuteronomy xix. 4–6, quoted in Cherry, above (n 1) 45–46.

15



From Vengeance to Mens Rea to Mentes Reae

refuge was allowed, provided that the acts were not done maliciously.18 These instances indicate that the Babylonians and the Jews did not adhere to strict result-responsibility, but they did consider the frame of mind of the wrongdoer in establishing the culpability of a harmful act.

IV  The Athenians – The Epic Period The Athenians – in the period succeeding the Epic Period – made a distinction between κ π ρονα and µ κ π ρονας, homicide with or without malice aforethought.19 The code attributed to Dracōn in the late seventh century reflects with particular clarity the purely legal frame of the Greeks in recognising different degrees of homicide related to the wrongdoer’s frame of mind. These degrees distinguished between premeditated murder, unintentional killing in an athletic contest, killing under provocation and killing in self-defence.20

V  Plato and Aristotle The even more fundamental distinction between intention and accident was regularly stressed in Greek philosophy.21 Plato acknowledged it in a famous passage in The Laws when he said that ‘voluntary and involuntary wrongs are recognised as distinct by every legislator who has ever existed in any society, and regarded as distinct by all law’.22 Similarly, Aristotle, in the Nicomachean Ethics, said that wrongdoers should not be punished where ‘innocent ignorance has been the cause of their acts’,23 although he was aware to delimit the excuse of ignorance so as to exclude cases where the wrongdoer’s lack of knowledge was a result of his own prior conduct, citing as an example of culpable ignorance someone whose intent was eliminated by voluntary drunkenness.24 His contemporary, the orator Demosthenes, corroborates the position of the philosophers, and even gives it an express basis in nature: 18   Cherry observes, ‘this would appear to be the natural meaning of one passage in The Book of Numbers’ (xxxv. 22, 23); see Cherry, above (n 1) 46. 19   Carl Ludwig von Bar, A History of Continental Criminal Law (New York: Augustus M Kelley, 1968) 6, fn 7. 20   JM Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 2001) 32–33. 21   Paul Vinogradoff, Outlines of Historical Jurisprudence: The Jurisprudence of the Greek City, vol ii (London: Oxford University Press, 1922) 183, quoted in Finbarr McAuley and J Paul McCutcheon, Criminal Liability (London: Sweet & Maxwell, 2000) 6. 22   The Platonic reference is to The Laws 861b; 865–67, quoted in Kelly, above (n 20) 33 and in McAuley and McCutcheon, above (n 21) 6. 23  Aristotle, Nicomachean Ethics, Bk III (written in 350 bc). 24   ibid, Bk III § 5 para 8. See also Kelly, above (n 20) 33; McAuley and McCutcheon, above (n 21) 6.

16



Roman Law – ‘The Twelve Tables’: Cicero Among other people I find this sort of distinction universally observed. If a man has done wrong wilfully, he is visited with resentment and punishment. If he has erred unintentionally, pardon takes the place of punishment . . . This distinction will be found not only embodied in our statutes, but laid down by nature herself in her unwritten laws and in the moral sense of men.25

The point of interest here is that what Aristotle was concerned about in 350 BC is considered the fundamental principle of our contemporary criminal law. He remarkably excluded criminal responsibility for those who act under duress, or if they were ignorant in doing the harmful act. On the contrary, those who commit the harmful deed, while being aware of the circumstances beyond their actions, are criminally responsible and liable for their harmful deeds. Aristotle’s philosophy had widened and reshaped the Athenian mind. In a speech by the Athenian demagogue Cleon, urging the massacre of allies who had revolted from Athens, he said, ‘they knowingly plotted against us, and did not just injure us involuntarily, because that which is unintentional is forgivable’.26

VI  Roman Law – ‘The Twelve Tables’: Cicero The ‘Twelve Tables’ attributed to the primitive Roman law are also credited with recognising the distinction between voluntarily and involuntarily causing harm.27 The penalty of burning to death – inflicted for arson – was exacted under the Twelve Tables only, where the arsonist had acted knowingly and with foresight of the consequences (sciens prudensque); but, if the burning was an accident, he merely had to make good the loss or, if he could not afford this, got a mild beating.28  Demosthenes, De corona 274–45, quoted in Kelly, above (n 20) 34.   Kelly, above (n 20) 33 (emphasis added).   The oldest part of the Roman Criminal Law, as Sir James Fitzjames Stephen noted in his nineteenth century treatise on the History of the Criminal Law of England, was contained in the Twelve Tables, which was compiled by the Decemvirs in about the year 450 bc. Such a compilation as the Twelve Tables, however, was considered only as a summary of the existing law, for the purpose of informing those who were bound to obey, what rules they were obliged to follow. But the law of the Twelve Tables were of less importance in the history of the development of Roman law than the institutions by which they were carried into execution. Among the eminent authors who reproduce the Twelve Tables is Ortolan. The eighth table, de delictis, as numbered by Ortolan, reassures the Roman distinction between intentional and unintentional harmful acts. There we read: ‘(10) Whoever burns a house or a stack of corn near a house knowingly and maliciously (dolo) shall be bound, beaten, and burnt. If by accident, he must pay damages’; ‘(24) Whoever knowingly and maliciously kills a free a man must be put to death’. Ortolan, Explication Historique des Instituts, vol I, 114–18, quoted in Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol I (London: Macmillan, 1883) 10–11. See also Kelly, above (n 20) 74; Cherry, above (n 1) 59–60; von Bar, above (n 19) 22–23. 28   Kelly, above (n 20) 74; Stephen, A History of the Criminal Law of England, vol I, above (n 27) 10. The same passage was cited as follows: ‘Anyone who sets fire to a barn or a heap of grain near a house is sentenced to be bound, flogged and burnt alive (talio!), provided that he acted knowingly and deliberately. But if he did it by chance, that is, negligently, he is ordered to pay compensation. But if he is a man of straw he is punished, though more lightly’. Gaius XII Tables 4 = D. 47. 9. 9, quoted in Richard A Bauman, Crime and Punishment in Ancient Rome (London: Routledge, 1996) 148. 25 26 27

17



From Vengeance to Mens Rea to Mentes Reae

A distinction between murder and manslaughter can be inferred from a clause contained in the Twelve Tables (concerning the throwing of a weapon). There, we read the following passage: ‘si telum manu fugit magis quam iecit, arietem subicito’, that is to say, ‘if the arrow flees the hand rather than is thrown, a ram is to be substituted’.29 This rule, says Cicero,30 ‘is a tacit law of humanitas that demands punishment for a man’s intention (consilium), not for the accidents of fortune’.31 The thorny problem of the distinction between intentional and unintentional wrongdoing never ceased to interest Cicero, and, in a court speech in 72.1 bc, he linked it to humanitas. In 80 bc, in De inventione, he stated that ‘in all things the intent (voluntas) should be looked to’. He continued: ‘a man cannot be condemned because he was free of fault (culpa) . . . nothing is more disgraceful than that one who is free of fault should not be free of punishment’.32 Interestingly, Cicero, in 64 bc, drew another distinction. He postulated an intermediate type of act in which both intention and accident played a part. Referring to the Twelve Tables law, he stated that where a weapon is thrown but goes in a different direction from that intended, throwing is an act of will, but hitting someone unintentionally is an act of fortune.33 That is to say, if D throws an object at O, intending to injure O, but the object misses O and injures P, according to Cicero’s conception, D is not liable for causing P’s injury, provided that D has no intention to harm P.34 Most notably, the distinction between voluntary and involuntary killing is thought to be much older than the time of the ‘Twelve Tables’. It is a code provision, attributed to Numa Polpilius, the second king of Rome.35 There we read, ‘if somebody kills a free man knowingly and with evil intent, he shall be a murderer’. But if the killing was accidental, the perpetrator is obliged to compensate the victim’s family by tendering a ram.36   Mueller, ‘Tort, Crime, and the Primitive’, above (n 13) 326–27; Kelly, above (n 20) 74.   Marcus Tullius Cicero (106 BC–43 bc) greatest Roman orator, famous also as a politician and philosopher. 31   Bauman, above (n 28) 39. Cicero was building on the test laid down by Sulla in his Lex Cornelia de sicriis, which penalised ‘whoever walks around with a weapon for the purpose of killing someone’ – qui hominis occidendi. . .causa cum telo ambulaverit. Even when the statute was extended to the actual act of homicide Cicero maintained that intention was still the test, ibid. 32   ibid, fn 21 and the accompanying text. 33   ibid, 39. 34   In a sense, we agree with Cicero that D is not liable for P’s injury, only if P’s presence could not possibly have been foreseen by D, otherwise, D is liable for recklessly injuring P, or by considering that D’s malicious intention towards O can be transferred to P’s injury ‘transferred malice’. This scenario might be completely different if the throwing of the object which misses O and injured P was legally justified, ie, if D was acting in self-defence. Discussing whether the doctrine of transferred malice must be a part of the English criminal law, Glanville Williams argued that this doctrine should be confined to cases where the unintended result was foreseeable. He asked us to ‘suppose that D shoots at O intending to kill him; the shot misses O and kills P, who, unknown to D, was behind the curtain at the time. If P’s presence could not possibly have been foreseen by D, it may be thought to be going too far to convict him of the murder of P’, see Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Steven & Son, 1961) 132–34. 35   Mueller, ‘Tort, Crime, and the Primitive’, above (n 13) 327. King Numa is the successor of Romulus, the first king of Rome. 36   ibid, 327. 29 30

18



The Irish – St Patrick’s Time: Brehon Law

The Lex Cornelia de Sicriis et Veneficiis, which was passed in the time of the dictator Sulla (82 bc), contained provisions as to death or fire caused by dolus malus, and against persons going about armed with the intention of killing or poisoning.37 Killing by negligence was not within the Lex Cornelia, though it might subject the offender to an extraordinarium judicium. In order to constitute the offence of homicide, it was necessary that there should be an intention to kill, or at least to inflict grievous bodily harm.38 But, when a man had arranged for organised abuse against someone, but it did not take place, he was not liable under the Lex Cornelia on outrage. However, this was not the general rule in ancient Rome. One approach is to hold criminal the conduct necessary for the attempt itself; being in possession of a drug to be used for homicide was specifically brought under the Lex Cornelia, just as possessing a weapon occidenti hominis causa was itself held an offence.39 The earliest Roman legislation does not merely address the relation of the infliction of punishment to a wrongdoer’s state of mind, but distinguishes this state of mind in cases of homicide into dolose Tödtung and culpose Tödtung.40 In cases of homicide resulting from culpose Tödtung, vengeance could be avoided by the sacrifice of a goat as a sin offering.41 These degrees of homicide were shortly summed up in a prescript of Hadrian.42 The rule was that the degree of guilt depended on the offender’s intention as displayed by the circumstances of his offence.43 The aforementioned inquiry into the primitive Roman law reveals that, for the commission of a crime, as opposed to an unfortunate accident, guilty intention, or dolus, was normally required. An accident did not impose criminal liability; intention was specifically relevant in cases of incendiarism and death; an objective standard, that the deed was done, may have been sufficient to create liability, but it was a lesser liability.44

VII  The Irish – St Patrick’s Time: Brehon Law The Irish at the time of St Patrick (441 ad) were also aware of the distinction between intentional and unintentional crimes. They also classified the severity of 37  Stephen, A History of the Criminal Law of England, vol I, above (n 27) 12–20. It is to be noted that the Roman lawyers in the days of Justinian divided crimes into three classes, according to the manner in which they were prosecuted, namely Publica Judicia, Extraordinaria Crimina and Privata Delicta. The crimes included under the head of Publica Judicia were those which were forbidden by the following laws: Lex Julia Majestatis, Lex Julia Adulteriis, Lex Julia de Vi Publica et Privata, Lex Cornolia de Sicariis et Veneficiis. The main subject of the Lex Cornelia de Sicariis et Veneficiis is homicide. 38   ibid. See also, Cherry, above (n 1) 73. 39   OF Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995) 18–19. 40   von Bar, above (n 19) 11–12. 41  ibid. 42  Stephen, A History of the Criminal Law of England, vol I, above (n 27) 18–19. 43  ibid. 44   Robinson, above (n 39) 16.

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From Vengeance to Mens Rea to Mentes Reae

the injuries into different categories in order to impose the appropriate eric-fine.45 We find in the Book of Aicill46 that ‘if one went with the intention to kill a lawful man, and inflicted a wound on the body of a lawful man, if it was a case of bloodshedding, or a wound blood-shedding up,47 or blood shedding only, the full bodyfine for killing shall be paid by him for it’. But ‘if it was a wound from blood-shedding down,48 half the body-fine for killing is due to it’.49 In a murder case, referred by Patrick to the judgment of the royal poet of the Island of Erin, Dubhthach Mac ua Lugair who acts as Brehon,50 the following judgment was delivered: ‘It is evil to kill by a foul deed; I pronounce the judgment of death, of death for his crime to everyone who kills’.51 The decision, as understood by the commentator, is that ‘no one is put to death for his intentional crimes as long as eric-fine is obtained; and whenever eric-fine is not obtained, he is put to death for his intentional crimes, and placed on the sea for his ignorant crimes and 45   The Commissioners for Publishing the Ancient Laws and Institutes of Ireland, Ancient Laws of Ireland: Senchus Mōr and The Book of Aicill, vol III (London: Her Majesty’s Stationary Office, 1873) 139. Eric [gen, erice; pl, erca] a fine or penalty, exacted from an offender, according to the assessment of established custom, or the determination of the Brehons; the latter is frequently mentioned in the literature, and was no doubt based on the former, but the statements in the Brehon Law are too vague to allow for any satisfactory definition of the term by a precise equivalent; see The Commissioners for Publishing The Ancient Laws and Institutes of Ireland, VI Ancient Laws of Ireland: Glossary (London: Her Majesty’s Stationary Office, 1873) 311. The rules of calculating the Eric fine were extremely complicated. The amount of the fine varied, partly according to the rank of the person injured, partly according to that offender and partly according to the nature of the act. As Cherry states, ‘A double fine was due for homicide, where anger was shown, ie, where probably there was what we would call “malice”; but even for an accidental or unintentional homicide, an Eric fine was imposed’: Cherry, above (n 1) 22. 46  The Senchus Mōr and the Book of Aicill are considered the chief authorities on the Irish law in the middle of the fifth century (The Brehon Law). The Senchus Mōr is the greatest work on Irish law in general – civil and criminal. As it deals with the whole subject, the civil law occupies much more space than the criminal. Various branches of law are treated specially in separate treatises. The most important of these is the Book of Aicill. It is taken up mainly, but not exclusively, with what we now call criminal law, and may be regarded as the Irish criminal code. The whole Book of Aicill is composed of the opinions of two eminent men, illustrious in law and in other respects. The first was King Cormac mac Airt, otherwise called Cormac ua Cuinn; the second being Cennfaeladh the Learned. Cormac was one of the most deservedly celebrated monarchs of ancient Erinn. He was Ard-Rīg from ad 227 until ad 266; see Laurence Ginnell, The Brehon Laws: A Legal Handbook (London: T Fisher Unwin, 1894) 177–98. It is worth noting that Aicill is the old name of the hill of Skreen near Tara in the county of Meath; see Cherry, above (n 1) 18. 47   ‘Blood-shedding up’: that is, any wound from the smallest blood-drawing to the highest wound upwards. 48   ‘Blood-shedding down’: that is, a bruise which does not cause any blood to appear, which only discolours the skin or produces a lump for a time. 49   Ancient Laws of Ireland: Senchus Mōr and The Book of Aicill, vol III, above (n 45) 139. 50   Dubhthach Mac ua Lugair, ‘A vessel full of the grace of the Holy Spirit’, and who had been baptised by Patrick, acts as a Brehon. The words he addresses to the Saint are very remarkable: ‘It is irksome to me to be in this cause between God and man; for if I say that this deed is not to be atoned for by ericfine, it shall be evil for thy honour, and thou wilt not deem it good; and if I say that eric-fine is to be paid and that it is to be avenged, it will not be good in the sight of God; for what thou hast brought with the into Erin is the Judgment of the Gospel, and what it contains is perfect forgiveness of every evil by each neighbour to the other. What was in Erin before thee, was the judgment of the law, ie, retaliation: a foot for a foot, and an eye for an eye, and life for life’. 51   Cherry, above (n 1) 18–19.

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The Irish – St Patrick’s Time: Brehon Law

unlawful obstruction’.52 Interestingly, the eric-fine which had to be paid for manslaughter was less than that for murder. Here, the absence or presence of intention to kill was of importance. A wilful murder committed with malice aforethought called for an eric twice as large as that which was imposed for unintentional killing.53 This demonstrates the legal progress of the Brehon Law in distinguishing between killing with intention or ‘by foul deed’ and unintentional killing. Another story contained in the Book of Lecain demonstrates such a legal advancement.54 There we read that the father of Luga had been slain by the children of Turenn. After celebrating the funeral rites, Luga asked the king that the chain of silence should be shaken; and he stood up and spoke: I perceive ye nobles of the Dedannan race that you have given me your attention, and now I have a question to put to each man here present: what vengeance would you take of the man who should knowingly and of design kill your father?55

The king spoke aloud and said: If any man should wilfully slay my father, it is not in one hour or in one day I would have him put to death; but I would lop off one of his members each day, till I saw him die in torment under my hands.56

The words ‘wilfully’, ‘knowingly’ and ‘design’, as employed in this documented story, are evidence that mens rea was of concern in ancient societies, though not always used under this name. Moreover, the Brehon Law was extremely modern regarding attempted crime. An attempt was considered equivalent to the actual commission of the deed. The intention was itself a crime, and punished by a separate fine, if it was clearly evidenced by an overt act. Cherry wrote: [I]f a man went to kill one person and killed another by mistake, a fine for the intention was due to him who it was intended to kill, even though no injury was done to him, in addition to that due to the murdered man.57   ibid.   Ginnell, above (n 46) 188.   ibid. The story is the ‘Fate of the Children of Turenn’ and is of very ancient date, being referred to in Cormac’s Glossary, as a work of the ninth and tenth centuries. 55   ibid (emphasis added). 56  ibid. 57   ibid (emphasis added). ‘The attempt to commit an act was treated as equivalent to its commission, unless the results of the attempt were very significant. Thus an attempt were made to slay, or to inflict an injury which would endure for life, and blood were shed, the fine was the same as if the attempt had succeeded; if the injury did not amount to the shedding of blood the fine was reduced to one-half. If the intention were to inflict any specified injury, and a different injury was inflicted, a calculation was made of the total of “a seventh for intention, one-half for going to the place, and the body fine for inflicting the wound”, and the plaintiff could elect between the result of this calculation and the fine for the wound he intended to inflict and the fine for the wound he actually inflicted’, ibid. Cherry presumed that this is probably one of the cases which the Irish lawyers borrowed from the civil law dolus pro facto acciptur, being the rule regarding homicide in that system. See Cherry, above (n 1) 31–32. Accomplices in crime, and those who aided and abetted crime, were dealt with almost as severely as the actual criminal; see Ginnell, above (n 46) 192. 52 53 54

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From Vengeance to Mens Rea to Mentes Reae

VIII  Islamic Legal Tradition The Qura–n which is the principal source of Islamic law (Shari’a), contains several verses which expressly attribute criminal responsibility to those who intentionally commit a prohibited act and not by those who mistakenly violate the rules. This is quite apparent in the holy verse: ‘And there is no sin on you concerning that in which you made a mistake, except in regard to what your hearts deliberately intend. And Allah is Ever Off-Forgiving, Most Merciful’.58 Other verses in the Qura–n emphasise that criminal liability is personal. That is to say no one except the doer of the crime shall be inquired and penalised for it and no one, whether a relative or a friend, shall be punished for a crime instead of its doer.59 This principle is focused on in a number of Quranic verses: No person earns any (sin) except against himself (only), and no bearer of burdens shall bear the burden of another.60 Whosoever does righteous good deed, it is for (the benefit of) his own self; and whosoever does evil, it is against his own self.61

IX  Early Medieval Period The governing principle of the Germanic and Anglo-Saxon codes of the early medieval period was one of absolute liability. It is clear that at least prior to the twelfth century, criminal intent was not sine qua non for criminal liability in these codes. The old Westgothic Law provides, Ut quicumque deinceps occiderit hominem, si volens aut nolens homicidium perpetravit . . .in potestate parentum vel propinquorum defunctitradatur. (Whoever shall have killed a man, whether he committed the homicide intending to or not intending to (volens aut nolens) . . . let him be handed over into the potestas (power) of the parents or next of kin of the deceased.)62

Richard Schröder observed, ‘[t]he old German shared with all primitive peoples the incapability of distinguishing between evil intent (fara, gewaeld, vili) and mere negligence (vapawerk, unweldich dede)’.63 Tracing the development of the  Qurān, Al Ahzab 33, v 5.   See discussion in Chapter 7 of this volume. 60  Qurān, Al Ana’m 6, v 164; see also Qur’an, Al Zumar 39, v 7. 61  Qurān, Fussilut 41, v 46. 62  Walter, Corpus Juris Germanica Antiqui, vol I, 668, quoted in Wigmore, above (n 2) 845. Translated by Sayre, ‘Mens Rea’, above (n 3) 977. The general dates of these Germanic codes vary from 400 to 900 AD. Wigmore has observed that the primitive Germanic law made no inquiry into negligence and it based no rules on the presence or absence of a design or intent. It did not even distinguish, in its earlier phases, between accidental and intentional injuries. 63   Richard Schröder, Lehrbuch der Deutschen Rechtsgeschichte (Leipzig, 1894) quoted in Mueller, ‘Tort, Crime, and the Primitive’, above (n 13) 325. 58 59

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Leges Henrici Primi

Germanic principles in the Middle Ages reveals that some weight was attached to the fact that an unintentional wrong was committed due to the wrongdoer’s negligence and not entirely an accident. Bodenstein, however, noted that the distinction between culpa and casus fotuitus was not taken into consideration at all.64

X  Old Dutch Statutes The old Dutch Statutes, privileges and charters of the Middle Ages include a variety of expressions which denote the mental state of the wrongdoer in cases of wilful wrongs.65 According to Bodenstein, the first group of expressions can be classified as a descriptive of the feelings which prompted the act: ‘temeritas (recklessness), hoger moed (arrogance or pride), mit fan or bij ira mode (in anger or with passion), cum iracundia (with anger; with short temperedness) ex indignation (with shamefulness), in toornen moede (anger or rage), in nide (malice; hate), in arren moede (out of desperation)’.66 The second group denotes the motives which led to the crime: ‘in haesten mode (haste), mit haestiger hand, om haet (with hate), or haestiger torn (with hasty wrath, rage, fury)’. The third category includes expressions which describe the moral state of the wrongdoer: ‘in evelen wille (evil will), in quanden mode (evil or vicious will)’. The fourth group refers to the deliberate character of the act: ‘met beraden rade (deliberate, think over), met voorade (premeditated)’.67

XI  Leges Henrici Primi In a similar vein, the Leges Henrici Primi, dating from about the year 1118, indicate that liability was most certainly imposed without much regard to the intent of the offender.68 In situations in which it is established that a man’s death was caused by the act of another, then that other is liable, no matter what may have been his intention or his motives.69 These Leges also contain a striking passage representing the law of an earlier day, seemingly imposing liability in numerous instances without much regard to intent of the offender: 64   HDJ Bodenstein, ‘Phases in the Development of Criminal Mens Rea’ (1919) 36 South African Law Journal 323, 326. 65  ibid. 66  ibid. 67  ibid. 68   As to the Leges Henrici Primi, see Pollock and Maitland, above (n 10) 99–101 and 470–76; Thorpe, Ancient Laws and Institutes of England (Great Britain: The Commissioners on the Public Records of the Kingdom, 1831). This publication, comprising laws enacted under the Anglo-Saxon kings from Aethelbert to Cnut, with an English Translation of the Saxon; The Laws called Edward the Confessor’s; The Laws of William the Conqueror and those ascribed to Henry the First. 69   Pollock and Maitland, above (n 10) 471.

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From Vengeance to Mens Rea to Mentes Reae Si quis in ludo sagittandi vel alicujus exercicii, jaculo vel hujusmodi casu aliquem occidat, reddat eum; legis enim est, qui inscienter peccat, scienter emendet. (If someone in the game of archery or another form of exercise, kills another with a spear or in some such accident, let him repay, for the law is that he who unknowingly commits an evil, remedies it knowingly.) 70

Sayre observed that the phrase ‘qui inscienter peccat scienter emendet’, appears to the compiler of the Leges Henrici so apt a statement of the rigours of the early law, that it is repeated frequently.71 Another passage in the Leges Henrici assures the absolute liability for the effects of acts, ‘if by mischance you fall from a tree upon me and kill me, then, if my kinsman must needs have vengeance, he may climb a tree and fall upon you’.72 This does not mean that the Law of Henry the First disregarded completely the frame of mind of the doer. In their treatise on the History of English Law, Pollock and Maitland observed that the Latin maxim ‘mens rea’ was employed in these Leges while discussing a perjury. They stated: [W]e receive a shock of surprise when we meet with a maxim that has troubled our modern lawyers, namely Reum non facit nisi mens rea in the middle of the Leges Henrici among rules which hold a man answerable for all the harm that he does, and not far off from the old proverb, Qui inscienter peccat, scienter emendet.73

This Latin maxim, which was borrowed from St Augustine, appears in § 28 of the Leges Regis Henrici Primi. Juramentum debet habere comites veritatem, justiciam et judicium; si ista defuerint, non juramentum set perjurium erit; nam si quis per caoccionem abjurare cogatur quod per multos annos quiete tenuerit, non in jurante set cogente perjurium erit. Reum non facit nisi mens rea. Nemo se circumveniat aut seducat. (An oath ought to have as companions: truth, justice and judgment; if these things are missing, it will not be an oath but perjury. For if someone is compelled through force to deny that oath which they had held peacefully for many years, the perjury will be not in the swearing but in the compelling. A person is not guilty unless there is a guilty mind. No one may deceive or seduce himself.)74

70   Eugene J Chesney, ‘The Concept of Mens Rea in the Criminal Law’ (1939) 29 Journal of Criminal Law & Criminology 627, 629; Sayre, ‘Mens Rea’, above (n 3) 978 (Sayre’s translation). 71   ibid, ‘There are also various kinds of misfortunes taking place by accident rather than by design, and to be treated with mercy rather than strict justice; for the law is qui inscienter peccat scienter emendet. . . . And whenever a man cannot truly swear that [he had done nothing whereby] another was further from life or nearer to death, he ought properly to pay for whatever was done. Of such cases are: if someone on a journey for another should meet death while engaged in the mission (si quis alii missione in missatico causa mortis sit); if a man should send for someone and the latter should be killed while on the way; if someone should meet death when summoned by another; if someone’s weapons placed there by their owner should kill another’ Leges Henrici Primi, ibid. 72   Leges Henrici Primi, quoted in Pollock and Maitland, above (n 10) 471. 73  ibid. 74   Leges Henrici Primi § 28, quoted in Thorpe, above (n 68) 511.

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Bracton

XII Bracton In the middle of the thirteenth century, Henry Bracton, a cleric as well as a judge, influenced by the canonist spirit, wrote that ‘it is will and purpose which mark maleficia (crimes)’ and ‘a crime is not committed unless the intention to injure exists’.75 One commentator held the view that Bracton’s references to ‘will’ and ‘purpose’ in addition to ‘intent’ ‘support the conclusion that not only must an offender’s acts be intended but his ulterior motives or purposes in acting must also be blameworthy’.76 By the time of Coke,77 the maxim actus non facit reum nisi mens sit rea 78 (an act does not make a person guilty unless his mind is guilty) had become well ingrained in the common law.79

75   Henry D Bracton, On the Laws and Customs of England, vol 2 (1968) 290, quoted in Martin R Gardner, ‘The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present’ [1993] Utah Law Review 635, 655–56. 76   ibid, 658. 77   See Edward Coke, The Third Part of the Institutes of the Laws of England (London: W Clarke and Sons, 1817) 6. The Latin maxim appears in Coke’s Third Institute, ch 1 (High Treason). The entire paragraph reads as follows: ‘Fait compaffer ou imaginer.] So as there muft be a compaffing or imagination, for an act done per infertunium, without compaffing, intent, or imagination, is not within this act, as it appeareth by the expreffe words thereof. Et actus non facit reum, nifi mens fit rea, And if it be not within the words of this act, then by force of a clause hereafter, viz Et pur ces que plufors auters’. 78   James Stephen notes that the authority for this maxim is Coke’s Third Institute, where it is cited with a marginal note ‘Regula’ in the course of his account of the Statute of Treasons. Stephen admits that he does not know where Coke quotes it from, see Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol II (London: Macmillan, 1883) 94; Pollock and Maitland traced it correctly back to St Augustine where the maxim reads ‘Reum non facit nisi mens rea’ and certainly contained no reference to an actus, Pollock and Maitland, above (n 10) 476; Lévitt provides that the phrase, Ream linguam non facit nisi mens rea occurs in Sermon 180 of St Augustine’s collected sermons. The body of this sermon discusses a case of perjury. Augustine takes the case of a man who is asked if it rained in a certain spot. The man supposes that it did not rain, but considers it to his interest to testify that it did really rain. In fact it did rain there, but the man was ignorant of that fact, and thinks it did not rain. Augustine says the man is a perjurer. Augustine continues: ‘What is important to observe is how the word proceeds from our soul. One does not produce guilty speech unless one has a guilty mind’. Ream linguam non facit, nisi mens rea. See Albert Lévitt, ‘The Origin of the Doctrine of Mens Rea’ (1922) 17 Illinois Law Review 117. See also Sayre, ‘Mens Rea’, above (n 3) 983–84; JMB Crawford and JF Quinn, The Christian Foundations of Criminal Responsibility, A Philosophical Study of Legal Reasoning (Toronto Studies in Theology, vol 40) (New York: Edwin Mellen Press, 1991) 59–60. 79   ‘It must not be supposed, however, that the Latin maxim has always meant what is taken to indicate nowadays. Its meaning has passed through a long historical development and this may account for some of the doubts and confusions surroundings the words mens rea which have been engendered by legal literature and the reports of decided cases’; see JWC Turner, ‘The Mental Element in Crimes at Common Law’ (1936) 6 Cambridge Law Journal 31, 32–33. Some legal scholars view mens rea (evil mind) as a psycho-ethical concept and that the law has employed it as a legal concept, signifying that frame of mind which accompanies, and sometimes, in addition, precedes, the evil act, actus reus. The combination of the two provides for criminality, and has been embodied in the negatively phrased maxim: actus non facit reum nisi mens sit rea; see Gerhard OW Mueller, ‘Mens Rea and the Law without it: Rationale and the West Virginia Rule’ (1955) 58 West Virginia Law Review 34.

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From Vengeance to Mens Rea to Mentes Reae

XIII  Dolus and Culpa Roman law, however, recognised dolus and culpa. According to the Roman criminal law, a consequence is said to have been caused, dolo, whenever the will of the actor was consciously directed towards the attainment of that consequence, in other words ‘when the effect was directly aimed at by him’.80 Influenced by their sacred law, the Romans considered only dolus to be punishable and not culpa.81 When considering the penal action ex lege Aquilia, the Romans acknowledged the conception of criminal culpa.82 Bodenstein noted that in Digest 9.2.31 it is written: culpam autem esse, quod cum a diligente provideri poterit, non esset provisum. The guilt is therefore ‘lack of foresight, which is blameworthy, because an ordinary prudent man would not have lacked it’.83 Examining other Roman digests and institutes, Bodenstein remarkably noted that criminal culpa also comprises: Lack of care in doing acts which might be injurious to others, eg, not taking the required measures to prevent the injury (Inst. 4.3.5 and 6), (Dig. 9.2.30, sec. 3, lex 31), undertaking anything dangerous, not being in possession of the required skill (Inst. 4.3.7 and 8, Dig. 9.2.7, sec. 8, Dig. 9.2.30, sec. 3), or the power (Inst. 4.3.8, Dig. 9.2.8, sec. 1), to ensure harmlessness, doing dangerous acts under circumstances in which damage is likely to ensue (Dig. 9.2.11 pr., Inst. 4.3.4, Dig. 9.2.30, sec. 3), or omitting to do what under the circumstances duty required (Dig. 9.2.30, sec. 3, lex 27, sec. 9, Dig. 9.2.44 and 45 pr., Inst. 4.3.6).84

Roman law also distinguishes between culpa (not foreseeing what a diligent man could and ought to have foreseen) and casus fortuitus (when the event could not have been foreseen by human diligence).85 Bodenstein noticed that the Roman digests expressly drew the boundaries between these two concepts: [W]hen what could and ought to have been prevented is said to have been caused culpa, it will be casus, if it were impossible to avoid the damage owing to circumstances apparently beyond human control (Dig. 9.2.29, secs. 2 and 4), or where the act causing damage was not a voluntary one (Dig. 9.2.7, sec. 3). If culpa is lack of care in doing dangerous acts, it will be casus, if the required care had been taken to prevent damage (Dig. 9.2.30, sec. 3).86

  Bodenstein, above (n 65) 323, 331.   ibid, 328. 82   ibid, 333. 83  ibid. 84   ibid. The last form of culpa, ‘omitting to do what under the circumstances duty required’, is identical to the negligence standard according to which a commander can be held criminally responsible for crimes committed by his subordinates in international criminal law. 85  ibid. 86  ibid. 80 81

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Early Critiques of Mens Rea in the Criminal Law of England

XIV  Early Critiques of Mens Rea in the Criminal Law of England When we approach the last decade of the nineteenth century, we find that the Latin term mens rea, one of the most significant common law principles, was heavily criticised. Sir James Stephen, in his treatise on the Criminal Law of England wrote, actus non facit reum nisi mens sit rea . . . is frequently though ignorantly supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.87

Speaking in rather a similar vein, Francis Sayre, a distinguished American scholar, noted that to make the test of criminality merely dependent on the line which separates morality from immorality, is to confuse conscience, which must always be a matter of individual personal standards, with law.88 Obviously, mens rea in contemporary criminal law does not necessarily connote an intention to engage in moral wrongdoing. A crime may be committed from the best of motives and yet remain a crime (ie, mercy killing).89 Once again the maxim was criticised by Stephen in the Tolson case.90 He asserted that the expression mens rea is both misleading and confusing: It naturally suggest that, apart from all particular definitions of crimes, such a thing exists as a mens rea or guilty mind, which is always expressly or by implication involved in every definition. This is obviously not the case for the mental elements of different crimes differ widely. Mens rea means in the case of murder malice aforethought, in the case of theft an intent to steal . . . In some cases it denotes mere inattention. . . . [I]n the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. It seems contradictory indeed to describe a mere absence of mind as a mens rea or guilty mind.91

Sayre adopted Stephen’s position. Through his work on mens rea, he noted that the term does not mean a single precise state of mind which must be proved as a prerequisite for all criminality. He noted that ‘mens rea, chameleon-like, takes on different colours in different surroundings’.92 He concluded: ‘the truth is that there is no single precise state of mind common to all crimes. . . . The old conception of mens rea must be discarded, and its place must be substituted the new conception of mentes reae’.93  Stephen, A History of the Criminal Law of England, vol II, above (n 78) 94–95.   Francis B Sayre, ‘The Present Signification of Mens Rea in the Criminal Law’ (1934) Harvard Legal Essays 399, 411. 89   Glanville Williams, above (n 34). 90   R v Tolson (1889) 23 QBD 185–87. 91  ibid. 92   Sayre, ‘The Present Signification of Mens Rea in the Criminal Law’, above (n 88) 402. 93   ibid, 404. It is important to note that besides the influence of Stephen, there was also, by the time Sayre wrote, a huge structure of strict liability that had been incorporated into the ‘penal law’ of the 87 88

27



From Vengeance to Mens Rea to Mentes Reae

Stephen’s criticism did not go without condemnation. In his treatise on Mens Rea (1914), Douglas Stroud noted that the ‘chief merit of this maxim is that it denotes concisely the common characteristic of the various states of mind falling with its scope’.94 Hence, these different states of mind, Stroud continued, ‘are all blameworthy forms of intentionality, consisting either of intent to break the law, or of inattention to a matter where the law requires attention thereto’. Stroud concluded: Instead of saying that mens rea means in case of murder, malice aforethought, in the case of theft an intention to steal and so forth, it would have been more correct to say that it includes those states of mind respectively, as being comprised in a general intention to break the laws which prohibits the criminal act in question.95

Furthermore, it was observed that if the term mens rea were to be regarded as selfexplanatory, it would be open to Stephen’s objection; rather, as noted by Rollin Perkins, ‘they are to be considered merely as a convenient label attached to any psychical fact sufficient for criminal guilt in connection with socially harmful conduct’.96 Furthermore, there is no real contradiction in describing a mere absence of mind as a mens rea, or guilty mind. ‘Absence of mind’, as Stroud observed, ‘is a colloquial phrase for inattention, and a mind which is guilty of inattention, by not thinking of a particular matter when it ought, may well be described as a guilty mind, or a mind at fault’.97 The mens rea maxim was attacked along another front. It has been asserted that in the criminal law of England and the United States there is no place for a doctrine of intent as an essential ingredient of a crime.98 Lévitt continued his criticism, arguing that ‘A crime is an act. It is not an act plus intent. “In jure actus non facit reum nisi mens sit rea” is no longer true. The modern maxim should be that most ancient one: Actus facit reum’.99 He based his criticism on the following grounds: The courts sententiously declare that ‘there can be no crime unless there is a joining criminal act with a criminal intent’ and then they sedulously ignore the intent and examine the act. If they find the act is criminal, they assume that the intent exists and proceed to deal with the criminal. The phrase ‘actus non facit reum, nisi mens sit rea’ means nothing to them. The judges recite it because other judges have recited before them.100 United States. In addition there was the almost overwhelming authority of Holmes, whose theory of objective liability challenge any ethical view of penal law. See Jerome Hall, General Principles of Criminal Law, 2nd edn (New York: The Bobbs-Merril Co, 1960) 74–75. 94   Douglas Aikenhead Stroud, Mens Rea or Imputability under the Law of England (London: Sweet & Maxwell, 1914) 14–15. 95   ibid (emphasis in original). 96   Rollin M Perkins, ‘A Rationale of Mens Rea’ (1939) 52 Harvard Law Review 905. 97   Stroud, above (n 94) 14. 98   Albert Lévitt, ‘Extent and Function of the Doctrine of Mens Rea’ (1922–23) 17 Illinois Law Review 578, 588–89 (emphasis in original). 99   ibid, 580–81. 100   ibid (emphasis added).

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General Remarks

When we approach the early twentieth century, we realise that Garçon, an eminent French scholar, argued in his Code pénal annoté (1901) that if a person intentionally commits a crime, he is, in principle, held liable for all the consequences ‘qui sont dans l’ordre natural et habitual des choses et que des alors il pouvait et devait prevoir’, that is, which are such in the natural and habitual order of things, and which he therefore could and ought to have foreseen.101 One might wonder whether Garçon, by that time, was still influenced by the Canon law rule versari in re illicta. Notwithstanding the uncertainty which shadows this legal maxim, it is frequently employed by courts and academic writers. The mens rea concept had become so deeply entrenched in the national legal systems of the world, though not frequently recognised under this maxim. By the mid-twentieth century, the Supreme Court of the United States asserted that: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is a universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must be a ‘vicious will’.102

Yet it might be expected that after a thousand years of legal development the meaning of such a fundamental concept would have been settled; but this is not true. The cases are inconsistent, judicial opinions have recently changed and there are still some measures of uncertainty.

XV  General Remarks Law in its earliest days tried to make men answer for all the harmful deeds they brought on their victims. Notions of criminal responsibility and personal guilt were foreign to the ancient law. With the development of the state, the adherence   Quoted and translated by Bodenstein, above (n 65) 344 (emphasis in original).   Morissette v United States, 342 US 246, 251 (1952). The Court goes on, emphasising that: ‘Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the States codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognised that intent was so inherent in the idea of the offence that it required no statutory affirmation . . . However, courts of various jurisdictions, and for the purposes of different offences, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent”, “criminal intent”, “malice aforethought”, “guilty knowledge”, “fraudulent intent”, “wilfulness”. . . to denote guilty knowledge, or mens rea, to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have thought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes’. 101 102

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From Vengeance to Mens Rea to Mentes Reae

to the principle of strict liability was no longer the general rule. The works of Plato, Aristotle and Cicero have had a great significance in drawing the border lines between voluntary and involuntary wrongs, and intentional and unintentional conducts. By the time of Coke, the Latin maxim actus non facit reum nisi mens sit rea had become well ingrained in the common law, whereas in Roman law dolus had been the common denominator in ascertaining the guilt of the perpetrator.

30

3 Mens Rea in the Common Law of England and Wales, Australia and Canada A man cannot be condemned because he was free of fault . . . nothing is more disgraceful than that one who is free of fault should not be free of punishment.1

I Introduction English jurisprudence like other common law jurisdictions runs along the following line: before a person may be convicted of a crime, the prosecution must demonstrate that a certain event or state of affairs forbidden by the criminal law has been caused by the actor’s conduct (actus reus), and that this was accompanied by a fault element derived from the wrongdoer’s state of mind (mens rea).2 A conviction requires proof of both elements and ‘while the criminal process should not make the innocent liable to an unreasonable risk of mistaken conviction, it should not make it impossibly hard to convict the guilty’.3 As rightly said by a trial judge, ‘[y]ou cannot take the top of a man’s head off and look into his mind and actually see what his intent was at any given moment’. He concluded, ‘[y]ou have to decide it by reference to what he did what he said and all the circumstances of the case’.4 The discussion will show that it is this practical truth, that has sometimes lead to a confusion between the law of evidence and the substantive law of mens rea in the rulings of the courts and the directions given by them to the juries for the determination of the mens rea. This chapter primarily discusses and examines the developing law of mens rea in the criminal law of England, which has a great influence on other common law jurisdictions. However, because not all these jurisdictions generally follow the English approach to mens rea, special attention will be given, where appropriate, 1   Marcus Tullius Cicero (106 bc–43 bc), quoted in Richard A Bauman, Crime and Punishment in Ancient Rome (London: Routledge, 1996) 39, fn 21. 2   ATH Smith, ‘On Actus Reus and Mens Rea’ in PR Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (London: Stevens & Sons, 1978) 95–107, 96. 3   RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Basil Blackwell, 1990) 34. 4   R v Moloney [1985] AC 905 (HL) 915 (Stephen Brown J).

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Mens Rea in Common Law Jurisdictions

to other common law jurisdictions, namely those of Australia, Canada and Ireland. The United States and the US Model Penal Code will be dealt with separately in chapter four.

A  The Sources of Criminal Law: Common Law versus Statute In England and Wales, the main source of criminal law is the common law. In other words, the law was not originally a result of systematic legislation but was created by decisions of the judges, the works of prominent scholars and various (sporadic) specific Acts.5 In the last 35 years, the Law Commission has undertaken a project of codifying English criminal law and presently the bulk of the law is found in scattered statutes, including general doctrines such as the law of complicity and conspiracy.6 However, some offences as well as general doctrines that determine criminal liability are still governed by the common law and judges still play an important role in the development of the law and the interpretation of statutory offences.7 In Canada, there are three main sources of criminal law; the Constitution (including both the division of powers and the Canadian Charter of Rights and Freedoms), statutes (most importantly the Criminal Code of Canada) and the common law.8 The precise ambit of the statute is determined by the appeal courts, which play an essential role in the development of both codified and common law.9 The sources are organised in a strict hierarchy and all law must be in conformity with the Constitution, which is the supreme source, followed by statute, which prevails over common law and the latter may not create new offences.10 In Australia, the sources differ in its nine jurisdictions. New South Wales, Victoria and South Australia, are said to be common law in terms of the criminal law; Western Australia, Queensland and Tasmania have criminal codes; while the Northern Territory, the Australian Capital Territory and the Commonwealth, have a mixture of code and common law. Both types of law, ie, common law and code, adopt the traditional common law approach to the determination of liability: requirement of the proof of a conduct element (actus reus) and a fault element (mens rea).11 The codes, enacted in Queensland (1899), Western Australia (1902, re-enacted and compiled in 1913), Tasmania (1924) and Northern Territory 5   Jack Anderson et al, Participation in Crime: Criminal Liability of Leaders of Criminal Groups and Networks in England and Wales (Max-Planck-Institut für ausländisches und internationals Strafrecht, 2005) 3. 6  ibid. 7  ibid. 8   Kent Roach, Criminal Law, 3rd edn (Toronto: Irwin Law, 2004) 5 in Justin Benseler, Participation in Crime: Criminal Liability of Leaders of Criminal Groups and Networks in Canada (Max-PlanckInstitut für ausländisches und internationals Strafrecht, 2005) 3. 9  ibid. 10  Roach, Criminal Law, 3rd edn, above (n 8) 2. 11  Ian Dobinson, Participation in Crime: Criminal Liability of Leaders of Criminal Groups and Networks in Australia (Max-Planck-Institut für ausländisches und internationals Strafrecht) 5.

32

Intention (1983), are based on a draft by Samuel Griffith, while the federal jurisdiction, the Australian Capital Territory and Norfolk Island have adopted criminal codes based on the Australian Model Criminal Code.12

II  Mens Rea Standards in Common Law Systems In Latin, mens rea means a guilty mind, but in legal use, it denotes the mental state required for a particular crime.13 This Latin term has usually been used to signify four fault requirements: intention and recklessness as to a specified consequence, and knowledge of, or recklessness as to a specified circumstance.14 For most offences in England, the mens rea requires a minimum standard of knowledge as to the act and the circumstances, and recklessness as to the result. Some offences, however, explicitly require a higher or lower form of fault. While for a few specified offences the requirement is a lesser form of mens rea (negligence and strict liability) murder, for example, requires a higher form, which is intention. In the case of both intention and subjective recklessness, ‘D is aware that the prohibited act or consequence may occur but, with intention, there is the added aggravating factor that D aims to do the prohibited act or to cause the prohibited consequence’.15 Inadvertently causing an actus reus by failing to take reasonable care, or failure to comply with a standard of conduct – negligence – may also be regarded as legally blameworthy.16 However, negligence in law is not necessarily a state of mind; it is a kind of legal fault, and in that respect it is akin to crimes requiring mens rea.17 Intention, recklessness and negligence imply different degrees of ‘fault’ in the criminal law of England and other common law jurisdictions.

III  Intention In the law of England, intention is the mens rea term which conveys the highest level of culpability of an offender. It is a word usually used in relation to 12   Simon Bronitt, ‘Australia’ in KJ Heller and MK Dubber, The Handbook of Comparative Criminal Law (Stanford: Stanford University Press, 2010) 49–96, 50–51. 13   Glanville Williams, Text Book of Criminal Law, 2nd edn (London: Stevens & Sons, 1983) 71. 14   Andrew Ashworth, Principles of Criminal Law, 6th edn (Oxford: Oxford University Press, 2009) 170. As noted by Glanville Williams, intention and recklessness hold the key to the understanding of a large part of criminal law. See Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Stevens & Sons, 1961) 31. 15   Russell Heaton, Blackstone’s Criminal Law (London: Blackstone Press Limited, 1996) 39. 16   Smith and Hogan, Criminal Law, 9th edn (London: Butterworth, 1999) 61. 17   Glanville Williams, Criminal Law: The General Part, above (n 14) 31. Because the term mens rea when used in its strict sense would exclude important indicators of blame such as negligence, the Law Commission prefers to use the term ‘fault element’ in place of mens rea.

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Mens Rea in Common Law Jurisdictions

consequences.18 In the words of Professor Kenny, ‘to intend is to have in mind a fixed purpose to reach a desired objective’.19 The noun ‘intention’, according to Kenny, ‘is used to denote the state of mind of a man who not only foresees but also wills the possible consequences of his conduct’.20 But the meaning of ‘intention’ is not restricted to results which are willed, wanted or desired. English courts occasionally stretch the meaning of intention to include consequences which D might not want to pursue but which he knows are virtually certain to occur (indirect or oblique intent).21 In England, there is no statutory definition of intention and it was left to the courts to define it. Since the early 1960s, the House of Lords and the Court of Appeal have on a number of occasions considered the meaning of intention.22 Nearly all the leading cases which discussed and examined the law of intention have been concerned with the offence of murder. In their treatise on Criminal Liability, McAuley and McCutcheon noted that ‘although the concept of intention has continued to dominate discussion of the mens rea of murder down to the present day, both courts and legislatures have continued to treat it as a term of art going beyond homicidal purposes’.23 In the following section, six of the leading cases in the criminal law of England will be under consideration, namely, Smith,24 Hyam,25 Moloney,26 Hancock and Shankland,27 Nedrick28 and Woollin.29 In each of these cases, the House of Lords applied different tests from which intention may be inferred.

18   ‘A wrong is intentional only when the intention extends to all the elements of the wrong, and therefore to its circumstances no less than to its origin and its consequences’. According to Salmond, we cannot say that the circumstances are intended or intentional; but the act is intentional with respect to the circumstances, in as much as they are included in that precedent idea which constitutes the intention of the act. See Salmond on Jurisprudence, 8th edn (London: Sweet & Maxwell, 1930) 394. See also Glanville Williams, Text Book of Criminal Law, above (n 13) 76. 19   JW Cecil Turner (ed), Kenny’s Outline of Criminal Law, 19th edn (London: Cambridge University Press, 1966) 36. 20  ibid. 21   For a thorough analysis of the notion of ‘oblique intent’ in the law of England see Glanville Williams, ‘Oblique Intention’ (1987) 46 Cambridge Law Journal 417. 22   In the criminal law of England, it is presumably agreed that the only mental state which is sufficient to hold a person criminally liable for a crime of murder is intention. Mere recklessness or negligence does not suffice. Recklessness or gross negligence is, however, the mental states required for manslaughter. 23   Finbarr McAuley and J Paul McCutcheon, Criminal Liability (London: Sweet & Maxwell, 2000) 293. 24   DPP v Smith [1961] AC 290 (HL). 25   Hyam v DPP [1975] AC 55 (HL). 26   R v Moloney, above (n 4). 27   R v Hancock and Shankland [1986] 1 AC 455 (HL). 28   R v Nedrick [1986] 83 Cr App R 267 (CA) (Crim Div). 29   R v Woollin [1999] 1 AC 82 (HL).

34

Intention

A  Smith – The ‘Objective’ Test In Smith,30 the defendant tried to avoid arrest by driving off with a policeman clinging to the car. The latter fell off and was killed by an oncoming vehicle. At his trial for murder, Jim Smith claimed that his only thought was to get away and that he had no intention of killing, or causing serious injury to the constable. Applying an objective test to the present case, the trial judge directed the jury saying that: If you are satisfied that . . . he must, as a reasonable man, have contemplated that grievous bodily harm was likely to result to that officer . . . and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder.31

The conviction for capital murder was quashed by the Court of Criminal Appeal, and was substituted with a verdict of manslaughter on the basis that the judge had wrongly applied an objective test; namely, what a reasonable man would contemplate as the probable result of his acts, and therefore would intend.32 The Crown appealed to the House of Lords, and their Lordships unanimously restored the capital murder conviction.33 The House of Lords rejected any subjective test as to intention: It matters not what the accused in fact contemplated as the probable result, or whether he ever contemplated at all . . . On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result.34

In delivering this judgment, their Lordships were of the opinion that the true principle was that set out by Holmes in his 1881 treatise on The Common Law. In this work, Holmes discussed Stephen’s well-known definition of ‘malice aforethought’, the mental element in murder, which required ‘knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to some person’. Holmes asserted that knowledge of the present state of things – from which the probability of a consequence is inferred as a matter of common knowledge – is the same as foresight of that consequence. Their Lordships cited the entire passage of Holmes’ observation:

30   DPP v Smith, above (n 24). In the present case, the accused, Jim Smith, was driving a car in which there was stolen property. In the normal course of traffic control, a police officer stopped Smith. Another officer came to the window of the car and saw what he rightly suspected to be stolen goods in the back. He ordered Smith to pull over to the curb. Smith did so, and the constable walked beside the car. Smith then suddenly accelerated down an adjoining road. The constable managed to hang onto the car for a time, but eventually was thrown off into the path of an oncoming car and was killed. 31   ibid, 291 (emphasis added). 32   ibid, 297. 33   ibid, 335–36. 34   ibid, 327 (Lord Viscount Kilmuir) (emphasis added).

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Mens Rea in Common Law Jurisdictions What is foresight of consequences? It is a picture of a future state of things called up by knowledge of the present state of things, the future being viewed as standing to the present in the relation of effect to cause. . . . If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.35

Accordingly, in DPP v Smith, their Lordships not only applied an objective test, but there was also a clear indication of foresight of the consequences as a possible ingredient of malice aforethought, and that the likelihood and not certainty of the consequence is sufficient. This decision provoked a storm of criticism, and by section 8 of the Criminal Justice Act 1967, Parliament reversed the effect of Smith.36 Since then, it has been clear that the mental element of murder is concerned with the subjective question of what was in the mind of the person accused of murder.37 Following Smith, the next major case in the law of intention to reach the House of Lords was Hyam v DPP.38

B  Hyam –The ‘Probability’ Test In the case of Hyam v DPP,39 Mrs Hyam’s lover became engaged to be married to B. Being jealous of this, Mrs Hyam went to B’s house in the early hours, poured petrol through the letter box, stuffed newspaper through it and lit it. B and her son succeeded in escaping from the house, but her two daughters were suffocated by the fumes of the fire and Mrs Hyam was charged with their murder. Her defence was that she had set fire to the house only in order to frighten. The judge directed the jury that ‘if they were satisfied that when Mrs Hyam had set fire to the house, she had known that it was highly probable that the fire would cause death or serious bodily harm, they should find that the offence of murder was proved’.40 Mrs Hyam was convicted of murder. Her appeal against conviction was dismissed by the Court of Appeal. The House of Lords upheld the conviction   ibid, 327–28 (emphasis added) quoting OW Holmes, The Common Law (Boston, 1881) 53–54.   Criminal Justice Act 1967, s 8: ‘A court or jury, in determining whether a person has committed an offence, – (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances’. 37   By a subjective test we mean that, where the definition of the crime requires a result, the defendant may not be held liable unless it is proved that at the time of his act he knew or foresaw that the result would or might be caused by his act. Where the definition includes a circumstance, under the subjective test, the defendant may not be held liable unless it is proved that he knew at the time his act that the circumstance would or might occur. See John C Smith, ‘Subjective or Objective? Ups and Downs of the Test of Criminal Liability in England’ (1981–82) 27 Villanova Law Review 1164, 1165. 38   Hyam v DPP, above (n 25). 39  ibid. 40   ibid (emphasis added). 35 36

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Intention by a majority of three to two. But the majority gave different reasons. Lord Hailsham LC rejected the argument that a consequence foreseen as highly probable is the same thing as intention; however he recognised that it can nevertheless be an alternative type of malice aforethought, equally effective as intention to convert an unlawful killing into murder. He added that in situations where a defendant who knows that his conduct will expose a third party to a serious risk of death or grievous bodily harm, there is not merely actual foresight of the probable consequences but an actual intention, on the part of the defendant, to expose his victim to the risk of those consequences. Such an intention, in his words, is morally indistinguishable from the basic form of intent, although they are factually and logically distinct.41 Lord Dilhorne claimed that whether or not it was considered as intent, it had been established for at least one hundred years, that knowledge that certain consequences are ‘highly probable’ amounts to malice aforethought.42 Lord Cross was of a similar view but spoke of a foresight of a ‘mere probability’.43 Such differences of opinion lead to some confusion. The question which arises is whether proof of foresight of the probable consequences of a proscribed act is of itself proof of intention in murder or is proof of such foresight only to be treated as providing evidence from which intent to kill or cause serious bodily harm could be, but is not necessarily inferred?44 As noted by Lord Steyn in R v Woollin, ‘the law of murder in Hyam was in a state of disarray’.45 This broad definition of intention was narrowed down in Moloney.46

C  Moloney – The ‘Natural Consequence’ Test In Moloney,47 a soldier and his stepfather had been drinking heavily. The stepfather challenged the soldier to a competition to see who could load, draw and fire a shotgun in the shortest time. The outcome was that the soldier shot his stepfather and was charged with murder. The soldier testified that he had no intention to kill and had not aimed his gun at his stepfather. The judge, in his summing up, gave the following direction on intent: When the law requires that something must be proved to have been done with a particular intent it means this: a man intends the consequences of his voluntary act (a) when he desires it to happen, whether or not he foresees that it will probably happen; and (b) when he foresees that it will probably happen, whether he desires it or not.48

  ibid (Lord Hailsham); for his reasoning, see 65–79.   ibid (Lord Viscount Dilhorne) 81. 43   ibid, 95–98 (Lord Cross). 44   44 ibid; see also Jonathan Woods for the Crown in R v Moloney, above (n 4) 910. 45   R v Woollin, above (n 29) 91(Lord Steyn). 46   R v Moloney, above (n 4). 47   R v Moloney [1985] 1 All ER 1025. 48   ibid, 1030. 41 42

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The defendant was convicted of murder. His appeal against conviction was dismissed by the Court of Appeal. The House of Lords set aside the verdict of murder and substituted a verdict of manslaughter. Lord Bridge, who gave the leading judgment, stressed that in cases ‘where a crime of specific intent is under consideration . . . the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent’.49 Their Lordships agreed with Lord Bridge’s guidelines that in the rare cases in which it might be necessary to direct the jury by reference to foresight of consequences, it would be sufficient to place two questions before the jury: First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being natural consequence of his act?50

According to their Lordships, if the jury answers in the affirmative to both questions, they should then be told it is a proper inference for them to draw that D intended that consequence.51 Lord Bridge reaffirmed the century old rule that a man is presumed to intend the natural and probable consequences of his acts. However, he stressed that this was a rule of evidence and that the House of Lords erred in Smith elevating it to the status of a rule of substantive law by treating it as creating an irrebuttable presumption. He cited from Lord Hailsham in R v Hyam that ‘[k]nowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention’.52 To find a ‘sure, clear, intelligible and simple guide’, Lord Bridge went back to a decision before Smith, citing Lord Goddard CJ in Rex v Steane: No doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.53

The word ‘natural’, according to Lord Bridge, ‘conveys the idea that in the ordinary course of events a certain act will lead to a certain consequence unless something unexpected supervenes to prevent it’.54 Lord Bridge’s guidelines did not go without condemnation. In R v Hancock and Shankland, Lord Scarman expressed his concerns regarding the use of the phrase ‘natural consequences’. He stated that   ibid, 1036 (emphasis added).   ibid, 1039.  ibid. 52   Hyam v DPP, above (n 25) 65 in R v Moloney, above (n 47) 1038. 53   Rex v Steane [1947] KB 997 1004 in R v Moloney, above (n 47) 1039. 54   R v Moloney, above (n 47) 1039. 49 50 51

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Intention [t]o mention ‘natural consequences’ without adverting to D’s foresight of the probability is apt to mislead a jury into concentrating merely on the causal link between the act and its consequences rather than asking whether D knew they were highly likely to occur.55

Moloney’s guidelines were soon disapproved by both the Court of Appeal and the House of Lords in Hancock and Shankland.56

D  Hancock and Shankland –The ‘High Probability’ Test In Hancock and Shankland,57 the defendants, who were striking miners, were charged with murder of a taxi driver who was killed when taking a miner to work. The defendants pushed a concrete post and concrete block from a bridge onto the taxi travelling along the road below. They claimed that they had intended to block the road or frighten, but they had no intention to kill or cause serious bodily harm. The judge gave a direction to the jury based on Lord Bridge’s speech in Moloney.58 The jury convicted them, but the Court of Appeal substituted the conviction for manslaughter, holding that the Moloney guidelines were potentially misleading for the jury. The Crown appealed to the House of Lords but the appeal was dismissed. The case of Hancock and Shankland raised an issue central to such cases in which the accused may well foresee death or serious injury as a likely or probable result, though his main aim is not to cause that result. The House of Lords in Hancock and Shankland, unanimously disapproved of the Moloney guidelines, holding that if it was necessary to direct the jury on intent by reference of foresight of consequences, the direction should not merely refer to the natural consequences of the defendant’s acts, but it should also refer to the probable consequences of his acts, as this may amount to cogent evidence that the result was intended.59

Lord Scarman drew attention to the fact that ‘[f]ailure to explain the relevance of probability may, therefore, mislead a jury into thinking that it is of little or no importance and into concentrating exclusively on the causal link between the act and its consequence’.60 Finally, he asserted that it should be explained to the jury   R v Hancock and Shankland, above (n 27) 460 (Lord Scarman).   R v Hancock and Shankland, above (n 27). 57  ibid. 58   See the above discussion on R v Moloney. 59   R v Hancock and Shankland, above (n 27) 473. In Walker and Hayles [1990] 90 Cr App R 226, the defendants threw the victim from a third-floor balcony and were convicted of attempted murder. This required that the accused intended to kill, and the Court of Appeal had to determine whether the trial judge was correct to instruct the jury that it was entitled to infer the intent to kill from the fact that the accused knew that there was a high degree of probability of death. Interestingly, the Court of Appeal did not see much difference between ‘a very high degree of probability’ and ‘virtual certainty’ and held that the trial judge had not misdirected the jury. However, the Court urged judges in the future to direct the juries in terms of ‘foresight of virtual certainty’ rather than ‘high probability’. 60  ibid. 55 56

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that the greater the probability of a consequence, the more likely it is that the consequence is foreseen, and if it is foreseen, the greater the probability that it is also intended.61 Despite the deficiency which shadows the law of Moloney, Lord Scarman partially agreed with the law laid down there, affirming three basic principles: 1. The mens rea of murder is a specific intent, the intent to kill or inflict serious bodily harm; nothing less suffices. The jury must be sure that the intent existed when the act was done which resulted in death before they can return a verdict of murder.62 2. Foresight does not necessarily imply the existence of intention, though it may be a fact from which, when considered with all the other evidence, a jury may think it right to infer the necessary intent.63 3. The probability of the consequences resulting was an important matter for the jury to consider, and could be critical in their determining whether the result was intended.64 Hence, it is obvious that the law in Hancock and Shankland made it clear that foresight of a high degree of probability, even virtual certainty, is not in itself intention stricto sensu, but a jury may, if it thinks proper, infer intention from such foresight.

E  Nedrick –The ‘Virtual Certainty’ Test In Nedrick,65 the defendant who had a grudge against a woman had gone to her house in the early hours of one morning, poured paraffin through her letterbox and on to the front door, then set it alight to frighten her. As a result, one of the woman’s children died. The judge directed the jury as follows: It is not necessary to prove an intention to kill; the Crown’s case is made out if they prove an intention to cause serious injury – that is sufficient . . . There is, however, an alternative state of mind which you will have to consider. If when the defendant set fire to the house he knew that it was highly probable that that act would result in serious bodily injury to someone in the house, even though he did not desire to bring about the result, he was guilty of murder.66

The defendant was convicted of murder, and sentenced to life imprisonment. He appealed on the ground that the jury was misdirected. His conviction of murder was quashed and substituted for manslaughter by the Court of Appeal.67 Having reviewed the authorities, the Court of Appeal summarised the law as follows:   R v Hancock and Shankland, above (n 27) 473.   ibid, 471. 63   ibid, 471–72. 64   ibid, 472. 65   R v Nedrick [1986] 1 WLR 1025 (CA). 66   R v Nedrick, above (n 28) (emphasis added). 67   ibid, 271. 61 62

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Intention [I]f the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result . . . Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.68

If the word ‘appreciated’ as employed by Lord Lane in his guidelines signifies the defendant’s ‘will’ or ‘acceptance of the consequence’, this may be considered a milestone in the developing law of intent in England. In other words, it is crucial to stress that mens rea has two components, a cognitive component ‘knowledge’ and a volitional component ‘will’. Both components have to be established in order to hold a person criminally liable for intentional crimes. Hence, Lord Lane CJ’s direction is preferable as it requires the jury to enquire into these two components which together form the mens rea requisite for intentional crimes. The decision in Nedrick, subject to minor qualification, was widely welcomed by academic writers.69 It is also interesting that the test of ‘foresight of virtual certainty’ as adopted by the Court of Appeal is very similar to the threshold of being aware ‘that it will occur in the ordinary course of events’ in the Law Commission’s draft Criminal Code.70 The law of intention as stated by the Court of Appeal in Nedrick has been endorsed with slight amendments by their Lordships in Woollin.71

F  Woollin –Adhering to the ‘Virtual Certainty’ Test In R v Woollin,72 the defendant lost his temper and threw his three-month old son onto a hard surface. The child sustained a fractured skull and died. The trial judge directed the jury by instructing them according to the law set out in Nedrick that they could only infer the necessary intention if death or serious bodily harm was a virtual certainty and the defendant appreciated that such was the case. However, he added that if the jury were satisfied that the defendant must have realised and appreciated when he had thrown the child that there was a substantial risk that he would cause serious injury to the child, it would be open to them to find that he   ibid, 270–71 (emphasis added).   See John Smith, ‘Commentary on Nedrick’ [1986] Criminal Law Review 742, 743–44; Glanville Williams, ‘The Mens Rea for Murder: Leave it Alone’ (1989) 105 Law Quarterly Review 387; JR Spencer, ‘Murder in the Dark: A Glimmer of Light?’ [1986] Criminal Law Journal 366–67. 70   Law Commission, Criminal Law, Legislating the Criminal Code: Offences against the Person and General Principles (Law Com No 218, 1993) Appendix A (Draft Criminal Law Bill with Explanatory Notes) 90–91. 71   R v Woollin, above (n 29). 72  ibid. 68 69

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had intended to cause serious injury, and they should convict him of murder.73 The accused was convicted but appealed on the grounds that by directing the jury in terms of substantial risk the judge had unacceptably enlarged the mental element of murder. The Court of Appeal dismissed his appeal stating that it is only necessary to use the phrase ‘virtual certainty’ where evidence of intent is limited to the admitted actions of the accused and the consequences of those actions and not when there is other evidence for the jury to consider in cases such as the present. However, when Woollin appealed to the House of Lords, it was noted by Lord Steyn that such a distinction would pose great practical difficulties: [I]t might compel a judge to pose different tests depending on what evidence the jury accepts . . . But, most importantly, the distinction is not based on any principled view regarding the mental element in murder . . . It follows that judge should not have departed from the Nedrick direction.74

The conviction of murder was quashed and substituted for manslaughter.75 Their Lordships were of the opinion that the phrase ‘substantial risk’, as used by the trial judge, had blurred the line between intention and recklessness, and consequently between murder and manslaughter. The decision of the House of Lords in Woollin ‘is open to at least two interpretations’.76 According to one commentator, the first interpretation ‘is that on proof of foresight of virtual certainty as to a consequence a jury may find some unspecified type of intention other than direct intention’.77 This was the interpretation given to Woollin by the English Court of Appeal in Matthews and Alleyne.78 In this case, the appellants were convicted of murder, having thrown their victim from a bridge into a river. The Court of Appeal considered that foresight of virtual certainty was merely evidence from which intention may be inferred and that Woollin was not to be regarded as yet reaching or laying down a substantive rule of law. The Court concluded that ‘the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty’.79 A second interpretation of Woollin equates proof of foresight of virtual certainty with proof of intention.80 This kind of indirect intention (oblique intent) is discussed in more detail below.  ibid.   ibid, 95. 75   ibid, 97. 76   Richard Card, Card, Cross and Jones: Criminal Law, 17th edn (Oxford: Oxford University Press, 2006) 95–96. 77  ibid. 78   R v Matthews and Alleyne [2003] 2 Cr App R 461 (CA). In this case the appellants after attacking and robbing their victim they drove him to Tyringham Bridge, put him over the parapet where he fell about 25 feet into the River Ouse and drowned. The appellants were tried on charges of murder, robbery and kidnapping. As for the requisite intent to kill the jury were directed as follows: ‘[if] drowning was a virtual certainty and the defendants appreciated that, and in the absence of any desire or attempt to save him, and if they also realised that the others were not going to save him too they must have had the intention of killing him’. The appellants were convicted and on appeal they contended, inter alia, that the judge’s amended form of a Woollin direction was put as a substantive rule of law, rather than as a rule of evidence. 79   ibid, 43. 80   Card, above (n 76) 96–97. 73 74

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Intention In the 2006 Report on Murder, Manslaughter, Infanticide, the Law Commission of England recommended that the existing law governing the meaning of intention is codified as follows: (1) A person should be taken to intend a result if he or she acts in order to bring it about. (2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action.81 Reading the above judgments on the meaning of intention in murder cases, and its evolvement, it appears that in the criminal law of England, intention has been interpreted many times as including situations where it is the actor’s conscious object or purpose to kill or cause serious bodily harm, as well as situations where he foresees death or serious bodily harm as a virtually certain consequence of his actions, although that may not be his object or purpose.82 The test is subjective; it is the intention of the defendant which should be established and not the intention of the reasonable man. Recklessness, on the other hand, has no place in the definition of murder; no matter how culpable the taking of the risk in question is, it will not be murder unless the actor foresees death as a virtually certain consequence of his actions.83 However, recklessness is a sufficient fault element for some serious crimes other than murder such as unlawful wounding, and some less serious crimes such as common law assault.

G  The Meaning of Intention in the Criminal Law of Ireland In Ireland, there are ongoing attempts by the Law Reform Commission to expand the definition of murder in a way that would capture situations such as when an accused fired a gun at a moving vehicle but claims that he neither intended to kill or cause serious injury to anyone, nor foresaw death as a probable consequence of his actions. In so doing, the Commission recommended that murder should encapsulate the American Model Penal Code definition of recklessness which amounts to extreme indifference to human life.84 81   Law Commission Report, Murder, Manslaughter and Infanticide, Project 6 of the Ninth Programme of Law Reform: Homicide (Law Com No 304) para 3.13, 58–59, 28 November 2006, available at: www. lawcom.gov.uk. 82   R v Woollin [1998] 4 All ER 103. See also Law Reform Commission (Ireland), Report on Homicide: Murder and Involuntary Manslaughter (LCR 87-2008) 26, para 2.05; AJ Ashworth, ‘United Kingdom’ in KJ Heller and MK Dubber, The Handbook of Comparative Criminal Law (Stanford: Stanford University Press, 2010) 531–62, 547. 83   Law Reform Commission (Ireland), Report on Homicide, above (n 82) 26, para 2.05. 84   See Law Reform Commission (Ireland), Consultation Paper on Homicide: The Mental Element in Murder (LRC CP 17-2001) ch 4, 43–74; Law Reform Commission (Ireland), Report on Homicide, above (n 82) ch 3, 51–74, para 3.78.

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Irish Courts recognise two forms of intent, namely, direct intent and oblique intent.85 As for direct intent, two authoritative judgments can assist in clarifying its meaning. The first reported case to discuss the meaning of intention was People v Murray (1977).86 A married couple who took part in an armed bank robbery were pursued by an off-duty, plain-clothes Garda who succeeded in overtaking the unarmed husband but was shot dead by the armed wife. Both accused were convicted of capital murder and were sentenced to death. They based their appeal on the fact that when the wife shot the Garda she did not know that he was a police officer acting in the course of his duty and, therefore, lacks the requisite mens rea for the offence of capital murder.87 A sharp distinction between intention and foresight of the consequence was drawn by Walsh J in the following terms: To intend to murder, or to cause serious injury . . . is to have in mind a fixed purpose to reach that desired objective. Therefore, the state of mind of the accused person must have been not only that he foresaw but also willed the possible consequences of his conduct. There cannot be intention unless there is also foresight, and it is this subjective element of foresight which constitutes the necessary mens rea. Therefore where a fact is unknown to the accused it cannot enter into his foresight and he cannot be taken to be intentional to it.88

In Douglas and Hayes (1985), the two accused were convicted of shooting at another person with intent to kill. The Irish Court of Criminal Appeal made it clear that foresight of a consequence as a natural and probable consequence of one’s action does not amount to intention per se, but it is mere evidence from which intention can be inferred.89 In DPP v Hull, the applicant was convicted of murder having shot his victim through a closed door. The Court of Criminal Appeal was satisfied with the trial judge instruction to the jury which was as follows: first, they have to decide whether the natural and probable consequence of firing at the door was to cause death or serious injury. If this was decided in the affirmative, then they should determine whether this had been deliberate or accidental.90 Apparently, the meaning of intention in the Irish criminal law has a broader meaning than its English counterpart.   See our discussion on the notion of oblique intent, below, p 48.   People v Murray [1977] IR 360.  ibid. 88   ibid, 386. 89   The People (DPP) v Douglas and Hayes [1985] ILRM 25, 26–28. See also DPP v McBridge [1996] 1 IR 312, 317 where the Court of Criminal Appeal ruled: ‘The jury ought to have been told that while there was a presumption that the applicant intended the natural and probable consequences of his acts, this was only a presumption and could be rebutted, one of the things that they had to consider was whether the State had satisfied them beyond reasonable doubt that the presumption had not been rebutted. And in considering that, they had to take into account what the applicant said in his statement. It was for them to decide if it affected their view as to whether he had the necessary intent’. 90   Unreported, 8 July 1996, Court of Criminal Appeal – quoted in Gerard Coffey, ‘Codifying the Meaning of Intention in the Criminal Law’ (2009) 73 Journal of Criminal Law 394, fn 67 and accompanying text. 85 86 87

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Intention

H  The Meaning of Intention in the Criminal Law of Australia In Australia, which strongly subscribes to an orthodox subjectivist approach to fault, a broader definition of intention that encompasses oblique or indirect intention is reflected in the Model Criminal Code as well as in the federal criminal law. Section 5.2 of the Criminal Code (Cth) defines intention in the following terms: (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. In Australia, in New South Wales91 and the Australian Capital Territory,92 where murder is governed by statute, reckless indifference to human life is a sufficient mens rea of murder. In the common law jurisdictions of Victoria and South Australia the mens rea of murder is also not limited to intention to kill or inflict grievous bodily harm, but can be satisfied by the fault element of recklessness. While for most offences in Australia, recklessness is satisfied by foresight of a ‘possibility’, 93 the High Court held unanimously in Crabbe (1985) that regarding murder by recklessness there must be foresight of a probability, and not a mere possibility, that death or grievous bodily harm will result: If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word ‘probable’ means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm . . . [A] person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.94

In some cases the term ‘probable’ has been explained as ‘more than 50 per cent likely’.95 In Darkan, however, it was said that ‘[t]he expression “a probable consequence” means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen’.96 In Boughey v The Queen, the phrase ‘likely   s 18(1)(a) Crimes Act 1900 (New South Wales).   s 12(1) Crimes Act 1900 New South Wales (as amended), provides:     ‘A person commits murder if he or she causes the death of another person – (1) intending to cause the death of any person; or (2) with reckless indifference to the probability of causing death of any person’. 93   Bronitt, above (n 12) 59. 94   R v Crabbe (1985) 156 CLR 464. 95   The Law Reform Commission (Ireland), Consultation Paper on Homicide, above (n 84) 30. 96   Darkan [2006] HCA 34: [78]–[79] in Bronitt, above (n 12) 88. 91 92

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Mens Rea in Common Law Jurisdictions

to cause death’ as it appears in the Tasmanian Criminal Code was considered by the High Court of Australia to be akin to ‘probable’, which in turn meant ‘a substantial – a real and not remote – chance’. The Court held, however, that it was inappropriate to try to express the relevant degree of probability mathematically and that one should avoid over-definition, thereby ‘submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation’.97 The Model Criminal Code in turn defined recklessness as an ‘awareness of a substantial risk’ that is known to be unjustifiable. The Department of the Attorney General carried out a study of Commonwealth criminal law and recommended that a person is considered to intend a consequence ‘when he or she means it to exist or occur or knows that it will probably exist or occur’.98 This wide definition of intent, which includes advertence to probability, was criticised by the Australian Criminal Law Officers Committee. The Committee proposed the following definition of intention: ‘a person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events’.99 Hence, the Committee equated the phrase ‘in the ordinary course of events’ with moral or virtual certainty.100 A distinct mens rea requirement for murder is found in Tasmania. Section 157(1)(b) of the Tasmanian Criminal Code considers the following mental state sufficient: ‘an intention to cause to any person, . . . bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death’.101 Knowledge of the likelihood of causing death is therefore sufficient to trigger the criminal responsibility of murder when it is coupled with an intention to cause bodily harm.

I  The Meaning of Intention in the Criminal Law of Canada Section 229 of the Canadian Criminal Code,102 considers culpable homicide as murder where the person who causes the death of a human being: 1. means to cause his death, or 2. means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.   Boughey v The Queen [1986] 161 CLR 10, 21.  Review Committee of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters (Gibbs Committee Report) (July 1990). 99   Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Final Report (AGPS, 1993) cl 203.1, cited and quoted in the Law Reform Commission (Ireland), Consultation Paper on Homicide, above (n 84). 100   As understood by the Law Reform Commission (Ireland) in its Consultation Paper on Homicide, above (n 84) 31. 101   Emphasis added. 102   Canada has had a national criminal code since 1892, but this code is not comprehensive because, among others, it does not contain systematic definitions and applications of fault elements. See Kent Roach, ‘Canada’ in KJ Heller and MK Dubber, The Handbook of Comparative Criminal Law (Stanford: Stanford University Press, 2010) 97–136, 98. 97 98

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Intention In R v Vaillancourt, the Supreme Court of Canada interpreted the above mens rea standards as follows: ‘[element (a) above] clearly requires that the accused have actual subjective foresight of the likelihood of causing death coupled with the intention to cause that death’. As for element (b) the Court held that it provides for a slight relaxation of the mens rea requirement for murder and is limited to cases where the accused intended to cause bodily harm to the victim. The Court held that while element (b) requires that the accused must have actual subjective foresight of the likelihood of death, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not.103 In the present case as well as in R v Martineau, the Supreme Court of Canada asserted that the ‘subjective foresight of death’ is the minimum standard of fault for murder under section 7 of the Canadian Charter of Rights and Freedoms, the Bill of Rights added to the Canadian Constitution in 1982.104 The Court explained that foresight means knowledge of the likelihood of death resulting. In the same judgments, the Supreme Court struck down constructive or ‘felony’ murder offences that applied to unintended killings committed during another serious crime on the basis that they violated section 7 of the Charter because they did not require the state to establish that the accused knew that the victim was likely to die.105 Hence, in the criminal law of Canada, lower forms of subjective fault, such as knowledge of the probability of the prohibited act or consequence occurring are a sufficient threshold for convictions for murder and other serious offences.106 Canadian courts have approved of the use of ‘oblique intention’, though not in the context of murder. In Regina v Buzzanga and Durocher, a case concerned with promoting hatred against the French Canadian public in Essex County, the Ontario Court of Appeal adopted William’s notion of ‘foresight of certainty’ as a second alternative of intent. Martin JA stated: I agree . . . that as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully) in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective.107

To put it differently, the Ontario Court of Appeal viewed that the mens rea threshold of ‘wilful promotion’ may be satisfied in either of two ways: ‘(1) by proof of intention or conscious purpose of promoting hatred; or (2) by proof that the accused foresaw that the promotion of hatred against an identifiable group is certain, or “morally certain”, to result from the communication’.108   R v Vaillancourt [1987] 2 SCR 636, paras 11–12.  ibid; R v Martineau [1990] 2 SCR 633, 645.   ibid. See also, R v Sit [1991] 3 SCR 124. 106   Roach, ‘Canada’, above (n 102) 107. 107   Buzzanga (1979) 49 CCC (2d) 369 (Ont CA). Applied in Chartrand (1994) 31 CR (4th) 1 (SCC). 108   As approved in R v Keegstra [1990] 3 SCR 697, 774–75. 103 104 105

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Mens Rea in Common Law Jurisdictions

It is worth pointing out that Jeremy Bentham was the first to employ the notion of oblique intention and to draw a distinction between this state of mind and ‘direct intention’: A consequence, when it is intentional, may either be directly so, or only obliquely. . . It may be said to be directly. . . intentional, when the prospect of producing it constituted one of the links in the chain of causes by which the person was determined to do the act. It may be said to be obliquely. . . intentional, when, although the consequence was in contemplation, and appeared likely to ensue in case of the act’s (sic) being performed, yet the prospect of producing such consequence did not constitute a link in the aforesaid chain.109

Since then, philosophers as well as jurists sometimes include expected side-effects within the scope of intention.110 Glanville Williams, who devoted special attention to the notion of ‘oblique intention’, argued that the law should generally be the same where the defendant wills the consequence as in cases where he is aware that a consequence in the future is the certain result of what he does, though he does not intend or desire its occurrence.111 In cases of oblique intention, there are twin consequences of the conduct, x and y; the actor wants x and is prepared to accept its unwanted twin y.112 Oblique intent, in the words of Glanville Williams, is ‘a kind of knowledge or realization’.113 It is clear that Williams’ position is to extend the meaning of intention to encompass foresight of a certainty. This is different from the ruling of the Court of Appeal in Nedrick where proof that the defendant recognised that death or serious harm would be virtually certain to result from his act, was considered mere evidence from which the jury may infer that he intended to kill or do serious bodily harm. In situations of oblique intention, however, once this knowledge is established on the part of the accused he is considered a ‘murderer’ without further scrutiny. To sum up, in the common law, intent does not necessarily connote desire. Indeed, there are situations in which the person who intends to bring about a given consequence will desire it, but the person need not, for the purpose of criminal intention.114 At present, common law gives intention two different meanings, namely, direct intent and indirect intent. The former, which we may call the standard conception of intention, exists when the person acts or omits to act with the purpose (conscious objective) of bringing about the material elements of the offence (particularly the consequence element). The second alternative of intent (indirect intent or oblique intention) covers situations in which a person does an 109   Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (New York: Hafner Publishing, 1948) 84. See in general, ch VIII of Bentham’s treatise ‘of Intentionality’ 82–88, and ch IX ‘of Consciousness’ 89–96. 110   Duff, above (n 3) 74–76; Glanville Williams, ‘Oblique Intention’, above (n 21) 417. 111   Glanville Williams, ‘Oblique Intention’, above (n 21) 420. 112  ibid. 113  ibid. 114   Vallance v R [1961] 108 CLR 56; 61 (Dixon CJ), 64 (Kitto J), 83 (Windeyer J) quoted in Peter Gillies, Criminal Law, 3rd edn (Melbourne: The Law Book, 1993) 48.

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Intention act knowing that another event will follow and he or she foresees the occurrence of this event as a certain result of his conduct. Both the House of Lords and the English Courts of Appeal have been reluctant to consider the second scenario as an alternative meaning of intent, and consider it a mere fact (as a matter of evidence and not law) from which intent might be inferred.

J  A Schematic Review of the Meaning of Intention in Common Law Jurisdictions Table 1:  A schematic review of the case law, legislation and recommendations illustrates the discrepancies of mens rea definitions within and between the above discussed jurisdictions. Case

Conduct

Purpose/ consequence

The required standard for mens rea in murder is satisfied if the probability of the consequence is a matter of common knowledge – what a man of reasonable prudence would have foreseen

England Smith

drove off with the policeman clinging to the car

to escape/ policeman killed

Hyam

set a house on fire

to frighten B/ if the perpetrator knows that the conB’s daughter sequence is highly probable/probable/ killed that there is a high risk

Moloney

game of shooting between soldier and father in law

play/ father in law killed

if there is intent. If the consequence is a natural consequence of the act and if the defendant foresees it as such, intent may be inferred

Hancock and pushed a conShankland crete post and block from a bridge onto a taxi

to block the road or frighten/ taxi driver killed

if there is intent. Foresight does not necessarily imply intention though it can be a fact from which intent can be inferred, probability being an important fact to consider

Nedrick

set a house on fire

to frighten/ child killed

if there is intent. If the consequence is a virtual certainty and the defendant appreciates that such is the case, intent may be inferred

Woollin

threw threemonth old son onto a hard surface

to stop child from crying/ child killed

if there is intent. If the consequence is a virtual certainty and the defendant appreciates that such is the case intent may be found upon the consideration of all the evidence of the case

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Mens Rea in Common Law Jurisdictions Ireland Murray

shot a Garda

to shoot a regular citizen/ Garda killed

if there is foresight of the consequences and the perpetrator wills them

The required standard for mens rea in murder is satisfied Australia Federal Criminal Code

if D is aware that it will occur in the ordinary course of events

Crabbe

if D knows the consequence is probable – likely to happen

Recommendation of the Department of the Attorney General

if D knows that it will probably exist or occur

Australian Criminal Law Officers Committee

if D is aware that it will occur in the ordinary course of events (moral or virtual certainty)

Tasmanian Criminal Code

if D has intention to cause bodily harm which he knows to be likely to cause death in the circumstances

Canada Canadian Criminal Code

if D means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not

R v Vaillancourt

if D has subjective foresight of the likelihood of causing death with intention to cause death or bodily harm

Canadian Charter of Rights and Freedoms (as defined in R v Vaillancourt and R v Martineau)

if D has a subjective foresight of death, ie, knowledge of the likelihood of death resulting

IV Recklessness In the criminal law of England, as well as in other common law jurisdictions, there is a growing tendency for the mens rea requirement of many offences to be further broadened to include ‘recklessness’, whether or not required by any statutory definition. In other words, while for some crimes intention alone will suffice to establish criminal liability, proof of either intention or recklessness will secure 50

Recklessness a conviction for many crimes.115 Glanville Williams provided the following explanation of recklessness: We learn as a result of experience and instruction, and our learning brings awareness of the dangers of life. We can guess at the probable present even when we cannot directly perceive it, and can protect ourselves into the future by foreseeing the probable consequences of our acts. Our memory works forwards. This is the foundation of the notion of recklessness. ‘Reckless’ is a word of condemnation. It normally involves conscious and unreasonable risk-taking, either as to the possibility that a particular undesirable circumstance exists or as to the possibility that some evil will come to pass. The reckless person deliberately ‘takes a chance’.116

In Canada, a distinction between recklessness and knowledge can be drawn on the basis that the reckless accused need only be aware of the possibility of the prohibited consequence or circumstances occurring, as opposed to knowing the probability of such eventualities.117 In England, the legal meaning of recklessness has oscillated between subjective and objective forms though the latter form was heavily criticised and the House of Lords decision in R v G (2004) overruled it.118 In its subjective form, recklessness means knowingly taking unjustified risks, including cases of ‘closing one’s mind to the obvious fact’.119 In its objective form, recklessness is a synonym for negligence. Glanville Williams viewed recklessness as a more emphatic word of condemnation, which on the subjective view has kept its literal meaning, as the conscious (and unreasonable) running of risk, whereas on the objective view it merely means a heightened degree of negligence.120 The following list will illustrate the relationship between intention and recklessness, and the different types of recklessness: (a) Consequence desired/wanted: intention. 115   In England, recklessness has come to be the touchstone of criminal responsibility for a large number of criminal offences; see Glanville Williams, Text Book of Criminal Law, above (n 13) 96. Williams noted that even where a common law crime has been traditionally stated in terms of intention, the courts may redefine it in terms of intention or recklessness, as they did with regard to rape, in Morgan [1975] 2 All ER 347 (HL). 116  ibid. 117   Roach, ‘Canada’, above (n 102) 108–09. 118   R v G and Another [2004] 1 AC 1034 (HL). 119   ibid. See also R v Daryl Parker [1977] 1 WLR 600, 604 (CA). 120   Glanville Williams, Textbook of Criminal Law, above (n 13) 70. Contra see Lord Diplock in R v Caldwell [1982] AC 341, 353–54. Lord Diplock declines labelling recklessness as subjective or objective: ‘Reckless, as used in the new statutory definition of the mens rea of these offences, is an ordinary English word. By 1971, it had not become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech – a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was. If one is attaching labels, the latter state of mind is neither more nor less ‘subjective’ than the first. The label of “objective” or “subjective” solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person’.

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Mens Rea in Common Law Jurisdictions

(b) Consequence foreseen as virtually certain: intention may be found. (c) Consequence foreseen as probable: typically recklessness (subjective). (d) Consequence foreseen as possible: typically recklessness (subjective). (e) Consequence not foreseen but ought to have been: negligence (objective recklessness).121 Situation (a) represents the core case of intention stricto sensu. Element (b) describes cases in which the defendant foresees consequences as virtually certain, although he does not want them to follow; in such cases, juries may find intention, taking into consideration all the other evidences. Even in situation (c) intention may be found but not in murder cases.122 Situations (b) and (c) are more appropriately and easily dealt with as recklessness than intention. Situations (d) and (e) are also capable of being within the category of recklessness. The difference between (d) and (e) represents the distinction between the narrower subjective recklessness given by the Court of Appeal in Cunningham123 and the wider objective recklessness as ruled in Caldwell.124 In the former, recklessness requires proof that D was aware of the existence of the unreasonable risk; whereas in the latter, recklessness is satisfied if either: (i) D was aware of its existence; or (ii) in the case of an obvious risk, D failed to give any thought to the possibility of its existence.125 Hence, in Caldwell, their Lordships interpreted recklessness objectively and recognised inadvertence as a mental state. Accordingly, Cunningham’s subjective recklessness is covered by categories (b), (c), and (d) as shown in the above list, whereas Caldwell adds category (e) to the scope of recklessness (objective recklessness).126

A  Cunningham – Subjective Recklessness In Cunningham,127 the defendant had removed a gas meter from the wall of the cellar of a house to steal the money in it and in so doing, fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house and entered a bedroom with the result that W, who was asleep, inhaled a considerable quantity of the gas. The defendant was convicted of maliciously administrating a noxious thing so as to endanger life contrary to section 23 of the Offences against the Person Act 1861.128 The point at issue was whether the defendant had the relevant 121   Diane J Birch et al, Blackstone’s Criminal Practice, 12th edn (Oxford: Oxford University Press, 2002) 22 (emphasis added). 122   ibid, 22. 123   R v Cunningham [1957] 2 QB 396. 124   Metropolitan Police Commissioner v Caldwell [1982] AC 341 (HL). 125   Smith and Hogan, Criminal Law, 9th edn, above (n 16) 61. 126   Birch et al, Blackstone’s Criminal Practice, above (n 121) 22, 23. 127   R v Cunningham, above (n 123). 128   Offence against the Person Act, 1861, s 23: ‘Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm’.

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Recklessness malice. Because the trial judge directed the jury that ‘maliciously’ meant ‘wickedly’, D’s conviction was quashed.129 The Court of Criminal Appeal quoted with approval the principle first propounded by Kenny in 1902: In any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of ‘wickedness’ in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured.130

This subjective approach was adopted by English courts as standard in the 1970s, particularly in the field of criminal damage.131 In Briggs, it was held that man is to be considered ‘reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act’.132 In the same year, in Daryl Parker, the Court expanded the definition given in Briggs: A man is reckless in the sense required when he carries out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act.133

In R v Stephenson,134 it was observed that in neither Briggs nor Parker was there any consideration of the earlier authorities. According to Lane LJ, ‘both judgments were extempore’.135 Having reviewed several authorities, Lane LJ came to the conclusion that [a] man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however, not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.136

According to Lane LJ the test has to be subjective: ‘The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant’s knowledge’.137 129   R v Cunningham, above (n 123). In his summing up, Oliver J directed the jury as follows: ‘You will observe that there is nothing there about “with intention that that person should take it”. He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. “Unlawful” does not need any definition. It is something forbidden by law. What about “malicious”? “Malicious” for this purpose means wicked – something which he has no business to do and perfectly well knows it. “Wicked” is as good a definition as any other which you would get’. 130  JW Cecil Turner (ed), Kenny’s Outlines of Criminal Law, 16th edn (Cambridge: Cambridge University Press, 1952) 186. 131  See R v Briggs (Note) [1977] 1 WLR 605 (CA); [1977] All ER 475 (CA); see also, R v Daryl Parker, above (n 120); [1977] 2 All ER 37 (CA). Both cases classified the test of recklessness as ‘subjective’. 132   R v Briggs (Note) [1977] 1 WLR 605, 608 (CA). 133   R v Daryl Parker, above (n 119) 604. 134   R v Stephenson [1979] 1 QB 695. 135   ibid, 700. 136   ibid, 703 (Geoffrey Lane LJ) (emphasis added). 137  ibid.

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Mens Rea in Common Law Jurisdictions

Regarding the concept of wilful blindness which the Court in R v Parker (Daryl) was trying to express when it used the words quoted above, Lane LJ drew attention to the fact that the test should remain subjective, ‘that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind even though he may have suppressed it or driven it out’.138 The Law Commission in the draft Criminal Law Bill 1993 continued to endorse such an approach.139 Clause 1 of the Bill stated that a person acts recklessly with respect to i. a circumstance, when he is aware of a risk that it exists or will exist, ii. a result when he is aware of a risk that it will occur, and it is, the circumstances known to him, unreasonable to take the risk.140 From the above definition, the prosecution must prove (1) the subjective awareness of the risk – whether that risk is related to result or circumstances; and (2) that the risk was, in all the circumstances, unreasonable for the defendant to take.141 In addition, the court has to decide that the risk taken was unjustified.142

B  Caldwell /Lawrence – Objective Recklessness In Caldwell,143 the defendant set fire to a hotel in a drunken rage after quarrelling with the owner. He was indicted on two counts of arson under the Criminal Damage Act 1971 section 1(1) intentionally or recklessly destroying property of another and the aggravated form of the same offence under section 1(2) which required intending or being reckless as to whether the life of another would be endangered by such a destruction of property. The defendant pleaded guilty to the first count but not guilty to the aggravated form claiming that because of being intoxicated, he was not aware of the risk of endangering the lives of residents. The leading judgment was given by Lord Diplock, who considered a person charged with an offence under section 1(1) reckless subject to the following conditions: if (1) he [the defendant] does an act which creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he (a) either has not given any thought to the possibility of there being any such risk or (b) has recognised that there was some risk involved and has nonetheless gone on to do it.144   ibid, 703–04 (Geoffrey Lane LJ).   Law Commission of England and Wales, No 218 (London: Her Majesty’s Stationary Office, 1993). 140   Law Commission, Draft Criminal Law Bill, 1993 (emphasis added). 141  William Wilson, Criminal Law Doctrine and Theory, 2nd edn (United Kingdom: Pearson Education Limited, 2003) 148. 142   Heaton, above (n 15) 54. 143   Metropolitan Police Commissioner v Caldwell, above (n 124). This was a 3:2 majority judgment. Lord Keith and Lord Roskill agreed with Lord Diplock while Lord Wilberforce and Lord EdmundDavies dissented. 144   R v Caldwell, above (n 121) 355 (letters added). As for the aggravated form of the offence, Lord Diplock found the fact that owing to his self-induced intoxication the defendant was unaware of the 138 139

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Recklessness According to Lord Diplock’s direction, the prosecution must in all cases prove element 1 and either element 2(a) or element 2(b). Element 2(b) is a type of subjective recklessness (advertent recklessness) where D foresees the possibility of risk occurring, but he carries on regardless. However, according to Lord Diplock, also element 2(a) ‘failing to give thought to the possibility of there being any such risk’ is sufficient to trigger criminal liability for reckless behaviour.145 Therefore, D can be convicted of offences of recklessness where he has no idea that his actions involve any risk at all of the prohibited consequence. This model direction, however, was approved by the House of Lords in Lawrence – a case of reckless driving – subject to a minor modification that the risk had to be both obvious and serious.146 For some years, the Court of Appeal advised judges that they should direct juries in Lord Diplock’s exact words; however, the following questions arise with respect to his model direction.

i  Must the Risk have been ‘Obvious’ in all Cases? A literal reading of the model direction from Caldwell seems to require proof of element 1: that the risk was obvious in every case, including the subjective limb which we have termed element 2(b). Sir John Smith observed that this was not what Lord Diplock intended. Smith asserted that in other parts of Lord Diplock’s speeches, he dealt first with advertent recklessness and applied the test of ‘obvious [and serious]’ only when he came to inadvertent recklessness.147 Smith continued: This makes sense: recklessness is either deliberately taking ‘a risk’ of harmful consequences, or failing to recognise an obvious [and serious] risk. The relevance of obvious is plain; it is that the person who was not aware of the risk ought to have been aware of it. When D was aware of the risk the fact that it was obvious does not have the same relevance. In the one case the culpability consists in ignoring a known (and unacceptable) risk, in the other it consists in failing to advert to the obvious.148

ii  Does Lord Diplock’s Model Direction create a Lacuna? Applying an objective test, ‘the House of Lords in Caldwell and Lawrence expanded recklessness beyond the accused who is aware of the risk to the accused who, had he stopped to consider the risk, would have been aware of it’.149 But neither case dealt with the liability of a person who, having given thought to the matter, risk, to be of no defence if that risk would have been obvious to him had he been sober, as reducing oneself by drink or drugs to a condition in which the restraints of reason and conscience are cast off is in itself a reckless course of conduct. 145  Wilson, Criminal Law Doctrine and Theory, above (n 141) 153. 146   R v Lawrence [1982] AC 510, 526 (HL). 147   Smith and Hogan, Criminal Law, 10th edn (London: Butterworth LexisNexis, 2003) 80. 148   ibid, 80 (emphasis in original). 149   Janet Dine and James Gobert, Cases and Materials on Criminal Law, 4th edn (Oxford: Oxford University Press, 2003) 169.

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Mens Rea in Common Law Jurisdictions

decides (wrongly and quite unreasonably) that his conduct creates no risk of the relevant harm occurring.150 It has been suggested that in such a situation, a defendant can escape liability if he succeeds in convincing the jury that he had considered the matter but erroneously concluded that there ‘was no risk’.151 This has been dubbed by some academics as a lacuna or a loophole.152 The prevalence of ‘advertent’ recklessness in England has recently been enhanced. The judgment delivered by the House of Lords in R v G and Another,153 marked the decline of an objective form of recklessness in relation to section 1 of the Criminal Damage Act 1971.

C  R v G and Another –The Fall of Objective Recklessness In R v G and Another,154 the defendants, two boys aged 11 and 12 respectively, went camping and entered the back yard of a shop, set fire to some newspapers, threw them under a large plastic dustbin and left the yard without putting out the burning papers. The dustbin caught fire and the fire spread to the shop and adjoining buildings resulting in approximately one million pounds worth of damage. They were charged with arson in that they caused damage to property, being reckless as to whether such property would be destroyed or damaged. The defendants claimed that they expected the burning newspapers to extinguish themselves on the concrete floor of the yard. At their trial, it was accepted that neither of the defendants appreciated that there was any risk of the fire spreading. Bound by the House of Lords’ previous authority, the trial judge directed the jury using the following words: [I]n deciding whether the defendants had been reckless as to whether the property would be damaged or destroyed the test to be applied was (1) whether the defendants had done an act which in fact created an obvious risk that property would be destroyed or damaged, and (2) whether when they did that act (i) they had either not given any thought to the possibility of there being such risk, or (ii) had recognised that there was some risk involved and had nevertheless gone on to do it, and (3) that the question whether there was an obvious risk of property being destroyed or damaged was to be assessed by reference to the reasonable man and not by reference to a person endowed with the defendants’ characteristics. The defendants were convicted by the jury and they appealed.155

The Court of Appeal dismissed the appeal. On appeal before the House of Lords, Lord Bingham’s opinion, with which their Lordships agreed, was as follows: 150   Diane J Birch, ‘The Foresight Saga: The Biggest Mistake of All’ (1988) Criminal Law Review 4–18, 4. 151   Smith and Hogan, Criminal Law, 9th edn, above (n 16) 82. 152   ibid. See also Dine and Gobert, above (n 149); (n 150) 169–71; Birch, above (n 151) 4. 153   R v G and Another, above (n 118). 154  ibid. 155   ibid 1034–35 (numbers and letters added).

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Recklessness [B]y the use of the word ‘reckless’ in section 1 of the 1971 Act, Parliament had not intended to change the law in regard to the mens rea required for the offence of recklessly causing damage to property, so that foresight of consequences remained an essential ingredient of recklessness in the context of the offence . . . [Thus,] in order to convict of an offence under section 1 it had to be shown that the defendant’s state of mind was culpable in that (1) he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or (2) in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.156

According to this opinion, the taking of the risk involved must be unreasonable. As for the result element, it has to be demonstrated that D was aware of a risk that such a result will occur and not merely that it may occur.157 Their Lordships found unanimously that the judge’s directions to the jury were incorrect and that the convictions should be quashed. In analysing Lord Diplock’s model direction, their Lordships unanimously agreed that this model was capable of leading to obvious unfairness. They considered Caldwell as ‘a radical departure from the law as previously understood.’158 Their Lordships found that the case for departing from R v Caldwell had been shown to be irresistible for the following reasons: 1. A defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.159 2. Experience has shown that by bringing within the reach of section 1(1) cases of inadvertent recklessness the decision in R. v Caldwell became a source of serious potential injustice which cannot possibly be justified on policy grounds.160 3. ‘Lord Diplock’s formulation leaves no room, in the great majority of cases, for any inquiry into the defendant’s state of mind’.161 The significance of the decision in R v G and Another is that it reasserted ‘the primacy of subjectivism’.162 A few years prior to the decision in R v G, a modern Canadian writer, Don Stuart, asserted that the proper test to be followed in such situations is to examine whether D, given his shortcomings and strengths, did foresee the consequence or circumstance. He concluded that whether D ‘ought’, ‘could’ or ‘should’ – as a reasonable person – have thought is not the right test to be applied.163 In Sansregret v The Queen, a case before the Supreme Court of 156   ibid (numbers added). Cl 18 (c) of the Criminal Code Bill annexed by the Law Commission to its Report on Criminal Law: A Criminal Code Bill, vol 1 (Law Com No 177, 1989) states: ‘A person acts recklessly within the meaning of Section 1 of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk’. 157  ibid. 158   R v G and Another, above (n 118) 1055, 1060 (Lord Bingham and Lord Steyn). 159   ibid, 1045. 160   ibid, 1059 (Lord Steyn). 161   ibid, 1060. 162   Smith and Hogan, Criminal Law, 11th edn (Oxford: Oxford University Press, 2005) 108. 163   Don Stuart, Canadian Criminal Law, A Treatise, 4th edn (Toronto: Thomson Canada Limited, 2001) 224.

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Canada, the subjective approach for recklessness was authoritatively asserted as follows: In accordance with well established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence.164

To conclude, the law of England, as it currently stands, defines recklessness as the conscious taking of an unjustifiable risk. The wide definition of recklessness as ruled in Caldwell might well lead to blurring the crucial distinction between recklessness and negligence. The term ‘recklessly’ is used to denote the subjective state of mind of a person who foresees that his conduct may cause the prohibited result but nevertheless takes a deliberate and unjustifiable risk of bringing it about.

D  A Schematic Review of the Meaning of Recklessness in Common Law Jurisdictions The following table (table 2) shows a schematic review of the case law and legislation discussed above on the meaning of recklessness Table 2: A Schematic Review of the Meaning of Recklessness in Common Law Jurisdictions A man is reckless England Cunningham

if he has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it

Briggs

if he knows that there is some risk of the consequence resulting from his act but nevertheless continues in the performance of the act

Parker

if he knows or closes his mind to the obvious fact that there is some risk of the consequence resulting from his act but nevertheless continues in the performance of the act

Stephenson

if he appreciates that there is a risk (one which it is in all the circumstances unreasonable for him to take) that the consequence may result from his act but nevertheless continues in the performance of the act. The knowledge of the risk must have entered his mind even though he may have suppressed it or driven it out

  Sansregret v The Queen [1985] 45 CR (3d) 193, 203–04 (SCC).

164

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Knowledge or Awareness as to Circumstances Caldwell

if he creates an obvious risk that a consequence will result, but he either has not given any thought to the possibility of there being such a risk or has recognised that there was some risk involved and has nonetheless gone on to do it

Lawrence

if he creates an obvious and serious risk that a consequence will result, but he either has not given any thought to the possibility of there being such a risk or has recognised that there was some risk involved and has nonetheless gone on to do it

G & Another

if he is aware of a risk that a result will occur and it is in the circumstances known to him, unreasonable to take the risk

Canada Sansregret

if he is aware that there is a danger that his conduct could bring about the result prohibited by the criminal law but nevertheless persists, despite the risk (takes the chance)

V  Knowledge or Awareness as to Circumstances In the criminal law of England, as well as in other common law jurisdictions, the terms ‘knowingly’ or ‘knowledge’ can be seen as playing the same role in relation to circumstances as intention plays in relation to consequence.165 Logically speaking, there is no offence which requires the prosecution to prove that the accused, in the true sense, intended a particular circumstance to exist at the time he carries out his act.166 If the accused intends a circumstance to exist, it means that he hopes it exists or will exist. In England, statutory offences constituted on proof that a particular circumstance exists often include an express requirement of knowledge as to this circumstance.167 In this kind of legislation, the requirement of knowledge is generally interpreted as applying to all the circumstances of the offence in question, unless the statute makes the contrary meaning plain.168 That is not to say that the word ‘knowingly’ is incapable of applying to consequences. Where ‘knowingly’ appears, courts will normally construe it as applying to all the elements necessary for the actus reus. The following case is illustrative on this matter. In Westminster City Council v Croyalgrange Ltd and Another,169 D was charged with knowingly using, causing or permitting the use of any premises as a sex establishment without a licence, contrary to the Local Government (Miscel­ laneous Provisions) Act 1982. Apparently, in this case there were two relevant 165   Peter Murphy and Eric Stockdale (eds), Blackstone’s Criminal Practice (Oxford: Oxford University Press, 2002) 27. 166   Heaton, above (n 15) 63. 167   An example of an express requirement of knowledge is the offence of knowingly possessing explosives: Explosive Substances Act 1883 s 4. 168   Glanville Williams, Text Book of Criminal Law, above (n 13) 123. 169   Westminster City Council v Croyalgrange Ltd and Another [1986] 2 All ER 353 (HL).

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circumstances: (1) the premises were being used as a sex establishment; and (2) this use was not in accordance with the licence. In this case, the House of Lords concluded that knowledge of both circumstances was necessary. The concept of ‘wilful blindness’ was considered by Lord Bridge to be an alternative to actual knowledge: [it] is always open to the tribunal of fact, when knowledge on the part of a defendant is required to be proved, to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed.170

A  Does ‘Knowledge’ have a Precise Definition in the Criminal Law of England? The Law Commission’s draft Criminal Code (Law Com No 177) proposes the following definition of knowledge: [A] person acts – knowingly with respect to a circumstances not only (1) when he is aware that it exists or will exist, but also (2) when he avoids taking steps that might confirm his belief that it exists or will exist.171

The first part of the definition is equivalent to ‘actual knowledge’ or ‘first degree knowledge’– the term often used by the courts. The onus is on the prosecution to prove that D knew (in a sense of genuine/actual knowledge) that the circumstance does exist or will exist. The second part of the definition is known by the courts as ‘wilful blindness’, the doctrine which blurred the distinction between knowledge and recklessness. There is, however, a third degree of knowledge: ‘constructive knowledge’ or what is encompassed by the words ‘ought to have known’ in the phrase ‘knew or ought to have known’. In Taylor’s Central Garages,172 Devlin J stressed the vast distinction between these three degrees of knowledge: The first is actual knowledge, which the justice may find because they infer it from the nature of the act done, for no man can prove the state of another man’s mind; and they may find even if the defendant gives evidence to the contrary. They may say, ‘We don’t believe him; we think that that was his state of mind’. They may feel that the evidence falls short of that, and if they do they have then to consider what might be described as knowledge of the second degree; whether the defendant was, as it has been called, shutting his eyes to an obvious means of knowledge . . . The third kind of knowledge is what is generally known in the law as constructive knowledge: it is what is encompassed by the words ‘ought to have known’ in the phrase ‘knew or ought to have known’. It does not mean actual knowledge at all; it means that the defendant had in effect the means of knowledge . . . The case of merely neglecting to make inquiries is not knowledge at all

  ibid, 359 (Lord Bridge).   A Criminal Code for England and Wales, above (n 156). 172   Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284 (KBD). 170 171

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Knowledge or Awareness as to Circumstances – it comes within the legal conception of constructive knowledge, a conception which, generally speaking, has no place in the criminal law.173

Apparently, constructive knowledge differs from the other two degrees of knowledge in requiring neither awareness nor purposive avoidance of the means of learning the truth. Interestingly, the Ontario Court of Appeal in FW Woolworth Co (1974) has adopted the same approach with regard to the place of constructive knowledge in the criminal law of Canada: [T]he doctrine of constructive knowledge has no application in criminal law. The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness. 174

In the criminal law of England, this constructive knowledge, however, is sufficient for certain crimes of negligence where conviction depends on proof that D had ‘reasonable cause’ to believe or suspect some relevant fact.

B  The Doctrine of ‘Wilful Blindness’ in England and Canada On the other hand, the doctrine of ‘wilful blindness’ is clearly established in respect to the fault requirement of knowledge of the circumstances. This concept originated in England in R v Sleep (1861).175 Since then, English courts have extended the meaning of knowledge to cover cases of ‘wilful blindness’ or ‘second degree knowledge’ as we have discussed above.176 Glanville Williams gave the doctrine an accurate but narrower definition: A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider

173  ibid. Contra see J Edwards, ‘The Criminal Degrees of Knowledge’ (1954) 17 The Modern Law Review 294, 306. Edwards was of the opinion that negligence may properly be designated as mens rea. He stated that a wide range of judicial dicta expressed the view that if a statutory offence is based on proof of knowledge, such a crime can be committed negligently. 174   FW Woolworth Co (1974) 18 CCC (2d) 30 (Ont CA) cited in Stuart, above (n 163) 229. The same view was adopted by the Ontario Court of Appeal in Currie v The Queen (1976) 24 CCC (2d) 292, 295–96 (Ont CA). 175   R v Sleep [1861] CCR All ER (reprinted) 248, 252. In this case, the Court for the Consideration of Crown Cases Reserved (CCR) held that ‘[t]he jury have not found, either that the prisoner knew that these goods were Government stores, or that he wilfully shut his eyes to the fact’; ibid 252 (Willes J). See also Comments: ‘Wilful Blindness as a Substitute for Criminal Knowledge’ (1977–78) 63 Iowa Law Review 467. 176   The phrase ‘knowledge of the second degree’ was coined by Devlin J in Roper v Taylor’s Central Garages (Exeter) Ltd, above (n 172). The term ‘connivance’ was considered as best calculated to describe the second sort of knowledge which carries with it criminal liability. See Edwards, above (n 173) 298.

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Mens Rea in Common Law Jurisdictions definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.177

Hence, wilful blindness applies only when D is virtually certain that the fact exists. To put it differently, if D deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know’, he is considered to know.178 Most notably, English courts that accepted the concept of wilful blindness adopted the same approach that such blindness constitutes actual knowledge, or a substitute for actual knowledge.179 Any attempts to stretch the wilful blindness doctrine by accepting some lesser degree of knowledge instead of actual knowledge would blur the distinction between ‘wilful blindness’ and ‘recklessness’. In Griffiths,180 a case of handling stolen goods knowing or believing them to be stolen, the English Court of Appeal implicitly distinguished between ‘wilful blindness’ and ‘recklessness’: To direct the jury that the offence is committed if the defendant, suspecting that the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing or believing the goods were stolen is a misdirection. To direct the jury that, in common sense and in law, they may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction.181

Thus, English courts considered the word ‘suspecting’ as a lesser degree of knowledge that does not satisfy the threshold of actual knowledge, nor can it be considered the right test to establish ‘wilful blindness’ on the part of the defendant. Glanville Williams observed that ‘the word “knowing” in a statute is very strong’. He contended, ‘[t]o know that a fact exists is not the same as taking the chance whether it exists or not’.182 Canadian courts183 hold the view that wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.184

As the Supreme Court put it in Jorgensen, ‘[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?’185   Glanville Williams, Criminal Law: The General Part, above (n 14) 57, 159 (emphasis added).   Glanville Williams, Text Book of Criminal Law, above (n 13) 125.  See Roper v Taylor’s Central Garages (Exeter) Ltd, above (n 172). 180   Leslie George Griffiths v R [1974] 60 Cr App R 14 (CA). 181   ibid, 18 (emphasis added). 182   Glanville Williams, Text Book of Criminal Law, above (n 13) 126. 183   R v Briscoe, 2010 SCC 13; see also R v Lagacé (2003) 181 CCC (3d) 12 (Ont CA); Sansregret v The Queen [1985] 1 SCR 570 and R v Jorgensen [1995] 4 SCR 55. 184   R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411, para 21. 185   R v Jorgensen, above (n 183) para 103. 177 178 179

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Knowledge or Awareness as to Circumstances

It is worth noting that Canadian courts have paid more attention in distinguishing ‘wilful blindness’ from ‘recklessness’. The ruling of the Supreme Court of Canada in Sansregret is illustrative in this matter.186 This was a case of rape. Considering all the evidence, the Supreme Court found that the accused had been wilfully blind as to the nature of B’s consent. He had been aware of the likelihood of the victim’s reaction to his threats. To proceed with intercourse in such circumstances constituted self-deception to the point of wilful blindness.187

The Supreme Court ruled that because the accused had believed that the consent had been freely given and not procured by threat, there could be no room for recklessness, but the conviction could nevertheless be based on wilful blindness. In drawing the distinction between wilful blindness and recklessness, the Supreme Court stated: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger of risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.188

The Court cited the narrow scope given to this concept by Glanville Williams. Despite its clarity, the law of Sansregret has been criticised on the basis that the doctrine of wilful blindness might become a test of objective negligence.189 Since then, most Canadian courts have been rigorous in ensuring that the test remains subjective. The Ontario Court of Appeal in Duong emphasised such a position: Wilful blindness refers to a state of mind which is aptly described as deliberate ignorance . . . Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal responsibility.190

C  A Schematic Review of the Meaning of Knowledge in Common Law Jurisdictions The following table (table 3) shows a schematic review of the case law discussed above.

  Sansregret v The Queen, above (n 183).   Stuart, above (n 163) 230. 188   Sansregret v The Queen, above (n 183) para 22. 189   Stuart, above (n 163) 231. 190   Duong [1998] 15 CR (5th) 209 (Ont CA) 402, cited in Stuart, above (n 163) 231. 186 187

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Mens Rea in Common Law Jurisdictions

Table 3: A Schematic Review of the Meaning of Knowledge in Common Law Jurisdictions Knowledge, or an alternative to actual knowledge, can be established England Croyalgrange Ltd and Another

when D had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed

Law Commission – when D is aware that it exists or when he avoids taking steps that draft Criminal might confirm his belief that it exists or will exist Code Taylor’s Central Garages

when D actually knows (first degree knowledge) or when he shuts his eyes to an obvious means of knowledge (second degree knowledge), but not if he merely neglected to make inquiries (constructive knowledge)

Griffiths

if D knows or believes because he deliberately closes his eyes to the circumstances, but not if he merely suspects

Canada Briscoe

if D’s suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries

Jorgensen

if D shuts his eyes because he knew or strongly suspected that looking would fix him with knowledge

Sansregret

if D has become aware of the need for some inquiry but declines to make the inquiry because he does not wish to know the truth

VI  Further Principles of Mens Rea A  Specific Intent versus Ulterior Intent In England, the phrase ‘specific intent’ has been used at times to refer to any special state of mind required for the mens rea of a particular offence. It has been stated that some crimes require only the general intent, whereas others require a specific intent. Unfortunately, this adds to the confusion attached to the use of the word intent or intention. The phrase ‘specific intent’ was first employed by Lord Birkenhead in DPP v Beard (1920).191 He stated that ‘evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime ought to be taken into consideration, with the other facts proved,   DPP v Beard [1920] AC 479, quoted in DPP v Majewski [1977] AC 443, 478 (HL).

191

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Further Principles of Mens Rea

in order to determine whether he had that intent’.192 Unfortunately, Lord Birkenhead did not explain what he meant by the word ‘specific’. In DPP v Majewski, Lord Simon expressed his concerns regarding the use of the phrase ‘specific intent’: Smith and Hogan, Criminal law, 3rd ed. . . . justly criticises this term as potentially ambiguous, since it has been used in three different senses. The first sense is that particular state of mind which, when compounded with prohibited conduct, constitutes a particular offence. This is an unnecessary and misleading usage; and, since ‘specific intent’ has been frequently and usefully employed in other senses, should merely be abandoned. A second sense in which ‘specific intent’ has been used is what in Morgan I called ‘ulterior intent’, having taken the term from Smith and Hogan. . . . But I would not wish it to be thought that I consider ‘ulterior intent’ as I defined it in Morgan as interchangeable with ‘specific intent’.193

Lord Simon went further clarifying the meaning of the term ‘ulterior intent’: ‘Ulterior intent’ which I can here summarily describe as a state of mind contemplating consequences beyond those defined in the actus reus, is merely one type of ‘specific intent’ as that term was used by the Earl of Birkenhead, etc. ‘Ulterior intent’ does not accurately describe the state of mind in the crime of doing an act likely to assist the enemy with intent to assist the enemy . . . or causing grievous bodily harm with intent to do some grievous bodily harm . . . or even murder. None of these requires by its definition contemplation of consequences extending beyond the actus reus.

‘Ulterior intent’ offences or as Duff named them, offences of ‘further intention’ differs from those that require only an intended action in the sense that the former requires an intention which ‘extends beyond’ the actus reus of the offence, whereas the latter does not.194 It has been observed that where an ‘ulterior intent’ is required, recklessness is not sufficient.195 Thus, ‘in a charge of wounding with intent to cause grievous bodily harm, proof that D was reckless whether he caused grievous bodily harm will not suffice’.196 In order to avoid any future confusion regarding the meaning of intention in the criminal law of England, Smith and Hogan provided the following general definition of mens rea: ‘Intention, knowledge or recklessness with respect to all the elements of the offence together with any ulterior intent which the definition of the crime requires’.197 As for crimes which are worded in terms of doing x with intent to produce y, the possibility that the phrase should be read as referring to purpose, so as to exclude the doctrine of oblique intent, was suggested for consideration.198

 ibid.   DPP v Majewski, above (n 191) 478 (Lord Simon). 194   Duff, above (n 3) 39. 195   Smith and Hogan, Criminal Law, 11th edn, above (n 162) 113. 196   ibid (fns omitted). 197  ibid. 198   Glanville Williams, ‘Oblique Intention’, above (n 21) 427, citing Duff. 192 193

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Mens Rea in Common Law Jurisdictions

VII Negligence ‘Negligence’ is failure to conform to the standard of care to which it is the defendant’s duty to conform.199 In other words, negligence ‘is failure to behave like a reasonable man, in circumstances where the law requires such a reasonable behaviour’.200 Unlike intention and recklessness, negligence does not require a state of mind or mens rea to be proved.201 In England, statutory offences are rarely defined expressly in terms of ‘negligence’, save for manslaughter, and here the courts have developed the restriction that negligence must be ‘gross’ in order to satisfy the threshold of criminal liability for this crime.202 In section 1(1) of the Intoxicating Substances (Supply) Act 1985, there is express use of words equivalent to ‘negligence’ in the definition of the offence: It is an offence for a person to supply or offer to supply a substance other than a controlled drug – (a) to a person under the age of 18 whom he knows, or has reasonable cause to believe, to be under that age; or (b) to a person – (i) who is acting on behalf of a person under that age; and (ii) whom he knows, or has reasonable cause to believe that the substance is, or its fumes are, likely to be inhaled by the person under the age of 18 for purpose of causing intoxication.

The minimum fault element running throughout this offence is ‘reasonable cause to believe’. It matters not what D actually believes; it is what the prudent or reasonable man in the circumstances would have believed, and that is what makes negligence the minimum basis of liability.203 Negligence was often defined by courts as the inadvertent taking of an unjustifiable risk. In this it differs from recklessness. If D was aware of the risk and decided to take it, he was reckless (subjective test); if he was unaware of the risk, but ought to have been aware of it, he was negligent (objective test). To put it differently, if D did consider whether or not there was a risk and assumed wrongly   Glanville Williams, Text Book of Criminal Law, above (n 13) 88.  ibid. 201   English scholars differ as to whether negligence can properly be described as mens rea. On this see the very thoughtful explanation by Andrew Ashworth, Principles of Criminal Law, 4th edn (Oxford: Oxford University Press, 2003) 193–96; see Turner, Kenny’s Outlines of Criminal Law, 19th edn, above (n 19) 38: ‘There are only two states of mind which constitute mens rea, and they are intention and recklessness’; Glanville Williams, Text Book of Criminal Law, above (n 13) 90–91: ‘Negligence is not necessarily a state of mind, so it is not properly called mens rea . . . If it were allowed that negligence is mens rea . . . the judges might hold that all crimes at common law can be committed negligently which would result in a great increase of severity)’; contra see Edwards, above (n 173) 306: ‘[N]egligence may probably be designated as mens rea’. 202   Glanville Williams, Text Book of Criminal Law, above (n 13) 90. 203   Murphy and Stockdale (eds), above (n 165) 29. 199 200

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Negligence that his conduct creates no risk of the relevant harm occurring, he is not reckless. However, he would be negligent because in such circumstances a reasonable man would not have reached that conclusion. Kenny’s view is illustrative on this matter: The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word ‘negligence’ with some more epithet such as ‘wicked’, ‘gross’, or ‘culpable’ has been most unfortunate since it has inevitably led to great confusion of thought and of principle.204

Based on an objective standard, the conduct is criminalised because it constitutes a wanton disregard for, or substantial departure from, the standard of care that a reasonable person would observe in the situation. That is to say, even though the defendant did not realise the danger on the occasion in question, he would have realised it if he had taken due precautions. As a consequence, the prosecution that alleges negligence must be prepared to say what D could and should have done (or refrained from doing) in order to avoid the occurrence of the prohibited consequences.205 To put it differently, the prosecution is not entitled to prove D’s state of mind, although D’s knowledge of facts may be a relevant circumstance in determining whether D had reasonable cause to believe in the non-occurrence of the prohibited consequences in question. In crimes requiring negligence, mistake of fact as to an element of the offence is no defence unless it is reasonable (ie, non negligent).206 Thus, in manslaughter which is probably a crime of gross negligence, a grossly unreasonable mistake is no defence.207 In its 2006 Report on Murder, Manslaughter and Infanticide, the Law Commis­ sion stated that to incur liability for causing death by gross negligence, the following elements must be proved on the part of the defendant: 1. a person by his or her conduct causes the death of another; 2. a risk that his or her conduct will cause death . . . would be obvious to a reasonable person in his or her position; 3. he or she is capable of appreciating that risk at the material time; and 4. his or her conduct falls far below what can reasonably be expected of him or her in the circumstances.208

 Turner, Kenny’s Outlines of Criminal Law, 19th edn, above (n 19) 38–39.   Glanville Williams, Text Book of Criminal Law, above (n 13) 89. 206   ibid, 128. 207  ibid. 208   Law Commission Report, Murder, Manslaughter and Infanticide, above (n 81) para 3.60, 64, 28 November 2006, endorsed the definition adopted of ‘causing death by gross negligence’ in its earlier report, Involuntary Manslaughter (Law Com No 237, 1996) para 5.34. 204 205

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Mens Rea in Common Law Jurisdictions

A  Are there Degrees of Negligence? Scholars differ as to whether there are degrees of negligence. It has been for a long time that there can be no degrees of inadvertence ‘when that word is used to denote a state of mind, since it means that in the man’s mind there has been a complete absence of a particular thought, a nullity; and of nullity there can be no degrees’.209 However, in Andrew v DPP, Lord Atkin contended that ‘[s]imple lack of care such as will constitute civil liability is not enough. For the purpose of the criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before the felony [manslaughter] is established’.210

VIII  Accessorial Liability

211

A  Parties to the Commission of Crimes – Principal and Accessory Under English law, ‘whosoever shall aid, abet, counsel or procure the commission of any indictable offence [. . .] shall be liable to be tried, indicted and punished as a principal offender’.212 Although the law treats the accessory in identical terms for the purpose of procedure and punishment as the principal, it is significant for several reasons to distinguish between the principal offender and the secondary party. The primary importance of such identification lies in the fact that the secondary party is liable once the principal offender has committed the crime. That is to say, ‘secondary liability is derivative; ie, it derives from the liability of the principal’.213 In addition, the mens rea required for an accessory is different from that of a principal. In the words of Andrew Ashworth: The fault required before a person can be convicted as an accomplice differs from that required for all other forms of criminal liability. This is because it concerns not merely the defendant’s awareness of the nature and effect of his own acts, but also his awareness of the intentions of the principal. It is a form of two-dimensional fault, which  Turner, Kenny’s Outlines of Criminal Law, 19th edn, above (n 19) 39.   Andrew v DPP [1937] 2 All ER 552, 556 (HL) (Lord Atkin). 211   See, in general, the 2007 report by the UK Law Commission, ‘Participating in Crime’, Law Com No 305, available at: www.justice.govuk/lawcommission/docs/lc305_Participating_in_Crime_report. pdf. 212   Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1977 (‘Accessories and Abettors Act’) s 8. It is worth mentioning that in the law of England persons who come within that statutory genus are variously designated as ‘accomplices’, ‘accessories’ or ‘secondary parties’. In R v Bryce [2004] 2 Cr App R 592, 602 Potter LJ noted that ‘the term “secondary parties” is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender’. 213   Smith and Hogan, Criminal Law, 11th edn, above (n 162) 164–66. See also R v Bryce, above (n 212) 602, 614 (Potter LJ). 209 210

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Accessorial Liability brings with it various complexities: the would-be accomplice’s knowledge of the principal’s intentions may be more or less detailed, and in any event the principal might not do exactly as planned.214

i  The Principal Offender Article 36 of Stephen’s Digest of the Criminal Law defines ‘principals in first degree’ as follows: Whosoever actually commits, or takes part in the commission of a crime, is a principal in the first degree, whether he is on the spot when the crime is committed or not; and if a crime is committed partly in one place and partly in another, everyone who commits any part of it any place is a principal in the first degree.215

There is a consensus in English literature that ‘the actual perpetrator of a crime, or part of a crime, or one who effects it through an innocent agent, is guilty of the crime as principal’.216 More precisely, the principal is the one who, ‘being struck at by the criminal prohibition, breaks it with the necessary mens rea or negligence (if either of these be required)’.217

ii  Innocent Agency The principal need not commit the crime with his own hands; he may commit it through an ‘innocent agent’.218 This is the case when the actus reus is not carried out physically by the defendant, but instead P arranges for it to be brought about by P1, who is unaware of the significance of his actions, because he either lacks the mens rea or lacks the criminal capacity, in particular through being insane or an infant.219 In law, Glanville Williams observed, an innocent agent is ‘a mere machine whose movements are regulated by the principal’.220  Ashworth, Principles of Criminal Law, 4th edn above (n 201) 424.   Sir James Fitzjames Stephen, A Digest of the Criminal Law: Crimes and Punishment, 5th edn (London: Macmillan, 1894) 30. It is worth mentioning that the terminology regarding parties to crime has changed over the years, and several terms used in cases before 1967 are now obsolete. ‘The actual perpetrator was called the first principal, or the principal in the first degree. Secondary parties were of two kinds, in felonies principals in the second degree or accessories before the fact, in misdemeanours aiders and abettors, or counsellors and procurers . . . It is nowadays usual to use two terms only, principal for the actual perpetrator, and accessory for any kind of secondary party’. See DW Elliott and JC Wood, Cases and Materials on Criminal Law, 7th edn (London: Sweet & Maxwell, 1997) 357. 216  ibid. 217   Glanville Williams, Criminal Law: The General Part, above (n 14) 346–47. 218   For more information on the ‘doctrine of innocent agency’ see KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Oxford: Clarendon Press, 1991) 95–110. Art 37 of Stephen’s Digest of the Criminal Law states: ‘Whoever commits a crime by an innocent agent is a principal in the first degree’, above (n 215). 219   AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2000) 197; contra see Dobinson, above (n 11). 220   Glanville Williams, Criminal Law: The General Part, above (n 14) 349–50. 214 215

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As far as mens rea is concerned, there are two important questions that need to be resolved. The first is whether the principal must be aware of the nature of his agent’s innocence? According to Tyler and Price,221 it appears unnecessary for a principal to believe or know that his agent is in some way innocent. Smith’s thoughtful explanation of the principal’s mental state vis-à-vis the nature of his agent’s innocence merits lengthy quotation: Where, as is usual, P [principal] acts to achieve a particular objective through the medium of A’s behaviour, it should make no difference that P, for example, mistakenly believes A to fully comprehend the nature of the situation. P’s misconception of the quality of his own liability as being secondary should not inhibit his conviction as a principal. This being so, a fortiori, P’s mistake or ignorance as to the nature of A’s ‘innocence’ should, similarly, not affect his liability as a principal. Therefore, if P believes he is using a 15-year-old lunatic to steal, whereas, in reality, the agent is a physically precocious 9-year-old, then P’s liability should remain unaffected.222

In cases where A did not intend the proscribed act which P had procured him to do, this does not affect the principal’s criminal responsibility. In R v Cogan and Leak,223 L forced his wife to have sexual intercourse with C. Subsequently C was charged with rape, and L was charged with aiding, abetting, counselling and procuring C to commit rape. However, C was acquitted of rape on it appearing that he did not know that L’s wife was not consenting to the intercourse. L was convicted and appealed. The doctrine of innocent agency was applied and the Court of Appeal held that L could have been the one indicted as a principal offender: In the language of the law the act of sexual intercourse without the wife’s consent was the actus reus: it had been procured by Leak who had the appropriate mens rea, namely, his intention that Cogan should have sexual intercourse with her without her consent. In our judgment it is irrelevant that the man whom Leak had procured to do the physical act himself did not intent to have sexual intercourse with the wife without her consent. Leak was using him as a means to procure a criminal purpose.224

B  Secondary Participation – Aiding, Abetting, Counselling or Procuring Article 38 of Stephen’s Digest of the Criminal Law defines ‘principals in the second degree’ as follows: Whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime. Mere presence on the occasion when a crime is committed does not make a person a principal in   Tyler and Price (1883) 8 C & P 616, 172 ER 643.   Smith, above (n 218) 97. 223   R v Cogan and Leak [1976] 1 QB 217 (CA). 224  ibid. 221 222

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The natural meaning of to ‘aid’ is to give help, support or assistance, whereas ‘abet’ means to incite, instigate or encourage. To ‘counsel’ means to advise, solicit or encourage. It has been observed that the difference between abetting and counselling is that the former connotes incitement at the time of the offence, whereas the latter connotes incitement at an earlier time.226 In the words of AttorneyGeneral’s Reference (No 1 of 1975) ‘to procure means to produce by endeavour’.227 A person procures a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.228 In R v Bryce, however, it was advised to use the ‘catch-all’ phrase ‘aid, abet, counsel or procure’ so long as ‘the shades of difference between them are far from clear’.229 ‘Aiding’ may occur by supplying an instrument to the principal, keeping a lookout, doing preparatory acts and other forms of assistance.230 The principal does not have to be aware of the assistance given. As far as the element of causation is concerned, it is now settled in the criminal law of England that in order to incur liability of a secondary party, ‘it is necessary to prove a causative link between the act of assistance alleged against the secondary party and the substantive crime committed by the perpetrator’.231 That is not to say the prosecution must prove that the secondary party’s assistance was a conditio sine qua non to the commission of the crime, meaning that without such assistance, the crime at issue would not have been committed. 232 However, in the case of procuring, one cannot procure an offence unless there is a causal link between what he does and the commission of the offence.233 English law also recognises aiding by omission albeit to a limited extent. There are two possible scenarios: (i) where there is a duty to intervene and the person   Stephen, above (n 215) 31.   Smith and Hogan, Criminal Law, 11th edn, above (n 162) 172–73. 227   Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 (CA) (Lord Widgery CJ). 228  ibid. 229   R v Bryce, above (n 212) 602 (Potter LJ). 230   Attorney-General v Able and Others [1984] QB 795, by supplying a booklet explaining how to commit suicide, D aided and abetted suicide. 231   R v Bryce, above (n 212) 611 (Potter LJ). 232  In Bryce, the Court of Appeal ruled that, where D had transported the killer, P, to the scene of the crime, but the killing had not occurred until 13 hours later, there was no ‘break in the chain of causation’ which would absolve D’s liability. In dismissing the appeal, the Court of Appeal concluded: ‘that it was not necessary for the prosecution to prove that the appellant’s acts of assistance were performed at a time when X had formed the necessary intent for murder. . . all that is necessary in the secondary party is foresight of the real possibility that an offence will be committed by the person to whom the accessory’s acts of assistance were directed’; ibid, 593, 614, paras 80–81. 233   Attorney-General’s Reference (No 1 of 1975), above (n 227) 780. 225 226

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fails do so; and (ii) where the person has legal power to control the behaviour of the principal and fails to do so.234

i  Mens Rea of Secondary Participation The classic statement of the mens rea for a secondary party is stated by Lord Goddard CJ in Johnson v Youden and Others:235 ‘[b]efore a person can be convicted of aiding and abetting the commission of an offence, he must at least know the essential matters which constitute that offence’.236 In R v Bryce, the Court of Appeal ruled that in order to incur criminal liability for a secondary party (D) to an offence committed by the principal (P), the following subjective elements must be demonstrated by the prosecution: i. intentional assistance by D in the sense of an intention to assist . . . P in acts which D knew were steps taken by P towards the commission of the crime; ii. D did the act deliberately realising that it was capable of assisting the offence; iii. D, at the time of doing the act, contemplated the commission of the offence by P, that is he foresaw it as a real or substantial risk or real possibility.237 Smith and Hogan summarised the mens rea of the secondary party as follows: (1) the secondary party must intend to assist or encourage the principal’s act, or in the case of procuring, to bring the offence about; and (2) the secondary party must have knowledge as to the facts forming the essential elements of the principal’s offence, (including any facts as to which the principal bears liability). This includes an awareness that the principal will act with mens rea.238

In England, some cases have required more than knowledge of the principal’s intention. In Gillick,239 the House of Lords held that a doctor who prescribed the contraceptive pill to a girl under 16, knowing it would assist her boyfriend to commit the offence of sexual intercourse with a girl under 16, did not aid and abet a crime.240 Their Lordships found that although the doctor knew of the crime, his purpose was to protect the girl and not to assist the offence.241

234   Du Cros v Lambourne [1907] 1 KB 40; Rubie v Faulkner [1940] 1 KB 571, 575; Tuck v Robson [1970] 1 A11 ER 1171; JF Alford Transport Ltd [1997] 2 Cr App R 326, quoted in Anderson et al, above (n 5) 12, fn 17. 235   Johnson v Youden and Others [1950] 1 KB 544. 236   ibid, 546 (Lord Goddard CJ). 237   R v Bryce, above (n 212) 593. 238   Smith and Hogan, Criminal Law, 11th edn, above (n 162) 179. 239   Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830 (HL). 240  ibid. 241  ibid.

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ii  The Degree of Knowledge Required Neither mere suspicion nor broad knowledge of some criminal intention on the part of the principal is sufficient to hold him criminally liable as an accessory.242 The minimum mental state for accessorial liability is knowledge that the principal intends to commit a crime of the type actually committed.243 The aider and abetter must ‘know the essential matters which constitute that offence’.244 He does not have to know, however, that the facts constitute an offence: for ignorance of the law is no defence.245 In Maxwell v DPP for Northern Ireland,246 ‘B’ who drove a car to the crime scene, was found liable as an accomplice to the offence of planting explosives because he contemplated that offence as one of the possible offences and intentionally lent his assistance. The Court of Criminal Appeal for Northern Ireland in the present case held that the guilt of an accessory springs, ‘from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance in order that such a crime will be committed’.247 The Court went on, asserting that ‘[t]he relevant crime must be within the contemplation of the accomplice, and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a completely blank cheque’.248 It is clear from the above-quoted judgment that the test is not so much knowledge as contemplation.249 An accessory ‘cannot know things in advance; his assistance will have occurred before the commission of the crime by the principal; he may have foreseen the likelihood of certain events and conduct on the part of his 242   R v Bainbridge [1960] 1 QB 129, 134 (Lord Parker CJ): ‘there must not be merely suspicion but knowledge that a crime of the type in question was intended’. See also Smith and Hogan, Criminal Law, 11th edn, above (n 162) 181: ‘Mere recklessness whether assistance be given is not sufficient’. 243   R v Bryce [2004] EWCA Crim 1231. 244   Johnson v Youden and Others, above (n 235) 546 (Lord Goddard CJ): ‘Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute the offence’. These words were endorsed by the House of Lords in Churchill v Walton [1967] 2 AC 224, 236, and the same House of Lords in Maxwell v DPP for Northern Ireland [1978] 3 All ER 1140, 1144. 245   Johnson v Youden and Others, above (n 235) 546. The full passage of Lord Goddard reads as follows: ‘Before a person can be convicted of aiding and abetting an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, “I knew of all those facts but I did not know that an offence was committed,” would be allowing him to set up ignorance of the law as a defence.’ Lord Goddard’s opinion was endorsed by Lord Scarman in Maxwell v DPP for Northern Ireland, above (n 244) 26. 246   Maxwell v DPP for Northern Ireland [1978] 1 WLR 1350 (HL). 247  Sir Robert Lowry CJ [Court of Criminal Appeal for Northern Ireland] Maxwell v DPP for Northern Ireland quoted by Lord Scarman in Maxwell v DPP for Northern Ireland, above (n 246). 248   ibid, 1355. 249   Birch et al, Blackstone’s Criminal Practice, above (n 121) 74.

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principal; yet he cannot have “knowledge” of something that has yet to occur’.250 This principle, as formulated by the Court of Appeal and endorsed by the House of Lords in the same case, has three important aspects: i.

it directs attention to the state of mind of the accessory – not what he ought to have in contemplation, but what he did have (subjective standard);251 ii. it ensures that a man will not be convicted of aiding and abetting any offence his principal may commit, but only one which is within his contemplation;252 iii. ‘an accessory who leaves it to his principal to choose is liable, provided always the choice is made from the range of offences from which the accessory contemplates the choice will be made’.253

iii  Intention to Assist In order to incur criminal liability for a secondary party for acts committed by the principal, the prosecution must prove that the accessory intended to give encouragement to the principal.254 Non-accidental presence at the scene of the crime is not conclusive of aiding and abetting.255 It must be proved that D’s presence had in fact given encouragement to the crime and that D intended to give encouragement.256 What has to be proved is encapsulated in a well-known passage stated by Hawkins J in R v Coney: [to] constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non interference or he may encourage intentionally by expressions, or gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.257

  Smith and Hogan, Criminal Law, 11th edn, above (n 162) 183–84.   Maxwell v DPP for Northern Ireland, above (n 246) 1363 (Lord Scarman). 252  ibid. 253  ibid. 254   R v Clarkson [1971] 3 All ER 344, 347. 255  ibid; R v Coney [1882] 8 QB 534. 256   R v Clarkson, above (n 254) 347. 257   R v Coney, above (n 255) 557–58 (emphasis added). This finding was endorsed by the CourtsMartial Appeal Court in R v Clarkson, above (n 254) 347. 250 251

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Mere intention is not in itself sufficient; there must be an intention to encourage.258 In National Coal Board v Gamble,259 Devlin J put it more clearly: [A]iding and abetting is a crime that requires proof of mens rea, that is to say, of intention to aid as well as of knowledge of the circumstances, and that proof of the intent involves proof of a positive act of assistance voluntarily done.260

But when the existence of a particular intent forms part of the definition of an offence (eg, murder), the prosecution must prove that the accessory knew the existence of that intent on the part of the principal. The following example is illustrative. If P is indicted for inflicting on V an injury dangerous to life with intent to murder, A will be indicted for aiding and abetting P, if he is shown to have known that it was P’s intent to murder V. It is not sufficient to show that A helped in what he did.261

iv  Motive or Desire is Irrelevant In England, an accessory may incur criminal responsibility as an aider or abettor, even if he was indifferent to the result of the crime. In National Coal Board, the issue was further clarified by Devlin J: If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent about whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor. To hold otherwise would be to negative the rule that mens rea is a matter of intent only and does not depend on desire or motive.262

v  Accessory Liability in Australia In Australia, an accessory must act with a certain state of mind, both in relation to the assistance or encouragement given to the principal offender and to the facts amounting to the principal offence. Looking at New South Wales, which is said to be common law, and Western Australia and Queensland, which both have criminal statutes, we find that the leading case for all of these jurisdictions is Giorgianni v The Queen.263 In this case, the High Court of Australia ruled that an accessory must intentionally render assistance or encouragement to the principal offender   R v Clarkson, above (n 254) 348 (Megaw LJ).   National Coal Board v Gamble [1959] 1 QB 11.   ibid, 20 (emphasis added). 261   Stephen, above (n 215) 32. 262   National Coal Board v Gamble, above (n 259) 23. Contra see the dissenting opinion of Slade J, ‘the Prosecution must prove that the act or omission on which they rely as constituting the alleged aiding and abetting was done or made with a view to assisting or encouraging the principal offender to commit the offence or, in other words, with the motive of endorsing the commission of the offence’; ibid, 12. 263   Giorgianni v The Queen [1985] HCA 29. 258 259 260

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and must know of the affairs which constitute the ‘essential matters’ of the principal offence. In this case R – who drove a heavily laden coal truck with defective breaks – caused an accident which killed five people. His employer G was accused of procuring R to drive the truck in its defective condition. The trial judge concluded that G would be liable, if he knew at the time that the brakes were defective and could fail and if he knew that this could constitute driving in a manner dangerous to the public, or if he acted recklessly not caring whether these facts existed or not.264 The Court of Appeal held that the trial judge erred in directing the jury that reckless behaviour would suffice to establish the intent necessary to make G the procurer. Delivering the judgment Gibbs CJ stated that ‘[r]ecklessness, in the sense of not caring whether the facts exist or not, would be relevant only if it. . . was virtually equivalent to knowledge, in other words only if it amounted to wilful blindness’.265 He went on to state that: No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.266

In light of the above quoted judgment, it is obvious that the aider and abettor must have knowledge of all the essential facts constituting the principal offence and an intent to aid, abet, counsel or procure. Any lower threshold, ie, recklessness or negligence, would not be sufficient. The Model Criminal Code and the Commonwealth Criminal Code adopt a broader basis for complicity than Giorgianni, including recklessness. According to section 11.2(3) for the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or (b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed. However, the above-mentioned recklessness refers solely to the commission of the offence, while recklessness with respect to a risk or likelihood that conduct might provide aid, encouragement, counsel or otherwise promote the commission of that offence is not a basis for conviction. In this respect the Code reflects common law.267 According to Giorgianni, wilful blindness would suffice for the knowledge requirement. Subsequent decisions on the role and meaning of wilful blindness   ibid, para 3.   ibid, para 15.   ibid, para 17. 267   Australian Government, Attorney-General’s Department, Criminal Code Practitioner Guidelines – (March 2002) 262, available at: www.ag.govau/www/agd/agd.nsf/Page/Publications_CriminalCodeP ractitionerGuidelines-March2002 264 265 266

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have however rejected this approach.268 In Western Australia, the interpretation of the knowledge threshold was established in Ward, where the Court of Criminal Appeal held that there must be actual knowledge of the facts amounting to the offence.269 In Kirby, the Court further stated that this meant that the principal’s offence was within the secondary party’s contemplation.270 This is in line with the Queensland decision in Jervis.271 In Queensland, it was further established by the Court of Appeal in Ancuta that it was not necessary that a secondary party knew the precise details of the crime committed, but that it was sufficient if the secondary party contemplated the type and kind of crime committed.272 In Strokes and Difford273 the New South Wales Court of Criminal Appeal held that it is ‘more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act . . . than it is to speak of the accessory’s knowledge of the act done by the principal offender’.274 The Court therefore proposed that the accessory’s knowledge of the principal offender’s intention would be sufficient to establish his liability. The threshold of knowledge of the principal’s offence found in Australia is very different from the position in the United Kingdom; namely, that the accused need not know that any particular offence is to be committed by the principal offender, but must merely be aware of the probability that the principal offender will commit some offence within a range of offences contemplated as possible.

vi  Accessory Liability in Canada In Canada, accomplice liability is governed by section 21(b)(c) and sections 22 and 23 of the Criminal Code, which read as follows: Section 21(1) Everyone is a party to an offence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Section 22(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different form that which was counselled. (2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the 268   Simon Bronnit and Bernadette McSherry, Principles of Criminal Law, 2nd edn (Sydney: Lawbook Co, 2005) 361. 269   Ward v Western Australia (1997) 19 WAR 68 in Dobinson, above (n 11) 12. 270   Dobinson, above (n 11) 12. 271  ibid. 272   Ancuta (1990) 49 A Crim R 307. 273   Stokes and Difford (1990) 51 A Crim R 25. 274   ibid, 38 (emphasis in original).

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Mens Rea in Common Law Jurisdictions counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling. (3) For purpose of this Act, ‘counsel’ includes procure, solicit or incite.

Therefore the Code recognises aiders and abettors as well as persons who counsel, procure, solicit or incite a crime as parties to that offence. These sections apply in respect of an accused notwithstanding the fact that the person he aided or abetted, counselled or procured or received, comforted or assisted cannot be convicted of the offence.275 The Code explicitly recognises accessory responsibility for an act of omission; however mere presence at the scene of a crime does not amount to that standard. In R v Dunlop and Sylvester276 the Supreme Court stated that a person who, aware of a crime taking place in his presence, looks on and does nothing is not an aider or abettor, but something more substantial is needed, such as encour­ agement, keeping watch or enticing the victim away or an act which tends to prevent or hinder interference with the accomplishment of the criminal act, such as preventing the victim from escaping or being ready to assist the prime culprit. However, when there is a duty to intervene accessory liability will be established.277 The accomplice must possess the specific intent to assist and/or encourage the commission of the primary offence. Furthermore, the accomplice must also possess the mens rea necessary for conviction of the substantive offence. In R v Kirkness,278 it was held that [i]n the case of an accused who aids and abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. [In other words] the person aiding or abetting the crime must intend the death to ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.279

Recklessness is not sufficient for the required mens rea, as was held in R v Roach.280 However, by statute, an accomplice may be convicted of a greater offence than the principal on the basis of a lesser intent (ie, a knowing standard). An accomplice may be convicted for murder, ‘if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death’.281 Moreover, the accessory can be convicted of a greater offence than the principal if the accessory possesses a higher mental state than the principal offender, ie, if the principal offender acted negligently, but the accessory was purposeful in his assistance towards the prescribed result. The aider or abettor need not know every detail of   s 23.1, Canadian Criminal Code.   R v Dunlop and Sylvester [1979] 2 SCR 811 in Benseler, above (n 8) 11. 277   R v Nixon (1990) 57 CCC (3d) 97 (BCCA) in Benseler, above (n 8) 12. 278   R v Kirkness [1990] 3 SCR 74. 279   ibid, 17, 18. 280   R v Roach [2004] OJ No 2566, 192 CCC (3d) 557 (Ont CA). 281   R v Kirkness, above (n 279) 3. 275 276

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the specific crime, but must be aware of the type of crime and the essential nature of the offence committed by the main offender.282

C  Joint Enterprise In England, there are two different opinions regarding the law which governs cases where two or more persons have embarked on the commission of a criminal offence (joint enterprise).283 In R v Powell and English as well as in R v Mendez and Another, the House of Lords and the Court of Appeal respectively, considered parties to the joint criminal enterprise as accessories284 and that joint enterprise liability is an application of the normal rules of secondary liability285 whereas in Stewart and Schofield, the Court of Appeal ruled that a party to a joint criminal enterprise is different from a mere aider and abettor or secondary party.286 Simester views joint enterprise liability as doctrinally distinct from ‘standard forms of secondary liability’ based on ‘aiding, abetting, counselling or procuring’ the commission of an offence. He explained the normative difference in the following way: 282   Edward L Greenspan and Marc Rosenberg, Martin’s Annual Criminal Code (Aurora, 2006) in Benseler, above (n 8) 10. 283   Simester and Sullivan argue that joint criminal enterprise is a distinct doctrine than that of accessorial liability; see Simester and Sullivan, above (n 219) 210–19); John Smith held the view that there is no separate doctrine of joint enterprise and no separate rules; see JC Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 Law Quarterly Review 453. 284   R v Powell and Another; R v English [1997] 4 All ER 545 (HL). 285   R v Mendez and Another [2010] EWCA Crim 516, para 17: ‘Although some distinguished scholars consider that joint enterprise liability differs doctrinally from ordinary principles of secondary criminal liability, we incline to the view that joint venture liability is an aspect of them’. The Court sustained its position by making reference to Smith and Hogan, Criminal Law, 12th edn (Oxford: Oxford University Press, 2008) 207: ‘The only peculiarity of joint enterprise cases is that, once a common purpose to commit the offence in question is proved, there is no need to look for further evidence of assisting, and encouraging. The act of combining to commit the offence satisfies these requirements of aiding and abetting. Frequently, it will be acts of encouragements which provide the evidence of the common purpose. It is simply necessary to apply the ordinary principles of secondary liability to the joint enterprise’. See also R v A, B, C and D [2010] EWCA Crim 1620. 286   R v Stewart and Schofield [1995] 1 Cr App R. 441, 447 (CA). In the present case, the Court of Appeal held that: ‘The allegation that a defendant took part in the execution of a crime as a joint criminal enterprise is not the same as an allegation that he aided, abetted, counselled or procured the commission of that crime. A person who is a mere aider or abettor, etc, is truly a secondary party to the commission of whatever crime it is that the principal has committed although he may be charged as a principal. If the principal has committed the crime of murder, the liability of the secondary party can only be a liability for aiding and abetting murder. In contrast, where the allegation is joint criminal enterprise, the allegation is that one defendant participated in the criminal act of another. This is a different principle. It renders each of the parties to a joint criminal enterprise criminally liable for the acts done in the course of carrying out that joint enterprise. Where the criminal liability of any given defendant depends upon the further proof that he had a certain state of mind, that state of mind must be proved against the defendant. Even though several defendants may, as a result of having engaged in a joint enterprise, be each criminally responsible for the criminal act of one of those defendants done in the course carrying out the joint enterprise, their individual criminal responsibility will, in such a case, depend upon what individual state of mind or intention has been proved against them. Thus, each may be a party to the unlawful act which caused the victim’s death. But one may have had the intent either to kill him or to cause him serious harm and be guilty of murder, whereas another may not have had that intent and may be guilty only of manslaughter’.

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Mens Rea in Common Law Jurisdictions Through entering into a joint enterprise, [D]changes her normative position. [D] becomes, by her deliberate choice, a participant in a group action to commit a crime. Moreover her new status has moral significance: she associates herself with the conduct of the other members of the group in a way that the mere aider and abettor, who remains an independent character throughout the episode does not. Whereas aiding and abetting doctrines are grounded in [D’s] contribution to another’s crime, joint enterprise is grounded in affiliation. [D] voluntarily subscribes to a co-operative endeavour, one that is identified by its shared criminal purpose. As such, joint enterprise doctrines impose a form of collective responsibility, predicated on membership of the unlawful concert.287

Others hold the opinion that ‘the prevalent understanding of the doctrine of joint enterprise as a distinct head of liability is misguided and had led to an unwelcome extension of liability for associates in crime’.288 The Law Commission in its consultation paper ‘Assisting and Encouraging Crime’ identified the essence of the separate nature of joint enterprise liability: Any assumption that a person who lends himself to an enterprise, with foresight of a collateral crime, necessarily provides assistance or encouragement in relation to that crime, as is required if he is to be liable for aiding and abetting, is simply not correct.289

In R v A and others,290 Hughes LJ pointed out that there are at least three common but not identical situations in which the expression ‘joint enterprise’ or ‘common enterprise’ has been used conveniently by English courts: 1. Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principles, as for example when three robbers together confront the security men making a cash delivery. 2. Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 near to the place where the robbery is to be done, and/or waits around the corner as a getaway man to enable D1 to escape afterwards. 3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.291 In each of these scenarios a person may be responsible for acts which his own hand did not physically commit, if those acts are within the common purpose.292 The third scenario depends on a wider principle of the joint enterprise doctrine than do the first and second. In R v Rahman, it was held that in this third type of 287   AP Simester, ‘The Mental Element in Complicity’ (2006) 122 Law Quarterly Review 578, 589 (emphasis in original). 288   Beatrice Krebs, ‘Joint Criminal Enterprise’ (2010) 73 The Modern Law Review 578, 579. 289   UK Law Commission, Consultation Paper No 131, ‘Assisting and Encouraging Crime’ (1993). See also the 2007 report by the UK Law Commission, ‘Participating in Crime’, above (n 211). 290   R v A and Others [2010] EWCA Crim 1622; [2011] 2 WLR 647. 291   R v A and Others [2011] 2 WLR 647, 650, para 9. For critical analysis of these situations in which the concept of joint enterprise may be applied see Krebs, above (n 288) 578–79. 292   R v A and Others, ibid.

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scenario D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, provided that he foresaw that D1 might commit it in the course of their common enterprise in crime A.293 It has been argued that the framework of the law of murder and joint criminal enterprise has been heavily influenced by practical and policy considerations and that the principle established in previous cases by which a party to a joint enterprise can be guilty of a collateral offence by virtue of mere foresight, has for policy reasons created a form of constructive liability for murder.294

i The Mens Rea Required for a Secondary Party in Joint Enterprise In R v Rook,295 the appellant had been convicted as a secondary party of a contract killing. Rook was one of a gang of three men who met and agreed on the details of a plan to kill the wife of MA for £20,000. Rook did not turn up next day, and the killing was enacted by his two associates. His defence was that he never intended the woman to be killed, that he hoped to get some money ‘up front’ from MA and then disappear. He believed that if he absented himself, the others would not go through with the plan. The trial judge had directed the jury in the following words: If you are satisfied that Rook did any of those things intending to assist Armstrong and Leivers to commit a murder which he knew would probably be committed . . . you would be entitled to find him guilty of murder.296

The appellant submitted that the trial judge’s direction was misleading. He contended that it is necessary that Rook should have intended the victim to be killed when giving assistance; otherwise, the mens rea required for a secondary party would be less culpable than that required for the principal. The Court of Appeal disagreed and approved the trial judge’s direction. Lloyd LJ had this to say: We cannot accept that argument. It is now well established that in a case of joint enterprise, where the parties are both present at the scene of the crime, it is not necessary for the prosecution to show that the secondary party intended the victim to be killed, or to suffer serious injury. It is enough that he should have foreseen the event, as a real or substantial risk . . . Thus, a secondary party may be liable for the unintended consequences of the principal’s acts, provided the principal does not go outside the scope of the joint enterprise.297   R v Rahman [2009] AC 129, para 63 (Lord Brown).   Arguments submitted by Adrian Waterman QC for Mendez, quoted in R v Mendez and Another, above (n 285) para 15. 295   R v Rook [1993] 2 All ER 955 (CA); [1993] 97 Cr App R 327; [1993] 1 WLR 1005. 296   R v Rook [1993] 97 Cr App R 331; [1993] 1 WLR 1005, 1009. 297   ibid (Lloyd LJ) (emphasis added). References have been made to the following cases: Chan WingSiu v R [1985] 80 Cr App R 117; R v Hyde [1991] 92 Cr App R 131, [1991] 1 QB 134 and Hui Chi-Ming v R [1992] 94 Cr App R 236, [1992] 1 AC 34. In R v Bryce, above (n 212) 606 Potter J noted that those authorities cited by Lloyd LJ in R v Rook are concerned with whether the perpetrator has gone outside the scope of a joint unlawful enterprise and do not necessarily assist in deciding whether the secondary party was party to a joint enterprise in the first place. 293 294

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The above proposition was endorsed by Potter LJ in Bryce: Rook is, in our view, authority for the proposition that it is not necessary to show that the secondary party intended the commission of the principal offence and that it is sufficient if the secondary party at the time of his actions relied as lending assistance or encouragement contemplates the commission of the offence, that he knows that it will be committed or realises that it is a real possibility that it will be committed.298

The view adopted by English courts reflects public policy considerations. The House of Lords in R v Powell and English expressly stated that the adoption of such an approach ‘was required for reasons of public policy which were concerned with the practical need to control crime in the course of joint enter­ prises’.299 In the words of the Privy Council in Chan Wing-Siu, public policy requires that when a man lends himself to a criminal enterprise knowing it involves the possession of potentially murderous weapons which in fact are used by his partners with murderous intent, he should not escape the consequences to him of their conduct by reliance upon the nuances of prior assessment of the likelihood that such conduct will take place. In these circumstances an accomplice who knowingly takes the risk that such conduct might, or might well, take place in the course of that joint enterprise should bear the same responsibility for that conduct as those who use the weapons with the murderous intent.300

It was suggested that this development cannot be defended either in terms of legal principle or policy consideration.301

ii  Crimes which are beyond the Joint Enterprise (Collateral Offences): Is Authorisation Required? A further point that deserves a particular mention is the extent of the liability of a secondary party (D) for acts going beyond the scope of joint criminal enterprise (collateral offences) to which D was a party. In R v Anderson and Morris, the Court of Criminal Appeal held that ‘where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise . . . that includes liability for unusual consequence if they arise from the execution of the agreed joint enterprise’.302 But ‘if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act, and it was for the jury to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by the that joint enterprise’.303   R v Bryce, above (n 212) 607 (Potter LJ) (emphasis added).   R v Powell and Another; R v English, above (n 284).   Chan Wing-Siu and Others v The Queen [1985] AC 168, 172. 301   Krebs, above (n 288) 579. 302   R v Anderson and R v Morris [1966] 2 QB 110 (CA) (Lord Parker CJ) 118–20; [1966] 2 All ER 644. 303   ibid (emphasis added). 298 299 300

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In Powell, the House of Lords clarified that no such authorisation is required for S to be liable.304 a  Contemplation or Foresight of the Possibility as Sufficient Mens Rea for Collateral Offences In Chan Wing-Siu v The Queen305 as well as in R v Powell and Another the Court of Appeal and the House of Lords respectively confirmed that ‘participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise’.306 In the former case, three assailants armed with knives entered the flat of D with the intent to commit a robbery. One of them murdered D’s husband. The trial judge’s direction in that case, so far as it is relevant, was as follows: You may convict . . . of murder if you come to the conclusion . . . that the accused contemplated that either of his companions might use a knife to cause bodily injury on one . . . of the occupants.307

In upholding the conviction, Sir Robin Cooke provided more clarification as to the nature of contemplation required: The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorization, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight.308

In Hui Chi-Ming v R,309 the Judicial Committee of the Privy Council introduced an extra constraint on the joint criminal enterprise liability. It was suggested that when the other crime committed by the primary party is ‘an incident of the joint enterprise . . . mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise’.310 As one scholar rightly observed, ‘mere foresight as a cognitive concept, however, is not capable of taking into account the volitional element involved in accepting to run a risk’.311

  R v Powell and Another; R v English [1999] 1 AC 1, 21 (HL).   Chan Wing-Siu and Others, above (n 300). 306   R v Powell and Another; R v English, above (n 304) 21 (Lord Hutton) (emphasis added). 307   Chan Wing-Siu and Others, above (n 300) 175 (emphasis added). 308   Chan Wing-Siu v R [1985] AC 175. 309   Hui Chi-Ming v R [1992] 1 AC 34, 53 (PC). 310  ibid. 311   Krebs, above (n 288) 579. 304 305

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The Law Commission report on Participating in Crime,312 suggested the following regarding the mens rea required to be proved on the part of the participant in a joint venture for crimes which are beyond the common enterprise: [T]here will be cases, where, pursuant to the joint criminal venture, P commits an offence that D did not intend P (or another participant in the joint venture) to commit. In the context of a joint criminal venture between D and P, it is our view that the principle of parity of culpability does not require that D actually intend the conduct element of a particular offence to be committed by P. D’s agreement (or shared joint intention) to participate in the joint criminal venture itself provided a substantial element of culpability, meaning that there can be parity of culpability between D and P even if D did not in addition intend P to engage in the conduct element of an offence. There will be such parity of culpability if, for example, D foresaw that P might engage in the conduct element of a particular offence. In such circumstances, it is acceptable to label and punish D and P in the same way.313

The Commission suggested that foresight of probability on the part of the participant that a crime which goes beyond the common purpose may be committed by a member of the joint venture, is sufficient to hold the participant guilty for this crime. b  The Fundamental Difference ‘Rule’ The inculpatory effect of the foresight formula was strengthened in 1999 in English, where D’s liability was to be established not only if he foresaw the act committed by P, but in cases where he merely foresaw an act that was not ‘fundamentally different’ from the one committed by P. Lord Hutton, delivering the leading speech, said that to be guilty under the principle stated in Chan Wing-siu v R [D] must foresee an act of the type which [P] committed, and that in the present case the use of the knife was fundamentally different to the use of a wooden post.314

D was therefore not found guilty of murder because although he had foreseen that P might attack V with a wooden post, intending to cause serious harm, the act that killed V, ie, stabbing with a knife, was ‘fundamentally different’ from the act that D had anticipated. P’s act was considered to be outside the scope of the joint criminal venture and D was not held liable. The possibility of taking advantage of the ‘fundamentally different’ test was to be confined to cases where D foresees that P might cause serious harm to V, intending to cause serious harm, while P in turn intentionally kills. Subsequently, in Rahman the Court of Appeal held that the rule can also be used in situations where D foresaw the possibility of P killing V, with intent to only   UK Law Commission, ‘Participating in Crime’, above (n 211).   ibid, 2, para 1.11. 314   Powell and Daniels, English [1999] 1 AC 1, 21, 28 (emphasis added). 312 313

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cause serious bodily harm, while P intentionally kills in some other manner than the one anticipated by D.315 If, however, D foresees that P might kill with intent to kill, the means used by P for achieving that goal are irrelevant and even if ‘fundamentally different’ from what D foresaw, will not guard D from liability. Both D and P will be held guilty of murder. At the Court of Appeal, Hooper LJ laid down these questions as a guide to the answer on D’s liability: 1. What was P’s act which caused the death of V? (eg, stabbing, shooting, kicking, beating). 2. Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no go to the next question. 3. What act or acts did D realise that one of the attackers might do to cause V really serious injury? 4. Is this act or are these acts which D realised that one of the attackers might do, of a fundamentally different nature from P’s act which caused the death of V? If yes, not guilty of murder. If no, guilty of murder.316 This guidance, however, has two weaknesses. In one respect it can be too harsh on D, holding him liable, when he anticipated the act done by P, but did not anticipate that P intended the act to be lethal. On the other hand, it can be too generous to D, not holding him liable when he did not anticipate the act done by P, yet appreciated not only that P might act with the intent to cause serious harm, but that V might die as a result.317 In the House of Lords, the appellant argued that if P had the intention to kill and not merely the intention to inflict serious injury, as D foresaw, this would render P’s actions ‘fundamentally different’ and thus outside the common design, obviating D’s liability for murder. Their Lordships were, however, unanimous that the appeals should be dismissed and did not recognise the ‘fundamentally different’ rule in such a case. The focus of the ‘fundamentally different’ principle was prescribed to the conduct of P, engaging the lethal weapon, not his undisclosed intention. In the words of Lord Bingham: Given the fluid, fast-moving course of events in incidents such as that which culminated in the killing of the deceased, incidents which are unhappily not rare, it must often be very hard for jurors to make a reliable assessment of what a particular defendant foresaw as likely or possible acts on the part of his associates. It would be even harder, and border on speculation, to judge what a particular defendant foresaw as the 315   R v Rahman and Others [2007] EWCA Crim 342. The factual circumstances included a victim stabbed to death with a knife during an attack by a group of men, many of whom were armed with blunt instruments. It was not known which person inflicted the fatal blow, as each of them denied possessing a knife, and claimed that they had not foreseen, believed, known or realised that anyone else in the group had a knife and that the person inflicting the wound, had been acting outside the scope of the joint criminal venture. 316   R v Rahman and Others, above (n 315), quoted in UK Law Commission, ‘Participating in Crime’, above (n 211) 56. 317   ibid, 47.

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Mens Rea in Common Law Jurisdictions intention with which his associates might perform such acts. It is safer to focus on the defendant’s foresight of what an associate might do, an issue to which knowledge of the associate’s possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant.318

In Rahman, Lord Brown restricted the scope of ‘fundamental difference’ as follows: If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture, unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A’s act is to be regarded as fundamentally different from anything foreseen by B.319

Lord Brown’s formulation was viewed as problematic because it limits the ‘fundamental difference’ to cases where ‘(i) there is a change of weapon (or the use of a weapon when none at all was contemplated); (ii) B was unaware of the weapon which A uses to kill V; (iii) the weapon used by A is different from that which B foresaw might be used and more “lethal”; (iv) because of the change of weapon and its more lethal nature A’s act may be regarded as fundamentally different’.320 This formulation was simplified by the Court of Appeal in the Mendez case where the Court endorsed in principle the argument of the appellant’s counsel: In cases where the common purpose is not to kill but to cause serious harm, D is not liable for the murder of V if the direct cause of V’s death was a deliberate act by P which was of a kind (a) unforeseen by D and (b) likely to be altogether more life-threatening than acts of the kind intended or foreseen by D. The reference to a ‘deliberate act’ is to the quality of the act – deliberate and not by chance – rather than any consideration of P’s intention as to the consequences.321

The question of liability for complicity arose once again recently in the Court of Appeal in R v Yemoh,322 where the appellant was convicted of the manslaughter of a victim, stabbed to death after being chased by a group of youths and being involved in a fight. There was evidence that one member of the group carried a Stanley knife, while another sometimes carried a knife. The appellant claimed that the actual stab wound was of a fundamentally different character from the injury intended or foreseen by the defendant, ie, a wound that could be caused with the use of a Stanley knife and was thus outside the scope of the joint enterprise. The question was also posed whether D could be held liable, if he foresaw the possibility that P might intentionally cause less than serious injury, while P kills, with   R v Rahman and Others [2008] 4 All ER 351, 363.   ibid, 325 (emphasis in original).   David Ormerod, ‘Joint Enterprise: Murder – Directions to Jury as to Liability of Secondary Parties’ (2010) 11 Criminal Law Review 874, 877–78. 321   R v Mendez and Another, above (n 285) paras 44 – 47. 322   R v Yemoh [2009] EWCA Crim 930. 318 319 320

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intent to at least cause grievous bodily harm. The Court dismissed the appeal and upheld the conviction for manslaughter, holding that if D knew or realised the possibility that the person with the knife intended to cause some injury to V, then the fact that P stabbed the deceased intending to kill, was not ‘fundamentally different’ from what D had intended or foreseen. Applying this test, the Court of Appeal in Yemoh found that the two knifes in the case concerned were sufficiently similar in their capacity to cause death or serious injury, either primarily by stabbing (the knife that was used) or by slashing (a Stanley knife) and therefore what was foreseen was not fundamentally different.323 A similar conclusion was drawn in Gilmore at the Northern Ireland Court of Appeal.324 In this case the defendant had driven P to a house, knowing that he would petrol bomb it. D however contemplated a much smaller bomb than the one actually used and only foresaw damage to property and cause of fear to the occupants but not physical harm to them. The occupants were killed and D was convicted of murder. The Court of Appeal of Northern Ireland overruled the conviction for murder in the light of D’s belief in the size and impact of the bomb, but convicted D of manslaughter because the act itself was nevertheless the very act contemplated by D. The fact that the bomb used was much larger than the one contemplated did not render it fundamentally different. c  The Possibility of Acknowledging a Lesser Form of Liability In England there seems to have been some conflict between cases dealing with a scenario where the direct party formed an intention to kill or do grievous bodily harm while the indirect party contemplated a lesser degree of harm only.325 In R v Smith326 the Court of Appeal held that the party who intended grievous bodily harm would be guilty of murder, while the party who intended lesser harm would be guilty of manslaughter, but in R v Anderson and Morris327 it did not allow such an option. More recent case law has reinforced the principles from R v Anderson and Morris and clarified that where the killing is outside the scope of the joint venture, the appellant should be held neither guilty of murder nor manslaughter.328 In Rahman the House of Lords held that ‘English’s appeal, like Morris’s before it, succeeded on the basis that in each case the killer had “used a weapon and acted in a way which no party to [their] common design could suspect” ’.329 In this regard the House of Lords cited the Court of Appeal in Anderson and Morris: 323   Alan Reed, ‘Joint Enterprise and Inculpation for Manslaughter’ (2010) 74 Journal of Criminal Law 196–208, 204. 324   R v Gilmore [2000] 2 Cr App R 407. 325   David J Lanham et al, Criminal Laws in Australia (Sydney: The Federation Press, 2006) 495. 326   R v Smith (1963) 1 WLR 1200, 1205–06. See also, R v Betty (1963) 48 Cr App R 6; R v Jervis [1993] 1 Qd R 643. 327   R v Anderson and R v Morris, above (n 302). 328   R v Powell and Another; R v English, above (n 284). 329   R v Rahman and Others, above (n 318) 357.

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Mens Rea in Common Law Jurisdictions It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.330

It was held that Gilmour could not ‘be read as laying down any principle’,331 and that ‘under the doctrine of joint criminal enterprise as currently applied S will either be held liable to the same extent as P – or not at all’.332 Hence, the choice for the jury will thus be to convict or to acquit. In Ireland, the position on the matter is the same. Recently in Brian Ryan333 the Court of Criminal Appeal found that the trial judge had been correct, when he claimed that one who engages on a joint enterprise is responsible for the actions of his fellow participant or participants providing the act or actions of his fellow participant or participants falls within the scope of the enterprise but he is never responsible for any conduct or action that exceeds the joint enterprise.334

Therefore in the latter case, there is ‘no . . . legal basis on which to invite the jury to bring in a verdict of manslaughter as an alternative to a verdict of guilty of murder. As the learned trial judge put it “It is all duck or no dinner” ’.335 The High Court of Australia has tended to adopt the Smith approach.336 In R v Barlow337 six prisoners were charged with the murder of a fellow prisoner. Five of them were convicted of murder, while one was convicted of manslaughter as a secondary party. McHugh J held in a dissenting judgment that the conviction of manslaughter would have been correct had the case been one at common law, but that the Criminal Code of Queensland, under which the case was decided, did not allow such a conviction. The majority, however, held that a conviction of manslaughter was open both at common law and under the Code.338 In R v Jackson339 the Supreme Court of Canada found that, when a person who aids and abets another in the offence of murder does not have the mens rea requirement for murder, he may be guilty of the lesser offence of manslaughter if he possesses the requisite mens rea for that offence, which does not require a subjective appreciation of the consequences of the act: The test is objective. Nor is it necessary that the risk of death is foreseeable. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial 330   Lord Parker CJ giving the judgment of the Court of Appeal in R v Anderson and R v Morris, above (n 302) quoted in R v Rahman and Others, above (n 318) 357. 331   R v Rahman and Others [2008] HL 45, para 22. 332   Krebs, above (n 288) 583. 333   DPP v Bryan Ryan [2011] IECCA 6. 334  ibid. 335  ibid. 336   Lanham et al, above (n 325) 495, referring to cases: Gillard v R (2003) 139 A Crim R 100; R v Harwood (2002) 188 ALR 296; R v Barlow (1997) 188 CLR 1. 337   R v Barlow, above (n 336) 19. 338   ibid, 12, 44. 339   R v Jackson [1993] 4 SCR 573.

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The same principle applies also to cases of common intent.341

iii  The Australian Doctrine of Common Purpose In Australia, the reflection of the English doctrine of joint criminal enterprise is the doctrine of common purpose. The law on extended common purpose liability has been dealt with by the High Court of Australia in Johns (1980),342 reaffirmed in McAuliffe (1995),343 in Gillard (2003)344 and in Clayton (2006).345 In McAuliffe three accused decided to go to a park for a purpose variously described as to ‘roll’ or ‘rob’ or ‘bash’ someone. At the park two of the accused severely beat a victim and the third one side kicked him in the chest, causing him to eventually fall off the cliff into the sea and drown. The principal perpetrator pleaded guilty to the murder while the other two were convicted for being principals in the second degree. At the High Court the judges held unanimously that: [A] common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.346

The Court stressed that the test of what fell within the scope of the common purpose was not to be determined objectively. The emphasis was to be placed on the actual state of mind of the accused and what he contemplated as a possible incident of the originally planned particular venture.347 To be held liable for murder, therefore, the two participants must have contemplated the possibility of the intentional infliction of grievous bodily harm by the principal perpetrator. In Clayton – while acknowledging that the extended common purpose liability did not require proof of actual common intention or even actual foresight of the virtual certainty or probability of what in fact occurred – the prosecution   ibid, 3.   Benseler, above (n 8) 14. 342   Johns v The Queen [1980] 143 CLR 108 (HCA). 343   McAuliffe v The Queen [1995] 183 CLR 108 (HCA). 344   Gillard v The Queen (2003) 219 CLR 1. 345   Clayton v R [2006] HCA 58. 346   McAuliffe v R [1995] HCA 37, para 12. 347   ibid, para 13, 15. 340 341

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‘emphasized that the requisite foresight nonetheless imposed a type of subjective criterion, albeit one that needed only to be proved to the level of a “possibility” ’.348 The applicants submitted that proof by the prosecution of no more than the possibility that a principal offender might intentionally cause grievous bodily harm to a victim did not, of itself, establish conduct sufficiently culpable to warrant conviction of the offence of murder.349 They contested that to punish persons who have ‘neither mentally nor physically committed an offence to the same extent as . . . those who have was an unjustifiable departure from the fundamental tenet of the Australian criminal justice system’.350 On this point, it is worth mentioning Kirby J’s opinion in this particular case: To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it countenances what is ‘undoubtedly a lesser form of mens rea’. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.351

He went further asserting that: Foresight of what might possibly happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. Its adoption as a test for the presence of the mental element necessary to be guilty of murder amounts to a seriously unprincipled departure from the basic rule that liability does not attach to criminal conduct itself, unless that conduct is accompanied by a relevant criminal intention.’352

However, in contrast with the above-mentioned opinion, the majority of the High Court refused to reconsider the law as laid down in McAuliffe and Gillard and dismissed the applications.353 They stated that it had not been demonstrated that the application of these principles had occasioned injustice in the application of the law of homicide354 and noted that there is no other court of final appeal, which accepts the proposition ‘that the doctrine of extended common purpose should be abolished or modified by replacing foresight of the possibility of a murderous assault with foresight of the probability of such an assault’.355 There is some variation in the approach taken in the common law and under codes regarding this form of ‘reckless accessoryship’.356 The Northern Territory follows the common law approach, while Queensland, Tasmania and Western Australia retain the nineteenth-century approach, adopting an objective test in assessing whether the crime committed by the principal offender was a probable   Clayton v R, above (n 345) para 74.   ibid, para 92. 350  ibid. 351   ibid, para 108. 352   ibid, para 97. 353   ibid, para 3. 354   ibid, para 15. 355   ibid, para 18. 356   Bronitt, above (n 12) 61. 348 349

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consequence of carrying out the common purpose. The High Court has recently held in Keenan357 that liability under section 8 of the Queensland Criminal Code requires the offence committed to be of such a nature that it is a probable consequence of embarking on the common purpose.

iv  The Canadian Doctrine of Common Purpose In Canada section 21(2) of the Criminal Code applies to cases where two or more people agree to carry out an unlawful purpose and another crime occurs in the course of carrying out that purpose. Section 21(2) holds such persons to be parties to any offence that they knew or ought to have known would be the probable consequence of carrying out the unlawful purpose. This means that a common unlawful purpose and either subjective knowledge or objective foresight that the actual offence would be a probable consequence of carrying out that purpose, would suffice, while for the main offender subjective mens rea has to be proven. There is no constitutional principle that requires parties to an offence to have the same mens rea as the principal offender, however the objective part of section 21(2) violates section 7 of the above-mentioned Canadian Charter of Rights and Freedoms and is of no force and effect if the person is charged with murder, attempted murder, war crimes or crimes against humanity.358 Due to the stigma and penalties attached to these crimes, a subjective fault is required.359

IX  Mistake as Denial of Mens Rea Generally speaking, a mistake of fact shall be a ground for excluding criminal responsibility if it results in the accused not forming the mens rea required by the offence with which he is charged. In England, [i]n the nineteenth century the current theory of subjective mens rea had not been formulated; therefore the courts missed the opportunity of stating that mistake was incompatible with the fault element . . . More recently the courts have brought mistake generally speaking more in line with mens rea.360

In Tolson361 the principal was established that the accused did not have a defence unless his mistake was made reasonably. In that case Stephen J stated: It may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith and no reasonable grounds believed to   Keenan [2009] HCA 1 (2 February 2009) in Bronitt, above (n 12) 88.   Roach, ‘Canada’, above (n 102) 112. 359   R v Logan [1990] 2 SCR 731 in Roach, ‘Canada’, above (n 102) 112. 360   Michael Jefferson, Criminal Law, 10th edn (Harlow: Pearson Education Limited, 2011) 311. 361   R v Tolson [1886–90] All ER Rep 26. 357 358

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Mens Rea in Common Law Jurisdictions exist when he did the act alleged to be an offence. I am unable to suggest any real exception to this rule, nor has one ever been suggested to me.362

The defence in this case is therefore not a question of mens rea but of negligence.363 Mrs Tolson, accused of the crime of bigamy, was given the defence of mistake by the court, because when marrying for the second time, she believed her husband was dead and, most importantly, this belief was based on reasonable grounds, as the husband had been missing for seven years. The principle only changed in 1976 in DPP v Morgan.364 The House of Lords ruled that a defence exists if there is an (honest) belief and not necessarily a reasonable one. Lord Nicholls stated the following in this regard: Considered as a matter of principle the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind . . . To the extent that an overriding objective limit (‘on reasonable grounds’) is introduced, the subjective element is displaced.365

However, the House of Lords did not overrule Tolson and a confusing coexistence of the two principles in part remains until this day. In Kimber 366 the Court of Appeal ruled that Morgan was not restricted to rape as previously thought and it is now accepted that it applies to all offences of subjective mens rea, while Tolson may apply only to crimes of negligence, if it is not restricted purely to bigamy.367 However, the Sexual Offence Act of 2003 considers that a person commits the offence of causing a person to engage in sexual activity without consent if: (a) (b) (c) (d)

he intentionally causes another person (B) to engage in an activity, the activity is sexual, B does not consent to engage in the activity, and A does not reasonably believe that B consents.368

According to the act ‘[w]hether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents’.369 This act clearly abrogates the principle in Morgan, however, only in the context of sex crimes. Elsewhere Morgan remains authoritative. The law is the same in Canada, where the defence of mistake of fact alleged by the accused is measured on a subjective basis. That is, given the mistaken belief with respect to the facts, the accused could not have subjectively intended to commit the offence. The mistaken belief need not be reasonable, it need only be   ibid, 37.   Jefferson, above (n 360). 364   DPP v Morgan, above (n 115) endorsed by B (A Minor) v DPP [2000] 4 LRC 405. 365   B (A Minor) v DPP, above (n 364) 411. 366   R v Kimber [1983] 1 WLR 1118. 367   Jefferson, above (n 360) 312–15. 368   Sexual Offences Act 2003, available at: www.opsi.govuk/ACTS/acts2003/20030042.htm (emphasis added). 369  ibid. 362 363

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honest.370 The reasonableness of the mistake is nevertheless a relevant factor as a question of fact for the jury to consider as it decides whether to believe the allegation of mistake of fact.371 In his dissenting opinion in Pappajohn v The Queen, Justice Dickson stated: [t]he accused’s statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although ‘reasonable grounds’ is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given to the defense. The reasonableness, or otherwise, of the accused’s belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.372

In the context of rape, a crime which requires proof of subjective mens rea on the part of the accused, Dickson J held the following with respect to reasonableness of mistake of fact: It is not clear how one can properly relate reasonableness (an element in offences of negligence) to rape (‘a true crime’ and not an offence of negligence). To do so, one must, I think take the view that the mens rea goes only to the physical act of intercourse and not to non-consent, and acquittal comes only if the mistake is reasonable. This, upon the authorities, is not a correct view, the intent in rape being not merely to have intercourse, but to have it with a non-consenting woman. If the jury finds that mistake, whether reasonable or unreasonable, there should be no conviction. If, upon the entire record, there is evidence of mistake to cast a reasonable doubt upon the existence of a criminal mind, then the prosecution has failed to make its case.373

Mistake of fact, even when it is an honest one, cannot be a defence in cases of wilful blindness as the latter presumes knowledge. An illustration of this was shown in Sansregret, a case of rape mentioned above. The trial judge found the accused to have honestly believed that the consent to intercourse was freely and genuinely given and applied the defence of mistake of fact. However, when the case reached the Supreme Court of Canada, it was found that: To proceed with intercourse in such circumstances without further inquiry constitutes self‑deception to the point of wilful blindness. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge – in this case knowledge of the forced nature of the consent. There was therefore no room for the application of the defence.374

As far as mistake of law is concerned, the general rule in common law systems is that ignorance or mistake of law is no defence, although it may be considered as a mitigating factor with regard to the punishment imposed. A recent edition of   Pappajohn v The Queen [1980] 2 Can SCR 120.   ibid, 156. 372   ibid, 146. 373   ibid, 152. 374   Sansregret v The Queen, above (n 183) para 3. 370 371

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Smith and Hogan put it simply ‘mistake of criminal law is generally no defence, for usually knowledge that the act is forbidden by law is no part of mens rea’.375

X Conclusion The discussion above reveals the complexity of the law on mens rea in the selected common law jurisdictions. The jurisprudence of English courts has not been very straightforward on the interpretation of the concept of mens rea. In fact, it has been plagued by disagreement among judges as to the applicability of the correct mens rea standards to various crimes. English criminal law recognises three different standards of culpability terms, namely, intention, recklessness and negligence. Intention is the highest degree of culpability and is generally assigned to the consequence element. There is consensus among academics and English courts that someone should be taken to ‘intend’ a result if they act in order to bring it about. That is the basic definition of intention. However, in special cases, usually murder, that definition has proven to be very limited. In few cases, it is believed that justice may not be done unless an expanded understanding of intention is given. Yet, English courts have widened the meaning of intention to include situations where the death is a virtually certain consequence of the accused’s conduct and the accused appreciates that such was the case, even if the death was undesired.376 In those ‘rare’ cases intention ought to be found from the foresight of consequences as a virtual certainty. In this regard, Sir James Stephen’s argumentation, which was put over 120 years ago, is particularly worthy of note: [I]s there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to his victim’s life or death, but with a feeling of indifference whether he lives or dies? It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.377

The House of Lords made it clear that intention should not be construed as to automatically include the mere foresight of probable consequences. In Hancock   Smith and Hogan, Criminal Law, 11th edn, above (n 162) 294; See also Card, above (n 76) 118–22.   In this regard, Sir James Stephen’s argumentation which was put over 120 years ago is particularly worthy of note: ‘[I]s there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to his victim’s life or death, but with a feeling of indifference whether he lives or dies? It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill’. Sir James Stephen, A History of the Criminal Law of England, vol III (London: Macmillan, 1883) 92. 377   Stephen, ibid. 375 376

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Conclusion and Shankland, a consensus has emerged in the House of Lords that foresight of a high degree of probability, even virtual certainty, is not in itself intention stricto sensu but a mere evidence from which a jury may or can infer intention. The degree of foreseeability differs; whereas in some cases it was required that the accused foresees the occurrence of the consequence as ‘probable’, or ‘highly probable’ before a jury may infer intention on his part, in other cases a ‘natural consequence test’ or ‘substantial risk’ was applied. In Nedrick as well as in Woollin, the Court of Appeal and the House of Lords, respectively, adhered to the virtual certainty test. English courts have devoted special attention in directing the jury on how to infer intention on the part of the accused from the relevant circumstances. As was suggested by Lord Scarman in Hancock and Shankland, it has to be explained to the jury that the greater the probability of a consequence, the more likely it is that consequence was foreseen, and if it is foreseen, the greater the probability that it is also intended. The test has to be subjective: a court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only if its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear in the circumstances.378 English scholars went further arguing that the meaning of intention should be extended to encompass foresight of a certainty (oblique intent). But the law of England as it currently stands considers foresight of certainty as a mere evidence from which the jury may infer intention. As important as what the definition of intention under the criminal law of England includes, is what it excludes. It excludes situations where the defendant contemplates that there was a risk of causing death and nevertheless went on carrying his conduct at all costs.379 ‘An attitude towards that risk along the lines of, “if death occurs so be it”, or “if death occurs, so what”?’380 This attitude, as proposed by the Law Commission in its recent report on Murder, Manslaughter and Infanticide, is called ‘reckless indifference’, a fault element sufficient to incur liability for ‘second degree murder’.381 Other common law jurisdictions, however, assign a lower form of subjective element for the crime of murder. In New South Wales and the Australian Capital Territory where murder is governed by statute, reckless indifference to human life 378   Criminal Justice Act 1967, s 8. See contra: DPP v Smith, above (n 24) 327–28 (emphasis added) quoting Holmes, above (n 35) 53–54. 379   In German criminal law this state of affairs is called dolus eventualis. 380   Law Commission Report, Murder, Manslaughter and Infanticide, above (n 81) paras 2.99, 38, 28 (November 2006). 381   For the ‘ladder’ principle proposed by the Law Commission see, in general, Law Commission Report, Murder, Manslaughter and Infanticide, above (n 81). See contra: William Wilson, ‘The Structure of Criminal Homicide’ [2006] Criminal Law Review 471, 477–79; Jonathan Rogers, ‘The Law Commission’s Proposed Restructuring of the Law of Homicide’ [2006] Journal of Criminal Law 223; Ian Dennis, ‘Reviewing the Law of Homicide’ (Editorial) [2006] Criminal Law Review 187; Victor Tadros, ‘The Homicide Ladder’ (2006) 69 Modern Law Review 601, 610–13.

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is a sufficient fault element for the offence of murder. In Canadian criminal law, subjective foresight (knowledge) of the likelihood of death resulting is a sufficient threshold for convictions for murder and other serious offences. In the criminal law of England, ‘knowledge’, chameleon like, has different meanings depending on whether it is related to a consequence or a circumstance element. A person acts knowingly in relation to circumstances, (i) when he is aware that it exists or will exist (actual knowledge), or (ii) when he avoids taking steps that might confirm his belief that it exists or will exists (wilful blindness). The third degree of knowledge with regard to a circumstance element is known as ‘constructive knowledge’ or what is encompassed by the words ‘ought to have known’ in the phrase ‘knew or ought to have known’. This ‘third degree of knowledge’ was highly criticised as having no place in criminal law. However, it may be sufficient for certain crimes of negligence. In the criminal law of Canada, wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. According to the Supreme Court of Canada, wilful blindness ‘arises where a person who has become aware of the need of some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant’.382 The legal meaning of recklessness has oscillated between two forms, namely, subjective recklessness and objective recklessness. In the former, recklessness requires proof that the person was aware of the existence of the unreasonable risk, whereas in the latter, the House of Lords interpreted recklessness objectively and recognised inadvertence as a mental state. In R v G and Another (2004), the House of Lords reasserted the primacy of subjectivism and ruled that a person should be taken to act recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur and it was, in the circumstances known to him, unreasonable to take the risk. Whether subjective or objective, recklessness is not a sufficient fault element to trigger the criminal responsibility for the crime of murder under the criminal law of England.383 Negligence is defined as failure to conform to the standard of care to which it is a person’s duty to confirm. The difference between recklessness and negligence became obvious after the ruling of the House of Lords in G and Another. Recklessness is defined as the conscious taking of unjustifiable risk, whereas the inadvertent taking of an unjustifiable risk constitute negligence. Among the common law crimes, only manslaughter rests on liability for (gross) negligence. Criminal liability based on negligence was subject to criticism by English scholars as it derogates from the subjective principles.384 In addition, ‘it would dilute the   Sansregret v The Queen, above (n 183) para 22.   In a recent report by the Law Commission, Murder, Manslaughter and Infanticide, above (n 81) the Commission proposed that reckless indifference can be a sufficient fault element for second degree murder. However, this proposal was highly condemned by legal academics. 384  Ashworth, Principles of Criminal Law, 4th edn, above (n 201) 193. 382 383

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Conclusion element of individual culpability which justifies the public condemnatory element in a criminal conviction, as distinct from an award of damages in tort or contract’.385 English courts assigned the fault element of ‘knowledge’ as a mens rea standard for secondary participation.386 In that regard, nothing is more clear than the words of Devlin J in National Coal Board v Gamble (1959): Aiding and abetting is a crime that requires proof of mens rea, that is to say, of intention to aid as well as of knowledge of the circumstances, and that proof of the intent involves proof of a positive act of assistance voluntarily done.387

There is vigorous debate among academics as well as in the House of Lords on whether the doctrine of common purpose (joint criminal enterprise) falls under the realm of complicity or is a separate doctrine and accordingly requires separate rules.

 ibid.   National Coal Board v Gamble, above (n 259) 20. 387  ibid. 385 386

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4 Mens Rea in the American Law Institute’s Model Penal Code A fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.1

I Introduction Much of the difficulty involved in ascertaining what state of mind, if any, is required for a particular crime lies in the ambiguous meaning of the particular word or phrase used. In the common law, offences were generally classified as requiring either ‘general intent’ or ‘specific intent’.2 In US v Bailey et al, the Supreme Court noted that ‘this venerable distinction has been the source of a good deal of confusion’.3 Wayne LaFave and Austin Scott explained: Sometimes ‘general intent’ is used in the same way as ‘criminal intent’ to mean the general notion of mens rea, while ‘specific intent’ is taken to mean the mental state required for a particular crime. Or, ‘general intent’ may be used to encompass all forms of the mental state requirement, while ‘specific intent’ is limited to the one mental state of intent. Another possibility is that ‘general intent’ will be used to characterize an intent to do something on an undetermined occasion, and ‘specific intent’ to denote an intent to do that thing at a particular time and place.4

In addition, the words and phrases used by the judges to express the guilty mind necessary for common law crimes shed more heat than light with regard to the   McBoyle v United States, 283 US 25 (1931) (Justice Holmes).   For a classical discussion on the concept of mens rea in the criminal law of the United States see Jerome Hall, General Principles of Criminal Law, 2nd edn (New York: The Bobbs-Merrill Co, 1960) 70–145. 3   United States v Bailey et al, 444 US 394, 100 S Ct 624, 62 L Ed 2d 575 (1980). 4   ibid, quoting Wayne R LaFave and Austin W Scott, Handbook on Criminal Law (Minnesota: West Publishing, 1972) § 28, 201–02; see also Wayne R LaFave and Austin W Scott, Substantive Criminal Law, vol 1 (Minnesota: West Publishing, 1986) 314. 1 2

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definite meaning of mens rea. In Commonwealth v Woodward,5 a nanny was charged with murder for shaking a baby and slamming him against the floor, causing his death. The judge instructed the jury that, to decide whether the defendant acted with intent, they should determine ‘whether under the circumstances known to the Defendant, a reasonable person would have known that her intentional act created a substantial risk of death to the [victim]’.6 By using the phrase ‘a reasonable person would have known’ the judge instructed the jury to find the defendant guilty of murder, even though she was negligent. These ambiguities which shadow the meaning of intent find their remedy in the Model Penal Code. The new approach – exemplified in the American Law Institute’s Model Penal Code – is based on two principles. First, the ambiguous and elastic term ‘intent’ or ‘intention’ is replaced with a hierarchy of culpable states of mind. Secondly, the different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness and negligence.7

II  Background of the Code The American Law Institute,8 established in 1923 by a distinguished group of judges, lawyers and law professors, is a permanent organisation devoted to the clarification and improvement of the law. From the early 1930s, the American Law Institute’s agenda included a proposal to prepare a model penal code in order to promote a measure of uniformity and consistency in the criminal law of the United States and to assist state legislatures.9 The proposal was renewed in 1951, and the planning and drafting of the Code began in 1952.10 In 1962, the Proposed Official Draft of the entire Code was approved and promulgated.11 The American   Commonwealth v Woodward, 7 Mass 449 (1997), 694 NE 2d 1277 (Mass 1998).  ibid. 7   This hierarchy, however, does not attempt to cover those offences where criminal liability is imposed in the absence of any mens rea whatsoever. Such ‘strict liability’ crimes are exceptions to the general rule that criminal liability requires a ‘guilty mind’. 8   For more information on the Model Penal Code and the American Law Institute see Geoffrey C Hazard, ‘The American Law Institute: What it is and What it Does’, available online at: w3.uniroma1.it/ idc/centro/publications/14hazard.pdf; Herbert Wechsler, ‘Codification of Criminal Law in the United States: The Model Penal Code’ (1968) 68 Columbia Law Review 1425, 1425–26; Howard S Beyer, ‘Model Penal Code Selected Bibliography’ (2001) 4 Buffalo Criminal Law Review 627. 9   For a detailed description of the project see Herbert Wechsler, ‘The Challenge of a Model Penal Code’ (1952) 65 Harvard Law Review 1097, 1097. See also Jerome Hall, ‘The Proposal to Prepare a Model Penal Code’ (1951–52) 4 Journal of Legal Studies 91. 10   Wechsler, ‘Codification of Criminal Law in the United States’, above (n 8) 1426. For full details on the Codifiers of the Model Penal Code see Sanford H Kadish, ‘Codifiers of the Criminal Law: Wechsler’s Predecessors’ (1978) 78 Columbia Law Review 1098. 11   It is to be noted that the original publication of the Model Penal Code consisted only of the 13 tentative drafts, containing different portions of the text and accompanying Comments, that were considered by the institute from 1953 to 1960; an initial final draft, containing revised text on responsibility, sentencing and correction, was considered in 1961; and the Proposed Official Draft of the entire 5 6

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Law Institute’s Model Penal Code, a ‘product of many heads and many hands’,12 played an important part in the widespread revision and codification of the substantive criminal law of the United States.13 Several new codes enacted by states were influenced in some part by the position taken in the Model Penal Code.14 In addition, many courts refer to the Model Penal Code as an aid in the interpretation of the codes and in restating or reshaping areas of the unwritten law.15 This Model Code has become a standard part of the furniture of the criminal law in the United States,16 and the ‘central document of American criminal justice’.17 As the United States District Court in Maria Cordoba pointed out: The Code represents a unique blend of sophisticated theory and careful, practical drafting. The success of its scheme remains a reminder of the importance of a unified, coherent approach to the application of criminal statutes and the dangers in patchwork criminal codes and decisions that lack internal consistency and leave basic questions and problems unaddressed.18

III  The Culpability Provisions of the Model Penal Code: In General No aspect of the Model Penal Code has had greater influence on the direction of American criminal law than § 2.02 of the Code, which provides general rules for the definition of liability.19 It is considered ‘the single most important provision of Code (without Comments) was approved and promulgated in 1962. The Code was revised in 1985. See Herbert Wechsler, ‘Foreword’ in American Law Institute, Model Penal Code and Commentaries, vol 1 (Philadelphia: The American Law Institute, 1985). 12   Herbert Wechsler, ‘Symposium on the Model Penal Code’ (1963) 63 Columbia Law Review 589; Herbert Wechsler, ‘The Model Penal Code Project of the American Law Institute’ (1951–52) 20 University of Kansas City Law Review 205. 13   For the recent work by the American Law Institute on the Code see American Law Institute, Model Penal Code and Commentaries, vol 1 (Philadelphia: The American Law Institute, 1985). It is worth pointing out that within United States there are 52 American criminal codes, and it is often difficult to state ‘the American rule on any point of criminal law’. 14   Wechsler, ‘Foreword’ in American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) vol 1 (Philadelphia: The American Law Institute, 1985). This six-volume work should be consulted for more detailed treatment of the Code’s impact. 15   Wechsler, ‘Codification of Criminal Law in the United States’, above (n 8) 1428. According to Wechsler, during the period from July 1959 to 1 April 1984, drafts of the Model Penal Code, tentative or final, were cited by different appellate courts in 1698 cases, 152 in Pennsylvania, 114 in New York, 107 in Massachusetts, 63 in the United States Supreme Court and 402 in the Federal Court of Appeal. 16   Sanford H Kadish, ‘The Model Penal Code’s Historical Antecedents’ (1988) 19 Rutgers Law Journal 521, 521. 17   George P Fletcher, ‘Dogmas of the Model Penal Code’ (1998) 2 Buffalo Criminal Law Review 3. 18   United States of America v Maria Cordoba-Hincapie and Libardo Buelvas-Castro, CR 92-650, CR 92-1366 – US Dist Court for the Eastern District of New York 825 F Supp 485; 1993 US Dist Lexis 9504. 19  Joshua Dressler, Understanding Criminal Law, 3rd edn (United States: Matthew Bender & Company, 2001) 137.

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the Code’,20 and the most significant and enduring achievement of the Code’s drafters.21 ‘General Requirement of Culpability’, as provided for in § 2.02, has been described as the representative of the modern American culpability scheme.22 This section articulates the Code’s fundamental requirement that unless some element of mental culpability is proved with respect to each material element of the offence, no valid criminal conviction may be obtained.23 Thus, the minimal statement is that one may not be convicted of a crime ‘unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offence’.24 Accordingly, the Code eliminated ill-defined and confusing culpability terms and replaced them with four carefully defined hierarchical levels.25 Each of these levels of culpability is assigned to each of the ‘material elements’ of the offence which may involve conduct, attendant circumstances, and/or result.26 Thus, the Model Penal Code firmly establishes the concept of ‘element analysis’ in place of ‘offence analysis’. The former concept requires the prosecution to prove that the defendant carried out the material elements of the offence with a culpable state of mind. 20   Herbert L Packer, ‘The Model Penal Code and Beyond’ (1963) 63 Columbia Law Review 594, 601. Rollin M Perkins, ‘A Rationale of Mens Rea’ (1939) 52 Harvard Law Review 905; Frank J Remington and Orrin L Helstad, ‘The Mental Element in Crime – A Legislative Problem’ [1952] Wisconsin Law Review 644, 648–49. 21   See Paul H Robinson, ‘A Brief History of Distinctions in Criminal Liability’ (1980) 31 Hastings Law Journal 815, 815–21 (describing the advances made by the drafters of the Model Penal Code and outlining the distinctions among the Code’s culpability terms). Contra see Peter Brett, An Inquiry into Criminal Guilt (Sydney: The Law Book Co of Australasia, 1963) 70–85 (arguing that culpability should be a simple judgement of moral blameworthiness made by a jury, not the result of codification efforts); Emilio S Binavince, ‘The Structure and Theory of the German Penal Code (1976) 24 American Journal of Comparative Law 594, 600 (complimenting the drafters of the German Penal Code for abandoning the effort to define culpability terms because such definition curtails the dynamic quality of the law). 22   Robinson, above (n 21) 815. 23   Model Penal Code and Commentaries, above (n 13) 229. § 2.02 (1) of the MPC which entitled ‘Minimum Requirements of Culpability’ reads as follows: ‘Except as provided in Section 2.05, a person is not guilty of an offence unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offence’. 24   Model Penal Code, § 2.02(1). The only exception of this general requirement is the narrow allowance for offences of strict liability in § 2.05 of the Code, limited to cases where the most severe sentence that may be imposed is a fine. 25  ‘The definition of the further elements of culpability was the hardest drafting problem in the framing of the Code. ‘American law has employed an abundance of mens rea terms, such as general and specific intent, malice, wilfulness, wantonness, recklessness, scienter, criminal negligence and the like . . . clarification was essential and it was attempted by a bold submission in the draft’. See Wechsler, ‘Codification of Criminal Law in the United States’, above (n 8) 1436; see also Kadish, ‘Codifiers of the Criminal Law’, above (n 10) 1143. (Crediting the drafters of the Model Penal Code with dispersing ‘the obscurantist cloud that hung for so long on the central mens rea issues in criminal law’.) 26   Model Penal Code, § 1.13(9) defines an ‘element of an offence’ to include conduct, attendant circumstances or results that are included in the description of the offence; that establish the required kind of culpability; that negate an excuse or justification for an offence; that negate a defence under the statute of limitations; or that establish jurisdiction or venue. Model Penal Code, § 1.13(10) defines the concept of ‘material element’ to include all elements except those that relate exclusively to statute of limitation, jurisdiction, venue, and the like. The ‘material elements’ of offences are thus those characteristics (conduct, circumstances, result) of the actor’s behaviour that, when combined with appropriate level of culpability, will constitute the offence in question.

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Another significant advantage is that the Code eliminates any rule of law that depends on whether an offence is labelled as ‘general intent’ or ‘specific intent’, as both concepts were considered ‘notoriously difficult . . . to define and apply, and a number of text writers have recommended that they be abandoned altogether’.27 In addition, § 2.02 recognises defence to crimes as a part and parcel of the basic analysis of the culpability scheme. Joshua Dressler’s observation is illustrative on that matter: The phrase ‘material element of the offence’, as used in Section 2.02 and throughout the Code, includes ‘element’ relating to the existence of a justification or excuse for the actor’s conduct, ie, defences to crimes. As a consequence, since Section 2.02 states that one of the four culpability terms applies to every material element of a crime, this Section is also relevant in determining whether a person is entitled to acquittal on the grounds of an affirmative defence.28

Moreover, the Code adopted five guidelines designed to provide express instruction to help identify which of the four culpability concepts is the requisite level of culpability for a particular crime or element of a crime. The Code’s four culpability levels, its articulation of element analysis, its guidelines for identifying the requisite culpable mental state and its recognition of the doctrine of mistake as a part and parcel of the mens rea analysis are the main focuses of this chapter.

IV  Degrees of Culpability under the Model Penal Code As already mentioned, § 2.02 of the Model Penal Code attempts the extremely difficult task of articulating the kinds of culpability that may be required for triggering criminal responsibility. Paragraphs (a)–(d) of § 2.02(2) carefully define each of the four kinds of culpability – namely, purpose, knowledge, recklessness and negligence. In the Code’s formulation, these types of liability, save for negligence, have to be determined subjectively. That is to say, ‘purposely’, ‘knowingly’, as well as ‘recklessly’, are meant to ask what, in fact, the defendant had in mind when he so acted.29 Before examining each of these types of culpability it is necessary to reproduce § 2.02 ‘General Requirements of Culpability’ here in full: 27   People v Hood, 1 Cal 3d 444, 456, 82 Cal Rptr 618, 625, 462 P 2d 370, 377 (1969) (emphasis in original) cited in Joshua Dressler, Cases and Materials on Criminal Law (United States: West Publishing, 1994) 111. 28  Dressler, Understanding Criminal Law, above (n 19) 138 (emphasis in original, fns omitted). It is to be noted that German criminal law recognises that mistake of law and mistake of fact are not separate doctrines but are part and parcel of the basic analysis of the fault element of the crime in question. See the discussion in ch 5. 29   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 234–35. In addition, § 2.02 avoids using different common or civil law notions in defining the mental states provision, such as, specific intent or dolus specialis, direct intent or dolus directus, oblique intent or dolus indirectus.

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Degrees of Culpability under the Model Penal Code (1)  Minimum Requirements of Culpability Except as provided in Section 2.05, a person is not guilty of an offence unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offence. (2)  Kinds of Culpability Defined (a) Purposely A person acts purposely with respect to a material element of an offence when: if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (b) Knowingly A person acts knowingly with respect to a material element of an offence when: if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. (c) Recklessly A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and the purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. (d) Negligently A person acts negligently with respect to a material element of an offence when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. (3)  Culpability Required unless otherwise Provided When the culpability sufficient to establish a material element of an offence is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. (4)  Prescribed Culpability Requirement Applies to All Material Elements When the law defining an offence prescribes the kind of culpability that is sufficient for the commission of an offence, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offence, unless a contrary purpose plainly appears. (5)  Substitute for Negligence, Recklessness and Knowledge When the law provides that negligence suffices to establish an element of an offence, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

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Mens Rea in the Model Penal Code (6)  Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offence be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offence, unless a purpose to impose further requirements appears. (9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offence or as to the existence, meaning or application of the law determining the elements of an offence is an element of such offence, unless the definition of the offence or the Code so provides.30

A ‘Purposely’31 Generally speaking, the word ‘intent’ or the adjective ‘intentionally’ in criminal law has traditionally not been limited to the narrow definition of purpose, aim or design, but instead has often been viewed as encompassing knowledge. In common law, a person is considered to intend the consequences of his conduct if: (i) it is his desire or conscious objective to cause that consequence; or (ii) he acts with knowledge that the consequence is virtually certain to occur as a result of his conduct.32 Efforts have been made to differentiate between intent stricto sensu and knowledge.33 On the one hand, this distinction appears to be insignificant for most purposes of liability, as often there is a good reason for imposing liability whether the

  Model Penal Code, § 2.02.   Under the Model Penal Code ‘purposely’ has the meaning specified in § 2.02 and equivalent terms such as ‘with purpose’, ‘designed’ or ‘with design’ have the same meaning, see § 1.13(1). §1.13(2) provides that ‘intentionally’ or ‘with intent’ means ‘purposely’. Most recent legislative revisions and proposals have adopted, though with varying terminology, the Model Penal Code’s distinction between purpose and knowledge. The main respect in which these enactments and proposals differ from the Model Penal Code is in the use of the of the term ‘intentionally’ where the Code uses ‘purposely’. The reason for using the term ‘intentionally’ is its familiarity in legal usage, although, the term is ambiguous. See Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 235, fn 11 and its accompanying text. The Model Penal Code, in abandoning ‘intention’ as a bad job and using ‘purposely’ instead, was regarded by Glanville Williams as ‘an advantage and helpful device in the context of a newly-drafted code’; see Glanville Williams, The Mental Element in Crime (Jerusalem: The Magnes Press, 1965) 19. 32  Dressler, Understanding Criminal Law, above (n 19) 119; See also Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Stevens & Sons, 1961) 34–36. 33   Model Penal Code, § 2.02(a)(b). 30 31

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defendant desired or merely knew of the practical certainty of the results.34 On the other hand, in certain narrow classes of crimes, heightened culpability has been thought to merit special attention. Thus, for example, the statutory and common law of homicide often distinguish, either in setting the ‘degree’ of the crime or in imposing punishment, between a person who knows that another person will be killed as the result of his conduct and a person who acts with the ‘specific purpose’ of taking another’s life.35 In Haupt v United States, the Supreme Court held that in order to find the defendant guilty of treason, the government must demonstrate that the defendant acted with a ‘purpose’ to aid the enemy.36 Another such example is the law of inchoate offences, such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocent behaviour.37

i  ‘Purpose’ with Regard to the Nature of the Conduct or Result The term ‘purposely’ as employed in § 2.02(2)(a) of the Model Code has two different meanings, depending on whether the material element of the offence in question is related to a conduct or result, on the one hand, or to attendant circumstances, on the other.38 With respect to conduct or result, a person acts ‘purposely’ if it is his ‘conscious object to engage in conduct of that nature or to cause such a result’.39 Hence, ‘purposely’ in the way it is defined is a fault element comparable to the first of the two alternative common law definitions of the word ‘intentional’.40 That is to say, the word ‘purposely’ as provided for in § 2.02(2)(a) (i) is equivalent to the common law ‘actual intent’.41 So defined in the Model Penal Code, ‘purposely’ is also equivalent to (‘Absicht’) or dolus directus of the first degree in German criminal law. ‘Absicht’ in the criminal law of Germany is 34   United States v United States Gypsum Co, 438 US 422, 445 (1978); Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 233–34. 35   LaFave and Scott, Handbook on Criminal Law, above (n 4) 196–97. 36   Haupt v United States, 330 US 631, 641 (1947). 37   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 233–34. 38   Model Penal Code, § 2.02(2)(a) defines the term ‘purposely’ as follows: A person acts purposely with respect to material element of an offence when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.   Model Penal Code, § 2.02(2)(a)(i).  Dressler, Understanding Criminal Law, above (n 19) 138–39. A second way of defining intention in common law is to expand its meaning to include not only conscious object or purpose, but foresight of consequence. The particular level of foresight varies according to the definition employed. In England, following the decision of the House of Lords in R v Woollin [1999] 1 AC 82 (HL), it appears that a result may be taken as intended, although it is not the actor’s purpose to achieve it, when it is a ‘virtually certain’ consequence of his act. 41   The noun ‘intention’, according to Kenny, an eminent English scholar, is used to denote the state of mind of a person who not only foresees but also ‘wills’ the possible consequence. ‘To intend is to have in mind a fixed purpose to reach a desired objective’. See JW Cecil Turner, Kenny’s Outline of Criminal Law, 19th edn (London: Cambridge University Press, 1966) 36. 39 40

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defined as a ‘purpose bound will’.42 It is generally assumed that a defendant acts ‘purposely’ if he desires to bring about the result.43 Accordingly, in a charge of murder committed ‘purposely’ the prosecution has to prove beyond reasonable doubt that the defendant consciously desired that result, no matter whether death is likely to occur from the defendant’s conduct.44 The Supreme Court, in United States v Bailey et al, ruled that a ‘person who causes a particular result is said to act purposefully if he consciously desires that result, whatever the likelihood of that result happening from his conduct’.45 It follows that if intention is expressed in such limited terms – ‘conscious object or purpose’ – a defendant cannot be held responsible for ‘purposely’ causing the consequence which resulted from his conduct even though he foresees it as probable, so long as it was not his purpose to achieve such consequence. Hence, if a prisoner, in an effort to escape, blows up the prison wall with knowledge that guards are present, and in so doing, one of the prison guards dies in the explosion, in the eyes of the Model Penal Code, this prisoner would not be considered as ‘purposely’ having murdered the guard, no matter how clearly he may have foreseen the death of the guard.46 Even if the prisoner was virtually certain of the consequence which might occur from his prohibited conduct, he still could not be criminalised as acting ‘purposely’ with respect to that consequence. In such cases, and according to § 2.02(2)(b) the defendant will be held guilty for knowingly causing such results.47

ii  ‘Purpose’ with Regard to the Attendant Circumstances Under the Model Penal Code, ‘purpose’ as a culpable mental state has two alternative meanings, depending on whether it is related to a result or a circumstance element. According to § 2.02(2)(a)(ii), a person acts purposely with regard to attendant circumstances if ‘he is aware of the existence of such circumstances or he believes or hopes that they exist’.48 For example, if D poisoned V’s food in 42   Volker Krey, Deutsches Strafrecht: Allgemeiner Teil, Teil II (German Criminal Law: The General Part) (Stuttgart: Kohlhammer, 2003) 109. 43   For more details on intention or Vorsatz in German criminal law see, Mohamed Elewa Badar, ‘Mens Rea – Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 International Criminal Law Review 203, 220–34. 44   Model Penal Code, § 210.2(1)(a). 45   United States v Bailey et al, above (n 3); US Lexis 69, 7 November 1979; argued 21January 1980; decided, 632; See also United States v United States Gypsum Co, above (n 34). 46   George Fletcher used this hypothetical situation in order to distinguish ‘intention’ from ‘recklessness’. He asserted that ‘in legal system across the Western world, the concept of “intention” is interpreted broadly to include these probable side-effects of intentional conduct’. He added ‘this willingness to sweep in probable side-effects is what generates the problem of demarcation relative to recklessness. If the side-effects are not very probable-say, there are no guards visible at the time of the explosion-the killing might well be considered reckless rather than intentional’. See George P Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) 443. 47   See Model Penal Code, § 210.2(1). The Model Penal Code includes a form of recklessness that is sufficient mental state for murder. 48   Model Penal Code, § 2.02(2)(a)(ii).

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order to murder him, D has acted ‘purposely’ regarding the attendant circumstances that the quantity of the poison used is sufficient to cause V’s death if: (i) he was aware it was sufficient; or (ii) he believed or hoped that it would be. The Code’s assertion that ‘purpose’ with regard to circumstance is satisfied either by belief or by hope that the circumstance exists, remains subject to different interpretations. On the one hand, it has been understood that ‘the Code provides that a person can act with “purpose” towards a circumstance without believing (or even recklessly suspecting, or negligently failing to suspect) that the circumstance exists’.49 On the other hand, it is possible that this ‘hope’ provision was employed in order to lower the threshold of the culpability required as to the circumstance element. That is to say, in the above hypothetical example (murder by poisoning), the prosecution has to demonstrate that the defendant, when he acted, believed that there is a chance that the circumstance exists, and that belief was part of the defendant’s reason for acting. In the words of Glanville Williams, ‘hope is desire in circumstances of low probability, and it is sufficient for intention’.50

B ‘Knowingly’51 In the criminal law of the United States, knowledge arises as a mens rea issue in the following situations: (i) it is sometimes required by the definition of a particular crime; and (ii) it is sometimes considered as a determining factor in establishing a different required state of mind, such as intent, wilfulness, or malice.52 Generally, the prosecution must prove that the defendant had knowledge of facts which would make the conduct illegal, but ordinarily is not required to prove the defendant’s awareness of the legal consequences of the conduct (eg, that the conduct was illegal).53 Under the Model Penal Code, the distinction between acting ‘purposely’ and ‘knowingly’ is very narrow. Knowledge that certain circumstances or facts exist is a common element in both conceptions.54 Both ‘purposely’ and ‘knowingly’ refer to the actor’s subjective state of mind. Yet, the presumption that a person intends the natural or probable consequences of his acts is not the Code’s culpability test.55 According to § 210.2(1) of the Model Penal Code, ‘purposeful’ or ‘knowing’ 49  Kenneth W Simons, ‘Does Punishment for “Culpable Indifference” Simply Punish for “Bad Character”? Examining the Requisite Connection between Mens Rea and Actus Reus’ (2002) 6 Buffalo Criminal Law Review 219, 239. 50   Glanville Williams, The Mental Element in Crime, above (n 31) 19. 51   Model Penal Code, § 1.13 provided that: ‘knowingly’ has the meaning set out in § 2.02 and equivalent terms such as ‘knowing’ or ‘with knowledge’ have the same meaning. 52   United States v Hilliard, 31 F 3d 1509 (10th Cir 1994). 53  ibid. 54   See the Model Penal Code § 2.02(2)(a)(ii) and (b)(i). One scholar questioned ‘would it not suffice to define “purpose” with respect to results, and then simply provide that when “purposely applies to circumstance element, it means “knowledge”?’, see Kenneth W Simons, ‘Should the Model Penal Code’s Mens Rea Provisions be Amended?, 1 Ohio State Journal of Criminal Law (2003-2004) 179, 182. 55   Model Penal Code and Commentaries, above (n 13) § 210.2, Comment, 20–21.

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homicide may not be classified as murder merely on a finding that the defendant purposely or knowingly did something which had death of another as its natural and probable consequence.56 Rather, the prosecution must establish beyond reasonable doubt that the defendant engaged in conduct with the conscious objective of causing the death of another or at least with awareness that the death of another was practically certain to result from his act.57 The essence of the narrow distinction between acting purposely and knowingly is the presence or absence of a positive desire or purpose to cause the result. To put it differently, ‘purpose requires a culpability beyond the knowledge of a result’s near certainty’.58 According to the Code, a person acts knowingly with respect to a result if it is not his conscious objective, yet he is practically certain that his conduct will cause that result.59 The term ‘practically certain’ as provided for in the Code emphasises that mere foresight of a probability of a result is not sufficient to hold a person criminally liable under § 2.02(2)(b). As far as conduct and attendant circumstances are concerned, the Code considers that a person acts knowingly ‘if he is aware that his conduct is of that nature or that such circumstances exist’.60 Surprisingly, the Model Penal Code’s ‘knowingly’ provision disregards any volitional element with respect to conduct, result or circumstances. It is indeed plausible to interpret § 2.02(2)(b) of the Model Penal Code so as to encompass an element of ‘acceptance’ on the part of the accused with regard to the consequence element. One commentator suggested such an interpretation: When someone acts knowingly, she also acts acceptingly. The knowing actor engages in conduct even though she is aware that a circumstance exists or that a result is practically certain. When a person acts with knowledge, the hypothetical question that measures acceptance – would she acted had she known – is answered conclusively, because she did know. The conclusive answer is ‘yes, she would have acted’, because actually being aware that the circumstance existed or that the result was practically certain, she did act.61

Another point which deserves special attention is that the definition of knowledge as to the circumstance element must be derived from two different provisions in the Code: the basic definition ‘aware that such circumstances exist’, as provided for in § 2.02(2)(b)(i); and ‘aware of high probability of its existence’ as set out in § 2.02(7). This point will be discussed and examined below. 56   However, not all courts applied the same language of § 210.2(1), or even benefited from § 2.02 which abandoned the ill and confusing concepts such as malice, aforethought, general intent and specific intent. 57   Model Penal Code and Commentaries, above (n 13) § 210.2, Comment, 20–21. 58   Paul H Robinson and Jane A Grall, ‘Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond’ (1983) 35 Stanford Law Review 681, 694. 59   Model Penal Code, § 2.02(2)(b)(ii). 60   Model Penal Code, § 2.02(2)(b)(i) (emphasis added). See Robinson and Grall, above (n 58) 681, 693, fn 49 (listing 31 American jurisdictions that have substantially adopted by statute the Model Penal Code’s distinctions in this regard). 61   Alan C Michaels, ‘Acceptance: The Missing Mental State’ (1998) 71 South California Law Review 953, 963.

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i  Stretching the Definition of Knowledge with Regard to the Attendant Circumstance Section 2.02(7) of the Model Penal Code defines knowledge of a fact broadly to include not only actors with actual knowledge, but those who are aware of a high probability that the fact exists. Section 2.02(7) provides that: Requirement of Knowledge Satisfied by Knowledge of High Probability: When knowledge of the existence of a particular fact is an element of an offence, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.62

The drafters of the Code made it clear that they defined knowledge – as provided for in the foregoing provision – in order to address the situation that British commentators have denominated ‘wilful blindness’ – the case of the defendant who is aware of the probable existence of a material fact but does not determine whether it exists or does not exist.63 Contrary to the common law’s approach to ‘wilful blindness’, the Model Penal Code does not require the defendant to have ‘purposely avoided’ or ‘wilfully shut his eyes’ to the fact in question.64 In so doing, the Code avoids equating knowledge with negligence. The reason is that the jury could easily translate the notion that the defendant consciously avoided the truth into the idea that the defendant should have known the truth.65 Apparently, the drafters of the Code understood the ‘wilfully blind actor’ to be one who acts with a high level of awareness of a particular fact.66 In United States v Jewell,67 the dissenting judges were of the opinion that ‘[i]t is not culpable to form “a conscious purpose to avoid learning the truth” unless one is aware of facts indicating a high probability of that truth’.68 Thus, in United States v Valle-Valdez,69 when a ‘deliberate ignorance jury instruction’70 was adopted the conviction was reversed by the Ninth Federal Circuit on the grounds 62   Model Penal Code, § 2.02(7) (emphasis added). It is to be noted that in United States v Leary 395 US 6 (1969) and United States v Turner 396 US 398 (1970) the Supreme Court has approved the use of § 2.02(7) of the Model Penal Code. 63   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 248. ‘The Code proposes that the case be viewed as one of acting knowingly when what is involved is matter of existing fact, but not when what is involved is the result of the defendant’s conduct’; ibid, 248. 64   Jonathan L Marcus, ‘Model Penal Code Section 2.02(7) and Willful Blindness’ (1993) 102 Yale Law Journal 2231, 2237. 65  ibid. 66   ibid, 2235. 67   United States v Jewell, 532 F 2d 697 (9th Cir 1976). In this case J was tried under an indictment which charged him in count one with knowingly or intentionally importing a controlled substance and in count two with knowingly or intentionally possessing, with intent to distribute, a controlled substance. 68   ibid. In this case, the Ninth Circuit approved a deliberate ignorance jury instruction that required no specific level of awareness of the marijuana in question. 69   United States v Valle-Valdez, 554 F 2d 911, 914 (9th Cir 1977). 70   The Ninth Circuit held that the government can meet the burden of proving knowledge that contraband was contained in the vehicle by proving ‘beyond a reasonable doubt that the defendant acted with a conscious purpose to avoid learning the truth of the contents of the vehicle’.

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that ‘[a] deliberate avoidance of knowledge is culpable only when coupled with a subjective awareness of high probability’, and the jury was not so instructed.71 The last sentence of § 2.02(7) ‘unless he actually believes that the fact does not exist’ assures the Code’s assertion that culpability has to be grounded on a subjective theory of knowledge and not on an objective one. The three dissenting judges, in Jewell, considered the approach adopted in § 2.02(7) of the Code as satisfactory in three aspects: a. This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. b. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction.72 c. § 2.02(7) is a definition of knowledge, not a substitute for it.73 To conclude, § 2.02(7) defined knowledge, not deliberate ignorance.

ii  The Meaning of ‘Wilfully’ ‘Wilful’ (or ‘willful’) is a term frequently used in non-Model Penal Code statutes.74 The drafters of the Code were completely convinced that ‘wilful’ had far too many different meanings to be used in the Code’s precise hierarchy of culpability terms. They, however, believed that a general provision of the term would be useful since the adverb ‘wilfully’ as used in many modern statutes ‘has such extreme difference of meanings that it gives no clue to the mens rea to which it refers if it is considered alone’.75 The drafters agreed on a definition that matched the common meaning that the state and federal legislators had given the term.76 The Code provides that if a person has acted knowingly, that is sufficient to satisfy 71   United States v Valle-Valdez, above (n 69). Contra see Rollin M Perkins, ‘  “Knowledge” as a Mens Rea Requirement’ (1977–78) 29 Hastings Law Journal 953, 964 (noting that the notion adopted by courts that it is not culpable to form ‘a conscious purpose to avoid learning the truth’ unless a person is aware of facts indicating a high probability of that truth results from a failure to distinguish culpability from proof). 72   The failure to emphasise that subjective belief is the determining factor may allow a jury to convict on an objective theory of knowledge. 73   United States v Jewell, above (n 67) (emphasis in original, letters added). According to Marcus’ statistics, the Second and Ninth Circuits have cited § 2.02(7) as support for their wilful blindness doctrines and include the provision in their wilful blindness jury instructions. Other circuits have employed wilful blindness doctrines without references to § 2.02(7), and the Tenth Circuit has recently rejected it, including § 2.02(7) as a part of its wilful blindness jury instruction. See Marcus, above (n 64) 2232– 33; ‘Even those American courts that have accepted the concept of willful blindness are themselves divided on the question whether such blindness constitutes actual knowledge or instead some lesser degree of knowledge’. See Comments, ‘Willful Blindness as a Substitute for Criminal Knowledge’ (1977– 78) 63 Iowa Law Review 466, 472 (fns omitted). 74   For a thorough analysis of the term ‘wilful’ see Sharon L Davis, ‘The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance’ (1998) 48 Duke Law Journal 341. 75   See Ronald N Boyce and Rollin M Perkins, Criminal Law and Procedure – Cases and Materials 9th edn (New York: New York Foundation Press, 1999) 629. 76   Model Penal Code and Commentaries, above (n 13) § 2.02(8), Comment, 248.

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the requirements of wilfulness unless there was a demonstrated legislative purpose that it means something more.77 Accordingly, in special situations where courts have construed the threshold of wilfulness to import some additional requirement of motive or of purpose, the drafters of the Code recognise that § 2.02(8) does not apply if ‘a purpose to impose further requirements appears’.78 In Fields v United States (1947)79 the main issue raised on appeal was whether or not the word ‘wilfully’ has meaning which includes an evil or bad purpose when used in a criminal statute; and whether good faith has any bearing on the issue of wilfulness. As to the first issue, the Court of Appeals for the District of Columbia referred to its ruling in a previous case, namely, Townsend v United States,80 where it held that: The meaning of the word [wilful] depends in large measure upon the nature of the criminal act and the facts of the particular case. ‘It is only in very few criminal cases that ‘wilful’ means ‘done with a bad purpose’. Generally, it means ‘no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law’.81

Contrary to the culpability schemes provided for in the Model Penal Code, § 2.02(8) was designed to be a reaffirmation with respect to the definition of ‘wilfully’ rather than a reform of its meaning.82 However, in the past years the meaning of the term ‘wilfulness’ has been changed considerably. The modern judicial trend of defining the term requires proof of knowledge of illegality. In Bryan v United States,83 where the defendant was convicted of ‘wilfully’ dealing in firearms without a federal licence, the trial judge gave this explanation of the term ‘wilfully’: A person acts wilfully if he acts intentionally and purposely with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids.84

The jury found the defendant guilty, the defendant appealed and the Court of Appeals affirmed his conviction. The question presented before the Supreme Court was whether the term ‘wilfully’ requires proof that the defendant knew his conduct was unlawful, or whether it also requires proof that he knew of the federal licensing requirement. The Supreme Court had this to say:   Model Penal Code, § 2.02(8).   Model Penal Code and Commentaries, above (n 13) § 2.02(8), Comment, 249. One commentator has remarkably observed that, although in many sections, the Code mirrored a law reform effort rather than a restatement, it was designed to be a restatement with regard to the definition of ‘willfully’; see Davis, above (n 74) 401, fn 231. 79   Fields v United States, United States Court of Appeals, District of Columbia, 164 F 2d 97 (1947). 80   Townsend v United States, 68 App DC 223, 229, 95 F 2d 352, 358 (1938). 81  ibid. 82   Davis, above (n 74) 401, fn 231. 83   Bryan v United States, 118 US S Ct 1939 (1998). 84  ibid. 77 78

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Mens Rea in the Model Penal Code As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose’. In other words, in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’85

The Supreme Court re-emphasised that the government did not, however, need to show that the defendant knew of the specific licensing requirement he was charged with violating; proof that the defendant knew generally that his conduct was unlawful was sufficient.86

C ‘Recklessly’ Generally speaking, recklessness is the most common level at which criminal liability attaches, and it is considered the ‘default’ requisite mental state in many jurisdictions when a statute is silent with regard to the mental state required for a crime.87 The term recklessness, as used in the Code, involves conscious risk creation, an element which differentiates it from acting either purposely or knowingly. It is a state of mind distinct from intent.88 Accordingly, common law recklessness is not to be equated with civil/continental law dolus eventualis. In Germany, dolus eventualis or bedingter Vorsatz includes a volitional element. This volitional element denotes the borderline between dolus eventualis and advertant or conscious negligence.89 Under the Model Penal Code, recklessness, however, resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is, of a probability less than substantial certainty.90 Recklessness also shares some attributes with negligence. Both concepts require the existence or creation of a substantial and unjustifiable risk that circumstances exist or that a result will occur. But the reckless actor must subjectively believe that he is creating a substantial risk. In terms of the gravity of the culpability involved, recklessly falls between knowingly and negligently.

  ibid, quoting Ratzlaf v United States, 510 US 135, 137 (1994).   Bryan v United States, above (n 83). 87   Michaels, above (n 61) 959. 88   US v Trinidad-Aquino, 259 F 3d. 89   BGH St 36, 1–20 [9–10] (Bundesgerichtshof – Federal Supreme Court; official collection of judgments, vol 2, 1–20, 9–10; In the words of Fletecher, ‘dolus eventualis is defined as a particular subjective posture toward the result. The tests for this subjective posture vary; the possibilities include everything from being “indifferent” to the result, to being “reconciled” with the result as a possible cost of attaining one’s goal’. See Fletcher, Rethinking Criminal Law, above (n 46) 445–46; see also Mihajlo M Aćimović, ‘Conceptions of Culpability in Contemporary American Law’ (1965) 26 Louisiana Law Review 28, 48 (describing a Romanist law test according to which the perpetrator acted intentionally if he could have said to himself: it may be either so or different, it may happen either so or differently; anyhow I shall act). For a different opinion see Paul T Smith, ‘Recklessness in Dolus Eventualis’ (1979) 96 South African Law Journal 81 (criticising South African law to the extent that it interprets dolus eventualis as indifference rather than foresight). 90   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 236. 85 86

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The Code provides that a person acts ‘recklessly’ if (1) he ‘consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct’.91 According to the Code, a risk is ‘substantial and unjustifiable’ if ‘considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation’.92 Recklessness as provided for in § 2.02(2)(c) has both subjective and objective aspects. The risk of which the actor is aware must be substantial and unjustifiable in order for the recklessness judgment to be made.93 It is immaterial whether the risk relates to the nature of the actor’s conduct, to the existence of the attendant circumstances, or to the result that may ensue.94 In United States v Albers,95 it was held that a finding of recklessness may only be made when persons disregard a risk of harm of which they are aware.96

i  Conscious Disregard – The Subjective Component of Recklessness The requirement that the actor consciously disregards the risk is the most significant part of the definition of recklessness. It is this concept which differentiates a reckless actor from a negligent one.97 The negligent actor is a person who fails to perceive a risk that he ought to perceive. The reckless actor is a person who perceives or is conscious of the risk but disregards it.98 Hence, in many offences where the law provides that recklessness is the minimum level of culpability, negligence will not suffice. Accordingly, ‘the distinction between “conscious disregard” and “failure to perceive” will often signify the difference between conviction and acquittal’.99 Even though the Model Penal Code does not define the meaning of the term ‘conscious disregards’, the Commentary of the Code, in a comparison made between knowledge and recklessness, assists in clarifying the meaning of that term: Recklessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than substantial certainty; the matter is contingent from the actor’s point of view.100   Model Penal Code, § 2.02(2)(c).  ibid. 93   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 237. 94   ibid, Comment, 236–37. 95   United States v Albers, 226 F 3d 989, 995 (9th Cir 2000). 96   ibid, citing Farmer v Brennan, 511 US 825, 836–37 (1994) (emphasis added); see also United States v Trinidad-Aquino, 259 F 3d 1140, 1146 (9th Cir 2001). 97  David M Treiman, ‘Recklessness and the Model Penal Code’ (1981) 9 American Journal of Criminal Law 281, 351. 98  ibid. 99  ibid. 100   Model Penal Code and Commentaries, above (n 13) 2.02, Comment, 236. 91 92

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ii  Substantiality and Unjustifiability of the Risk According to the Code, in order to trigger the criminal liability for recklessness, the risk which the actor consciously disregards must be substantial and unjustifiable. The drafters of the Code assured that the threshold test should be conjunctive rather than disjunctive. The reason is that ‘substantial risks may be created without recklessness when the actor seeks to serve a proper purpose’.101 These two adjectives describing the risk add more confusion ‘for these are terms of degree, and the acceptability of a risk in a given case depends on a great many variables’.102 Accordingly, the drafters of the Code were of the opinion that some standard is needed for determining how substantial and how unjustifiable the risk must be in order to warrant a finding of culpability.103 The Commentary of the Code states that a trier of fact is asked to perform two distinct functions: First, it is to examine the risk and the factors that are relevant to how substantial it was and to the justifications for taking it. In each instance, the question is asked from the point view of the actor’s perceptions, ie, to what extent he was aware of risk, of factors relating to its substantiality and of factors relating to its unjustifiability. Second, the jury is to make the culpability judgment in terms of whether the defendant’s conscious disregard of the risk justifies condemnation. Considering the nature and purpose of his conduct and the circumstances known to him, the question is whether the defendant’s disregard of the risk involved a gross deviation from the standard of conduct that a lawabiding person would have observed in the actor’s situation.104

iii  Recklessness vis-à-vis § 2.02(7) The Commentary of the Code claimed that § 2.02(7) described ‘reckless’ rather than ‘knowing conduct’. As a comment to the Code notes, whether § 2.02(7) should be considered a knowledge or recklessness standard presents a ‘subtle but important question’.105 One scholar, however, argued that § 2.02(7) defines a hybrid mental state that falls somewhere between knowledge and recklessness.106 In an attempt to draw the border lines between the two concepts, another scholar pointed out that: Guided by the intuition that some mental states should be treated no differently from actual knowledge, the Model Penal Code drafters formulated § 2.02(7) as a definition of knowledge of fact. This decision is justified by the high level of certainty that § 2.02(7) requires. Recklessness by contrast, ‘requires a consciousness of something far less than certainty or even probability’.107   ibid, Comment, 237.  ibid. 103  ibid. 104  ibid. 105   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 248. 106   Robin Charlow, ‘Wilful Ignorance and Criminal Liability’ (1992) 70 Texas Law Review 1351, 1429. 107   Marcus, above (n 64) 2239. 101 102

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A further distinction is that mistaken belief negates culpability under § 2.02(7) but does not negate recklessness.108 The following example is illustrative of that matter. D believes the gun he points at his friend is empty (because his parents told him that the gun was rarely loaded). D pulls the trigger causing his friend’s death. D could not be convicted of knowingly shooting his friend because he was not aware of a high probability that the gun was loaded, and he actually believed the gun to be empty. D could, however, be convicted of recklessness because he consciously disregarded a substantial and unjustifiable risk that the gun was loaded.109

iv  Reckless Homicide Manifesting Extreme Indifference to Human Life The Model Penal Code includes a form of recklessness as a sufficient mental state of murder. Pursuant to § 210.2(b) of the Model Penal Code, criminal homicide constitutes murder when it is ‘committed recklessly under circumstances manifesting extreme indifference to the value of human life’.110 Reading § 210.2(1)(b) in conjunction with § 2.02(2)(c) (the general definition of recklessness), ‘reckless murder’ may be defined as the conscious disregard of a substantial and unjustifiable risk that death will result from the actor’s conduct. The risk must be of such a nature and degree that, given the nature and purpose of the actor’s conduct and the circumstances known to him, his disregard involves a ‘gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation’.111 According to the Model Penal Code, by demonstrating such indifference to the value of human life, the reckless killer, therefore, deserves to be bracketed with a killer who kills purposely or knowingly. The standard, set out in § 210.2, is subjective; it does not extend to inadvertent risk-taking. The Code’s provision makes it clear that ‘inadvertent risk creation, however extravagant and unjustified, cannot be punished as murder’.112 Hence, negligent creation of homicidal risk, even though sufficiently extreme, may not support liability for murder. The Commentary of the Model Penal Code re-emphasised that the concept adopted in § 210.2(1)(b), which includes – within the murder category – cases of homicide caused by extreme recklessness, though without purpose to kill, reflects the common law and much pre-existing statutory treatment. In order to sustain this position, the drafters referred to the following cases:   ibid, 2240.  ibid. 110   Model Penal Code, § 210.2(1)(b). The second sentence of subsection (1)(b) reads as follows: ‘Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape’. 111   Model Penal Code, § 2.02(2)(c). 112   Model Penal Code and Commentaries, above (n 13) § 210.2, Comment, 27–28. 108 109

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• On the third try, the defendant shot his friend dead in a game of Russian roulette. The Court affirmed the conviction for murder, despite ample evidence that the defendant had not desired to kill his friend.113 • The defendant shot V dead. The defendant claimed he intended to shoot over V’s head in order to scare him. The Court held that, even crediting this assertion, the jury could find the defendant guilty of murder on the grounds that his act showed ‘such a reckless disregard for human life as was the equivalent of a specific intent to kill’.114 • A defendant fired several shots into a house which he knew to be occupied by several persons. He was convicted of murder on the grounds that his conduct was ‘imminently dangerous’ and ‘evinced a wicked and depraved mind regardless of human life’.115 To sum up, under § 210.2(1)(b), the actor must perceive and consciously disregard the risk of death of another before the conclusion of reckless indifference can be drawn.116

D Negligence The fourth level of culpability provided for in the Model Penal Code is negligence. It is an exceptional level under the Model Penal Code and should be excluded as a basis unless explicitly prescribed.117 It is distinguished from other forms of culpability – purposefully, knowingly, or recklessly – in that it does not involve a state of mind or a state of awareness.118 A negligent person is not blamed for a wrongful state of mind, but instead is punished for his failure to live up to the standards of the fictional ‘reasonable person’.119 Obviously, criminal negligence is a lesser fault element than recklessness.120 Negligence under the Model Penal Code is defined in the following terms: § 2.02(2)(d): A person acts negligently with respect to a material element of an offence when he should be aware of a substantial and unjustifiable risk that the material ele113   Commonwealth v Malone, 354 Pa 180, 188, 47 A 2d 445, 447 (1946) quoted in Model Penal Code and Commentaries, above (n 13) § 2.02, Commentary, 23. 114   Myrick v State, 199 Ga 244,249, 34 SE 2d 36, 40 (1945) quoted in Model Penal Code and Commentaries, above (n 13) § 2.02, Commentary, 23. 115   Hill v Commonwealth, 239 Ky 646, 40 SW 2d 261 (1931) quoted in Model Penal Code and Commentaries, above (n 13) § 2.02, Commentary, 23. 116   Contra see the discussion that took place in the recent UK Law Commission Report on Homicide in which a proposal to assign a culpable state of ‘reckless indifference’ to the crime of second degree murder was subject to criticism by judges and academic scholars. See the Law Commission Report, Murder, Manslaughter and Infanticide, Project 6 of the Ninth Programme of Law Reform: Homicide (Law Com No 304) paras 2.99–2.107, 38–39 (28 November 2006) available at: www.lawcom.gov.uk 117   S 2.02(3) provides that, unless the kind of culpability sufficient to establish a material element of an offence has been prescribed by law, it is established if the person acted purposely, knowingly or recklessly with respect thereto. 118   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 240. 119  Dressler, Understanding Criminal Law, above (n 19) 129. 120   Conroy v State, Court of Appeal of Texas, 843 SW 2d 67 (1992).

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Degrees of Culpability under the Model Penal Code ment exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.121

The first sentence of this provision draws the boarder lines between accidents and negligence.122 In order to prove that a person acted negligently, the prosecution has to demonstrate that the defendant’s conduct implied ‘a substantial and unjustifiable risk’ of producing the relevant harm.123 The degree of risk which negligence requires is said to be ‘unreasonable’ or ‘unjustifiable’ risk of harm to others.124 The test for reasonableness in creating risk has to be determined by weighing the magnitude of the risk of harm against the utility of the actor’s conduct.125 To put it differently, ‘[t]he justification of risk depends on the balance of its costs and benefits. Its costs are the substantial risk of harm and its benefits are measured by the reasons people have for engaging in the risk’.126 Another valuable factor involved in the question of whether a particular risk is unreasonable is the extent of the defendant’s knowledge of the facts bearing on the risk.127 The explanation of LaFave and Scott is illustrative on that matter: A person may or may not create an unreasonable risk of harm to others depending upon what he knows. It has been suggested that it is peculiar to measure the risk required for criminal liability in terms of percentages of chance of harm. The reason is that the percentages of chance of harming others vary according to the social utility of the defendant’s conduct, according to what he knows of the surrounding circumstances, and according to the nature and extent of possible harm resulting from his conduct.128

The second sentence of § 2.02(2)(d) clarifies the distinction between reckless and negligent actors. A reckless actor is one who perceives but ignores the risk, while a negligent one ‘fails to be sufficiently attentive to grasp the risks entailed by his conduct’.129 In State v Howard,130 the Supreme Court of Utah clarified the distinction between these two concepts. D was convicted of two counts of criminal homicide, namely, second degree murder and manslaughter. His sole contention before the   Model Penal Code, § 2.02(2)(d).   George P Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998) 114 –

121 122

15.  ibid.   LaFave and Scott, Substantive Criminal Law, above (n 4) 327. 125  ibid. 126  Fletcher, Basic Concepts of Criminal Law, above (n 122) 114–15. According to American literature, this process of balancing the expected costs and benefits of risk-taking is labelled ‘the Learned Hand’ formula. In a celebrated tort case, Judge Learned Hand defined negligence as the taking of an unreasonable risk. Unreasonableness was defined as unjustified under the formula: expected costs versus expected benefits. 127   LaFave and Scott, Substantive Criminal Law, above (n 4) 327. 128  ibid. 129  Fletcher, Basic Concepts of Criminal Law, above (n 122) 115. 130   State v Howard, Supreme Court of Utah, 597 P 2d 878 (1979). 123 124

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Supreme Court of Utah was that the District Court erred by refusing his requested instruction on the lesser included offence of negligent homicide. The Supreme Court clarified the distinction between recklessness and negligence assuring that The difference between the minimum required mens rea of recklessness for manslaughter and criminal negligence for negligent homicide is simply whether the defendant was aware, but consciously disregarded, a substantial risk the result would happen, or was unaware but ought to have been aware of a substantial risk the result would happen.131

The remainder of the second sentence of the Model Penal Code’s definition of negligence focuses on the behaviour of a ‘reasonable person in the actor’s situation’. Addressing this point Fletcher noted that: The basic idea is that a reasonable person would have paid closer attention to the clues of danger under the circumstances. The person who drives a car should notice whether the headlights are on. The person who carries a rifle should notice whether the safety on the triggers is in the proper position. The pharmacist should notice whether poison has been correctly labelled. Driving, carrying a gun, working with poison – these are riskbreeding acts that should put one on notice. Failure to take heed can endanger what the MPC calls in § 2.02(2)(d) ‘a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.’132

Accordingly, where negligence is in question, the jury is asked to perform two distinct functions. First, the jury has to determine that the defendant created a substantial and unjustifiable risk of which he ought to have been aware. The second aspect of the criminal negligence inquiry requires the jury to decide whether the failure of the defendant to perceive the risk is a ‘gross deviation’ from the reasonable person’s standard of care, and whether such failure of perception ‘justifies condemnation’. Under the Model Penal Code approach, the jury should consider the actor’s failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned.133 Fletcher noted that negligence, as defined in the Model Penal Code, ‘distinguishes clearly between (i) the external or objective standard of an unreasonable risk and (ii) the actor-specific issue of personal responsibility running the risk’.134 He continued his observation assuring that the structure of the MPC provision traces the distinction . . . between wrongdoing and personal responsibility. The wrongdoing of negligence consists in running the substantial and unjustifiable risk of causing harm. Responsibility for running the risk is resolved by the inquiry into what a reasonable person would do under the circumstances.135

 ibid.  Fletcher, Basic Concepts of Criminal Law, above (n 122) 115–16. 133   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 240–41, fn 4. See also the dissenting opinion of Judge Shrum in State v Hernandez, Missouri Court of Appeals, 815 SW 2d 67 (1991). 134  Fletcher, Basic Concepts of Criminal Law, above (n 122) 118. 135  ibid. 131 132

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The Model Penal Code Element Analysis

V  The Model Penal Code Element Analysis In his classic study of mens rea, Francis Sayre noted that the term mens rea does not mean a single precise state of mind which must be proved as a prerequisite for all criminality.136 He pointed out that ‘mens rea, chameleon-like, takes on different colours in different surroundings’.137 ‘The truth is’, Sayre argued, ‘there is no single precise state of mind common to all crimes. . . . The old conception of mens rea must be discarded, and its place must be substituted the new conception of mentes reae’.138 Many writers have since agreed with Sayre’s conception. In his treatise on ‘General Principles of Criminal Law’, Jerome Hall noted that: Each crime . . . has its distinctive mens rea: eg intending to have forced intercourse, intending to break and enter a dwelling-house and to commit a crime there, intending to inflict a battery, and so on. It is evident that there must be as many mentes reae as there are crimes. And, whatever else may be said about intention, an essential characteristic of it is that it is directed towards a definite end. To assert therefore that an intention is ‘specific’ is to employ a superfluous term just as if one were to speak of a ‘voluntary act’.139

The Model Penal Code went further affirming that a single crime can imply different mentes reae for different material elements. That is to say, the different culpability requirements – purpose, knowledge and recklessness – may be assigned for different material elements – conduct, result and circumstances – of the same offence.140 The Model Penal Code’s approach is based on the view that, unless some element of mental culpability is proved with respect to each material element of the offence, no valid criminal conviction may be obtained.141 In so doing, the drafters of the Code firmly established ‘element analysis’ in place of ‘offence analysis’. Under offence analysis, a crime has one state of mind requirement. The Model Penal Code, however, adopted an element analysis approach. Under the rubric ‘prescribed culpability requirement applies to all material elements’, § 2.02(4) stipulates: When the law defining an offence prescribes the kind of culpability that is sufficient for the commission of an offence, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offence, unless a contrary purpose plainly appears.142

136   Francis B Sayre, ‘The Present Signification of Mens Rea in the Criminal Law’ [1939] Harvard Legal Essays 399. 137   ibid, 402. 138   ibid, 404. See also Hall, General Principles of Criminal Law, above (n 2) 74–75. 139  Hall, General Principles of Criminal Law, above (n 2) 142. 140   Robinson and Grall, above (n 58) 687. See also Wechsler, ‘Codification of Criminal Law in the United States’, above (n 8) 1436–37. 141   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 229, fn 1. 142   Model Penal Code, § 2.02(4).

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The crime of burglary as defined in § 221.1 of the Model Penal Code is illustrative in this regard. The offence includes one who ‘enters a building . . . with the purpose to commit a crime therein’. The Code’s provisions make burglary a felony of the second degree if the offender carried out this offence ‘in the dwelling of another at night’. According to the Commentary: Since the actor must have a ‘purpose’ to commit a crime within a building to be guilty of burglary when he enters the building, the definition of the offence might be thought ambiguous as to what culpability levels applies to elements like ‘dwelling house’ and ‘night’. Must the actor know that he is entering a dwelling house in order to be convicted of a second-degree felony, or is some lesser culpability level sufficient?

Reading § 2.02(3) in conjunction with § 2.02(4) and applying it to the offence of burglary, the Commentary concluded that the phrase ‘with purpose to commit a crime therein’ plainly does not make ‘purpose’ the required level of culpability with regard to all the material elements of that offence.143 Thus, both knowingly and recklessly are mental states sufficient to cover the circumstantial elements mentioned above – ‘dwelling house’ and ‘night’. It is to be noted that § 2.02(4) should be read in conjunction with § 1.13(9) and (10) where both the ‘element of the offence’ and the concept of ‘material element’ are exclusively defined. ‘Element of the offence’ is defined to include conduct, attendant circumstances or results that are included in the description of the offence; that establish the required kind of culpability; that negate an excuse or justification for an offence; or that negate a defence under a statute of limitations or establish jurisdiction or venue.144 ‘Material element’, however, is defined to include all elements except those that relate exclusively to statutes of limitation, jurisdiction, venue and the like.145 The ‘material elements’ of offences are thus those characteristics (conduct, circumstances, result) of the actor’s behaviour that, when combined with the appropriate level of culpability, will constitute the offence. It is worth pointing out that the Model Penal Code’s element analysis eliminates the need for separate bodies of law, such as mistake and accident, by demonstrating that these apparently independent doctrines are actually concerned with culpability as to particular objective elements.

VI  Mistake of Fact and Mistake of Law The Model Penal Code recognises ignorance or mistake, whether related to fact or law, as a defence to the extent that it negates a required level of culpability or   Model Penal Code and Commentaries, above (n 13) § 2.02, Comment, 246.   Model Penal Code, § 1.13(9). 145   Model Penal Code, § 1.13(10). 143 144

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establishes a state of mind that is considered a defence by law.146 This is explicitly provided for in § 2.04(1) of the Code in which ignorance or mistake as to a matter of fact or law are recognised as defences if a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offence; or b. the law provides that the state of mind established by such ignorance or mistake constitutes a defence.147

A  Ignorance or Mistake vis-à-vis Culpability Requirement In practice, and where a mistake of fact or law is raised as a defence, a trier of fact should not apply § 2.04(1) solely, as this section must be read in conjunction with other provisions set out in the Code. Take, for example, the crime of rape, which is defined under § 213.1(1)(a) of the Model Penal Code in the following terms: A man who has sexual intercourse with a female not his wife is guilty of rape if he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.148

Evidentially, the level of culpability required to establish the material element of rape is not explicitly prescribed in the above definition. In such situations, and according to § 2.02(3) (Culpability Required Unless Otherwise Provided), such an element is established if the defendant acts purposely, knowingly or recklessly as to each material element. Moreover, under § 2.02(9) (Culpability as to Illegality of Conduct), no culpability at all is required to be proven on the part of the defendant as to the conclusion whether a given conduct amounts to rape or as to the existence, meaning or application of the law in determining the elements of rape.149 Thus, where a defendant claims, in a defence to a charge of rape, that he believed his victim had voluntarily consented to sexual intercourse, even though, in fact, she did not, the defendant would have a defence under § 2.04(1) with regard to this type of mistake on the following grounds: a. since the material element of rape is that the defendant did ‘compel’ his victim to engage in sexual intercourse; b. applying § 2.02(3) to the crime in question, the defendant must be at least reckless in carrying out the material element (compelling the victim to engage in sexual intercourse); 146   Model Penal Code and Commentaries, above (n 13) § 2.04, Comment, 268. The same view is endorsed by Glanville Williams: ‘[a] mistake occurs when the defendant does not realise that a particular element of the offence is present, but believes that some other fact is present instead. The so-called defence of mistake is, therefore, denial of knowledge; and since knowledge of the material elements of the offence is part of the notion of intention, it is a denial of intention’. See Glanville Williams, The Mental Element in Crime, above (n 31) 16. 147   Model Penal Code, § 2.04(1). 148   Model Penal Code, § 213.1(1)(a). 149   Model Penal Code, § 2.02(9).

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c. to the extent the defendant demonstrated that his belief and the circumstances under which it was formed negated the required recklessness, he would have a defence under § 2.04(1).150 The second type of mistake the defendant might claim is that he believed that the woman with whom he had sexual intercourse was his wife, though, in fact, she was not because of the defendant’s misconstruction of, or ignorance of the existence of, a law determining his eligibility to remarry.151 The same test has to be followed with regard to this type of mistake: a. since it is a material element of rape that the victim not be the defendant’s wife; b. since recklessness is the culpability level required with respect to that element; c. therefore, if a mistake about eligibility for marriage negated the required finding of recklessness on this point, the actor would not be guilty of rape, irrespective of whether the mistake is characterized as a mistake of ‘law’ or a mistake of ‘fact’. The third type of mistake is that the defendant believed his conduct was not rape, because he thought that securing sexual intercourse by threat to harm the victim’s daughter did not amount to rape. This type of mistake would be insignificant because it has no logical relevance to any culpability level established by the law defining the offence or by any other law.152

B  Belief that One is Committing a Different Crime The Model Penal Code approach is that a defendant should not be held liable for more serious consequences than that for which he had the requisite culpability, nor should he be held liable for a more serious crime if no such crime has, in fact, occurred.153 Subsection 2.04(2) is designed to deal with special cases where the defendant claims a mistake, but where the criminal offence still would have occurred had the situation been as the defendant believed. This is explicitly set out in § 2.04(2) of the Model Penal Code: Although ignorance or mistake would otherwise afford a defence to the offence charged, the defence is not available if the defendant would be guilty of another offence had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offence of which he may be convicted to those of the offence of which he would be guilty had the situation been as he supposed.154

Evidentially, § 2.04(2) calls on full and consistent adherence to the mens rea principle. The Code totally rejects the view that, once one commits some crime with   Model Penal Code and Commentaries, above (n 13) § 2.04, Comment, 269–70.  ibid. 152   ibid, 270. 153   ibid, Comment, 274. 154   Model Penal Code, § 2.04(2). 150 151

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some mens rea, one is liable for all criminal actions that result, regardless of mens rea. The Code holds the actor liable only for the crime he believed he was committing. The drafters of the Code explained the aforementioned provision in the following words: If the mistake of fact defence were denied altogether, an actor culpable in respect to one offence could be convicted of a much more serious offence. On the other hand, the defendant should not go free, for on either view – the facts as they occurred or as the defendant believed them to be – a criminal offence was committed.155

The offence of burglary is illustrative of that matter. Under § 221.1(1)(2) of the Code, burglary is a felony of the third degree if the actor enters a building or occupied structure with purpose to commit a crime therein. Burglary is a felony of the second degree, however, if it is committed in the dwelling of another, and the entry was at night.156 Suppose that an actor with the requisite purpose enters a building at night and that the building is a dwelling house. If the defendant claims, in a defence to a charge of burglary of the second degree, that he believed the building was a store, according to § 2.04(2), he could be convicted only of a third degree felony.157 In United States v Maria Cordoba-Hincapie, the Court observed that the Code’s analysis with respect to § 2.02(4) applied not only to mistake as to the type of offence but also to mistakes implicating the grading of offences.158 The Court based its observation on the following grounds. First, § 1.13(10) and its Explanatory Note defined the concept of material element to include all elements not relating to ‘statute of limitations, jurisdiction, venue’ or other matters not related to the harm sought to be prevented or to justification and excuse. Secondly, the Explanatory Note of § 2.04 assured that the defendant cannot be convicted of a grade or degree of offence higher than the offence of which he could have been convicted had the situation been as he supposed.159 Thirdly, the ruling of Utah Supreme Court in State v Elton, where it is stated: ‘To hold one liable for a greater crime which he actually sought to avoid committing on the ground that he committed a lesser crime turns the doctrine of lesser included offences on its head and raises fundamental questions which may have constitutional implications’.160

C  Belief in Legality of Conduct Section 2.04(3) of the Code provides a carefully and properly drawn recognition of a defence based on reasonable reliance on a statute, judicial decision, administrative   Model Penal Code and Commentaries, above (n 13) § 2.04(2), Comment, 272.   Model Penal Code, § 221.1(2). 157   Model Penal Code and Commentaries, above (n 13) § 2.04(2), Comment, 272. 158   United States of America v Maria Cordoba-Hincapie, above (n 18) (7 July 1993, Decided and Filed). 159  ibid. 160   State v Elton, 680 P 2d 727, 730–31 (Utah Sup Ct 1984) quoted in United States of America v Maria Cordoba-Hincapie, above (n 18) 62–63. 155 156

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order or ‘an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense’. Mainly directed to the mala prohibita offences, the categories protected ‘involve situations where the act charged is consistent with entire lawabidingness of the actor, where the possibility of collusion is minimal’.161 This subsection, however, created a limited exception to the general position of § 2.02(9) that knowledge of the illegality is not an element of the offence.

VII  Mens Rea of Accomplice Liability The classic definition of accomplice liability in United States law is expressly stated in the case of United States v Peoni.162 In this case, the Court took the view that the traditional definitions of accomplice liability have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he is in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seeks by his action to make it succeed. All the words used-even the most colourless, ‘abet’– carry an implication or purposive attitude towards it.163

There is some scant authority, usually dated, for the proposition that merely giving encouragement or assistance with the knowledge that it will promote or facilitate a crime is sufficient to sustain accomplice liability.164 Various compromises have been made in an attempt to reconcile the conflict in the case law. One such solution is that ‘knowing aid’ should be sufficient when the criminal scheme is serious in nature.165 Another recommendation was to take into account the degree to which the accomplice knowingly aided in the scheme. This confusion was seen by LaFave and Scott as a result of some uncertainty as to whether the law should be concerned with (i) [the] mental state relating to [the accomplice’s] own acts of assistance or encouragement; (ii) to his awareness of the principal’s mental state; (iii) to the fault requirements for the substantive offence involved; (iv) or some combination of the above.166

  Model Penal Code and Commentaries, above (n 13) § 2.04(3), Comment, 275.   United States v Peoni, 100 F 2d 401, 402 (2d Cir 1938). 163   ibid (emphasis added). 164   Backun v United States, 112 F 2d 635 (4th Cir 1940); United States v Eberhardt, 417 F 2d 1009 (4th Cir 1969). 165   Hanauer v Doane, 79 US 342, 20 LEd 439 (1870). 166   Grace E Mueller, ‘Note: The Mens Rea of Accomplice Liability’ (1988) 61 Southern California Law Review 2169, 2174 quoting LaFave and Scott, Handbook on Criminal Law, above (n 4) 502, 505. 161 162

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A  The Full Mens Rea Approach The Model Penal Code limits the accomplice liability to instances in which there exists the purpose of promoting or facilitating the commission of the offence.167 Section 2.06(3)(a) considers a person to be an accomplice of another in the commission of an offence if the following conditions are met: (a) with the purpose of promoting or facilitating the commission of the offense, he: (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do.168 Thus, the prosecution has to demonstrate that the accomplice has to ‘have as his conscious objective the bringing about of conduct that the Code has declared to be criminal’.169 The drafters of the Code asserted that the accomplice must have a purpose towards the proscribed conduct or the proscribed result. The drafters noted that ‘probabilities’ have an important evidential bearing on the issue at hand; however, ‘to make them independently sufficient is to predicate the liability on negligence when, for good reason, more is normally required before liability is found’.170 The drafters put it more clearly: The culpability required to be shown of the principal actor, is normally higher than negligence. . . . To say that the accomplice is liable if the offence committed is ‘reasonably foreseeable’ or the ‘probable consequence’ of another crime is to make him liable for negligence, even though more is required in order to convict the principal actor. This is both incongruous and unjust; if anything, the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent.171

To support this position, the drafters of the Code quoted Judge Learned Hand’s statement in United States v Falcone, a case concerned with vendors of sugar and malt who were charged as conspirators with their vendees of illegal distilling: There are indeed instances of criminal liability . . . where the law imposes punishment merely because the accused did not forbear to do that from which the wrong was likely to follow; but in prosecution for conspiracy or abetting, his attitude towards the forbidden undertaking must be more positive. It is not enough that he does not forego a normally lawful activity, of the fruits of which he knows that others will make an   Model Penal Code § 2.06(3)(a).   ibid (emphasis added). 169   Model Penal Code and Commentaries, above (n 13) § 2.06, Comment, 310. 170   ibid, Comment, 312. 171   ibid, fn 42. 167 168

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Mens Rea in the Model Penal Code unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome.172

Judge Hand’s observation, however, did not go without condemnation. In Backun v United States,173 it was held that accessorial liability depends not on ‘having a stake’ in the outcome of the crime, but on aiding and assisting the perpetrator. In the words of Judge Parker, ‘[o]ne who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price of the gun’.174 It is worth noting that the requirement – that an accomplice must also have the mental state required for the crime of which he is to be convicted on an accomplice theory – has been established in other documents besides the Model Penal Code.175 An accomplice may be convicted, on an accomplice liability theory, only for those crimes to which he personally has the requisite mental state. Therefore, under United States law, an accomplice needs to possess an ‘ulterior intent’ in order to be convicted, as such, of a specific intent crime. Thus, in order to incur liability for complicity in the crime of assault with intent to kill, it has to be demonstrated that accomplice shared this specific intent with the principal perpetrator. 176 The perceived importance of the accomplice having an equivalent mental state to the principle offence is manifested in death penalty statutes of certain states, which require that, in order to subject an accomplice to the death penalty, it must be demonstrated that the accomplice exhibited the mens rea of the substantive offence. As for the required mental state of the accomplice regarding the circumstance element, the drafters were of the opinion that this should better be judged by the courts on a case by case basis.177

B  Liability for Crimes of Recklessness and Negligence The full mens rea requirement provided for in § 2.06 of the MPC raised the following question: under what circumstances can an individual be regarded as an accomplice in the commission of a crime of recklessness or negligence? Addressing this point, § 2.06(4) of the Code stipulates that, when causing a particular result is an element of an offence, a person incurs accomplice liability if: (1) he was an 172   United States v Falcone, 109 F 2d 579, 581 (2nd Cir), 311 US 205 (1940) quoted in Model Penal Code and Commentaries, above (n 13) § 2.06, Comment, 316–17. 173   Backun v United States, above (n 164) 637. 174  ibid. 175   According to the criminal liability statute for the state of New York, ‘when one person engages in conduct which constitutes an offence, another is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’. 176   State v Taylor, 70 Vt 1, 39 A 447 (1989). 177   Model Penal Code and Commentaries, above (n 13) § 2.06, Comment, 311, fn 37.

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accomplice in the conduct that caused the result; and (2) he acted with the culpability, if any, regarding the result that is sufficient for commission of the offence at issue.178 Thus, in cases where the accomplice recklessly endangers life by aiding or abetting the perpetrator, he can be held criminally responsible of manslaughter if a death results, even though the perpetrator’s liability is at a different level.179 The drafters’ articulation of the applicability of subsection (4) was as follows: The most common situation where subsection (4) will become applicable is where unanticipated results occur from conduct for which the actor is responsible under Subsection (3) [of § 2.06]. His liability for unanticipated occurrences rests upon two factors: (1) his complicity in the conduct that causes the result [subsection 3], and his culpability towards the result to the degree required by the law, that makes the result criminal [subsection 4].180

Accordingly, the homicidal act is attributed to both the principal perpetrator and the accomplice, ‘with liability of each measured by his own degree of culpability toward the result’.181

C  Liability of the Accomplice vis-à-vis the Principal Perpetrator Following the modern legislation that deprives the distinction between the principal and accessories of its modern law procedural significance, § 2.06 (7) of the Model Penal Code provides that the accomplice can be prosecuted even though the alleged principal perpetrator (1) has not been prosecuted or convicted; (2) has been convicted of a different crime or degree of crime; (3) has an immunity to prosecution or conviction; (4) or has been acquitted.182 Section 2.06 of the Model Penal Code stipulates that a person is guilty of an offence if he commits it ‘by his own conduct or by the conduct of another person for which he is legally accountable or both’.183

VIII  Conclusion and General Remarks Prior to the Model Penal Code, the prevailing mental state categories in the criminal law in the United States included general intent and specific intent, malice   Model Penal Code, § 2.06(4). See also Dressler, Understanding Criminal Law, above (n 19) 494 –

178

95.   Model Penal Code and Commentaries, above (n 13) § 2.06, Comment, 321.  ibid.  ibid. 182   Model Penal Code, § 2.06 (7); see also Model Penal Code and Commentaries, above (n 13) § 2.06 Explanatory Note, 298; Comment, 327–28. 183   Model Penal Code, § 2.06(1). 179 180 181

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aforethought and dozens of confusing mens rea terms. By limiting the number of culpability terms to four – purpose, knowledge, recklessness and negligence – the Model Penal Code has brought to the criminal law in the United States more uniformity, consistency and clarity than ever before existed. These kinds of culpability as defined in § 2.02 of the Code evidenced that the predominant Model Penal Code approach is an insistence to define the mens rea terms with great clarity in order to give fair notice to potential offenders. Purpose requires that the proscribed consequence is the actor’s conscious object or that the actor is aware, or hopes and believes, that a proscribed circumstance exists. Knowledge entails that the actor is practically certain that the consequence resulted from his conduct or that the actor is aware that such circumstances exist. Recklessness requires the conscious disregard of the substantial and unjustifiable risk that such result may occur or that such circumstances exist. Negligence entails that the actor is unreasonably unaware of the substantial and unjustifiable risk that the forbidden result may occur or that the circumstances exist. These definitions assist in reducing reliance on normative judgments. Yet, ‘malice aforethought and premeditation were placed by testable phenomena such as conscious object or knowledge’.184 Both purpose and knowledge may be considered subjective (they refer to the actor’s subjective state of mind) whereas negligence may be considered objective. Recklessness, however, has both subjective (conscious disregard or aware of and consciously disregards) and objective (substantial and unjustifiable risk, gross deviation from the standard of conduct of a law-abiding/reasonable person) aspects. Knowledge, as defined under § 2.02(7) of the Model Penal Code encompasses situations in which the actor is aware of the high probability of the existence of a material fact, unless he actually believes that it does not exist. In so doing, the Model Penal Code assured that ‘[i]t is not culpable to form “conscious purpose to avoid learning the truth” unless one is aware of facts indicating a high probability of that truth’.185 As far as ‘wilfully’, ‘wilful’ or ‘wilfulness’ are concerned, § 2.02(8) of the Code provides that these mental states are satisfied if a person has acted knowingly unless there was a demonstrated legislative purpose that it requires a higher threshold of mental state (eg, purpose). Unlike the criminal law of England, the Model Penal Code considers knowledge and recklessness (reckless homicide) as sufficient mental states of murder. From a comparative criminal law perspective, this type of recklessness – reckless homicide manifesting extreme indifference to human life – is akin to the German concept of dolus eventualis. The technical definition of the latter is the following: ‘if the actor engages in life-endangering behaviour, his killing becomes intentional if he “reconciles himself” or “makes peace” with the likelihood of death’.186 184   Paul H Robinson and Markus D Dubber, ‘The American Model Penal Code: A Brief Overview’ 12, available at: Isr.nellco.org/upenn/wps/papres/137. 185  See United States v Jewell, above (n 67). 186   In establishing the requisite mens rea for the crime of murder as a Violation of the Laws or

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The culpability provisions under the Model Penal Code entail choosing to commit a wrong and that the content of the choice determines the degree of culpability.187 Another way of putting the point is to say ‘the more certain the actor is of the result or the more the actor identifies with the result as an or a means to her ends, the more culpable we deem her to be’.188 The Model Penal Code innovation of ‘element analysis’ (a single crime can employ different mens rea criteria for different material elements) remarkably eliminates the common law’s confusion about the so-called ‘offence analysis’ (each offence has one state of mind requirement). In addition, ‘element analysis’ reinforces the principal of legality by providing a precise statement of all separate elements of an offence definition. This approach (element analysis) has expressly been endorsed by the majority of American jurisdictions189 as well as by international criminal tribunals, and the ‘Elements of Crimes’ of the Statute of the International Criminal Court.190 The Model Penal Code recognises ignorance or mistake, whether related to fact or law, as a defence to the extent that it negates a required level of culpability. Section 2.04(3) of the Code provides a carefully drawn recognition of a defence based on reasonable reliance on a statute, judicial decision, or an official interpretation of the public officer defining the offence. As far as accomplice liability is concerned, § 2.06(3) of the Model Penal Code set the bar too high requiring a full mens rea approach to be proved on the part of the defendant. The idea behind that, as viewed by the drafters of the Code, is that ‘the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent’.191

Customs of War under Art 3 of the ICTY Statute, the International Criminal Tribunal for the former Yugoslavia found it useful to undertake a comparative analysis between common and continental law concepts of mens rea. It concluded that ‘reckless murder in the United States would meet the continental criteria of dolus eventualis’. See Stakić Trial Judgement, para 587. 187   Kimberly Kessler Ferzan, ‘Don’t Abandon the Model Penal Code Yet! Thinking Through Simon’s Rethinking’ (2002) 6 Buffalo Criminal Law Review 187, 191. 188  ibid. 189   Robinson and Grall, above (n 58), fn 10 and accompanying text. 190   See the discussion in ch 11 of the present study. See also the ICC ‘Elements of Crimes’ UN Doc ICC-ASP/1/3, 1st Sess (adopted by the Assembly of States Parties on 9 September 2002). 191   Model Penal Code and Commentaries, above (n 13) § 2.06, Comment, 312, fn 42.

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5 Mens Rea in German and French Criminal Law I Introduction German criminal law, like most Romano-Germanic law systems, recognises intent as being made up of two separate components: Wissen and Wollen – cognitive and volitional components. Moreover, German criminal law distinguishes between intention in the broad sense (Vorsatz) and negligence (Fahrlässigkeit). It is difficult, however, to find a notion of mens rea in German criminal law as it is known in common law countries. The reason is that subjective elements are not integrated in a unified concept of mens rea but are discussed separately. In German criminal law, the mens rea concept, or the fault element, cannot be explained properly without having regard to the three-stage structures of criminal offences.1 German criminal law strictly differentiates between three stages of evaluation of a criminal offence, namely Tatbestand (the legal elements of the offence);2 Rechtswidrigkeit (unlawfulness/wrongfulness/illegality); and Schuld (culpability).3 Accordingly, and in order to be punishable, a given conduct must fulfil the legal elements of an offence (Tatbestand), be unlawful (Rechtswidrigkeit) and there must be guilt on the part of the defendant (Schuld).4 Each of these stages will be examined and discussed in detail. 1  See in general, Volker Krey and Robert Esser, Deutsches Strafrecht: Allgemeiner Teil (German Criminal Law General Part) 4th edn (Stuttgart: Kohlhammer, 2011) 104–13. 2   Tatbestand is the shortened form of the German legal term Straftatbestand which means the sum of legal elements constituting the criminal offence in question. 3   This three-stage structure of the criminal offence in German Criminal Law was firstly proposed by Franz von Liszt in his classical Lehrbuch of 1881. Von Liszt suggested a three-sectioned concept of a crime: first, there had to be an act, secondly, this act must be unlawful, and thirdly that the unlawful act must be characterised as culpable. The same idea was developed by Ernst Beling (Die Lehre vom Verbrechen, 1906; Die Lehre vom Tatbestand, 1930). According to von Liszt and Beling, the criterion for differentiating between unlawfulness and mens rea was the purely formal separation of the objective and the subjective elements of the criminal act. See also Hans-Heinrich Jescheck, ‘The Doctrine of Mens Rea in German Criminal Law: Its Historical Background and Present Statute’ (1975) 8 Comparative and International Law Journal of Southern Africa 112, 114–15. 4   Werner F Ebke and Matthew W Finkin (eds), Introduction to German Law (The Hague: Kluwer Law International, 1996) 387. For further analysis with regard to the three-stage structure of criminal offence, see Wolfgang Naucke, ‘An Insider’s Perspective on the Significance of German Criminal Theory’s General System for Analyzing Criminal Acts’ [1984] Brigham Young University Law Review 305.

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Despite the fact that the main focus of this chapter is to discuss the concept of mens rea in German criminal law, section VII will be devoted to discussing this concept in other Romano-Germanic law systems, namely France.

II  The German Three-stage Structure of Criminal Offences A  Straftatbestand – The Legal Elements of the Offence The first stage (Tatbestand), or the legal elements of the offence, encompasses both the objective and the subjective elements of the offence. Yet a defendant fulfils the legal elements of a criminal offence if his conduct corresponds with the statutory definition of an act prohibited by the deutsches Strafgesetzbuch (dStGB) or German Criminal Code.5 For instance, § 15 of the dStGB provides: ‘Unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability’.6 At this stage, it is to be evaluated whether both the objective and the subjective legal elements of a criminal offence prohibited by a statutory provision of the StGB are fulfilled. Most notably, the subjective elements of Tatbestand comprise (1) Vorsatz, or intention, in a broad sense7 and (2) ‘further mental elements’ (besondere subjektive Tatbestandsmerkmale) will be examined and discussed in detail.8

B  Rechtswidrigkeit – Unlawfulness, Wrongfulness or Illegality The second stage, Rechtswidrigkeit or unlawfulness, is an inquiry to ascertain the presence of any grounds of legal justification. Another way of putting it is to ask the question: do grounds of legal justification intervene? If this question is answered in the negative, the act is proved to be unlawful. If the answer is in the   Krey and Esser, above (n 1) 106.   Michael Bohlander, The German Criminal Code: A Modern English Translation (Oxford: Hart Publishing, 2008) 41. It is to be noted that every provision of the Special Part (Besonderer Teil) of the StGB has to be read in conjunction with the General Part (Allgemeiner Teil) of the StGB. 7   Vorsatz in the broad sense is the generic term for different types of mental status, namely: Absicht or dolus directus in the first degree; dolus directus in the second degree; and dolus eventualis. Vorsatz translates roughly as intent, but in order to avoid any misunderstanding of that word and other key mental state definitions with common law doctrine, it is desirable to leave the German legal terms such as Absicht and Vorsatz as they stand in their original language without being translated into English. 8   The main focus of this chapter is to discuss the mens rea concept in German criminal law and not the objective elements or the actus reus (objektiver Tatbestand) of the crime. However, the objective elements of a crime can be defined as a combination of the following elements: (1) act; (2) circumstances; and (3) consequences. For more details on the objective element of crime in the German criminal law see Krey and Esser, above (n 1) 114–48; Ebke and Finkin, above (n 4) 387–88; Theodor Lenckner and Jörg Eisele, ‘Grundlagen der Strafbarkeit’ in Adolf Schönke and Horst Schröder (eds), Strafgesetzbuch Kommentar, 28th edn (München: Beck’sche Verlagsbuchhandlung, 2010) 155. 5 6

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affirmative, the act is considered as lawful despite its fulfilment of the Tatbestand.9 This concept of illegality is useful since it requires analysis of conduct suspected to be criminal (as long as the conduct in question satisfies the requirement of statutory actus reus and mens rea) from the standpoint of its potential legality. Thus, an official executioner satisfies the above-mentioned requirements of murder (the objective and subjective elements) yet is exempt from punishment because his conduct is not ‘illegal’.10 Most notably, Tatbestand (the fulfilment of the legal elements of the offence) and Rechtswidrigkeit (the unlawfulness of the act) have to be distinguished. Both are different stages of evaluation within the three-stage structure of criminal offences. This unlawfulness (Rechtswidrigkeit) is not part of the objective elements of the offence and, as a consequence, there is no need for mens rea evaluation at the present stage. Hence, the defendant could not claim that he lacks knowledge of unlawfulness (consciousness of the wrongful character of the act).11 Thus, error iuris (error as to the prohibited nature of the act) does not affect the perpetrator’s intent.12 According to the German criminal law system, the above two stages, namely Tatbestand and Rechtswidrigkeit, constitute the criminal wrong (Unrecht). Hence, if the requirements of these two stages are fulfilled, an act is considered illegal. However, the defendant cannot be held criminally liable for such an act unless culpability (Schuld) is proven on his part.13

C  Schuld – Culpability/Guilt In German criminal law, Schuld or ‘guilt’ is a constitutional prerequisite of punishment.14 Thus, the Latin maxim nulla poena sine culpa results from the principle of culpability holding constitutional rank.15 There is a consensus among German scholars that ‘punishment in the absence of guilt would abuse the offender as a mere means of deterring other potential offenders and thus violate human dignity’.16 In the words of Heribert Schumann:   Krey and Esser, above (n 1) 106.   Paul K Ryu, ‘Discussion of Structure and Theory’ (1976) 24 The American Journal of Comparative Law 602, 607. 11   Krey and Esser, above (n 1) 166. 12   ibid. See the discussion on mistake of fact and mistake of law in the section V of this chapter. 13   Johannes Wessels and Werner Beulke, Strafrecht: Allgemeiner Teil, 40th edn (Heidelberg: Müller Verlag, 2010) 144. 14   ‘Punishment implies censuring the offender and therefore presupposes guilt on his part. Though this principle is not expressly stated in the Grundgesetz (GG) (Constitution), it is nevertheless universally accepted as a constitutional principle following from Article 1(I) of the GG, which makes it binding upon state to respect and safeguard human dignity’. See Heribert Schumann, ‘Criminal Law’ in J Zekoll and M Reimann (eds), Introduction to German Law, 2nd edn (The Hague: Kluwer Law International, 2005) 398. For a critical analysis of Art 1 of the Grundgesetz which is headed (Schutz der Menschenwürde) the protection of human dignity see Nigel G Foster and Satish Sule, German Legal Systems and Law (Oxford: Oxford University Press, 2003) 214–16. 15   Krey and Esser, above (n 1) 107. 16   Schumann, ‘Criminal Law’ in Zekoll and Reimann (eds), Introduction to German Law, above (n 14) 398. 9

10

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The German Three-stage Structure of Criminal Offences Guilt, as a constitutional prerequisite of punishment, means that the offender bears the responsibility for his unlawful conduct since it was an act of self-determination on his part. This presupposes that the actor, at the time he acted, could have conformed to the requirements of the law which, in the case of a crime by commission, means nothing more than that he could have abstained from his unlawful conduct.17

At the Schuld stage, it is to be questioned whether the defendant can be blamed or personally reproached with the conduct ‘die Frage, ob dem Täter die rechtswidrige Tat persönlich vorzuwerfen ist’.18 Hence, intentional conduct is not more than an indication of the culpability of an offender. It is not a matter of responsibility for one’s immoral conduct or evil character, but a matter of guilt for the individual act (Einzeltatschuld).19 Thus, there could be criminal wrong without culpability, but no culpability could be proven without fulfilment of the legal elements of the criminal offence – ‘Auch stehen Unrecht und Schuld nicht beziehungslos nebeneinander, denn es gibt zwar Unrecht ohne Schuld, nicht aber umgekehrt strafrechtliche Schuld ohne kriminelles Unrecht’.20 Hence, if it is proved that the defendant acted intentionally (vorsätzlich) culpability still has to be proved on his part.21 In German criminal law, culpability requires blameworthiness on the part of the offender.22 This blameworthiness requires that the defendant could have avoided the criminal offence at hand.23 This was the view adopted by the Federal Supreme Court of Justice (Bundesgerichtshof) (BGH): Punishment requires culpability. Culpability means blameworthiness (Schuld ist Vorwerfbarkeit). The dishonourable condemnation of culpability denotes that the perpetrator is reproached with having acted unlawfully . . . although he could have acted lawfully, ie, he could have decided in favour of the law.24

Hence, within the context of Schuld, ‘intent has a connotation distinctive from that within the context of the actus reus or Tatbestand, where it figures as its steering factor’.25 At this stage, intent includes a consciousness of ‘surrounding circumstances’ (begleitende Umstände), the various factors that gives each concrete criminal act its distinctive mark.26

 ibid.   Wessels and Beulke, above (n 13) 144. 19   Krey and Esser, above (n 1) 107; Hans-Heinrich Jescheck and Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (Berlin: Duncker & Humblot 1996) 423; Lenckner and Eisele, above (n 8) 181. 20   Lenckner and Eisele, above (n 8) 181. 21   Wessels and Beulke, above (n 13) 144. 22   See Jescheck and Weigend, above (n 19) 407; for critical remarks see Lenckner and Eisele, above (n 8) 184 et seq; Wessels and Beulke, above (n 13) 146. 23   Krey and Esser, above (n 1) 107. 24   BGHSt (GS) 2, 194 (200) quoted and translated by Krey and Esser, ibid, 108. 25   Ryu, above (n 10) 608. 26  ibid. 17 18

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Yet, one might deduce that since culpability requires blameworthiness,27 mere intention with reference to the conduct is not sufficient to trigger the criminal culpability for intentional offences. That is to say, for instance, Vorsatzschuld is not the intention to kill or to harm; it also includes blameworthiness, or knowledge that the conduct is illegal. Thus, it has to be proven that the offender was capable of gaining insight into the unlawfulness of his conduct and was capable of behaving in accordance with this insight.28 Accordingly, the corresponding culpability in the form of intent (Vorsatzschuld) has to be proven.29 Thus, Vorsatzschuld is considered the corresponding mental element of culpability (in case of intentional wrongdoing).30 To the extent that the defendant must actually know he is acting in an immoral way, this statement is certainly questionable.31 Jerome Hall, an eminent common law commentator, had this to say: Plainly, if one knows only that a certain act was intentional, he is in no position to make any judgment of blame; to do that, one must find the defendant guilty of causing a proscribed harm and, also, exclude the doctrines of excuse and justification.32

The foregoing analysis of the three-stage structure of the criminal offence reveals that in the German criminal law, the state of mind of the defendant has to be evaluated mainly at two stages, namely, Tatbestand and Schuld.33 Therefore, the mental elements of criminal wrong have to be distinguished from elements of culpability. This is the prevailing opinion.34 The following section will discuss in depth different categories of the subjective elements of the intentional offences (Vorsatz or dolus), namely Absicht or intent in the stricto sensu; dolus indirectus indirect intent or oblique intent; and bedingter Vorsatz or dolus eventualis.

  BGHSt 2, 194 (201) vol 2, 201.   Schumann, ‘Criminal Law’ in Zekoll and Reimann (eds), Introduction to German Law, above (n 14) 398. 29   In case of negligence, culpability in the form of negligence (Fahrlässigkeitsschuld) has to be proved on the part of the accused. 30   Wessels and Beulke, above (n 13) 52–53. 31   Jerome Hall, ‘The New German Penal Code: Comment on Structure and Theory’ (1976) 24 The American Journal of Comparative Law 615, 618. 32  ibid. 33   Most notably, in 1924, Edmund Mezger suggested that the objective and material content of unlawfulness (Rechtswidrigkeit) could not be defined independently of the mental state of the offender. For more on the theory of the subjective element of unlawfulness see Jescheck, ‘The Doctrine of Mens Rea in German Criminal Law’, above (n 3) 116. 34   See Claus Roxin, Strafrecht: Allgemeiner Teil (München: Beck’sche Verlagsbuchhandlung, 1997) 257. Formerly, however, Vorsatz has been considered to be a legal element of culpability (Schuld) only and has been discussed exclusively at this third stage. For different theories, see Wessels and Beulke, above (n 13) 51. 27 28

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III  Vorsatz or Dolus in German Criminal Law As mentioned above, under German criminal law all offences can only be committed with intention (Vorsatz).35 Negligence, however gross, does not carry criminal responsibility unless a particular provision explicitly provides for its punishment (§ 15). Similar to most of the continental law countries, the Criminal Code of Germany (StGB) does not define Vorsatz nor does it give a definition for negligence (Fahrlässigkeit).36 The Reichsgericht (Court of the Reich) coined the short formula saying that ‘Vorsatz ist Wissen und Wollen’ – intention is knowledge and wilfulness.37 This general guideline on the meaning of ‘Vorsatz’ is still valid nowadays, though sometimes criticised as inexact.38 Generally speaking, Vorsatz consists of two components: Wissen and Wollen. The former is the cognitive component, whereas the latter presents the volitional component.39 Vorsatz requires present and actual knowledge (Wissen) of the material legal elements of the offence on the part of the perpetrator; mere potential knowledge is not sufficient.40 That is not to say that the perpetrator has to make conscious reflections about the material legal elements of the offence; coconsciousness is sufficient.41 This co-consciousness may be present in two forms: (1) co-consciousness based on awareness; and (2) co-consciousness based on the knowledge of the accompanying circumstances.42 Thus, Wissen requires that the perpetrator, at the time of committing the offence, is aware of all the objective elements constituting the offence in question.43 In addition to this cognitive element, the perpetrator has to carry out the prohibited act with the required intent of the crime in question. It is generally accepted in German jurisprudence that there are three different forms of Vorsatz: Absicht or dolus directus of the first degree; dolus indirectus or 35   See § 15 dStGB. Most notably Vorsatz can also be interpreted in conjunction with §§ 16, 17 (dStGB); see Detlev Sternberg-Lieben in Adolf Schönke and Horst Schröder (eds), Strafgesetzbuch Kommentar, 28th edn (München: Beck’sche Verlagsbuchhandlung, 2010) 240, 243. 36   Fahrlässigkeit translates very roughly as negligence, but unlike the Model Penal Code negligence, it also includes some cases in which the defendant is aware of the risk. 37   RGSt 51, 305, 311; 58, 247 (Official Collection of the Judgments of the Reichsgericht ‘Court of the Reich’). 38   Wessels and Beulke, above (n 13) 79–80. 39   Hans Welzel, Das deutsche Strafrecht, 11th edn (Berlin: de Gruyter, 1969) 64; Karl Lackner and Kristian Kühl, Strafgesetzbuch (München: Beck’sche Verlagsbuchhandlung, 2011) 105 et seq; Roxin, above (n 34) 364; Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch Kommentar, above (n 35) 243. 40   Krey and Esser, above (n 1) 109. 41  ibid. 42  ibid. 43   Knowledge of the objective element of the criminal offence has to be prior to or contemporaneous with the carrying out of the criminal offence. In cases where the perpetrator gained knowledge about the relevant legal elements after having committed the criminal offence (dolus subsequence) he is not criminally liable.

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dolus directus of the second degree; and bedingter Vorsatz or dolus eventualis.44 The third form of intent (bedingter Vorsatz) is to be distinguished from the common law notion of recklessness. The former requires not only that the perpetrator is aware of a risk, but that he accepts the possibility of its occurrence (volitional element). Each of these forms will be examined accordingly.

A  Absicht or Dolus Directus of the First Degree Absicht or dolus directus of the first degree is the gravest aspect of culpability in which the volition part dominates.45 In German law, it is generally assumed that an offender acts with dolus directus of the first degree if he desires to bring about the result. In this type of intent, the actor’s will is directed finally towards the accomplishment of that result.46 Absicht is also defined as a ‘purpose-bound will’.47 It is irrelevant in this type of Vorsatz whether the intended result is the defendant’s final goal or just a necessary interim goal in order to achieve the final one.48 Accordingly, dolus directus of the first degree is not synonymous with the defendant’s motive.49 The following example illustrates this: D poisoned V’s meal to profit from his insurance. In this example, V’s death is a necessary interim goal in order to realise the final goal (obtaining the insurance money). In so doing, D killed V with dolus directus of the first degree. This is the prevailing opinion among German courts and scholars.50 The same test has to be applied to § 6 of the German Code of Crimes against International Law (the crime of genocide).51 A génocidaire’s final goal (ultimate aim) is to destroy in whole or in part a group as such; his interim goal, however, is 44   The first two forms of Vorsatz are roughly equivalent to the Model Penal Code concepts of purpose and knowledge. See Alan C Michaels, ‘Acceptance: The Missing Mental State’ (1998) 71 South California Law Review 953, 1025. For further details on the mens rea concept under the Model Penal Code see Wayne R LaFave and Austin W Scott, Substantive Criminal Law, vol 1 (Minnesota: West Publishing, 1986) 296–340. 45   Otto Triffterer, ‘Genocide. Its Particular Intent to Destroy in Whole or in Part the Group as Such’ (2001) 14 Leiden Journal of International Law 399, 404. German lawyers distinguish between Vorsatz (intention) and Absicht (purpose or aim) and use the latter term to refer to the intent requirement in larceny, fraud and various forms of inchoate offences. See George P Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) 444. 46   Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch: Kommentar, above (n 35) 260. (Absicht . . . liegt nur dann vor, wenn der Handlungswille des Täters final gerade auf den vom Gesetz bezeichneten Handlungserfolg gerichtet war.) See also Lackner and Kühl, above (n 39) 113 et seq; Roxin, above (n 34) 366. 47   Krey and Esser, above (n 1) 152. 48  ibid. 49  ibid. 50   BGHSt 9, 146; 11, 173 (Official Collection of the Bundesgerichtshof ‘Federal Supreme Court’ vol 9, 146; vol 11, 173); Roxin, above (n 34) 367; Jescheck and Weigend, above (n 19) 297; Wessels and Beulke, above (n 13) 82. 51   Code of Crimes against International Law (Völkerstrafgesetzbuch) adopted by both Chambers of the German Parliament, entered into force on 30 June 2002. The text of the Code, as adopted is to be found in the Official Gazette of Germany (Bundesgesetzblatt 2002, No 42, 2254). Available online at: www.department-ambos.uni-goettingen.de/index.php/Forschung/uebersetzungen.html.

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to kill members of this group. Accordingly, both the génocidaire’s interim and final goals are carried out with dolus directus of the first degree, and neither of them is synonymous with the génocidaire’s motive. Absicht or dolus directus of the first degree requires a low intellectual threshold, but an extremely high volitional element.52 With regard to the intellectual component of this type of Vorsatz, it is sufficient that the perpetrator considers the desired result as possible. Even if the perpetrator is not fully aware that the consequences might occur, he still can be held criminally responsible for intentional conduct in the form of Absicht. Hence, the degree of probability is insignificant in this matter. The following example illustrates this issue: if D fires a rifle in the direction of V who stands a mile away, D may know perfectly well that the chance of hitting V is only one in a thousand; D may fully expect to miss V. Nevertheless, D intended to hit V (in the form of dolus directus of the first degree) if D desires to do so, if it was D’s purpose. Absicht as a type of Vorsatz is not identical with Absicht as an ulterior or specific mental element in some offences provided for in the StGB which requires besonderes subjektives Tatbestandsmerkmal, or besondere Absicht.53 That is to say, Absicht not only occurs as one of the three types of Vorsatz, but it also occurs as a special subjective element in the provision of some criminal offences.54 A requirement for besondere Absicht expressly appears in the case of theft: ‘intention of appropriation’ (§ 242 StGB); or ‘the intention to benefit unjustly’ in case of fraud (§ 263 StGB). In these types of criminal offences, the requirement of Absicht encompasses further consequences beyond the core conduct or result that constitutes the actus reus of the offence. In other words, these offences have an extended mental element (überschiessende Innentendenz).55 That is to say, in such offences a result only has to be intended and not yet achieved. This modality of crimes is quite often chosen by the legislators in order to criminalise acts which are especially dangerous because of this additional element intent.56 Hence, these types of crimes which require a specific Absicht could be categorised as ulterior intent crimes. The same modality of crimes is provided for in § 6 of the German Code of Crimes against International Law, where the actual destruction of a group as such is not a material element of the crime of genocide. The cardinal question in these types of offences is whether the perpetrator, in carrying out the enumerated acts which may constitute the material element of genocide, possessed the genocidal intent. The Federal Supreme Court of Justice (Bundesgerichtshof ) opines that Absicht has to be interpreted ‘according to the legal nature of the criminal offence and according to the purpose of deterrence the legislator pursued’.57 Yet Absicht is sometimes interpreted by the courts as dolus directus of the second degree. But   Triffterer, ‘Genocide. Its Particular Intent’, above (n 45) 405.   Wessels and Beulke, above (n 13) 82.  ibid. 55   ibid, 44; Lenckner and Eisele, above (n 8) 155. 56   Triffterer, ‘Genocide: Its Particular Intent’, above (n 45) 402. 57   BGHSt 4, 108; see also BGHSt 9, 144 and BGHSt13, 221. 52 53 54

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this is only where Absicht is not constitutive of the offence in question.58 However, in the case of murder, where Absicht is considered as a legal ingredient of the offence – where Absicht gives the offence its specific character – Absicht has to be applied in stricto sensu.59

B  Dolus Directus of the Second Degree or Dolus Indirectus The perpetrator acts with dolus directus of the second degree if he knows that his conduct will fulfil the legal elements of an offence.60 In this form of Vorsatz, the perpetrator foresees the consequence of his conduct as being certain or highly probable. This secondary consequence is not the perpetrator’s primary purpose. It may be an undesired lateral consequence of the envisaged behaviour, but because the perpetrator acts indifferently with regard to the second consequence, he is deemed to have desired this later result.61 Yet in cases of dolus directus of the second degree, the cognitive element (knowledge) dominates, whereas the volitional element is weak.62 It is not required that the perpetrator desires to bring about the side-effect in question; knowledge is sufficient.63 In such cases, the perpetrator may be indifferent or may even regret the result. This may be clarified by the following example: D places a time-bomb on an aircraft. His purpose was to cause loss of property and make an insurance claim. He is sure that a fatal crash will result from his conduct, and the crew will die, although this is not his motivation. If he still acts, D will be deemed to have wanted these killings also, but under the category of dolus directus of the second degree.64 On closer inspection, however, it is difficult to ascertain the degree of Vorsatz in cases where the perpetrator views the incidental consequences – the death of the crew – as desirable. One opinion is that if the result is not the perpetrator’s goal, although he is sure about its occurrence, it cannot constitute dolus directus of the first degree, even though the incidental consequence is desirable.65 On the other hand, if the perpetrator, while carrying out a criminal conduct, desires certain incidental consequences in addition to the primary desired consequence, he is seen to possess two Absicht. That is to say, ‘he strives for another result as well as for the alleged incidental consequences (both being his goals)’.66   Roxin, above (n 34) 370, with further references to other scholars’ opinions.  ibid.   Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch: Kommentar, above (n 35) 261 (Direkter Vorsatz liegt vor, wenn der Täter sicheres Wissen davon hat, dass sein Verhalten die Voraussetzungen eines Strafgesetzes erfüllt); Lackner and Kühl, above (n 39) 114; Wessels and Beulke, above (n 13) 83. 61   Jescheck and Weigend, above (n 19) 298 et seq. 62   Krey and Esser, above (n 1) 153; Jescheck and Weigend, ibid, 299. 63   BGHSt 18, 264. 64   In this case, dolus directus first degree does not apply because D did not aim for the crew’s death. This fatal result was neither his final goal nor a necessary interim goal. 65   Krey and Esser, above (n 1) 154. 66   ibid; Roxin, above (n 34) 367 (Absicht [muss] nicht das Motiv, den Endzweck [. . .] bezeichnen, sondern liegt auch vor, wenn der erstrebte Erfolg weiteren oder anders gearteten Zielen des Täters dient). 58 59 60

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Most notably, the BGH has argued that a perpetrator who foresees a consequence of his conduct as certain is considered to act wilfully with regard to this consequence, even if he regrets its occurrence.67 The Court also asserted that wilfulness always exists on the part of the offender where the consequences are foreseen as natural or certain. That is to say, the element of wilfulness is deemed to be present by definition.68

C  Bedingter Vorsatz or Dolus Eventualis 69 In German criminal law, bedingter Vorsatz is considered to be the usual minimum level of culpability for criminal liability and the highest disputed form of Vorsatz in national and international criminal law.70 The most controversial question is what distinguishes dolus eventualis from conscious negligence, or bewusste Fahrlässigkeit.71 There is also a need to distinguish dolus eventualis from the two forms of dolus directus, particularly with regard to some definitions of offences which require that the offender acts ‘knowingly’ or that he aims at a certain result.72 In principle, and in order to avoid any uncertainties or ambiguities which may shadow the present discussion, we have to concede that dolus eventualis, like Absicht and dolus indirectus, should comprise the two components of Vorsatz: ‘intent’ and ‘knowledge’. Thus, if one of these components is missing, dolus eventualis no longer exists on the part of the perpetrator.73 Fletcher observed that German law includes dolus eventualis within the contours of intending a particular result. Dolus eventualis, as perceived by Fletcher, is defined as ‘a particular   BGHSt 21, 283.   Ebke and Finkin, above (n 4) 388. 69   Dolus eventualis is a well known concept in most of the continental law systems. This type of Vorsatz is recognised under the Italian criminal law as dolo eventuale. Pursuant to Art 43 Italian Codice Penale, all serious crimes require proof of the mental element known as dolo, which means that the prohibited result must be both preveduto (foreseen) and voluto (wanted). According to Italian law, a result may be voluto even though it is not desired if, having contemplated the possibility of bringing it about by pursuing a course of conduct, the perpetrator is prepared to run the risk of doing so dolo eventuale. Even a small risk may be voluto if the defendant has reconciled himself to, or accepted it as a part of the price he was prepared to pay to secure his objective; see Finbarr McAuley and J Paul McCutcheon, Criminal Liabilty (London: Sweet & Maxwell, 2000) 301–03. 70   The term bedingter Vorsatz (conditional intent) is, however, misleading, because it is not the intent which is conditional; on the contrary, a conditional intent has not yet reached the threshold of ‘intent’; see Roxin, above (n 34) 374. ‘Dolus eventualis, and especially its element of will, are still a matter of dispute. On the one hand, case law concerning this element is inconsistent. . . . On the other hand, a considerable number of penal law scholars contend that dolus eventualis requires only an intellectual element, which most of them define as foresight of “concrete possibility’  ”; see Heribert Schumann, ‘Criminal Law’ in Werner F Ebke and Matthew W Finkin (eds), Introduction to German Law (The Hague: Kluwer Law International, 1996) 389–90. 71   Sometimes referred to as luxuria, Wessels and Beulke, above (n 13) 255. 72   Schumann, ‘Criminal Law’ in Ebke and Finkin (eds), Introduction to German Law, above (n 70) 389. 73   The perpetrator could still be held criminally responsible and liable for being consciously negligent. 67 68

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subjective posture toward the result. The tests . . . vary; the possibilities include everything from being indifferent to the result, to “being reconciled” with the result as a possible cost of attaining one’s goal’.74 Fletcher remarkably noted that dolus eventualis is considered an aspect of intention, not of recklessness. He concluded that recklessness (or conscious negligence, as it is called in German and Russian criminal law) requires an affirmative aversion to the harmful side-effect.75 The Leather Belt case decided by the BGH in 1957 is illustrative in this manner.76 The facts of the case can be summarised as follows: A and B intended to steal O’s money and in order to avoid O’s resistance, they tried to drug him; however, this method did not work. Hence, they decided to strangle O with a leather belt in order to prevent him from fighting. For fear of killing O, they first tried to stun him, hitting him using a sandbag in order to make him unconscious. When this failed, they strangled O with the belt until he could not move anymore. While doing so, they realised that O could be strangled to death. This insight appeared unpleasant to them; however they wanted to ‘put him out of action’ at all costs.77 The BGH affirmed A’s and B’s intent to kill in the type of dolus eventualis. The Court ruled that dolus eventualis requires that the offender ‘foresees’ the consequences ‘as possible’ ( für möglich halten) and ‘approves them’ (billigen, billigend in Kauf nehmen).78 The BGH opined that both A and B accepted the fact that O could die while strangling him and therefore approved this result. Even though approval of the result or accepting a result could be seen as a decisive criterion in distinguishing between dolus eventualis and conscious negligence, the employment of this term by the BGH is misleading. The reason is that approving the unlawful consequence implicitly requires that this consequence is desired by the perpetrator. The Court went further, asserting that even an undesired result could be approved.79 In Germany, a court will not make a finding of dolus eventualis if the accused, in addition to being uncertain whether his conduct would lead to the specific injury suffered by the victim, sincerely believed or hoped that this injury would not occur. In this case he acts negligently (negligent conduct despite the apparent possibility of harm). The sole fact that the accused has taken a particularly great risk (and even intended to cause a lesser form of harm, for example, intended to injure, but not to kill the victim) will not suffice for a conviction of intentional homicide based on a finding of dolus eventualis; even if the accused’s conduct was 74  Fletcher, above (n 45) 445–46; see also Mihajlo M Aćimović, ‘Conceptions of Culpability in Contemporary American Law’ (1965) 26 Louisiana Law Review 28, 48 (describing a Romanist law test according to which the perpetrator acted intentionally if he could have said to himself: it may be either so or different, it may happen either so or differently; anyhow I shall act). For a different opinion see Paul T Smith, ‘Recklessness in Dolus Eventualis’ 96 South African Law Journal (1979) 81 (criticising South African law to the extent that it interprets dolus eventualis as indifference rather than foresight). 75   Fletcher, above (n 45) 446. This concept of recklessness seems similar to that of the Model Penal Code, which requires conscious awareness of a substantial risk. 76   BGHSt 7, 363, quoted in Krey and Esser, above (n 1) 155. 77  ibid. 78   BGHSt 7, 368–70. 79   Krey and Esser, above (n 1) 155.

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in fact highly dangerous and a neutral observer would not have had any doubt that the victim’s life was placed at great risk, and if the accused had the general idea that his act was probably unlawful.80 The contour of dolus eventualis was discussed by the Federal Supreme Court of Justice (BGH) in the Doner Shop Case.81 In this case, the accused disliked foreigners and in order to drive some Turkish people out of Germany, he set their doner kebab shop on fire. The consequences of the accused’s conduct were the complete destruction of the building concerned and the injury of Y who was at the shop at that time.82 The Bundesgerichtshof held that intention to kill would exist if the accused ‘considered the occurrence of the proscribed result [eg, the death of Y] to be a not entirely distant possibility and, further, [if] he approved of it or reconciled himself to it for the sake of attaining his desired goal’, that is, the removal of the Turks from Germany.83 If, on the other hand, the Court continued, the accused had ‘earnestly, and not merely in a vague way, relied on the non-occurrence of a fatal result’, he was to be acquitted of attempted homicide as he lacked the necessary intention to commit it. Yet, one might deduce that dolus eventualis, as defined by the Federal Supreme Court, has to encompass two elements; namely, knowledge of a mere possibility of the proscribed result, and a volitional element which does not reach the threshold of wilfulness. German literature, as well as courts, treated dolus eventualis differently according to the following four theories.

i  Consent and Approval Theory ‘Einwilligungs –und Billigungstheorie’ This theory is applied by the courts,84 and is usually referred to as the ‘theory on consent and approval’ (Einwilligungs – und Billigungstheorie).85 The majority of German legal scholars who ascribe to this theory use a slightly different definition for dolus eventualis. They are of the opinion that the offender must ‘seriously consider’ (ernstnehmen) the result’s occurrence and must ‘accept the fact’ that his conduct could fulfil the legal elements of the offence.86 Another way of putting the point is to say the offender must ‘reconcile himself’ (sich abfinden) to the prohibited result.87 If, to the contrary, the offender is ‘confident’ (vertrauen) and has 80   BGH, Case No 5 StR 623/95 in (Neue Zeitschrift für Strafrecht – Rechtsprechungsreport) (hereafter NStZ-RR) 323 – an East German soldier shooting (without direct intent to kill) a refugee at the Berlin Wall pursuant to standing orders ‘to annihilate violators of the border’ is not guilty of homicide; officer reading said standing order to his troops on a daily basis not guilty of instigation to commit homicide. 81   BGH NStZ 2000, 165 quoted in Greg Taylor, ‘Concepts of Intention in German Criminal Law’ (2004) 24 Oxford Journal of Legal Studies 99. 82  ibid. 83  ibid. 84   BGHSt 36, 1; 44, 99; BGH NStZ (Neue Zeitschrift fuer Strafrecht) 1999, 507; BGH NStZ 2000, 583; BGH NStZ-RR 2010, 144; BGH NStZ 2011, 210. 85   Wessels and Beulke, above (n 13) 84. 86   Roxin, above (n 34) 376. 87  ibid.

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reason to believe that the result – though he foresees it as a possibility – will not occur, he lacks dolus eventualis and acts only negligently.88 The prevailing opinions, as well as the courts’ view, show that in the case of dolus eventualis, both knowledge and wilfulness must be present. As for the requisite component of knowledge, however, it is sufficient that the offender foresees the consequences as possible; as for the component of wilfulness, the offender has to approve the result or reconcile himself to the result. But approving the result as a requirement for the volitional element in case of dolus eventualis does not mean that the defendant desired such a result. The BGH clarified this issue, asserting that this form of Vorsatz – dolus indirectus – may also be assumed. The BGH held the opinion that a defendant who approved the result in order to realise his pursued goal is considered to accept the fact that his conduct could bring about the undesired result.89 The BGH went on drawing the lines between bedingter Vorsatz or dolus eventualis and bewusster Fahrlässigkeit or conscious negligence assuring that the perpetrator who trusts in the non-occurrence of the undesired result is merely acting with conscious negligence and not with dolus eventualis.90 Additionally, when it comes to cases of homicide the approval theory is complemented by the so-called inhibition level theory (Hemmschwellentheorie). According to which, the intent to kill another person requires the perpetrator to overcome a high inhibition level. Thus, the court is more likely to accept that the accused trusted in the non-occurrence of the result. The inhibition level theory is overcome when the death of the victim is so likely that ‘only a fortunate coincidence could have averted it’ (for example, a stab into the heart).91

ii  The ‘Indifference Theory’ (Gleichgültigkeitstheorie) According to the indifference theory, the volitional element of dolus eventualis is present if the offender is indifferent to the occurrence of the result which he foresees as possible.92 This theory could be seen as similar to the ‘consent and approval theory’. In the Leather Belt Case, however, the application of the indifference theory would lead to the acquittal of the defendants as far as murder (intentional killing) is concerned. This is because the defendants were not indifferent to the death of the victim O; on the contrary, the death of O was greatly undesirable.

 ibid.   BGHSt 7, 363, 369–70. 90  ibid. 91   BGH NStZ-RR 07, 45; BGH NStZ 07, 331; BGH NStZ 2011, 210. 92  The indifference theory is supported by Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch: Kommentar, above (n 35) 265 et seq: ‘dolus eventualis ([ist] gegeben, wenn der Täter die Tatbestandsverwirklichung für möglich hält und aus Gleichgültigkeit gegenüber dem geschützten Rechtsgut in Kauf nimmt’; ibid, 266. 88 89

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iii  The ‘Possibility Theory’ The possibility theory requires that the offender must recognise a substantial or a considerable possibility that the result could materialise.93 In other words, if the defendant foresees or recognises the result as ‘concretely possible’, he acts with dolus eventualis.94 The upholders of the possibility theory argue that the envisaged possibility of a prohibited result as such should have halted the offender from acting. If he still decides to act, he should be punished for intentional conduct. Hence, pursuant to the possibility theory, Vorsatz cannot be understood as acting with both knowledge and wilfulness; rather, it eliminates the volitional component. However, it is doubtful whether the volitional element is dispensable. First, Vorsatz should comprise two components, an intellectual and a volitional component. Secondly, according to this theory, there are no borderlines to be drawn between dolus eventualis and conscious negligence. The following case illustrates this matter: X is driving his car on a country road. In spite of low visibility due to fog, he overtakes a truck. While doing so he is fully aware that his overtaking is grossly contrary to road traffic regulations as well as daredevil and perilous. Despite his awareness of the risk, X seriously trusts in his conduct not resulting in accident. However, when overtaking he causes a serious traffic accident in which an oncoming motorcyclist is killed. Did X commit manslaughter?95 According to the possibility theory, X is seen to have possessed the intent to kill (dolus eventualis) since he has realised the possibility of the result’s occurrence.96 Even though, in situations in which X had seriously trusted the non-occurrence of the result (the death of another person), and thus had not accepted this fatal result, he is still considered to possess the intent to kill (dolus eventualis) according to the possibility theory.

iv  The ‘Probability Theory’ Unlike the possibility theory, the probability theory requires awareness of a higher degree of risk – the defendant must have considered the prohibited result to be likely and probable.97 According to this theory, an offender acts with dolus eventualis if he foresees that the occurrence of the prohibited result is probable.98 The probability theory excludes the volitional element as an ingredient component of Vorsatz and is therefore subject to the same criticism of the possibility theory. The 93   Eberhard Schmidhäuser, Strafrecht: Allgemeiner Teil 2nd edn (Tübingen: Mohr Siebeck, 1975) 89; Gunther Jakobs, Strafrecht: Allgemeiner Teil, 2nd edn (Berlin, New York: de Gruyter, 1991) 269, 270. 94   See Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch: Kommentar, above (n 35) 263; Jescheck and Weigend, above (n 19) 302. 95   Krey and Esser, above (n 1) 159. 96  ibid. 97   Wessels and Beulke, above (n 13) 83–84. 98   Hellmuth Mayer, Strafrecht: Allgemeiner Teil (Stuttgart: Kohlhammer, 1967) 121; see also Jakobs, above (n 93) 270.

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probability theory has also been criticised for using a very vague criterion. Probable is defined to be ‘more than possible, but less than predominantly probable’.99 The definition reveals its vagueness; nevertheless, the probability theory would lead to the same conclusion adopted by the BGH in the Leather Belt Case. In sum, according to the established jurisprudence of the BGH, acting with dolus eventualis requires that the perpetrator perceives the occurrence of the criminal result as possible and not completely remote and that he endorses it or at least makes peace with the likelihood of it for the sake of the desired goal. In the case of extremely dangerous, violent acts, it is obvious that the perpetrator takes into account the possibility of the victim’s death and, since he continues to carry out the act, he is prepared to accept such a result.100 The volitional element (acceptance) denotes the borderline between dolus eventualis and advertent or conscious negligence. Another point that deserves particular attention is that recent court decisions of the BGH101 separate clearly between the terminological requirements of dolus eventualis as defined by court decisions and their evidentiary treatment within a criminal proceeding.102 Dolus eventualis is fulfilled if the offender recognises and approves the fulfilment of the elements of an offence as possible and does not consider it to be completely far-fetched or if he at least for the sake of the desired aim reconciles himself to the result, even if he does not want the result to occur.103 According to more recent BGH judgments which are related to serious offences such as murder and manslaughter, presence and the volitional as well as the cognitive components must be examined and substantiated by factual evidence.104 Dolus eventualis can properly be regarded as proved within the meaning of § 261 StPO (Criminal Procedure Act), where the offender commits an action which typically causes a risk. For instance, the BGH made a finding of dolus eventualis where an offender from a distance of four to five metres powerfully hurled a hatchet through a glass door knowing that a police officer was standing right behind the door, since the glass panes situated between the offender and the victim did not constitute a serious obstacle for the hatchet.105 To conclude, dolus eventualis is sufficient for all offences which do not require intention in the sense of a goal-directed action.106 According to the Introductory Act to the Penal Code (EGStGB) dolus eventualis can be ruled out in cases where the statutory definition of crimes requires a high threshold of intent. Yet, previous   Mayer, above (n 98) 121.   BGH NStZ 2011, 210; BGH NStZ-RR 2010, 144.   Compare BGH 46, 35; MDR/H 80, 812; JZ 81, 35; NStZ 84, 19. 102  Peter Cramer and Detlev Sternberg-Lieben ‘§ 15 Vorsätzliches und fahrlässiges Handeln’ in Adolf Schönke and Horst Schröder, Strafgesetzbuch Kommentar, 27th edn (München: Beck’sche Verlagsbuchhandlung, 2006) 269. 103   BGH NJW 89, 781. 104   BGH NStZ 94, 483, BGHR StGB § 212 Vorsatz, bedingter 27. 105   BGH JZ 81, 35. 106   Cramer and Sternberg-Lieben, above (n 102) 286. 99

100 101

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case law which considered dolus eventualis to be sufficient for offences requiring ‘knowledge’ has been overruled.107

IV  Fahrlässigkeit or Negligence According to the StGB, negligence (Fahrlässigkeit), however gross (for example, fahrlässige Tötung), does not carry criminal responsibility unless a particular provision provides for its punishment.108 This is clear from the words of §15 of the StGB which provides ‘Strafbar ist nur vorsätzliches Handeln, wenn nicht das Gesetz fahrlässiges Handeln ausdrücklich mit Strafe bedroht’ (‘only intentional acts are punishable, unless the law expressly threatens negligent acts with punishment’).109 Although not defined by the StGB, criminal negligence is defined as conscious or unconscious deviation from the required standard of care which causes a result prohibited by criminal law. This may occur either: (1) because the actor wrongfully does not consider the consequences of his conduct (unconscious negligence); or (2) if the actor envisaged their occurrence, because he wrongfully relied on the idea that the result would not occur (conscious negligence/culpable negligence/ culpa gravis).110 In 1921, the Leipzig Supreme Court found that the accused, Crusius, a captain of the German Army, was guilty of causing death through culpable negligence (fahrlässige Tötung). In this case, the accused acted under the erroneous assumption that his superior, Major-General Stenger, had verbally ordered the killing of all French wounded. The accused passed on this alleged order to his troop. The Court ruled that: The act of ‘will’ which in the further course of events caused the objectively illegal outcome . . . included an act of carelessness which ran contrary to his duty, and neglect of the consideration required in the situation at hand which was perfectly reasonable to expect from the accused. Had he applied the care required of him, he would not have failed to notice what many of his men realized immediately, namely that the indiscriminate killing of all wounded represented an outrageous, and by no means justifiable war manoeuvre.111

 ibid.   The advantage of this rule of construction in the dStGB and most of the continental law jurisdictions is that the legislator could simplify the code by omitting references to intentional conduct. Accordingly, where a provision is silent on the form of culpability, it would be read as requiring an intentional conduct. 109   See § 15 StGB. 110   Jescheck and Weigend, above (n 19) 568. 111  Case is reproduced in Deutscher Reichstag, Stenographische Berichte, 2568 ff; see also Claud Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (London: HF & G Witherby 1921) 151 ff. 107 108

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The Court concluded: Captain Crusius was certainly familiar with the provisions of the field operating procedures which require a written order as the basis for troop command by the higher troop leaders, as well as the drill manual which makes the written order a rule, especially concerning orders for brigades and higher. This circumstance is also not entirely without significance, particularly in view of the personality of the accused who was described as a diligent, zealous, and benevolent officer. In view of the accused’s background and personality, he should have anticipated the illegal outcome which was easily demonstrated even if his mental and emotional states at the time were to be fully taken into consideration.112

Having examined the different forms of Vorsatz in German criminal law, the following section will examine and discuss the grounds of excluding intention or guilt; namely, mistake of fact and mistake of law.

V  Grounds of Excluding Vorsatz or Schuld Generally speaking, the German Criminal Code (dStGB) distinguishes between two kinds of mistakes: namely, mistakes of fact relating to the elements of the offence (Tatbestandsirrtum, § 16 dStGB) and mistakes of law relating to the unlawfulness of the act (Verbotsirrtum, § 17 dStGB).113 The former, in so far as they correspond to the legal element of the crime in question, exclude the criminal intent (Vorsatz) regardless of whether they are reasonable, whereas the latter do not.114 Mistakes of law, however, may constitute a ground of excluding culpability (Schuldausschließungsgrund). That is to say, German criminal law does not  ibid.   Thus, the German Criminal Code explicitly departs from what is referred to in the German literature as the theory of intent (Vorsatztheorie). This theory proposes to treat knowledge of unlawfulness and knowledge of other elements of a crime equally (eg, factual elements) ‘equal treatment doctrine’. Most notably this theory was overruled by § 17 StGB. For further details on the Vorsatztheorie and the ‘equal treatment doctrine’ see Gunther Arzt, ‘The Problem of Mistake of Law’ [1986] Brigham Young University Law Review 711, 714–16. There is a third kind of mistake which is not explicitly mentioned in the German Criminal Code but highly controversial. It is known as ‘mistake of fact relating to the elements of a ground of legal justification’ (Erlaubnistatbestandsirrtum). In common law systems, mistake of fact is recognised as a defence. Where the law requires intention or recklessness with respect to some element in the actus reus, a mistake, whether reasonable or not, will negate the mens rea and therefore will be considered as an excuse. Where the law requires only negligence, then only a reasonable mistake can afford a defence since an unreasonable mistake is itself a negligent act. 114   Gunther Arzt, ‘Ignorance or Mistake of Law’ (1976) 24 The American Journal of Comparative Law 646, 649. ‘In German, unlike Anglo-American law a mistake of fact, whether reasonable or not, precludes intent’; Nigel G Foster, German Law and Legal System (London: Blackstone Press, 1993) 171. ‘Mistakes of fact include the concept of intent, and thus the grounds of justification of consent or excuse (Irrtum über Entschuldigungsgründe). Thus, if intent is a necessary element of the crime, mistake of fact, whether reasonable or not, precludes convictions for intentional crimes, which are the most common traditional types of crime. The only other ground for criminal conviction under these circumstances is negligence, in those exceptional cases where the Criminal Code expressly prescribes punishment for negligent behaviour and does not include intent as a necessary element of the crime’. 112 113

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follow the principle ‘ignorance of the law is no defence’ (error iuris nocet) which is widely recognised in common law countries. Hence, one must carefully distinguish between a factual mistake115 and a mistake of law.116

A  The Basic Distinction between Mistake of Fact and Mistake of Law As mentioned above, the first principle in German criminal law in treating mistakes is the explicit distinction between mistake of fact, which negates the defendant’s intent, and mistake of law, which does not exclude intent but concerns culpability.117 Mistake of fact occurs where the defendant mistakes one person or object for another or circumstances, whereas in the case of a mistake of law, the defendant is fully aware of all circumstances and his conduct. In the latter case, the defendant believes that his conduct does not constitute an offence, that the offence does not count in the given circumstances or that the offence does not fall into the scope of a criminal provision.118 That is to say, the defendant is not mistaken about the existence of a purely objective element with respect to the crime in question. In other words, a mistake of law occurs in situations where the defendant, though aware of all relevant details of the offence, still acts under the erroneous assumption that his conduct is within the law.119 This error cannot exclude the intent since the defendant acts knowingly and intentionally with respect to all objective elements of the offence; it may, however, affect the culpability/guilt of the defendant concerned, but in a distinct way. If the error was avoidable, a mitigation of sentence may be considered, whereas if the error was unavoidable, culpability (Schuld) of the defendant concerned shall be completely excluded with the effect that the defendant will not be convicted.120 115   Formerly, mistake of fact and mistake of law were treated equally. The so-called ‘Vorsatztheorie’ (theory of intent) proposed that the knowledge of the factual components of the offence and knowledge of the legal prohibition as such are equal elements within the concept of intent. An offender who lacks the knowledge of the legal prohibition has no consciousness of wrongdoing (Unrechtsbewusstsein); see, Arzt, ‘Ignorance or Mistake of Law’, above (n 114) 653–54. This theory is, however, overruled by § 17 dStGB which provides that it is not the intent, but the culpability/guilt which is excluded. 116  The Reichsgericht (Court of the Reich) did not distinguish between mistake of fact and mistake of law; failure to know the law meant absence of intent. The mistake of law (error as to prohibition) was acknowledged by the Great Senate of the BGH in 1952 and was subsequently introduced in the Criminal Code as § 17 dStGB. BGH 2, 194 (201); Jescheck and Weigend, above (n 19) 452. 117   This issue could be easily understood by thinking of the insanity defence. As framed in most US jurisdictions, that defence operates not by negating the intent element in the definition of an offence, but as an independent ground for denying culpability. The parallel in the context of the German mistake analysis is that mistake of law operates as an independent denial of culpability (Schuld). Most notably, some states have narrowed the scope of the insanity defence by declaring it to be a defence only if it negates the intent element in the definition of the crime in question. Eg, § 75-2-305 (Supp 1985) of the Utah Code. This Code conceptualises the insanity defence as one that excludes intent rather than as a separate defence; see Arzt, ‘The Problem of Mistake of Law’, above (n 113) 714, fn 8. 118   Foster, above (n 114) 17. 119   Matthias Neuner, ‘General Principles of International Criminal Law in Germany’ in Matthias Neuner (ed), National Legislation Incorporating International Crimes (Berlin: Berliner WissenschaftsVerlag, 2003) 105, 120. 120  ibid.

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B  Tatbestandsirrtum or Mistake of Fact A factual mistake, excluding intent, is given where the perpetrator lacks knowledge of a physical legal element of the respective criminal offence. This is set out in §16(1) of the StGB: Wer bei Begehung der Tat einen Umstand nicht kennt, der zum gesetzlichen Tatbestand gehört, handelt nicht vorsätzlich. Die Strafbarkeit wegen fahrlässiger Begehung bleibt unberührt. (Whoever, while committing the criminal offence, has no knowledge about a circumstance being part of the legal elements, does not act intentionally. The criminal liability for negligent action remains unaffected.)

The knowledge of a ‘circumstance’ as is employed in § 16 of the StGB means that the offender was not aware of at least one of the objective elements of the offence.121 It is required that the offender did not even take into account the possibility that an objective element was given.122 The following hypothetical example is illustrative: D shot dead a human being under the assumption that it was a scarecrow. In this case D is not criminally liable for intentional killing. If, however, D considered the risk that the scarecrow could be a human being, he would be liable for intentional killing in the form of dolus eventualis.123 Only full ignorance of one or more material elements of the respective offence can be considered as a mistake of fact. Most notably, German criminal law recognises two distinct natures of material elements, namely ‘descriptive’ and ‘normative’ elements.124 Descriptive legal elements of the offence describe things or events which are perceivable by means of the human senses. In this case, the perpetrator must obviously know that a body which is being shot at is not a scarecrow, but a human being. On the contrary, normative elements refer to terms which cannot be perceived but which need legal evaluation, for example, third party’s property in case of theft. In this case, mere factual knowledge does not suffice.125 Rather, the defendant has to correctly recognise the socio-legal significance of the material element in question, at least   Wessels and Beulke, above (n 13) 92.  ibid. 123   Roxin, above (n 34) 406. 124   It is rare to find a material element of a purely descriptive character. Most of them have a double nature being both descriptive and normative. For instance, within criminal law the term ‘human being’ requires a value judgement in order to determine at what time human life begins and at what time it ends. Hence, the beginning and the end of human life mark two borders; this is considered as a normative legal element which requires a value judgement. Krey and Esser observed that the legal term ‘taking away’ as employed in § 242 StGB (theft) is of a completely normative nature, and accordingly, it does need a value judgement; see Krey and Esser, above (n 1) 169. 125   ‘This is due to the psychological experience that the perception of a fact by the human senses must be transformed into a conceptual picture in order to be perceived as a definitional element of the crime’. See Albin Eser, ‘Mental Elements – Mistake of Fact and Mistake of Law’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) 889, 921. 121 122

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as a reasonable man (Parallelwertung in der Laiensphäre), the so-called ‘parallel/ comparative valuation in the sphere of a layman’.126 Accordingly, it is not required that the offender goes into complicated legal analysis, but must understand the legal element from a layman’s point of view.127 A commonly used example is the ‘beer mat case’ – the number of drinks consumed in a pub is counted by drawing signs on the beer mat. Thus, manipulating the beer mat can constitute the offence of forgery of documents, as long as the beer mat serves as a document. Although the precise legal definition of the legal element ‘document’ may be unknown to ordinary beer consumers, the law is proceeding on the assumption that a layman is able to understand the socio-legal meaning of the beer mat as a record for the consumed drinks when footing the bill. Due to the ‘parallel valuation on the sphere of a reasonable man’, the forger may be considered as acting with intent regarding all elements of forgery of documents. To make it more clear, mistakes about normative elements of the offence which require a legal evaluation (at least as a layman) are treated as mistakes of fact.128 Most notably, one important consequence in the case of a factual mistake must be stressed: since a factual mistake excludes the intent, the defendant cannot be convicted for any intentional offences. However, as the law explicitly states, liability for negligent action stands unaffected. Hence, a perpetrator shooting at a human being while believing that it is a scarecrow cannot be held liable for the intentional killing of that person, but he will still be held criminally liable for negligent killing/manslaughter.

i Error In Persona and Error In Objecto Error in persona vel obiecto is an error as to the identity of the victim or the identity of an object (for example, D kills B believing that he is A). Most notably, the error in persona vel obiecto does not affect the intent, where the persons or the objects that have been mistaken for another by the defendant are of equal value. This is the absolutely prevailing opinion in German criminal law.129 The underlying argument is that the defendant’s will was directed towards the realisation of a prohibited consequence and that his conduct caused this consequence. Hence, in this case all the subjective and objective elements of the criminal offence are fulfilled, and the mistake as to the specific identity of a person or an object is considered as an error concerning the motive (Motivirrtum), which is irrelevant to the legal elements of the offence (Tatbestand). In this case, both A and B are subjects of legal protection (Rechtsgüter) of equal value, and the conduct is directed 126   This is the prevailing scholarly opinion which is followed by the BGH (Federal Supreme Court of Justice) BGHSt 3, 248, 255. See Krey and Esser, above (n 1) 167, fn 132. 127   BGHSt 3, 248 (255); 4, 347 (352); Jescheck and Weigend, above (n 19) 295; Sternberg-Lieben in Schönke and Schröder (eds), Strafgesetzbuch Kommentar, above (n 35) 337. 128   Arzt, ‘The Problem of Mistake of Law’, above (n 113) 716. 129   Jescheck and Weigend, above (n 19) 311.

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towards the achievement of the same prohibited consequence (death of a human being). Error in persona, however, could negate the mental element in cases of lacking legal equivalence between the injured object of the act as imagined by the perpetrator and the one actually injured. The following hypothetical case illustrates this: D intended to destroy a religious group X by poisoning the main water pipe which provides this group with its daily water. D, however, has mistakenly poisoned another water pipe, causing severe casualties in group Y. Did D commit genocide? In the present hypothetical example, D has fulfilled the physical legal elements of murder by poisoning. His error to the victims’ identity does not exclude his intent with respect to the respective offence, since the lives of group X and Y are legally of equal value. On the contrary, according to § 6 of the new German Code of Crimes against International Law,130 the error in persona excludes the intent with regard to this provision (the intent of destroying as such . . . a national, racial, religious, or ethnic group). In such a scenario, group X and Y are not legally equal. D’s error in persona, therefore, leads to an error as to the legal elements of the respective offence (factual mistake, § 16 subsection 1 phrase 1 StGB). From a legal point of view, D could be held criminally responsible for attempted genocide with regard to group X, in addition to murder by poisoning (with regard to group Y). This opinion is justified on the basis that D had physically carried out an act with the requisite intent to commit genocide and forming part of a series of acts which would constitute its actual commission, if it were not interrupted (D mistakenly poisoned a water pipe that belongs to group Y whose members are not protected under the Genocide Convention).

ii  Aberratio Ictus Aberratio ictus means ‘the act goes amiss’. The Latin expression is used to describe the following situation: D shoots at B, but instead of hitting B, the bullet unexpectedly hits and kills C. The difference between error in persona/objecto and aberratio ictus lies in the fact that in the former, the offender killed the person he had individualised as a target, whereas in case of aberratio ictus, the offender does not kill the person he had individualised.131 In case of an error in persona, the offender aims to kill the person he had in his sight and he succeeds in hitting this person at target, but he was mistaken about the identity of this person. In the case of an aberratio ictus, the offender wants to kill the person he had in his sight, but he does not succeed in killing this person (for example, because his bullet was deflected) with the result that another person is killed. According to German courts and the prevailing opinion in German literature, aberratio ictus has the effect that the offender can be held criminally liable for negligence, with respect to the murdered person, and with attempted murder, with  See Völkerstrafgesetzbuch (Code of Crimes against International Law), above (n 51).   Wessels and Beulke, above (n 13) 94.

130 131

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respect to the targeted person. That is to say, D is not criminally liable for the intentional killing of C, but for the negligent killing of C and for the attempted killing of B.132 A minority opinion, however, considered D criminally liable for the intentional killing of C.133 This opinion argued that D killed a subject of legal protection of the same value (both B and C are human beings). Thus, the minority opinion wants to apply the same reasoning as in case of error in persona vel obiecto. The minority opinion overlooked the decisive difference between error in persona and aberratio ictus. In the former, the offender had the same person in his sight that he killed in the end. Therefore, there is no relevant deviation from the causal course of events the offender expected. In case of aberratio ictus, however, the deviation from the planned or envisaged course of events is obvious. Hence, error in persona and aberratio ictus cannot be treated equally.134 In sum, in German criminal law the mental state of the defendant must be present in relation to all material elements of the respective offence. Accordingly, mistake of fact is considered to be a circumstance which may negate the intent to commit the crime under consideration. 135

C  Mistake of Law As noted above, German criminal law does not follow the principle error iuris nocet.136 Notably, German criminal law recognises that a mistake of law can exclude the criminal responsibility. This is explicitly laid down in § 17 StGB, a provision dealing with error as to the prohibition (Verbotsirrtum). If the offender is mistaken about the unlawfulness of his act, he may escape criminal liability. However, the legal requisites of § 17 StGB have to be fulfilled, particularly that the mistake must have been ‘unavoidable’. It should be mentioned that due to the high threshold of unavoidability, mistakes of law rarely occur in praxi. This is because everybody should know the law and the criminal offences provided for in the criminal code (public policy consideration).

i  Verbotsirrtum (Error as to the Prohibition) An error as to the prohibition does not affect the Vorsatz, but it may exclude the culpability (Schuld). This is expressly provided for in § 17 StGB, which is headed ‘error as to the prohibition’: 132   BGHSt 34, 55; Roxin, above (n 34) 437; Jakobs, above (n 93) 303; Wessels and Beulke, above (n 13) 94. 133   I Puppe, Goldthammer’s Archiv (1981) 1. 134   Jescheck and Weigend, above (n 19) 313. 135  Hans-Heinrich Jescheck, Lehrbuch des Strafrechts: Allgemeiner Teil, 3rd edn (Berlin: Duncker and Humblot, 1978) 245 et seq. 136   In the common law systems, ignorance of law is generally held to be no defence to criminal liability. See the discussion in ch 3 of this volume.

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Thus, an error as to the prohibition is given if the offender believes that he is acting in accordance with the law, and not committing any wrongdoing. In this case, the offender knows what he is doing; he is not mistaken about his factual conduct; however, he is convinced about the lawfulness of his conduct.137 It is worth pointing out that German criminal law differentiates between two different types of error as to the prohibition, namely: (1) a direct error as to the prohibition (direkter Verbotsirrtum); and (2) an indirect error as to the prohibition (indirekter Verbotsirrtum).138 The former describes a situation where the offender either does not know the criminal law provision prohibiting the act or that he misinterprets the criminal law provision and believes that it does not apply. 139 An ‘indirect error as to the prohibition’ is given if the offender erroneously believes that his conduct is justified under certain legal provisions (for example, self-defence). In this case, the offender either assumes a legal provision excluding liability which does not exist (is not recognised in criminal law) or he misinterprets a ground of excluding criminal liability which does exist but does not apply in the given situation.

ii  An Error as to the Prohibition may Exclude the Culpability (Schuld) According to § 17 of the StGB, it is necessary that the mistake as to the prohibition could not have been avoided. Therefore, errors as to the prohibition have to be further examined as to their avoidability. The law proceeds on the assumption that if the error as to the prohibition could not have been avoided by the offender, the offender cannot be blamed for his conduct which he believed was lawful. Since the issue of blameworthiness is a matter of the ‘third stage’ according to the threestage structure of the offence in German criminal law, an unavoidable error as to the prohibition excludes the culpability. To the contrary, if the offender could have avoided the error as to the prohibition, he is to be blamed for his unlawful conduct. Therefore, according to § 17 of the StGB, culpability is not excluded. However, mitigation of punishment is possible. The punishment may be mitigated because the offender, though acting against the law despite the avoidability   BGHSt GrS (Great Senate) 2, 194 (197).   Jescheck and Weigend, above (n 19) 456; Wessels and Beulke, above (n 13) 168. 139   Schumann, ‘Criminal Law’ in Ebke and Finkin (eds), Introduction to German Law, above (n 70) 395–96. 137 138

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of his erroneous belief, at least did not consciously infringe the law. Therefore, it could be justified in some cases to give weight to the fact that the offender believed that he was acting in accordance with the law. Hence, errors as to the prohibition might be categorised into two different categories, namely: avoidable errors and unavoidable errors. Most notably, German courts apply a very strict standard as to the avoidability of the error as to the prohibition.140 The BGH ruled in a decision that every person must examine whether his conduct conforms to the requirements of law. The Court went on, asserting that one must ‘exert one’s conscience’.141 In situations where there are uncertainties as to the lawfulness, a duty rests on every person to make enquiries about the lawfulness or unlawfulness. This implies that a person not familiar with the law must seek legal advice; it is not sufficient to rely on one’s own doubtful interpretation of the law.142 However, wrong legal advice does not exonerate the offender as such; wrong legal advice is only relevant if the advisor was reliable and could guarantee impartial responsible legal advice.143 Due to the strict standard applied by the courts, an error as to the prohibition of law is in most cases avoidable. This is because the offender in most cases could have consulted a legal expert in order to enhance his knowledge of the law.144 In addition, it was recently held that an error of law could only be unavoidable if it was not reasonable for the suspect to refrain from the possibly forbidden behaviour until the legal question has been clarified by a court.145 Hence, § 17 StGB de facto hardly ever occurs as a ground for excluding the culpability. Most notably, the BGH ruled on the concept of Verbotsirrtum in cases involving international criminal law.146 In one of these cases, the Court convicted the East German border patrols of the killing of civilians fleeing to West Germany at the former border between East and West Germany. The Court denied that it was unavoidable that East German border guards believed in the legality of the order to shoot. The Court was of the opinion that such orders to kill which affect ‘the life as the highest legal interest’ and ‘which would be contrary to humanity need not be complied with’. The Court held that the fact the border patrols acted with regard to the order to shoot was an avoidable manner Verbotsirrtum.147 In the second case, however, the Court acquitted East German officials who had granted West German terrorists a permanent refuge in the former East Germany. The 140   In the case of special criminal law provisions which are not embodied in the German Criminal Code (StGB) but in specific statute law, the courts seem to apply a less stricter standard; Wessels and Beulke, above (n 13) 172; contra see Jescheck and Weigend, above (n 19) 459. Some criminal law provisions not embodied in the Criminal Code might be interpreted as restricting criminal liability to positive knowledge of the prohibition. 141   BGH 2, 194 (201). 142   BGH 5, 111 (284); 21, 18. 143   BGH 20, 342 (372); 40, 257 (264). 144   Ebke and Finkin, Introduction to German Law, above (n 4) 396. 145   OLG Stuttgart, NJW 2008, 243, 245; OLG Frankfurt, NJW 2011, 398, 403. 146   In addition to the cases discussed herein, see also the Catking case (Katzenkoenigfall BGHSt 35, 247). 147   BGHSt 39, 35 quoted in Neuner, above (n 119) 122–23.

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Court held that it could not be ruled out that the East German officials had acted in an unavoidable (Verbotsirrtum) because of the ‘difficult legal situation which would be dominated by scarcely outlined principles of international law’.148 The reason that the error was considered to be unavoidable was that the judges could not require that state officials in East Germany should have been aware about the laws on obstruction of justice in West Germany.149 The above-quoted judgments demonstrate that the German legal system continues to follow a differentiated approach with regard to mistakes of law in upholding the principle of guilt.150

VI  Täterschaft und Teilnahme (Perpetration and Participation) The dStGB distinguishes between a principal perpetrator (Täter) and participants or rather secondary parties (Teilnehmer).151 The definitions of perpetration (Täterschaft) and participation (Teilnahme) provided for in §§ 25–27 StGB are far from exhaustive and are subject of different interpretation.

A  Täterschaft (Perpetration) German criminal law recognises three categories of principal offenders (primary/ principal participation). This is explicitly provided for in § 25 of the StGB which is headed Täterschaft or ‘perpetration’: 1. Whoever commits the crime himself or through another shall be punished as a perpetrator. 2. If more than one person commits the crime jointly, each shall be punished as a perpetrator (co-perpetrator).152

i  § 25(1) StGB – Unmittelbarer Täter and Mittelbarer Täter The first alternative of § 25(1) – whoever commits the crime himself – speaks about unmittelbarer Täter; the direct perpetrator who physically carried out the material elements of the offence in person. The second alternative – one who commits the crime through another – is concerned with mittelbarer Täter, the   BGHSt 44, 52, 60 quoted in Neuner, ibid.   This is the first judgment in which the BGH acknowledged an unavoidable (Verbotsirrtum) in the field of international criminal law with the result that the perpetrators were acquitted. 150   Neuner, above (n 119) 122. 151   Foster and Sule, above (n 14) 330. 152   American Series of Penal Codes, The German Penal Code (Buffalo, New York: William S Hein & Co, Inc, 2002) 10. 148 149

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Hintermann or ‘indirect perpetrator’: a person who acts through the agency of another (Tatmittler). This mittelbare Täterschaft or intermediary perpetration, also known as ‘indirect perpetration’ or ‘indirect perpetratorship’, is characterised by the predominance of the Hintermann, who uses the person who physically carries out the crime (Tatmittler) as his instrument.153 However, ‘indirect perpetratorship’ is not limited to situations where the physical perpetrator is an innocent agent, or has defence such as insanity or infancy. In such cases, an innocent agent is a ‘mere machine whose movements are regulated by the principal’.154 Rather, the notion of indirect perpetration applies even where the direct and physical perpetrator is criminally responsible (‘indirect’ perpetrator behind the ‘direct’ perpetrator).155 The finding of the BGH in the Sirius case gives a very interesting example of the offender who uses an ‘instrument’ person against herself. It is necessary in this regard to reproduce the summary of the case, as translated by Foster and Sule in their treatise on the German Legal System and Laws, as follows: After having become acquainted with the witness in this case, the accused told her that he was in fact an inhabitant of the planet Sirius. He convinced her that he could help her lead a new and better life, if she got rid of her ‘old’ body. He suggested she should drop a hairdryer into the water, when sitting into the bathtub. A new body would then await her in a ‘red’ room in Geneva. There she would awake after her ‘seemingly accidental death’. As she would need a lot of money for her new life he convinced her to take out a life insurance policy providing for the payment of 500 000 DM in case of accidental death, payable to the accused. He would then bring her the money to Geneva. The witness believed him(!) and dropped the hairdryer while switched on into the bathtub as instructed. However, she was not electrocuted due to the hairdryer malfunctioning. When calling the victim to check on her, the accused was surprised to find her answering the phone. For ten minutes he gave her advice on how to kill herself before abandoning the ‘hopeless’ project. At no point had the witness regarded this action as a suicide ending her life but had firmly believed it would continue it in another body. The BGH upheld the accused’s conviction for attempted murder. The main legal distinction to be drawn was whether the witness had attempted a suicide or not. In the first case the accused would not have been guilty at all as suicide is not punishable under German law. Furthermore, under law aiding and instigating are offences that are strictly accessory to the main offence, in other words, no one can be guilty of aiding or instigating the commission of an offence if the main offence does not exist in the first place. The BGH took this to be a case of § 25 I 1, 2nd alternative StGB. The accused had used the witness as a ‘tool’ against herself. The witness herself did not fulfil the subjective criteria (Subjektiver Tatbestand) of the offence of attempted murder or rather suicide, because 153   Albin Eser, ‘Individual Criminal Responsibility’ in Antonio Cassese et al (eds) The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) 793–95. 154   Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Stevens & Sons, 1961) 349–50. 155   Kai Ambos, ‘Individual Criminal Responsibility’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 478, margin 9.

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Mens Rea in German and French Criminal Law she did not think she would actually ‘kill’ herself but merely dispose of her body in order to awake in a different one. The only person in full control of the crime, satisfying all elements of the offence (Tatbestand, unlawfulness and guilt) was the accused. He was clearly in a superior role to the witness, overseeing the situation. The fact that the witness believed in the accused’s fairy tale, although she did not suffer from mental disorder, could not exonerate him.156

The notion of indirect perpetration and its application in modern criminal law, particularly in cases concerning organised crime, terrorism, white collar crime or state induced criminality, is significantly helpful ‘to bridge any potential physical distance from the crime scene of persons who must be regarded as main perpetrators because of their overall involvement and control over the crimes committed’.157 The ruling of the BGH in the Politbüro case is another example of the application of the notion of indirect perpetratorship. The judgment illustrates the main feature of that concept as well as the objective and subjective elements required: In certain groups of cases, however, even though the direct perpetrator has unlimited responsibility for his actions, the contribution by the man behind the scenes almost automatically brings about the constituent elements of the offence intended by that man behind the scene. Such is the case, for example, when the man behind the scenes take advantages of certain basis conditions through certain organisational structures, where his contribution to the event sets in the motion regular procedures. Such basic conditions with regular procedures are found particularly often among organisational structures of the State [. . .] as well as in hierarchies of command. If the man behind the scenes acts in full awareness of these circumstances, particularly if he exploits the direct perpetrator’s unconditional willingness to bring about the constituent elements of the crime, and if he wills the result as that of his own actions, then he is perpetrator by indirect perpetration. He has control over the action [. . .]. In such cases, failing to treat the man behind the scenes as a perpetrator would not do justice to the significance of his contribution to the crime, especially since responsibility often increases rather than decreases the further one is from the scene of the crime .158

ii  § 25(2) StGB – Mittäterschaft (Co-perpetration) The third form of principal participation in a criminal conduct is provided for in paragraph two of § 25 of the StGB. If more than one person committed an offence pursuant to a common plan, in the eyes of the StGB they are co-perpetrators (as opposed to secondary participants). Each of the co-perpetrators has to make a substantial contribution with regard to the commission of the respective crime. In the words of Ambos: Co-perpetration is no longer included in the complicity concept but recognized as an autonomous form of perpetration. It is characterized by a functional division of the   BGHSt 32, 38 Sirius-Fall, quoted in Foster and Sule, above (n 14) 332–33.   Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, para 21. 158   BGHSt 40, 218–240, 236, Judgment of 26 July 1994, quoted in Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, para 20. 156 157

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Täterschaft und Teilnahme criminal tasks between the different (at least two) co-perpetrators, who are normally interrelated by a common plan or agreement. Every co-perpetrator fulfils a certain task which contributes to the commission of the crime and without which the commission would not be possible. The common plan or agreement forms the basis of a reciprocal or mutual attribution of the different contributions holding every co-perpetrator responsible for the whole crime.159

There is consensus among German scholars that the notion of co-perpetration (Mittäterschaft) is based on the so-called ‘funktionelle Tatherrschaft’, or functional control over the crime.160 The vast majority of German writers adhere to this theory (as opposed to the ‘subjective theory’ discussed below) in order to draw the boundaries between perpetrators and mere accomplices. According to this doctrine, the perpetrator, as opposed to the participator, ‘objectively “dominates” the commission of an offence, ie, is in control of it and – subjectively – acts with the pertinent intent (Tatherrschaftslehre)’.161 It is worth noting that the notion of co-perpetration based on control over the crime was discussed and examined by the Yugoslavia Tribunal (the Stakić case) and the International Criminal Court (the Lubanga case). Hence, and in order to avoid any repetition, this concept will be examined and discussed in detail in chapters ten and eleven of this study.162

B  Teilnahme (Secondary Participation) Inciting (Anstiftung) and aiding (Beihilfe) are the two forms of secondary participation identified by the StGB in §§ 26 and 27, respectively. They are defined as follows: § 26 [Inciting] (1) A person will be punished as an inciter in the same way as a perpetrator if he intentionally induced another to do an unlawful act and that other has committed it intentionally. § 27 [Aiding] (1) A person will be punished as an aider if he has intentionally given assistance to another for an unlawful act which that other has committed intentionally. (2) The punishment for the assistant depends upon the punishment threatened for the perpetrator. It is to be reduced in accordance with § 49 para 1.163

In order to incur criminal responsibility for Anstiftung (inciting) or Beihilfe (aiding), it is indispensable to prove that an offence has already been committed regardless of the presence or absence of guilt (Schuld) on the part of the main offender (the person who physically committed the crime) so long as he fulfilled all other elements of the crime, namely the Tatbestand and Rechtswidrigkeit.   Ambos, above (n 155) 478, margin 8.  See Héctor Olásolo and Ana Pérez Cepeda, ‘The Notion of Control of the Crime and its Application by the ICTY in the Stakić Case’ (2004) 4 International Criminal Law Review 475, 498–508. 161   Schumann, ‘Criminal Law’ in Zekoll and Reimann (eds), Introduction to German Law, above (n 14) 406. 162   See the discussion in chs 10 and 11 of the present study. 163   § 49 StGB provides for special mitigating circumstances. 159 160

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As far as the mens rea is concerned, the instigator as well as the aider must possess a ‘double intent’. According to § 26 of the StGB, inciting requires an actual intent to instigate. Yet to instigate is ‘to evoke another person’s intent to commit an offence’.164 The ‘double intent’ prerequisite encompasses (1) the instigator’s intent to incite someone to commit an offence, and (2) the instigator’s intent with regard to the consummation of that offence.165 Difficulties arose in distinguishing between instigation as mere secondary participation and indirect perpetration (indirect perpetrator behind the direct perpetrator). The ruling of the BGH in the case of National Defence Council (Nationaler Verteidigungsrat) is a real example of an offender acting indirectly behind the ‘direct’ offender: The accused were former members of the East German National Defence Council and had participated in drafting official orders to prevent any escapes from the former East Germany across the border to the former West Germany. Any means including the fatal use of firearms had been authorized. During 1971 and 1989 seven people were shot by East German soldiers or killed by mines when attempting to escape from East Germany. After the soldiers had already been convicted of manslaughter the accused in this case were convicted for inciting the killing by the court of first instance. The BGH quashed the decision and found them guilty for manslaughter as indirect perpetrators. The Court acknowledged that, in general, there cannot be an offender acting ‘behind’ and offender. Either the person carrying out the act is fully responsible and in control, regarding it as his ‘own’ deed – then any other participant can only be instigator or a collaborating accessory – or the person carrying out the act does not fully control it and view himself to be merely participating in someone else’s offence and thus would only be a secondary participant [Subjektive Theorie]. However, the Court held that this case was an example of the few exceptional cases of an offender acting indirectly behind the ‘direct’ offender. This is possible where the indirect perpetrator’s contribution will inevitably lead to fulfilment of the offence by way of the direct perpetrator’s action because of the hierarchical organization both perpetrators are member of. Even though the direct perpetrator will act fully responsible, there is still room of liability of the indirect offender ‘behind’ him. Such hierarchical organizations would include organized crime groups as well as organizations of a state. The East German soldiers in question had already been convicted as principal offenders. Nevertheless, the members of the National Defence Council could also be convicted as offenders ‘behind’ them for drafting the order to use firearms against fugitives.166

Aiding as the weakest form of secondary participation includes ‘any physical or psychological support of committing the main offence’.167 Yet the aider must have promoted or facilitated its commission. The BGH held the view that aiding does not have to be a conditio sine qua non to the accomplishment of the offence.168   Foster and Sule, above (n 14) 334.   Schumann, ‘Criminal Law’ in Zekoll and Reimann (eds), Introduction to German Law, above (n 14) 405. 166   BGHSt 40, 218 Fall des Nationalen Verteidigungsrats, quoted in Foster and Sule, above (n 14) 334–35. 167   Foster and Sule, above (n 14) 335. 168   See for instance BGH NStZ (Neue Zeitschrift für Strafrecht) 85, 318, cited by Foster and Sule, ibid. 164 165

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German scholars disagree, and contend that a causal link is required, ‘as § 27 does not indicate any intention of the legislature to penalise any action that merely jeopardizes a legal interest’.169 As for the mens rea for aiding, the aider must be shown to have ‘double intent’. The first mental state is an intention to aid the perpetrator to commit the intentional and unlawful offence. That is to say the aider’s intent must encompass all factual circumstances satisfying the prerequisites of participation as explicitly mentioned in § 27(1) of the StGB. In addition, the aider must possess an intent covering the consummation of the main offence.170 But the StGB is silent on whether the second mental state required for the aider is intention in the stricto sensu – dolus directus of the first degree – or whether a lesser type of intent may be sufficient – dolus directus of the second degree, or dolus eventualis. One might suggest that any of these types of dolus is sufficient. Distinguishing principal participation from mere secondary participation appears to be difficult as the definitions contained in §§ 25–27 StGB are far from exhaustive. This has led German courts as well as academics to rely on two different theories in order to draw the borderlines between these forms of criminal participation. The first theory, which focuses on the actor’s subjective perception of the offence, is known as the Subjektive Theorie (subjective theory). If the actor regarded committing the crime as ‘his own’ deed (acting with animus auctoris), he is qualified as a principal perpetrator. Thus, the animus auctoris requires an active will to commit the crime on the part of the perpetrator. If the actor, however, deems the crime to be someone else’s ‘project’ and that his role is confined to the deliberate and substantial support of the offence (acting with animus socii), he would be treated as mere accomplice.171 Nevertheless, the application of the Subjektive Theorie by the BGH in the Staschynski case was subject to wide criticism by German scholars. The facts of the case are summarised as follows: The accused – Staschynski – had come to West Germany under orders from the Russian secret service, the KGB, to murder two exiled Russian politicians. He met the victims and killed them with a gun using poisoned arrows, just as had been ordered. He later surrendered to the West German authorities. The BGH, relying on the ‘subjective theory’, classified him as mere accessory to murder instead of a principal offender. The Court reasoned that even though § 25 I 1 StGB classified as principal offender whoever committed the offence himself, one had to look at the accused’s view of the offence. Staschynski had not wanted to commit the crime as ‘his own offence’ but regarded himself as an ‘instrument’ participating in an offence that was really committed by the KGB, the real principal offender ‘behind him’. He had not believed in the ideological necessity of killing the politicians, as his subsequent surrender had shown. Instead, his 169   ibid, citing HL Tröndle and T Fischer, Strafgesetzbuch, 50th edn (München, Einleitung: CH Beck, 2001) § 27, para 2; CJ Hauf, Strafrecht, Allgeminer Teil, 2nd edn (Neuwied, Luchterland, 2001) 97–98. 170   Schumann, ‘Criminal Law’ in Zekol and Reimann (eds), Introduction to German Law, above (n 14) 405. 171   Foster and Sule, above (n 14) 330. See also Stakić Rule 98 Trial Decision, para 58.

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Mens Rea in German and French Criminal Law fear of the ‘almighty totalitarian state’ and the KGB had induced him to carry out the assignment.172

The decision has been criticised on the following grounds. If Staschynski is taken to have acted under duress, it would have to be dealt with when looking at his guilt, or the Schuld stage in which the accused can be blamed or personally reproached with the conduct. In addition, the accused’s personal guilt had nothing to do with the distinction between principal offender and secondary participant.173 Bohlander observed that in more recent years, the BGH has come around to an approach which combines paying lip service to the subjective theory approach with a more objective evidential test: the Court now will base its decision as to whether the accused had the animus auctoris or not on the scope of the accused’s objective influence and control over the offence as shown by the evidence. The BGH thus merely treats the substantive concept of who is a principal as a question of inferring the necessary mens rea from the objective evidence, which in effect makes it almost congruent to the academic majority approach of Tatherrschaft.174

VII  Mens Rea in French Criminal Law and other Romano Legal Systems175 French criminal law provides for the tripartite classification of criminal offences.176 The generic term ‘crime’ as understood in most legal jurisdictions harbours a different meaning for French lawyers because it signifies only the gravest category of criminal offences or felonies (crimes) adjudicated by Cour d’Assises. Other categories of criminal offence, namely misdemeanours (délits) and contraventions (contraventions) are adjudicated by Tribunal Correctionnel and Tribunal de Police. Misdemeanours (délits) are serious offences (ie, infliction of bodily harm, theft etc) albeit less grave than felonies (crimes); whereas contraventions are associated with petty offences such as road traffic offences. The conventional definition of a criminal offence in French criminal law, which is similar to the legal construction of a crime in common law jurisdictions,   BGHSt 18, 87 Staschynski-Fall, quoted in Foster and Sule, above (n 14) 330–31.   Foster and Sule, above (n 14) 331, citing Walter Gropp, Strafrecht: Allgemeiner Teil, 2nd edn (Berlin: Springer, 2001) 333; Claus Roxin, Höchstrichterliche Rechsprechng zum Allgemeinen Teil des Strafrechts (München: CH Beck, 1998) 203. 174   Michael Bohlander, Principles of German Criminal Law (Oxford: Hart Publishing, 2008) 163, fn 17, referring to BGHSt 28,346; 35, 347; 40, 218; 45, 270; BGH Wistra 2001, 420; BGH NStZ-RR 2002, 74; BGH JZ 2003, 575. 175   Part of the present study of mens rea in French criminal law is based on the author’s joint article with Iryna Marchuk: ‘A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World’ (2013) 24 Criminal Law Forum (forthcoming). 176   French Criminal Code, Art 111-1. 172 173

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includes the material (l’élément matériel) and mental (l’élément moral) ele­ment.177 The required mens rea standard ranges from ‘intent’, required for all felonies (crimes) and most misdemeanours (délits), to the negligence standard. Pursuant to the French Criminal Code, the default mens rea standard is intent for felonies (crimes) and misdemeanours (délits).178 However, a lower mens rea threshold may be applied to misdemeanours if explicitly provided for by the Criminal Code. Minor offences normally require only the voluntariness of conduct.

A  Intention (le dol) The mental element encompasses the gradation of various mental elements ranging from ‘intention’ (le dol) to ‘negligence’. The term ‘dol’ in French criminal law means the deliberate intention to commit a wrongdoing that involves ‘knowledge’ (la conscience) of the certain conduct being prohibited and ‘deliberate willingness’ (la volonté) to carry out such conduct.179 There are two major theories on the construal of criminal intention (l’intention criminelle): the classic doctrine (la doctrine classique) and positivist doctrine (la conception réaliste).

i  Dol general and dol spécial The classic definition of ‘intention’ was coined by the prominent French lawyer, Émile Garçon, who delineated it in terms of the ‘will to commit an offence expressly prohibited by law’ coupled with ‘the person’s knowledge/awareness that he is engaged in breaching the law’ (l’intention, dans son sens juridique, est la volonté de commettre le délit tel qu’il est déterminé par la loi; c’est la conscience, chez le coupable, d’enfreindre les prohibitions légales).180 The so-called positivist doctrine (la conception réaliste) was introduced by Enrico Ferri who does not treat ‘intention’ as an abstract form but defines it as the determined will coupled with the motive (une volonté déterminée par un motif ou un mobile).181 Despite the divergence of opinions as to the interpretation of ‘intention’, French criminal law opts out of the classic doctrine of the interpretation of ‘intention’.

177  Benoît Chabert and Pierre-Oliver Sur, Droit pénal général (Paris: Dalloz, 1997) quoted in Catherine Elliot, French Criminal Law (UK: Willan Publishing, 2001) 59. See also: John Bell et al, Principles of French Law (Oxford: Oxford University Press, 1998) 206; Brice Dikson, Introduction to French Law (London: Pitman Publishing, 1994) 102. 178   French Criminal Code, Art 121-3. 179   Bell et al, above (n 177) 225. See also Jean-Claude Soyer, Droit pénal et procédure pénale, 18e édition (Paris: LGDJ, 2004) 98. 180   Roger Merle and Andre Vitu, Traité de droit criminel: problèmes généraux de la science criminelle, droit penal general, procedure pénale, deuxième édition, éditions Cujas (1973) 566 (original fn omitted). 181   Gaston Stefan, Georges Levasseur and Bernard Bouloc, Droit pénal general, 18e édition (Paris: DALLOZ, 2003) 230–31.

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The traditional cataloguing of the term ‘intent’ in the criminal law theory embraces le dol général (general intent) and dol spécial (special intent). Given that the French Criminal Code remains silent on the interpretation of the aforementioned forms of ‘intention’, such terms have been construed at a considerable length in the academic literature.182 The major distinction between said forms of ‘intention’ lies within the interrelation of the intensity of the cognitive element of ‘knowledge’ (la conscience) and volitional element of ‘desire or determined will’ (la volonté) to commit a crime. The cognitive element of dol général encompasses the person’s knowledge that he violates the law.183 The classic presumption in French criminal law, which is embedded in the Latin phrase ‘nemo censetur ignorare legem’, implies that a person cannot be exculpated based on the ignorance of law. However, a person does not need to be aware of the specific criminal provision that he violates, but he shall possess the will to commit an offence prohibited by law.184 The volitional element (la volonté) of dol général refers to the person’s willingness to engage in the wrongful conduct but not the desire to achieve the prohibited result.185 An excellent illustrative example of dol général was given in the academic literature: if one kills a person by hitting him with a stone, it is sufficient to demonstrate that the offender merely desired to throw the stone but not to kill the victim.186 Once the will to engage in the criminal conduct is established, it is irrelevant to deduce motives that were driving the person’s conduct. Hence, French criminal law reiterates the irrelevance of motive for the qualification of criminal conduct.187 Under certain circumstances, a person cannot be said to have entertained general intent if he performed his conduct due to the mistake of law that he could not possibly avoid (Article 122-3). Likewise, the mistake of fact may serve as an exculpatory ground in rather exceptional circumstances. A classic example is the possession of stolen goods by a person who acted in good faith during their purchase. The central cognitive element of ‘knowledge’ is merely non-existent, when a person suffers from the psychological or neuropsychological disorder that destroys his ability to understand the criminal character of his actions (Article 122-1). Dol spécial or specific intent encompasses the determined will on the side of the perpetrator to achieve the result prohibited by law.188 As an illustration, a person entertains the will to cause the death of another person in the crime of murder   ibid, 235; Elliot, French Criminal Law, above (n 177) 66–71.   Harald Renout, Droit pénal general (Éditions Paradigme, 2008) 140. 184   Stefan, Levasseur and Bouloc, above (n 181) 229. 185  Elliot, French Criminal Law, above (n 177) 67. 186  ibid. 187   Stefan, Levasseur and Bouloc, above (n 181) 230. However, the Criminal Code enlists a number of criminal offences that require the establishment of ‘motive’ as a constitutive element of an offence (ie, Arts 227-12, 314-7, 434-25 etc). 188   Stefan, Levasseur and Bouloc, above (n 181) 235. Catherine Elliot, ‘The French Law of Intent and its Influence on the Development of International Criminal Law’ (2000) 11 Criminal Law Forum 35–46, 38. 182 183

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(Article 221-1). The crime of theft requires the determined will to appropriate an object that belongs to another person (Article 311-1). It is necessary to prove that the person intended to achieve a particular result that is a constitutive element of the offence.189 Hence, to prove that someone has unlawfully come into possession of information concerning national defence – Article 413-11 of the Criminal Code – dol général is sufficient, whereas dol spécial is required to impose criminal responsibility on a person who possesses such information with the intent of handing it over to a foreign power contrary to Article 413-7 of the Criminal Code. The offence of providing intelligence information to a foreign power as set out in Article 411-10 of the Code is another example of a crime which requires dol spécial. It expressly provides that the person’s conduct must be carried out ‘in order to incite hostilities or acts of aggression against France’.190 Accordingly, in French criminal law, all offences that require certain outcome of the criminal conduct need to be accompanied by special intention or dol spécial.

ii  Dol simple and dol aggravé For procedural reasons, ‘intention’ is also classified into dol simple (simple intent) and dol aggravé (aggravated intent), which affects the qualification of a crime and severity of the imposed punishment.191 If a person entertains the aggravated intent, it implies that he deserves a more severe punishment. The major distinguishing feature that singles out a criminal offence with aggravated intent is the existence of premeditation. Premeditation is broadly defined as a desire formed prior to the commission of a criminal offence (le dessein formé avant l’action de commettre un crime ou un délit).192 As an illustration, the crime of assassination is a murder committed with premeditation (Article 221-3). The penalty includes life imprisonment, whereas the crime of murder prescribed in Article 221-1 attracts a maximum sentence of imprisonment of up to 30 years. The jurisprudence of the Appeals Court (la Cour d’Assisez) pronounced that the aggravated intent is equally applicable to accomplices of the crime of assassination.193 The further classification of ‘intention’ into dol déterminé and dol indéterminé reflects on the level of the intensity of the volitional element while differentiating between criminal offences that require the determined will as to the materialisation of prohibited consequences. Dol déterminé requires the positive will on the side of a perpetrator for prohibited consequences to materialise, though a person does not need to be aware of the identity of a victim. When a person entertains dol indéterminé, he does not realise the gravity of the outcome of his conduct.194 However, a person is always charged on the actual result achieved but not his will.   Bell et al, above (n 177) 226.   French Criminal Code, Art 411-10.   Elliot, ‘The French Law of Intent’, above (n 188) 41–42. 192   Stefan, Levasseur and Bouloc, above (n 181) 236. 193   ibid (original fn omitted). 194  ibid. 189 190 191

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iii  Dol éventuel (France, Egypt and Italy) In French criminal law, dol éventuel exists when a person does not desire the occurrence of prohibited consequences but foresees such consequences as possible and treats them with indifference.195 As in German and Danish criminal law, the bone of contention is to work out the clear borderline between dolus eventualis and negligence. Similarly to other continental law jurisdictions, the volitional element of the acceptance of a risk as to the occurrence of the prohibited result (et acceptation au moins eventuelle du resultat) is a distinguishing feature of dolus eventualis.196 An interesting aspect of dolus eventualis in French criminal law is that it is treated as a ‘buffer’ mens rea standard between ‘intention’ and ‘negligence’.197 This approach is very different from a more conventional definition of dolus in German criminal law that construes it as the lowest mens rea threshold for intentional crimes. As with the concept of recklessness in common law jurisdictions, the notion of dolus eventualis in French criminal law is an intermediate mens rea standard that separates intentional criminal offences from negligent ones. The Egyptian Penal Code, which is based primarily on the Napoleonic Code, does not set general principles for dolus eventualis, except when it tackles the accomplice liability in Article 43 of the penal code which stipulates: A person who participates in a crime shall bear its penalty, even though the resulting crime is not the one he has initially intended, so long the crime that actually took place is a probable result for his instigation, agreement, or assistance.

On 25 December 1930, the Egyptian Court of Cassation issued a judgment which stirred many scholars’ debates given its difference from the conventional opinion widely adopted by the jurisprudence and judiciary in France in viewing dolus eventualis. 198 It rather adopted the idea of ‘acceptance’ as an essential element in the concept. The Egyptian Court of Cassation decided that: (1) dolus eventualis substitutes intent, in the strict sense of the word, in establishing the element of intentionality. It can only be defined as a secondary uncertain intention on the part of the perpetrator who expects that his act may go beyond the purpose intended to realize another purpose that was not intended initially but nevertheless performs the act and thus appreciates the unintended purpose. As a result of this intention, it becomes irrelevant whether the consequence takes place or not. (2) The purpose of formulating the definition in this way is to clarify that intention must be present in all circumstances, to include all forms of such intention and to exclude other cases where the intention is not established, in a bid to calling for caution in order not to confuse premeditation with mere error.   Soyer, above (n 179)102.   Stefan, Levasseur and Bouloc, above (n 181) 238. 197   Renout, above (n 183) 153–55. 198   Series of Legal Principles decided by the Egyptian Court of Cassation, part 2, principle no 135, 168. 195 196

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Mens Rea in French Criminal Law and other Romano Legal Systems (3) The key issue for deciding if dolus eventualis is established or not is to ask the following question: while undertaking the intended act, did the perpetrator want to do it even if this act goes beyond its original purpose to perform another criminal consequence that actually happened and was not originally intended? If the answer is in the affirmative, dolus eventualis is established. If the answer is negative, then the whole matter is nothing more than an error that may be punishable or not depending on whether the conditions establishing an error are present. (4) Based on the above, dolus eventualis is not established in the following scenario: X intends to kill Y by poisoning a piece of sweets and offering it to Y. Y keeps the piece of sweets that Z finds, eats and accordingly dies. In this case, the accused shall be punished for the attempted murder of Y and shall not be punished for killing Z under the pretext of dolus eventualis. This is because the secondary intention is not established; only the focused intention is established, and that is fulfilling the original purpose and it does not go beyond to any other criminal purpose.199

In his treatise on Dolus Eventualis, Abou El Magd Aly Eisa found that dolus eventualis is one of the genuine and independent pillars of criminal responsibility which forms, on its own, the basis of intentional crime.200 In the words of Eisa: [Dolus eventualis] is the same as the direct criminal intent as they share the same nature and essence. Both are based on the same elements, namely will and knowledge. Knowledge in the dolus eventualis is mixed with suspicion and hence it takes the form of inconclusive expectation of the criminal consequence. Will, on the other hand, appears in its weakest form represented in the perpetrator’s acceptance of the consequence or his indifference towards it. In fact, indifference towards the criminal consequence means in reality – as we see it – accepting this consequence and reconciling oneself with it. The expectation on which the dolus eventualis is based on is the actual expectation that can not be substituted by its probability or necessity or both; otherwise it would be subsumed under unintentional errors. In addition, the criterion governing the dolus eventualis is a subjective criterion; in other words, the expected consequence is the one anticipated by the perpetrator according to his own perspective upon attempting to commit the crime even if his perspective was counter to the reality.201

Mohamed Mohie el-Din Awad differentiates between the probable or likely consequence from dolus eventualis. He considers the former a crime that goes beyond the perpetrator’s intent.202 He views dolus eventualis as requiring both expectation and acceptance on the part of the defendant: [I]f the perpetrator expects the consequence and regards it equal whether it happens or not though he hopes it would not happen, but he accepts its occurrence for this is better to him than not perpetrating or discontinuing the crime, the perpetrator shall be held responsible.203   Judgment, Egyptian Court of Cassation, Case No 1853/Judicial Year 47, 25 December 1930.   Abou el Magd Aly Eisa, al Qasd al Gena’ī al-Ehtemaly: Derasah Tā’sileyah Tahlileya Muqaranah (Conditional Intent: Analytical and Comparative Study) (Cairo: Dar al-Nahda al-Arabia, 1988) 667. 201  ibid. 202   Mohamed Mohie el-Din Awad, al Qanoun al Gena’ī, Mabade’oh al Asaseyah wa Nazariatoh al Ammah fi al Shari’a al Islameyah (General Principles of Criminal Law and its General Theories in Islamic Shari’a (Cairo: 1981) 231, cited in Abou el Magd Aly Eisa, above (n 200) 472. 203  ibid. 199 200

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Both scholars are of the opinion that there is no basis for holding the perpetrator responsible for the probable or likely consequence of his act within the dolus eventualis theory.204 Most notably dolus eventualis is recognised under the Italian criminal law as dolo eventuale. Pursuant to Article 43 of the Italian Codice Penale, all serious crimes require proof of the mental element known as dolo, which means that the prohibited result must be both preveduto (foreseen) and voluto (wanted). Yet, a result may be voluto even though it is not desired if, having contemplated the possibility of bringing it about by pursuing a course of conduct, the perpetrator is prepared to run the risk of doing so (dolo eventuale). Even a small risk may be voluto if the defendant has reconciled himself to, or accepted it as a part of the price he was prepared to pay to secure his objective.205

iv  Dol aggravé and préméditation Dol aggravé refers to a situation where some additional mental state is required beyond the dol général or dol spécial and may be an aggravating factor relevant to sentencing. For example, the crime of assassinat (Article 221-3, life imprisonment) is considered more serious than ordinary murder (Article 221-1, up to 30 years’ imprisonment) because in addition to general and specific intention, it requires the dol aggravé of ‘premeditation’. Article 132-72 of the Nouveau Code Pénal defines premeditation as ‘a design formed before the action to commit a serious or major offence (la préméditation est le dessein formé avant l’action de commettre un crime ou un délit détermine).206

VIII  Negligence (la faute pénale) As of 11 July 2000, the French Criminal Code was amended with respect to the negligence standard. The law distinguishes between negligent offences in which the harm was caused by the direct or indirect contribution of a person. Direct harm occurs when a person fails to exercise due diligence imposed by the statute or regulations with regard to their role, functions or means available to them.207 In order to prove negligent conduct in cases of indirect involvement, one must prove that a person did not exercise due diligence as required by the statute or regulations in the manifestly deliberate manner, or that they acted in a way that exposed another person to the particular serious risk of which he should have been aware.208   Eisa, above (n 200) 473.   See McAuley and McCutcheon, above (n 69) 301–03. 206   Art 132-75, Nouveau Code Pénal. 207   French Criminal Code, Art 121-3. 208  ibid. 204 205

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IX Complicity Pursuant to Article 121-7 of the Nouveau Code Pénal there are two types of accomplices. The first type is a person who ‘consciously by aid or assistance, facilitates the preparation or commission of a crime or délit’. The second is the person who by gift, promise, threat, order, abuse of authority or power, incites an offence or gives instructions for its commission.209 The full text of Article 121-7 reads as follows: An accomplice to a serious or major offence is the person who knowingly, by help or assitance, facilitated its preparation or commission. A person is also an accomplice who by gift, promise threat, order, abuse of authority or power has provoked an offence or given instructions to commit it.210 (Est complice d’un crime ou d’un délit la personne qui sciemment, par aide ou assistance, en a facilité la préparation ou la consommation. Est également complice la personne qui par don, promesse, menace, ordre, abus d’autorité ou de pouvoir aura provoqué à une infraction ou donne des instructions pour la commettre.)

In French law, there are three basic elements of complicity, namely, the existence of the principal offence, the act of complicity (l’élément matériel) and the mens rea (l’élément moral) of the accomplice.

A  The Requirement of a Principle Offence The existence of the principle offence is a fundamental requirement. Logically, if there is no crime, there can be no accomplice to a crime. The following case is illustrative of that matter. In Schieb (S) and Benamar (B),211 S paid B to murder his wife. He paid several sums of money in advance and handed over a revolver to B. B told a friend who informed the police. S and B were prosecuted for attempted murder. At trial, B claimed that he had never intended to kill S’s wife and that he had taken no steps to meet her. He merely intended to keep the money which S paid him and to sell the gun for money. The Cour d’appel accepted these claims and acquitted both B and S. The Cour de cassation upheld the acquittals. Once B could not be found to have initiated the offence, there was no attempt, and S could not be said to be an accomplice to an attempt.212 As far as the element of causation is concerned, French criminal law requires a causal link between the   Bell et al, above (n 177) 234.   Art 121-7, Nouveau Code Pénal, quoted in and translated by Elliot, French Criminal Law, above (n 177) 210. 211   Crim 25 Oct 1962, D 1963 221 note Bouzat, quoted in and translated by Bell et al, above (n 177) 189, 235. 212   Bell et al, above (n 177) 235. 209 210

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conduct of the accomplice and the commission, or the attempted commission, of the principal offence.213

B  The Act of Complicity (l’élément matériel) There must be an act of participation of the sort enumerated by Article 121-7. In order to be an accessory or accomplice by aid or assistance, the act of complicity must be positive and intentional, and occur at the time of the offence.214 The requirement of a positive act means that the accomplice is actively engaged in facilitating the offence.215 Where there is a sufficient prior agreement, then acts of assistance after the event will constitute complicity.216 Indirect complicity is also punishable; this occurs where the accused assists the accomplice and not the principal offender.217 There is no notion of accessory after the fact in French law; however, promises to a principal offender prior to the commission of the act may generate a distinct form of accessorial liability.218

C  Mens Rea of Complicity (l’élément moral) In French criminal law the mens rea required for accomplice liability necessitates the proof of wilful participation in the principal perpetrator’s act and the awareness of the contribution offered to the perpetration of the offence on the part of the accomplice.219 It is sufficient that the accomplice knew the mens rea of the principal offender without having to share his intention.220 Thus, knowledge of the intended crime must be specifically proved on the part of the accomplice.221 In Mouris Papon, the defendant was charged as a secondary party to crimes against humanity for the deportation of people of Jewish origin from Bordeaux. The Cour de cassation ruled that Papon had been an accomplice to a crime against humanity and it was not necessary that he personally shared the same political ideology as the principal offenders.222   ibid, 86.   Bell et al, above (n 177) 236–37; Elliot, French Criminal Law, above (n 177) 87–88. 215  ibid. 216   In the case of Moullec, an armed robber attacked a businessman on his own. His brother accompanied him in a car for several hours looking for a likely victim, bringing along a sawn-off shotgun. He was also helping to push away witnesses when his brother was apprehended. These actions amounted to assistance in the gateway, and since they were based on a prior agreement, constituted aiding and abetting the armed robbery. Crim 8 Nov 1972, Bull crim No 329, quoted in and translated by Bell et al, above (n 177) 236–37. 217   Chambre criminelle de la Cour de cassation (Crim) 1 September 1987, Bulletin des arrest de la Cour de cassation no 308, quoted in translated by Elliot, French Criminal Law, above (n 177) 88. 218   Jean Pradel, Droit Pénal Compare (Paris: Dalloz, 1994) 452. 219   G Levasseur, A Chavanne, J Montreuil and B Bouloc, Droit Pénal Général et Procédure Pénale 13 édition (Paris : Sirey, 1999) 91–97. 220  Elliot, French Criminal Law, above (n 177) 90. 221   Bell et al, above (n 177) 236–37. 222   Cass crim 30 January 1997, D, 1997, 147, quoted in Elliot, French Criminal Law, above (n 177) 90. 213 214

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Difficulties can arise in a situation where the principal offence differs from that which was foreseen by the potential accomplice. In 1955, the French Cour de cassation ruled that a creditor who provided a third party with two revolvers to intimidate a debtor into paying back the money owed, could not be convicted as an accomplice to the murder of the caretaker of the building by the third party following a heated discussion.223 The French law specifically addresses the issue of complicity in genocide. Article 211-2 of the Code Pénal provides that a perpetrator of the crime of genocide can be someone who commits or causes the commission of genocide (‘commetre ou faire commetre’). Thus, a person who induces the commission of genocide may be prosecuted as a perpetrator rather than an accessory, although this inducement must be committed with the knowledge of a common plan aimed at the total or partial destruction of a protected group.224 In terms of sentencing, ‘[t]he accessory [le complice] to an offence, within the meaning of Article 121-7 will be punished like the perpetrator [l’auteur]’.225

X  Conclusion and General Observations Unlike French criminal law, German criminal law has an elaborate and highly sophisticated system of describing and analysing the general structure of criminal offences. In the German criminal system, the state of mind of the defendant has to be evaluated at two stages, Tatbestand and Schuld. One of the main features of the German criminal law is that it distinguishes sharply between intention in the broad sense and negligence. The latter does not carry criminal responsibility unless a particular definition of a crime provides for its punishment. Criminal negligence is defined as conscious or unconscious deviation from the required standard of care which causes a result prohibited by criminal law. Yet in German criminal law, the mens rea qualifying for criminal responsibility is only that of intention in the broad sense. This intention covers all situations in which the actor acts with both ‘will’ and ‘knowledge’ of the underlying facts. This intention covers different sub-concepts, namely: dolus directus of the first degree; dolus directus of the second degree; and dolus eventualis. In German criminal law, the volitional element denotes the borderline between dolus eventualis and advertent or conscious negligence. Mere knowledge is not sufficient to hold a person criminally liable for intentional crimes provided for in the StGB. To put it differently, intent must encompass both a cognitive element and volitional element, however low this volitional element might be.   Cass crim 13 January 1955, D, 1955, 291, note Chavanne, obs Légal, RSC, 1955, 513.  See Encyclopédie Dalloz, Répertoire de Droit Pénal et Procédure Pénale, Crimes de Guerre, fn 51 (1995). 225   Nouveau Code Pénal, art 121-6. ‘Sera puni comme auteur le complice de l’infraction, au sens de l’article 121-7’. 223 224

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In the German legal system dolus eventualis occurs in situations in which the offender does not aim for the materialisation of the elements of the offence or does not foresee the fulfilment of the elements as virtually certain but he considers it to be possible.226 German literature, as well as courts, treated dolus eventualis differently according to various theories. As remarkably noted by Bohlander, they range from theories that decline to entertain, to differing degrees, any volitional element for example from the mere awareness of a possibility of the result occurring, to its probability, the requirement that D must envisage an unreasonable risk, or a manifestation of avoidance efforts, to those that require a volitional element, again to differing degrees, such as the approval theories which make the mental consent of the offender to the result, should it occur, the decisive parameter, to those that let an attitude of reckless indifference suffice, in other words if D says ‘I could not care less’.227 What is common to all of them is that the defendant ‘must have been aware of the fact that his actions may lead to an offence being committed.228

It is worth pointing out that German courts, following the tradition of the Reichsgericht and the jurisprudence of the Federal Supreme Court of Justice (BGH), adhere to a somewhat watered-down approval theory, yet the approval does not need to be explicit and the offender need not morally approve of the result – it is sufficient if he or she accepts it nevertheless in order to reach his or her ulterior goal.229

Most notably in the more recent case law, German courts have placed a strong emphasis on distinguishing between the essence of the cognitive and volitional elements and inferring their existence from the evidence about the external conduct of the defendant.230 The Federal Supreme Court has adopted the approach that if the defendant is acting in an objectively highly dangerous situation and still goes ahead with his or her plans without being able to claim realistically that nothing bad will happen, the volitional element may be more easily inferred than in less clear-cut situations, where the danger is not readily recognisable.231

German criminal law recognises two types of mistakes which are considered to be grounds of excluding criminal responsibility; namely, mistakes of fact and mistakes of law. The former, as they correspond to the legal elements of the crime in question, may exclude the criminal intent, whereas the latter may constitute a ground of excluding culpability (Schuldausschließungsgrund). Hence, the German criminal law grants the actor a larger degree of benefit for the subjective contingencies which may have obscured his awareness of acting against the law.232   Cramer and Sternberg-Lieben, above (n 102) margin 72.  Bohlander, Principles of German Criminal Law, above (n 174) 65. 228  ibid. 229   ibid, 65 (fns omitted). 230   ibid, with reference to 46 Entscheidungen des Bundesgerichtshofs in Strafsachen (BGHSt) 35.   231   ibid, with reference to 36 Entscheidungen des Bundesgerichtshofs in Strafsachen (BGHSt) 1. 232   These types of mistakes were not a subject of discussions under the jurisprudence of the two ad hoc Tribunals. However, in Čelebići the accused, Landzo, has argued in his pre-trial brief that the pros226 227

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German courts distinguish between perpetrators and participants in terms of manifestations of control: the perpetrator, as opposed to the participant, objectively dominates the commission of an offence, such that he is in control of the offence and acts with the requisite intent. In contrast, the participant accepts a subordinate role, in that he considers the offence to be the perpetrator’s on whose behalf he acts. Perpetrators may also act through another as when the perpetrator uses another person like a tool. The latter individual may be exonerated if his mental state does not rise to the level of criminal intent. In order to qualify as a co-perpetrator, it may be necessary for the individual to contribute to the offence while it is being committed, such that mere planning or organising a crime would not constitute co-perpetration. In French criminal law, neither statute nor case law provide any general definition of intention, and it has been left to academics to analyse its meaning.233 In French criminal law, a distinction is made between two forms of intent, namely, dol général and dol spécial. French scholars also recognise the concept of dol éventuel, which is where the defendant merely foresees the possibility of the result but he does not desire its occurrence. However, this form of dol does not amount to dol spécial and hence is not a mental state that will support a conviction for meurtre, whether in its simple or one of its aggravated forms. Under the new French Criminal Code, however, dol éventuel may amount to a lesser fault and it is treated as an aggravating factor in relation to involuntary murder and non-fatal offences against the person.234 If we compare both the German and the English legal systems regarding the concept of mens rea it appears, as remarkably noted by Hermann Mannheim, that ‘English law places more emphasis upon the element of knowledge, upon the ideas of probability and of danger than upon the element of will’.235 In addition, ‘English law does not differentiate so strongly between intent, malice and negligence, as German law differentiates between Absicht, Vorsatz and Fahrlässigkeit’.236 One might conclude that the Model Penal Code culpability provisions are influenced by the mens rea conception in German criminal law.

ecutor ‘must prove that the accused had knowledge of the laws and customs of war described in Article 3 of the Statute of the Tribunal’, and that he ‘could not have knowledge of such legal requirements’. In essence, he asserted that he could not therefore have possessed the necessary mens rea to commit violations of the laws and customs of war. See Prosecutor v Delalić et al, Case No IT-96-21-T, Prosecutor’s Response to the Pre-Trial Briefs of the Accused, 14 April 1997, Section 5 ‘Mens Rea’ (on file with the author). 233   Art 121-3, French Penal Code states: ‘There is no felony or misdemeanour in the absence of an intent to commit it’. 234   See Arts 221-3, 222-19, 222-20 and 223-1 of the new French Criminal Code. 235  Hermann Mannheim, ‘Mens Rea in German and English Law – III’ (1936) 18 Journal of Comparative Legislation and International Law 78. 236  ibid.

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6 Mens Rea in Chinese and Russian Criminal Law I Introduction Recognised as one of the countries with the longest histories in the world, China ‘independently developed her own institutions and cultures, including approaches to legal problems, in many ways significantly different from those of Western civilizations’.1 The period 1954–57 witnessed the first attempt to establish and regularise a formal legal system and formal court arrangements based on the Soviet mode. However, a criminal code and a criminal procedure code that drew heavily on Soviet models were drafted but not promulgated because of the Soviet– Chinese split.2

II  Sources of Chinese Criminal Law The major source of Chinese criminal law is the current Criminal Code, which was enacted in 1979 and substantially revised in 1997 (‘the 1997 Criminal Code’).3 In addition, there exist several amendments to the Code and individual criminal law-related pieces of legislation.4 Another important source of criminal law is the so-called legislative and judicial interpretations. The power to promulgate them is   RH Folsom and JH Minan, Law in the People’s Republic of China (Boston: Martinus Nijhoff, 1989)

1

3.   ibid, 9.   Criminal Law of the People’s Republic of China, adopted at the Second Session of the 5th National People’s Congress on 1 July 1979, amended by the 5th Session of the 8th National People’s Congress on 14 March 1997 and promulgated by Order No 83 of the President of the People’s Republic of China on 14 March 1997 and effective from 1 October 1997. 4   For more information on the establishment of the 1979 Penal Code and its revisions and the promulgation of the 1997 Penal Code and its revisions see Gao Mingxuan and Zhao Bingzhi, The Evolution of Chinese Criminal Legislation (China: Law Press, 2010) 71–206. All English translation of the 1997 Criminal Law of the People’s Republic of China is based on this co-authored publication (286–459). See also Wei Luo, ‘China’ in KJ Heller and MD Dubber (eds), The Handbook of Comparative Criminal Law (Stanford: Stanford University Press, 2011) 140. 2 3

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vested in the National People’s Congress (NPC), the Supreme People’s Court (SPC) and the Supreme People’s Procuracy (SPP), as well as the State Council.5 The NPC’s Standing Committee rarely exercises this right, while the SPC not only interprets law in specific cases brought before it for litigation, but proactively promulgates hundreds of judicial interpretations dealing with broader criminal law issues, often jointly with the SPP.6 Many jurists feel that it is inappropriate for the SPC to issue such interpretations to supplement the legislation, but practitioners find them very useful, when the legislation is vague or too abstract.7 The Chinese judicial system does not treat previous court opinions as legal precedent in the manner of common law countries; however the SPC has in recent years asked lower courts to use the opinions delivered, selected or published8 by the SPC as references when delivering their own judgments.9 Since this chapter aims to reflect in some parts also on Russian law, it should be mentioned here, that in contrast with the non-uniform nature of Chinese criminal law, the Criminal Code of the Russian Federation (CCRF),10 which came into force in 1997, is the sole statutory source of criminal law in Russia while the highest judicial organ in criminal cases, the Supreme Court of the Russian Federation (SCRF), gives ‘explanations’ (razyasnenya) relating to judicial practice in criminal cases, which are binding on the lower courts.11 The 1997 Chinese Criminal Code consists of two parts, namely, the General Provisions (Part I) and the Specific Provisions (Part II). Part I contains provisions applicable to all the crimes, such as rules concerning the mental elements of a crime, the scope of application of the Code, inchoate offences, general defences, etc. It furthermore introduces three ‘basic principles’ into Chinese criminal law, which did not appear in the 1979 version of the Code. The first principle, often stated in Latin as nullum crimen nulla poena sine lege, is stipulated in Article 3: For any act that is deemed by explicit stipulations of law as a crime, the offenders shall be convicted and punished in accordance with law; otherwise, they shall not be convicted or punished.

This provision is in contrast with the provision of the 1979 Code which stated: A crime not specifically prescribed under the specific provisions of the present law may be confirmed a crime and sentence rendered in light of the most analogous article   Wei Luo, ibid, 41.  ibid. 7  ibid. 8   The SPC usually publishes its opinions in the Gazette of the SPC and in Ren Min Fa Yuan An Li Xuan (The Selected Opinions of People’s Courts) published in Chinese by the People’s Court Press (Ren Min Fa Yuan Chu Ban She) since 1992. 9   Wei Luo, above (n 4) 141–42. 10   The Criminal Code of the Russian Federation (CCRF), adopted by the State Duma on 24 May 1996; adopted by the Federation Council on 5 June 1996; Federal Law No 64-FZ of 13 June 1996 on the Enforcement of the Criminal Code of the Russian Federation. 11   Stephen C Thaman, ‘Russia’ in KJ Heller and MD Dubber (eds), The Handbook of Comparative Criminal Law (Stanford: Stanford University Press, 2011) 416–17. 5 6

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Mens Rea in Chinese and Russian Criminal Law under the special provisions of the present law; provided, however, that the case shall be submitted to the Supreme People’s Court for its approval.12

The 1979 Code furthermore had only 103 specific provisions (in contrast with the 1997 Code which contains 351 specific provisions) and some were not comprehensive or specific enough for the courts to apply without difficulty. In this regard, the 1979 Code reflected one of China’s ancient legal traditions – the legal source of the rule of analogy.13 The practice of analogical reasoning was particularly rampant from the founding of the Peoples’ Republic of China and before the promulgation of the 1997 Code resulting in many innocent Chinese being penalised for political reasons.14 Russian criminal law also fully recognises the principle of legality, stating in Article 3 of the CCRF that The criminality of an act, and also its punishability and other legal consequences shall be determined by the present Code alone,

and [t]he application of a criminal law by analogy shall not be allowed.

The second principle enshrined in the 1997 Chinese Criminal Code is that of equality before the law. Article 4 states that The law shall be equally applied to anyone who commits a crime. No one shall have the privilege of transcending the law.

The same principle can be found in Article 4 of the Russian CCRF, which states that Persons who have committed crimes shall be equal before the law and shall be brought to criminal responsibility, regardless of their sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, belonging to public associations, or other circumstances.

The third principle, provided in Article 5 of the Chinese Criminal Code, is that The degree of punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender.

By adopting this principle the Chinese government tried to discontinue another Chinese traditional practice, which used disproportionately severe penalties to stabilise the social order when the crime rate was increasing.15 Looking at the Russian CCRF, the punishment must be ‘proportional to the character and level of social dangerousness of the crime, the circumstances of its commission and the personal characteristics of the guilty person’16 and is imposed 12   The Criminal Code of the People’s Republic of China, trans Chin Kim (Littleton, CO: Fred B Rothman and Co, 1982) 46. 13   Wei Luo, above (n 4) 145. 14  ibid. 15   ibid, 146. 16   CCRF, Art 6(1); Thaman, ibid, 419.

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in order to ‘restore social justice’ and to ‘correct the convicted person and prevent the commission of new crimes’.17 This is a departure from the 1960 Criminal Code of the Russian Federated Soviet Republic (CCRF-1960), which emphasised retribution as the primary goal of criminal punishment.18 It might be argued that the criminology of the People’s Republic of China is much influenced by that of the former Soviet Union. The orthodox communist doctrine views law and especially criminal law as an instrument of class dictatorship. However, since China adopted its open-door and reform policy in 1978, increasing numbers of Chinese scholars have argued that the authority of the law should be upheld and that more emphasis should be placed on its function of protecting individual rights. The amendment of the Criminal Code in 1997 indicated this liberal reformist view, as it adopted the above-mentioned basic principles. As defined in Article 2, the aim of the Chinese criminal law is to use criminal punishment to fight against all criminal acts in order to safeguard security of the State, to defend the State power of the people’s democratic dictatorship and the socialist system, to protect property owned by the State, and property collectively owned by the working people and property privately owned by citizens, to protect citizens’ rights of the person and their democratic and other rights, to maintain public and economic order, and to ensure the smooth progress of socialist construction.19

Corresponding to these protected interests, the special part of the Criminal Code is divided into ten chapters dealing with ten categories of specific crimes, such as crimes endangering national security, crimes of endangering public security, crimes of undermining the order of the socialist market economy, crimes of infringing on citizens’ rights of the person and democratic rights, etc. It has been pointed out that this part reflects the social and economic changes since 1978 when China adopted its open-door and reform policy. The arrangement of the order of chapters corresponds roughly to the degrees of the social danger of different crimes. In comparison, the special part of the Russian CCRF reflects the move from socialism to a democratic, liberal capitalist system in the interests it seeks to protect, putting crimes against the person at the beginning, and by doing so shifting upside down the order of the CCRF-1960, which prioritised the protection of state and social interests over individual interests.20

  CCRF, Art 43(2); Thaman, ibid.   Thaman, ibid. 19   Chinese Criminal Code, Art 2. 20   Thaman, above (n 11) 435. 17 18

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III  Crimes and Criminal Responsibility in Chinese Criminal Law The Chinese theory of what constitutes a crime is very similar to the theory of common law jurisdictions and employs many familiar legal terms, such as intention, recklessness, knowledge, negligence, foreseeability and causation.21 ‘However, how those elements are described and how those elements combine to constitute a crime are very different in Chinese theory and common law theory’.22 Article 13 of the 1997 Criminal Code provides that [a] crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, subverts the State power of the people’s democratic dictatorship and overthrows the socialist system, undermines public and economic order, violates State-owned property, property collectively owned by the working people, or property privately owned by citizens, infringes on the citizens’ rights of the person, their democratic or other rights, and any other act that endangers society and is subject to punishment according to law. However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.

Based on this provision, it is generally recognised that a crime refers to any act which is harmful to the society and punishable under criminal law.23 This definition serves as an abstract conception of the specific crimes stipulated in Part II of the 1997 Criminal Code. It also serves as a criterion for distinguishing criminal acts from non-criminal ones. The following cumulative elements characterise a crime: (1) the act is of the nature to cause social harm; (2) it violates the Criminal Code; (3) it should be punished according to the Criminal Code.24 Similarly, in the Russian CCRF, a crime is defined in Article 14 as: ‘A socially dangerous act, committed with guilt and prohibited by this Code under threat of punishment’. The Article further states that The commission of an act, or an inaction, although formally containing the indicia of any act provided for by this Code, but which, by reason of its insignificance, does not represent a social danger that is, which caused no harm and has not created a treat of damage to a person, society, or the state, shall not be deemed a crime.

Therefore, as in Chinese law, even if the act committed contains all the elements of a crime, it is not regarded as criminal, if it presents no danger to society. ‘This 21   Ian Dobinson, ‘Criminal Law’ in Wang Chenguang and Zhang Xianchu (eds), Introduction to Chinese Law (Hong Kong: Sweet and Maxwell Asia, 1997) 110 –11; Wei Luo, above (n 4) 146. 22   Wei Luo, ibid. 23   Qu Xinqiu, Criminal Law (Beijing: China University of Political Science and Law Press, 2007) 31. 24   Some scholars are of the opinion that a criminal act only bears two basic characteristics, that is, its harmful nature and being punishable under criminal law. But there is no substantial difference between these opinions and the general theory. See Qu Xinqiu, ibid, 32.

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substantive “concrete” approach to crime is a vestige of the Soviet approach to criminal law’.25

A  Categories of Crimes in Chinese Criminal Law The 1997 Criminal Code contains more than 400 crimes which fall into two broad categories, that is, crimes concerning state security or non-state security. The latter includes nine types of crimes, namely crimes endangering public security, crimes disrupting the order of the socialist market economy, crimes infringing on citizens’ right of the person and democratic rights, crimes of property violation, crimes of disrupting the administration of public order, crimes impairing the interests of national defense, crimes of embezzlement and bribery, crimes of dereliction of duty and crimes of servicemen’s transgression of duties. Crimes undermining the order of the market economy and disrupting social order account for more than half of all crimes in the 1997 Criminal Code. Unlike the common law systems, the Chinese criminal law has not yet recognised the dichotomy of felony and misdemeanour. However, it is worth noting that different treatment for serious and minor crimes has been stressed during the application of the current criminal policy ‘Temper Justice with Mercy’, or translated as ‘Combining Leniency with Harshness’ (Kuan Yan Xiang Ji) which was issued in 2006, the guidelines for which came out in 2010.26 Russian criminal law, however, distinguishes between crimes of little gravity, crimes of average gravity, grave crimes and especially grave crimes, depending on their nature and the degree of the social danger they cause.27

B  Criminal Responsibility Articles 14 to 21 and Articles 30 to 31 of the 1997 Chinese Criminal Code stipulate those situations where criminal responsibility shall be incurred. However, they only provide for a general rule in determining whether a natural or legal person shall be criminally responsible. Under the general umbrella of Articles 14 to 21, a court still needs to refer to the provisions for specific crimes to establish whether a suspect shall be criminally responsible for his commission/omission of an act under the 1997 Criminal Code. Influenced by Soviet Union criminology, under Chinese criminal law there are four essential elements (yao-jian) required for the constitution of a crime and establishment of criminal liability, ie: 1. the object of the crime (fanzui keti), the interest protected by the criminal law and harmed by the crime;   Thaman, above (n 11) 416.  The Criminal Policy Guidelines can be found at: www.court.gov.cn/qwfb/sfwj/yj/201002/ t20100222_1513.htm. 27   CCRF, Art 15. 25 26

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2. the objective aspects of the crime (fanzui keguan fangmian), the criminal conduct and other optional elements such as its harmful consequences; 3. the criminal subject (fanzui zhuti), the person who performed the criminal act; and 4. the subjective aspect of a crime (fanzui zhuguan fangmian), similar to the term mens rea or guilty mind, ie, the person’s intention, recklessness, or negligence.28 Notwithstanding this widely accepted formula, there are scholars suggesting a two-element formula, consisting only of the objective element and the subjective element. Advocates of the latter argue that it is inappropriate to have the object of crime as one of the elements.29 However, this two-step formula is only alive within academic discussions. In practice, the four-step formula still prevails. In Russian criminal law, the constitutive elements of a crime are corresponding, namely: 1. the object of the crime (obyekt prestupleniya); 2. the objective side of the crime (obyektivnaya storona prestupeniya); 3. the subject of the crime (subyekt prestupleniya); 4. and the subjective side of the crime (subyektivnaya storona prestupleniya).30

i  The Object of the Crime The object of the crime does not refer to the victim of the crime but to the social relations and interests protected by the criminal law which are damaged by the criminal act. For example, in the case of intentional homicide, the object of the crime is not the victim, but the victim’s right to life. According to Chinese criminal law theory, an object of a crime is a prerequisite to the establishment of a crime. It should be noted that criminal law does not cover all aspects of social life but protects only the most significant interests among the social relations, which are often recognised in the constitutional law.31 Influenced by the former Soviet Union, Chinese criminal law divided objects of crimes into three categories corresponding to their scope of social relations, namely, the general object, the class object and the direct object. The general object is the object against which all crimes are committed, namely, the entire interest protected by the Chinese criminal law. Articles 2 and 13 of the 1997 Criminal Code reflect the basic content of that general object from different perspectives.32 The   Wei Luo, above (n 4) 146.   Zhang Mingkai, Criminal Law, 3rd edn (Law Press China, 2007) 97.   See Mohamed Elewa Badar and Iryna Marchuk, ‘A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World’ (2013) 24 Criminal Law Forum (forthcoming). 31   Qu Xinjiu et al, The Spirit and Scope of Criminal Law (Beijing: China University of Political Science and Law Press, 2003) 14–15, 384–86. 32   The aim of the Criminal Law of the People’s Republic of China is to use criminal punishments to fight against all criminal acts in order to safeguard security of the State, to defend the State power of the people’s democratic dictatorship and the socialist system, to protect property owned by the State, 28 29 30

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class object is the social relations and interests against which crimes within the same category are committed. The 1997 Criminal Code divides all crimes into ten categories in reference to the standard of the class object. Hence, the class object underlines the common character of each of the ten categories of crimes.33 In the Criminal Code, provisions dealing with specific crimes are divided into chapters corresponding to these categories. For example, Chapter 4 of the 1997 Criminal Code, entitled ‘Crimes of Infringing upon Citizens’ Right of the Person and Democratic Rights’ indicates that citizens’ right of the person and democratic rights shall be the common interest against which murder, crime of intentional injury, rape, crime of extorting a confession by torture,34 etc are committed.35 The class object is of great help to criminal practitioners when distinguishing one crime from another as crimes provided for in one chapter may be similar to crimes in other chapters in terms of the criminal act and its consequences. 36 For instance, if a person commits a killing by detonating a bomb in a public place, he will be charged with the crime of endangering public security not of intentional homicide37 because the ‘real’ interest damaged here is public interest not individual right to life. Every crime stipulated in the 1997 Criminal Code also has its particular direct object. Some of them are explicitly provided for, while others are not. For example, Article 102 provides that the direct object of the crime of treason is the sovereignty, territorial integrity and security of the People’s Republic of China. Similarly in Russian criminal law, the object of a crime describes the social relations damaged by a criminal offence, and assists to qualify the prohibited conduct as a crime.38

ii  The Objective Aspects of the Crime Objective aspects refer to the offender’s criminal conduct, harmful consequences and the causal link between them. It is the critical standard for differentiating crime from non-crime. Among these factors, criminal conduct is the prerequisite for all crimes, while resulting harm is in most cases its composing element. Some crimes also require the special elements of a certain time, place and method of committing the act. and property collectively owned by the working people and property privately owned by citizens, to protect citizens’ rights of the person and their democratic and other rights, to maintain public and economic order, and to ensure the smooth progress of socialist construction. 33   Ruan Qilin, Criminal Law (Beijing: China University of Political Science and Law Press, 2008) 86. 34   All of those mentioned crimes are stipulated in Chapter 4 of the 1997 Criminal Law. 35   Ruan Qilin, above (n 33) 86. 36  ibid. 37   The crime of intentional killing is provided under Art 232 of the Criminal Law. This crime loosely corresponds with the concept of murder. 38   L Gauhman and S Maksimov, Criminal Law of the Russian Federation: General Part, 2nd edn (Moscow: Omega-L Publisher, 2010) 107 in Iryna Marchuk, ‘Reconciliation of Major Legal Systems under the Umbrella of International Criminal Law: A Study on the Law of Mens Rea’ (PhD thesis, Faculty of Law, University of Copenhagen, 2011) 85.

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In Russian law, the objective element identically refers to the criminal act or omission, socially dangerous consequences, causal link between the two, place, time, setting, manner and means to commit a crime.39 a  Criminal Conduct Criminal conducts40 may have different forms, but they all fall into two basic categories: commission and omission. Most of the crimes require commission, while omission is confined to situations where the offender has a duty to act under law but fails to perform this duty, given the performance is possible for the offender and his omission has resulted in serious harm to the society.41 For instance, in the crime of desertion, the criminal act is the offender’s failure to fulfill his duty of supporting family members who cannot live independently.42 The acts of some crimes involve the combination of a commission and omission, for example, tax evasion and refusing to pay tax by means of violence or threat.43 Russian law similarly limits liability for omissions, unless otherwise provided by law, to cases where the suspect has a familial, contractual or other duty to render aid.44 b  Harmful Consequences The harmful consequences refer to the actual damage to the interest protected by the 1997 Criminal Code, for example, the death of a person resulting from an intentional homicide. Resulting harm serves not only as a component of the objective aspects of many crimes, but as a crucial factor in determining the punishment. The 1997 Criminal Code indicates that the resulting harm sets the standard for distinguishing crime from non-crime in terms of negligent crimes as well as a small number of intentional crimes. Furthermore, for offences such as intentional killing, assault and larceny, a particular resulting harm is a prerequisite for establishing a completed crime. In its absence, the criminal act will fall into the category of unaccomplished crimes.45 Intentional killing is a little complicated regarding the result – the death of the victim. If the offender’s commission is out of indirect intention, he will not be convicted intentional crime without the result; but if it is under direct intention, the offender may have committed completed   Gauhman and Maksimov, ibid, 115–16.   Arts 13–16, 1997 Criminal Code define the general scope of criminal aspects. 41   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, Criminal Law, 4th edn (Peking University Press and Higher Education Press, 2010) 124–25. 42   Art 261, 1997 Criminal Law. 43   Arts 202 and 203, 1997 Criminal Law. 44   Thaman, above (n 11) 419. 45   Qu Xinjiu et al, above (n 31) 31. 39 40

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intentional killing with the result, or attempted intentional killing without. This might be slightly different from murder in common law system.46 In Russian law a concrete harmful result is nearly always required, or minimally a situation of concrete endangerment to life, human health or property, and one can rarely find in the CCRF the prohibition of conduct that only theoretically affects protected legal interests.47 ‘This lack of abstract endangerment offenses thus places a substantial burden on criminal investigators to prove the harmful consequences of wrongful conduct and mens rea in relation thereto, arguably making them more susceptible to corruption’.48 c  Time, Place and Method The time, place and method of the commission of a crime are not as vital as the two abovementioned elements for the establishment of a crime. They may, however, become essential elements provided by specific provisions such as crime of catching aquatic products in an area during a season closed to fishing, or using prohibited fishing gear or methods for the purpose in Article 340. More commonly, they contribute to the appropriate assessment of punishment.

iii  The Criminal Subject The 1997 Criminal Code recognised two types of subjects, ie, natural persons and legal persons (units). A natural person is considered to be the subject of a crime when he is at least 16 years old (14 years if the person commits intentional homicide, intentionally hurts another person so as to cause serious injury or death or commits rape, robbery, drug-trafficking, arson, explosion or poisoning)49 and is mentally fit to take legal responsibility, ie, has the ability to recognise and control his own conduct.50 But if a person, who has reached the age of 14 but not the age of 18, commits a crime, he shall be given a lighter or mitigated punishment, pursuant to Article 17. As for legal subjects, according to Article 30 of the 1997 Criminal Code, any company, enterprise, institution, State organ and organisation may become the subject of a crime. A unit crime can only be committed by lawful entities, which means that illegal entities cannot become the subject of unit crime and individuals from such entities shall be treated as participants in joint crimes or syndicate crimes. As for the subjective aspects of unit crimes, most of them are carried out with intention, which does not negate that negligent crimes could also be   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 119.   Thaman, above (n 11) 416.   Friderich-Christian Schroeder (ed), ‘Introduction’ in Strafgesetzbuch der Russischen Föderation (Berlin: Duncker & Humblot, 2007) 29; Thaman, ibid. 49   Art 17, 1997 Criminal Code. 50   Art 18, 1997 Criminal Code. 46 47 48

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committed by a unit.51 For instance, any building, designing, construction or engineering supervision unit, in violation of state regulations, lowering the quality standard of a project and thereby causing a serious accident, shall be held criminally responsible under Article 137, where the units’ subjective aspects towards the serious accident would obviously be negligence. When a unit commits a crime, the unit shall be fined while the persons who are directly in charge and other persons directly responsible for the crime shall receive criminal punishment, unless the law provides otherwise.52 The ‘other persons’ here indicate ordinary employees without competence to legally represent the unit. In Russian law, the age of criminal responsibility for natural persons is likewise 1653 (14 years if the person commits homicide, intentional infliction of grave bodily injury and a series of other enumerated crimes).54 The CCRF, however, limits criminal responsibility to sane natural persons;55 therefore contrary to Chinese law, Russian law does not recognise corporate criminal liability.

iv  The Subjective Aspect of the Crime The subjective aspect of the crime in Chinese criminal law is comparable to the concept of mens rea in common law systems. The literal translation of the Chinese definition is ‘the psychological state of the criminal subject (offender) towards his action and the resulting harmful consequences to the society’.56 The 1997 Criminal Code does not have a specific provision on the subjective aspect of a crime but it reflects on its two major categories, ie, intention and negligence.57 Chinese criminal law does not recognise the Western concept of innocent agency (Jian Jie Zheng Fan), yet jurists have used this theory to analyse cases in China, such as instigating children under the age of 14 to commit theft, or aiding and abetting people with mental illness to commit rape.58   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 110.   Art 31, 1997 Criminal Law. 53   CCRF, Art 20(1). 54   CCRF, Art 20(2): ‘Persons who, before the commission of a crime, have attained the age of 14 years shall be subject to criminal liability for homicide (Article 105), intentional infliction of grave bodily injury causing a impairment of health (Article 111), intentional infliction of bodily injury of average gravity (Article 112), kidnapping (Article 126), rape (Article 131), forcible sexual actions (Article 132), theft (Article 158), robbery (Article 161), brigandism (Article 162), racketeering (Article 163), unlawful occupancy of a car or any other transport vehicle without theft (Article 166), intentional destruction or damage of property under aggravating circumstances (the second part of Article 167), terrorism (Article 205), seizure of a hostage (Article 206), making deliberately false report about an act of terrorism (Article 207), hooliganism under aggravating circumstances (the second and third parts of Article 213), vandalism (Article 214), theft or possession of firearms, ammunition, explosives, and explosion devices (Article 226), theft or possession of narcotics or psychotropic substances (Article 229), the destruction of transport vehicles or ways of communication (Article 267)’. 55   CCRF, Art 19. 56   Wei Luo, above (n 4) 148. 57   Arts 14 and 15, 1997 Criminal Law; Zhang Xiaohu, ‘On the Construction of Subjective Element of Crime’ (2004) 29(4) Journal of Hebei University (Philosophy and Social Science Edition) 22. 58   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 193. 51 52

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Similarly in Russian law, the subjective part of a crime is revealed through guilt, motive and aim to commit a crime.59 Guilt is mandatory while establishing the subjective part of a crime, while this is not always the case with motive and aim.60 Article 24 of the CCRF attributes guilt to a person, if he has committed a criminal act deliberately or negligently (po neostorozhnosti). If the act is committed negligently, it shall be recognised as a crime only in cases where this is specially provided for.61 In other words, Russian criminal law recognises intention and negligence as the two categories of guilt. a  Criminal Intention According to Article 14 of the 1997 Chinese Criminal Code, an act is intentional when it is ‘committed by a person who clearly knows that his act will entail harmful consequences to society but who wishes or allows such consequences to occur, thus constituting a crime’. The general Chinese criminal law theory holds the opinion that there are two factors constituting criminal intention. The first factor is the cognitive element (knowledge). If the offender of an intentional crime has foreseen the possible harmful result of his criminal act, he shall be considered as having knowledge. This includes situations where the offender clearly realises that the harmful results will definitely be achieved, as well as situations where there are justifiable possibilities of the occurrence of the harmful consequences.62 The second factor is the volitional element (will). This element refers to two kinds of attitudes of the offender towards the harmful result of his act: to hope, or allow for. ‘To hope’ means that the offender is in pursuit of the harmful consequences. ‘To allow for’ is comparatively a less positive attitude, which denotes that the offender does not pursue the results, but he does not oppose, or try to prevent it either.63 Knowledge is the basis of the factor of will and it is indispensable to the criminal act.64 It should be emphasised that both factors should be real and definite when determining whether a person had criminal intention. In other words, the factor of knowledge shall not be established if the person committing the act possesses no actual knowledge of his acts and their consequences as well as if he has not readily determined what kind of consequence he is hoping or willing to achieve.65 For instance, D pulled out a gun pointing at V for the purpose of threatening him and the gun was accidently triggered causing V’s death. In this case, during the time D was pointing his gun at V, the former had not decided yet 59   I Kosachenko (ed), Criminal Law: General Part, 4th edn (Moscow: Norma Publisher, 2009) (in Russian) 270; in Marchuk, above (n 38) 87. 60   Marchuk, ibid. 61   CCRF, Art 24(2). 62   Commission of Legislative Affairs of the Standing Committee of the NPC: The Chinese Criminal Law of People’s Republic of China: Interpretation of the Provisions, Legislative Reasons and Relevant Legal Documents (Peking University Press, 2009) 21. 63   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 116. 64   Qu Xinjiu et al, above (n 31) 44. 65  ibid.

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whether he would use the gun to injure V or to kill him. In accordance with the aforesaid Chinese criminal law theory and the practice of Chinese criminal courts, it will be determined that D, although he had committed the act of killing V, due to a lack of the will factor of killing D, did not have the criminal intention to kill V and shall not be held liable for the crime of intentional homicide. Moreover, the factor of knowledge and the will factor are closely related. On the one hand, they must co-exist in order to establish the criminal intention for an intentional crime. On the other hand, the inner connection between the two is also indispensable. The consequence that the offender having knowledge of and the consequence that he is in pursuit of shall be of putative integration under the criminal law.66 Categories of Criminal Intention under the 1997 Criminal Code Chinese criminal law theory classifies criminal intention into two categories, ie, ‘direct intention’ and ‘indirect intention’ on the basis of the cognitive factor (knowledge) and volitional factor (will) of the offender.67 The 1997 Criminal Code does not contain provisions explicitly providing for such a classification, and the latter is rather an academic approach in the research of criminal law theory. In practice, courts do not explicitly employ the terms direct or indirect intention in their judgments when analysing the elements of crimes. Nonetheless, such a distinction is still meaningful to these criminal law practitioners when it comes to the determination of punishment.68 Russian law also distinguishes between direct intent (pryamoi umisel) and indirect intent (nepryamoi umisel ); however, it already specifically provides for such a classification in the CCRF in Article 25. Direct intention refers to the state of mind where the offender clearly foresees that his conduct will inevitably or possibly cause a harmful consequence and, he wishes such a consequence to occur.69 With regard to the factor of knowledge, an offender with direct intention should have the clear knowledge of the content, social effect and outcome of his criminal act rather than simply have the knowledge that there will be a certain consequence of his act. Under direct intention, the offender should also be positively and willingly in pursuit of the harmful consequence condemned by the criminal law.70 In Russian law, the definition of direct intent as provided for in Article 25(2) of the CCRF reflects the same principle: A crime shall be considered to be committed with direct intent, if the person was conscious of the social dangerousness of his actions (omissions), foresaw the possibility or inevitability of the occurrence of the socially dangerous consequences, and desired their occurrence.  ibid.   Ruan Qilin, above (n 33) 132.   ibid, 133; see also Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 120. 69   Commission of Legislative Affairs of the Standing Committee of the NPC: The Chinese Criminal Law of People’s Republic of China, above (n 62) 21. 70   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 119. 66 67 68

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In Chinese law, direct intention may exist in an inchoate crime, for instance, when a person is determined to kill someone, but for some reason fails to complete the act. He may cease to commit the crime during the stage of its preparation; he may be prevented from completing the crime for reasons outside his will; or he may voluntarily stop the on-going commission of the crime. The court is obliged to determine that the offender had direct intention regardless of the stage of the commission of the crime, which only affects the punishment.71 Similarly in Russian law, the criminal responsibility for incomplete offences (preparation for a crime or attempted crimes) ensues under the rules that stipulate responsibility for the complete offence.72 However, Russian law provides for impunity if the actor, who has already committed acts that constitute preparation or attempt, voluntarily abandons the crime.73 Indirect intention differs from direct intention in two aspects. From the aspect of the factor of knowledge, the offender with indirect intention only has the knowledge of a possibility of the occurrence of a harmful consequence, while from the aspect of the will factor, the offender allows for the occurrence of the harmful consequence rather than is positively in pursuit of it. Furthermore, in the case of indirect intention, the offender is ready to commit the act that leads to the consequence. When he determines to commit the act, he considers the consequence as acceptable. The difference between direct intention and indirect intention is therefore obvious.74 Indirect intention in Chinese criminal law would be different from dolus eventualis as the Chinese term needs to evaluate the perpetrator’s attitude or will element towards the resulting consequence. The Russian definition of indirect intention, as described in Article 25(3) corresponds to this concept: A crime shall be considered to be committed with indirect intent, if the person was conscious of the social dangerousness of his actions (omissions), foresaw the possibility of the occurrence of the socially dangerous consequences, did not desire, but consciously allowed these consequences or was indifferent to them.

On the basis of the abovementioned character of indirect intention, in Chinese law indirect intention only exists in completed crimes. In other words, the offender having indirect intention will not be held criminally responsible for attempted crimes. The occurrence of the putative harmful consequence and state of danger is the prerequisite for the establishment of a crime under indirect intention. This is also the case in Russian law where, for example, to be guilty of attempted murder, one must have direct intent to kill, while indirect intent will not suffice.75

  Qu Xinjiu et al, above (n 31) 44.   CCRF, Art 29(3). 73   ibid, Art 31. 74  ibid. 75   Thaman, above (n 11) 421. 71 72

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IV Negligence According to Article 15(1) of the 1997 Criminal Law, negligence refers to a situation where the person ‘should have foreseen that his act would possibly entail harmful consequences to society but . . . fails to do so through his negligence or, having foreseen the consequences readily believes that they can be avoided, so that the consequences do occur’. The 1997 Criminal Code has adopted the same principle and position as many other countries with respect to negligent crimes. It takes negligent crimes as the supplement to intentional crimes. Hence, if it is not explicitly pointed out that a crime stipulated by one of the specific provisions of the 1997 Criminal Law is a negligent crime, the crime shall be considered an intentional one.76 Similarly in Russian law, negligence can be the basis for guilt only in five offences which specifically provide for it.77 Under the Chinese criminal law theory, negligence falls into two categories, ie, negligence by being over confident, and careless and inadvertent negligence. These categories in substance correspond to the two types of negligence (neostorozhnost) found in Russian law, namely ‘light-mindedness’ (legkomyslie) and ‘carelessness’ (nebrezhnost).

A  Negligence by being Over Confident Negligence by being over confident refers to the mental state under which the person conducting the acts recklessly believes that the harmful result can be avoided, however it occurs. First, the offender committing a crime with negligence by being over confident foresees the possibility rather than the inevitability of the occurrence of the harmful result. However, the offender has to foresee the particular harmful result which may occur, as a general fear or anxiety will not suffice.78 Secondly, the offender recklessly believes that the harmful result can be avoided. Furthermore, he positively hopes that he can avoid the harmful result. This corresponds to ‘lightmindedness’ as defined in Article 26(2) of the CCRF as the state of mind, where ‘a person foresaw the possibility of the occurrence of socially dangerous consequences of his acts (omissions), but without sufficient reason, arrogantly calculated that he could prevent these consequences’.

  Qu Xinjiu et al, above (n 31) 42.   CCRF, Art 24 (2). 78   Qu Xinjiu et al, above (n 31) 43. 76 77

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B  Careless and Inadvertent Negligence Careless and inadvertent negligence refers to the guilty mind of the person conducting the act who should have foreseen that his act will lead to the harmful result but he fails to, because of his carelessness. There are three features of this kind of negligence as follows. First, the person conducting the act does not foresee the possibility of the occurrence of the harmful result brought by his act. It should be noted that the harmful result here shall be the putative one stipulated by the criminal law and thus shall be in the form of a particular result or danger. Secondly, the person conducting the act should have foreseen that his act may lead to the harmful result. This can be further enumerated in two aspects. On the one hand, the person has to have the capacity of foreseeing the harmful result; on the other, he has to have the obligation to foresee it and such an obligation may derive from the laws, regulations, or the common social rules known by community. For example, traffic law and regulations strictly prohibit drunk driving because it easily brings about traffic accidents and therefore everyone shall have the obligation of foreseeing the harmful results of drunk driving. Thirdly, the person’s failure to foresee the result derives from the person’s carelessness. Such carelessness stands as the substantive reason for punishing crimes committed through careless and inadvertent negligence in that the person with such a state of mind breaches the duty of care assumed by the laws and the social community as a whole. Consider the case Zhang Shuancheng: Manslaughter Due to Negligence. In 2004 Zhang Guozheng’s son-in-law raped the defendant Zhang Shuancheng’s niece and then fled after an arrest warrant was issued. One day in 2005 the defendant went to Zhang Guozheng’s home to look for his son-in-law. The defendant and Zhang Guozheng began a fistfight. The defendant used his fists to punch Zhang Guozheng’s head and other parts of his body several times. Zhang Guozheng soon felt very sick and died on the way to the hospital. The autopsy showed that Zhang Guozheng had some minor injuries from the fistfight and had died from a heart attack. Zhang Guozheng had a history of heart disease. The defendant was charged with manslaughter due to his negligence. The Hua County People’s Court of Henan Province found the defendant guilty of negligent manslaughter because he failed to foresee that his punches on Zhang Guozheng, an older man, could trigger a fatal heart attack. Although the defendant appealed, the Anyang City Intermediate People’s Court of Henan Province affirmed the lower court’s holding.79

This second type of negligence corresponds to the Russian ‘carelessness’. Described in Article 26(3) of the CCRF, it refers to the state of mind, where the 79   Zhang Shuancheng Guoshi Zhi Ren Shiwang An [The Case of Zhang Shuancheng: Manslaughter Due to Negligence] 62 Ren Min Fa Yuan An Li Xuan [Selected Cases of the People’s Courts], issue no 4 (Beijing: People’s Court Press, 2008) 48, 49–52. This Chinese case reporter series is edited by the Chinese Practising Law Institute of the People’s Supreme Court and is considered one of the few authoritative publications for Chinese case law; see above (n 8) 149.

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person ‘did not foresee the possibility of the occurrence of the socially dangerous result of his acts (omissions), but with necessary care and prudence should have and could have foreseen these results’.

V  Cognition Error In Chinese criminal law theory, there is a concept superior to both mistake of law and mistake of fact, ie, cognition error. It refers to the inconsistency between the subjective cognition of the offender and the actual objective situation arising from the commission of an intentional crime. The theory considers that consciousness and will are related to each other and the former is the prerequisite of the latter. The integration of consciousness and will would be affected negatively when the person committing the crime suffers from a cognition error. That would further affect the establishment of criminal intention. In determining whether a cognition error will hinder the establishment of criminal intention, it should be noted that cognition error is an issue within the context of criminal intention. Thus, the perpetrator’s cognition error of factual or legal elements – which are not elements of a crime required by the law – has nothing to do with the knowledge and will requirements of the criminal intention described above, and shall not prejudice the establishment of intentional crimes.80 The Russian CCRF does not have a section dealing directly with mistakes of law and fact, but the topic is well known in the legal literature and jurisprudence.81

A  Mistake of Law Under Chinese criminal law theory, mistake of law refers to the offender’s wrong cognition or judgement about the nature and consequences of his act under the law. Mistake of law derive from the offender’s ignorance or misinterpretation of the criminal law. Generally speaking, there are three types of mistake of law.

i  A Person Mistakes his Lawful Act for a Criminal Act There are situations where a person has done something morally wrongful but not condemned by the criminal law. However, he may believe that he has violated the criminal law due to his misinterpretation of the criminal law and voluntarily surrenders himself to the judiciary. Such a person shall not be held criminally responsible due to the lack of criminal elements under the criminal law.   Qu Xinjiu et al, above (n 31) 45.   Thaman, above (n 11) 428.

80 81

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ii  A Person Mistakes his Criminal Act for Lawful Conduct In such a situation, the person committing a crime has the mistaken belief that his act is not punishable under criminal law. Such a type of mistake of law shall not be a valid defence of the offender’s alleged crime. For instance, A caught his wife B and another man C committing adultery in his house. A tied up C and assaulted him severely which caused C to suffer serious injury. Here A may have thought that it is not morally wrong for him to punish the man cheating on him with his wife. However, A had the intention to injure C and he succeeded in doing so. The law would thereby hold him criminally responsible for his commission of the crime of intentional injury even though A firmly believes that B and C’s act is condemned by the moral rules of the society and he is allowed to do so in order to protect himself from a distorted marriage.82

iii  Mistake Regarding the Type of Crime or the Degree of Punishment In this case, the offender has the knowledge that he has violated the criminal law. But he misconstrues the type of crime or the type or degree of the criminal punishment attributed to his crime. Such misunderstanding will not affect the establishment of the crime and the measurement of the corresponding punishment. For instance, A stole part of the communication cable which is in use for both civilian and military purposes in order to gain profit by selling it. A thought that his act was a common theft under criminal law. However, according to Article 124 of the 1997 Criminal Code, A had committed the crime of sabotaging broadcasting, television or public telecommunications facility under which the punishment is much more severe than that of the crime of theft. In spite of A’s misunderstanding, he still is liable for the crime under Article 124.83

iv Summary Generally speaking, mistake of law will not stand as a valid defence of a person’s guilty act when he/she has committed a crime or crimes under the criminal law, unless it could be proved that the offender does not have the knowledge that his action has harmful consequences to the society either.84 Russian law also recognises the doctrine ignorantia legis neminem excusat, however some have argued that those charged with some of the new economic crimes, often with elements referring to complex regulations in other normative acts, should know that their conduct is prohibited.85   ibid, 46.   Ruan Qilin, above (n 33) 141. 84   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 133. 85   Ye, Muradov, ‘Oshibki pri kvalifikatsii eknomicheskikh prestupleniy, Rossiskaia yustitsiia 1’ (2004) 45, in Thaman, above (n 11) 428. 82 83

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B  Mistake of Fact Mistake of fact refers to the cognition error where the person conducting the act misunderstands the fact of whether his act is within the scope of the elements of a crime or not. Chinese criminal law theory classifies mistakes of fact into the following four types.

i  Mistake of Criminal Object If an offender decides to commit a criminal act against a certain criminal object but it turns out that he has offended another criminal object rather than the one intended, we talk about the mistake of criminal object.86 For example, A is insulting a woman in a public place and he is then arrested by a policeman B who is in plain clothes but has indicated his identity to A. On their way to the police station, three of A’s friends, C, D and E find that A is in capture of B. The three men do not know that A had had a fight with B and is in capture for that reason. They decide to rescue A by attacking B. They succeed in doing so and cause injury to B. In this case, C, D and E have no idea about the identity of the policeman B and take him for an ordinary citizen. Even though their acts are against the exercise of public function, which is the criminal object of the crime of obstructing a functionary of a state organ from carrying out functions,87 they shall be held liable for the crime of intentional injury since they intended to injure the victim as an ordinary citizen. Hence, the courts generally determine the types of crime according to the offenders’ intended criminal objects rather than the actual ones.

ii  Mistake of Target Mistake of target itself has several types. The legal consequence of these should be discussed respectively. First, there may be the non-existence of the particular criminal target, however the person conducting the act believes that it exists. For instance, a person mistakes a cow for the person he is intending to kill and shoots the cow, killing it. In this case, the person will be held liable for the crime of attempted intentional homicide because he has the criminal intention to kill somebody and he conducts the act of killing. Although he does not complete the crime, his criminal intention together with the act, constitute a criminal attempt and he shall receive a lighter or mitigated punishment in comparison with someone who completes the crime.88   Qu Xinjiu et al, above (n 31) 45.   Art 277, 1997 Criminal Law. 88   Art 23, 1997 Criminal Law. 86 87

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Secondly, there are opposite situations where the person conducting the act mistakes a human being for an animal. It once happened in the rural area of China, where the people suffered from wild boars raiding their crops. In the night time, a farmer was patrolling his field to protect the crops when he heard something moving. The farmer shouted out and no one answered. He thought it was a wild boar and he fired at the place where the noise was coming from. It turned out that the target was a man stealing the farmer’s crops rather than the imagined wild boar. The court held that the farmer did not have the criminal intention of murder or injuring someone and thus did not commit the crime of intentional homicide. In such cases, the courts usually consider those acts as crimes of negligence or contingent events.89 The last type of mistake of target is a situation where the person committing the act mistakes another person for the one he intended to target. In this case, the offender is liable for his criminal act. The mistake of target will not hinder the establishment of the offender’s criminal intention.90 This doctrine of ‘transferred intent’ is also applied in Russian law, where a person in such a scenario would similarly be found guilty of murder.91

iii  Mistake of Means and Method Mistake of means and method refers to the situation where the offender produces a cognition error which leads him to adopt a method contrary to his criminal goal while he is committing the crime.92 For instance, A was determined to murder B by poisoning him. However, A mistook white sugar for arsenic and he failed to kill B. Chinese criminal theory contends that such cognition error does not affect the establishment of criminal intention even though the harmful result does not occur. Under such circumstances, the offender is still held liable for his commission of attempted murder.93

iv  Mistake of Causal Links There are situations where the perpetrator’s action is followed by the results as he expected them, but the actual reason for the results is different from the one he expects. This does not adversely affect the establishment of criminal intention or the crime. This kind of mistake can be categorised as follows. Under the first category the intended harmful result occurs but it stems from some other cause than the one the offender believes had created the consequences. For example, A wants to murder B by drowning him and pushes him into a well,   Ruan Qilin, above (n 33) 139.   Qu Xinjiu et al, above (n 31) 46. 91   Thaman, above (n 11) 428. 92   Ruan Qilin, above (n 33) 139. 93  ibid. 89 90

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which does not contain any water. However, B nevertheless dies because of the fall. But A, without knowing the situation, still believes that B has drowned to death. The second type is a bit more complicated. The offender intends to produce a harmful result and takes the initiative to materialise it. When he has completed the initiative, he thinks that the consequence has occurred and he then takes another action. However, it is the second action that in fact leads to the harmful result. For instance, A wants to kill B by choking him and B faints. A thinks that B has died and decides to hide his body in a well. However, the actual death is a consequence of drowning and not choking. In Russian law, on the other hand, the perpetrator in such a scenario would be found guilty of both negligent causing of death94 and attempted murder.95

v Summary Except for the mistake of target where the person conducting the act mistakes a human being for an animal, the remaining types of mistake of fact do not hinder the establishment of the criminal intention and consequently the crime. Looking at Russian law, a person will not be held liable only, if he did not realise due to the circumstances of the case the social danger of his actions (omissions), or has not foreseen the possibility of the occurrence of socially dangerous consequences and could not or should not foresee them due to the circumstances of the case.96 Consequently if a person errs about an attendant circumstance that would make the crime more serious, the person is guilty of the lesser crime actually committed. However, he is in addition also guilty of an attempted commission of the more serious crime.97

C  Responsibility for a Crime Committed with Two Forms of Guilt in Russian Law Russian criminal law recognises situations where a crime can be committed with both types of guilt ie, intention and carelessness in relation to different material elements of the same crime. As prescribed in Article 27 of the CCRF: [I]f an intentional crime results in grave consequences, which under the law involve a stricter punishment but which were not included in the person’s intent, then criminal responsibility for such consequences shall ensue only in cases where the person has foreseen the possibility of their occurence, but expected without valid reasons that they would be prevented, or in cases where the person has not foreseen, but could and should have foreseen the possibility of the onset of these consequences.   CCRF, Art 109.   Thaman, above (n 11) 428. 96   CCRF, Art 28(1). 97   Thaman, above (n 11) 428. 94 95

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This two-fold form of guilt (dvoynaya forma vini) is applicable in two types of crimes: 1. Crimes that violate safety rules and normally constitute administrative offences, however, the occurrence of the socially dangerous consequences qualify them as criminal offences (for example, intentional violation of the rules of traffic which involves the infliction of grave injury by negligence).98 2. Crimes that entail two types of consequences – ones that pertain to the sine qua non elements of the corpus delicti of the crime and the additional consequences, which form the qualified/aggravated form of the same crime. For example an intentional infliction of a grave injury which involves the death of a victim by negligence. In such a case the perpetrator will not be found guilty of murder, but of the aggravated form of intentional infliction of a grave injury.99

VI  Mens Rea of Joint Crimes under Chinese Criminal Law Section 3 of Chapter 2 of the 1997 Criminal Code deals with joint crimes. According to Article 25 of the 1997 Criminal Law: [a] joint crime refers to an intentional crime committed by two or more persons jointly while [a] negligent crime committed by two or more persons jointly shall not be punished as a joint crime; however, those who should bear criminal responsibility shall be individually punished according to the crimes they have committed.

The crime must therefore be committed by more than one person; the objective aspects of the crime must be the product of conspiracy between the joint criminals; and the perpetrators must share a joint criminal intention. As in the case of individual crimes, the mens rea for joint crimes contains the knowledge and will requirements; however the knowledge requirements for joint crimes entail that the perpetrator recognises not only that he himself is committing a crime, but that others are joining him for the commission of a crime. The will requirements are the same as those for any individual crime, namely that the perpetrators know that harmful results will follow their actions and desire or allow for the occurrence of those results. The above-mentioned mens rea can be further detailed as intention of enforcement, intention of organisation, intention of instigation and intention of aiding and abetting.100 In situations where one of the members of the joint crime   CCRF, Art 264(1).   Marchuk, above (n 38) 93; CCRF, Art 111(4). 100   Qu Xinjiu et al, above (n 31) 75. 98 99

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commits a crime falling beyond the common purpose, referred to as Gong Fan Guo Xian or Shi Xing Guo Xian, other members will not be held accountable.101

A  The Intention of Enforcement The intention of enforcement is the guilty mind of the principal criminal of a joint crime, who directly commits the criminal act.102 This kind of criminal intention is rather different from that of crimes committed by an individual person. For instance, if there is only one perpetrator directly committing the criminal act in a joint crime, who is accompanied by abettors and aiders, the criminal intention is only borne by the perpetrator conducting the act. In the case of a joint crime having two or more perpetrators directly committing the criminal acts, it should be determined that both or all of them share the same criminal intention. If one of the perpetrators acts outside the agreement and the action is irrelevant to the agreed crime, the others shall not bear liability for that act since there is no joint criminal intention and the crime which is not agreed is not foreseeable to the other offenders.103

B  The Intention of Organisation This type of joint criminal intention refers to the guilty mind of making plans of commissions of crimes, as well as directing and leading crimes. In the case of organised crimes, the perpetrator having the criminal intention of organising a crime, or a ringleader,104 shall be held criminally responsible for all the crimes committed by the criminal group since he shares the joint criminal intention with other perpetrators towards those crimes.

C  The Intention of Instigation An accomplice who plays a secondary role in a joint crime is directly involved in the criminal acts, while an accomplice who plays a supplementary role is indirectly involved in a joint crime by abetting the principal offenders, such as by providing them with information, tools, or a hideout. Their criminal liabilities are thus different.105

Chinese criminal law theory considers that the criminal intention of instigation reflects the vicious mind of the abettor. The abettor not only has the knowledge that his instigation will lead to the commission of a crime and consequently the   Gao Mingxuan, Ma Kechang and Zhao Bingzhi, above (n 41) 179.   May refer to a ringleader, or any other criminal who plays a principal role in a joint crime, see Art

101 102

26.   Feng Yingju, ‘Criminalization and Punishment for Joint Crime’ (People’s Courts Press) 85.   Art 26, 1997 Criminal Code, para 3. 105   Thaman, above (n 11) 151. 103 104

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occurrence of the harmful result, but that he wishes and allows the person he has instigated to commit the crime. An instigator shall be punished according to the role he plays in a joint crime.106

D  The Intention of Aiding a Crime The criminal intention of aiding a crime is borne by the perpetrator who wishes to provide convenience to other perpetrators (mainly the perpetrator who directly conducts the criminal act) to commit a crime or crimes. Such type of joint criminal intention also involves the knowledge of the commission of a crime and the corresponding harmful result. According to Article 27, an accomplice shall be given a mitigated punishment or be exempted from punishment in light of the circumstances of the crime he commits. In Russian law, complicity is described as ‘intentional joint participation of two or more persons in the commission of an intentional crime’.107 The CCRF differentiates between four types of accomplice liability: 1. an executor, who directly commits the crime or directly participates in its commission with other persons (co-executors), and also a person who commits a crime by using other persons who do not incur criminal liability because of age, insanity, or other circumstances provided in the CCRF; 2. an organiser, who organises the commission of the crime or manages its execution, as well as a person who creates an organised group108 or a criminal organisation109 or manages it; 3. an instigator, who induces another person to commit a crime through persuasion, bribery, threats or other means; and 4. an aider, who influences the commission of a crime by advice, instructions on committing the crime, providing information, means or tools to commit the crime, or removal of obstacles to it, or who promises beforehand to conceal the criminal, means and instruments of commission of the crime, traces of the crime, or objects obtained criminally, and equally a person who has promised beforehand to acquire such objects.110 (Co)perpetrators are answerable for crimes they committed, while the responsibility of accomplices is determined by the character and the degree of the actual participation of each of them in the commission of the crime.111 According to   Art 29,1997 Criminal Code.   CCRF, Art 32. 108   Steadfast group of persons who united in advance for the commission of one or more offences (Art 35(3)). 109   Solid organisation, set up to commit grave and especially grave crimes, or an association of organised groups set up for these purposes (Art 35(4)). 110   CCRF, Art 33 (2) (3). 111   CCRF, Art 34. 106 107

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Article 36 of the CCRF accomplices are liable for crimes committed by the executor only if they desired or at least recklessly allowed such crimes to take place. In the case of a person who creates or manages an organised group or a criminal organisation, he is guilty of all crimes committed by its members in carrying out the plans of the organisation, while members or participants in such organisations are only responsible for these acts, when they actually participate in their preparation or commission or share the precise criminal purpose:112 Thus the SCRF reversed an attempted murder conviction of participants who, although properly found guilty of ‘banditism’. . ., claimed that they were surprised that their copartner had a gun and silencer and that, when they asked him why he had brought it, he said that he was only going to ‘scare’ the victims.113

Someone who knowingly aides a criminal organisation without being its member, is guilty as an accomplice both to the acts he actually aids and to the crime of management of the criminal organisation.114

VII Conclusion In Chinese criminal law a crime is understood as an act or an omission which is harmful to society, and is punishable under criminal law.115 Similarly to Russian criminal law, corpus delicti comprises four constitutive elements (yao-jian), such as (1) object of a crime (fanzui keti); (2) objective aspect of a crime (fanzui keguan fangmian); (3) subject of a crime (fanzui zhuti); and (4) subjective aspect of a crime (fanzui zhuguan fangmian).116 The object of a crime refers to social relations and interests affected by a criminal offence. Criminal law does not address all the multi-faceted aspects of social life; however, it protects only the most significant of social interests.117 The objective aspect of a crime refers to the offender’s criminal conduct, harmful consequences and the causal link between these two elements.118 The category of ‘guilt’ in Chinese criminal law is termed as the psychological attitude of the offender towards harmful consequences that result from their conduct.119

  CCRF, Art 35(5).   Decision (30 Oct 2008), (2009) 9 SCRF Bulletin in Thaman, above (n 11) 424.   CCRF, Art 33(5); Art 210(1). 115   Qu Xinqiu, Criminal Law (China University of Political Science and Law Press, 2007) 31. 116   Wei Luo, above (n 4) 146, citing in support I Dobinson, ‘Criminal Law’ in Wang Chenguang and Zhang Xianchu (ed), Introduction to Chinese Law (Hong Kong: Sweet and Maxwell Asia, 1997) 111. 117   Qu Xinjiu, The Spirit and Scope of Criminal Law (China University of Political Science and Law Press, 2003) 14–15, 384–86. 118   Arts 13–16 of the 1997 Chinese Criminal Code. 119   Wei Luo, above (n 4) 148; See also Badar and Marchuk, above (n 30). 112 113 114

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Conclusion Russian criminal law has endorsed the conceptual approach towards crime, which is construed as a combination of four integral elements: social harm; culpability; unlawfulness and punishability.120 The social harm of a crime is the material element that signifies the breach of social relations and values by a criminal offence.121 Guilt is a fundamental principle of criminal responsibility that demonstrates the subjective attitude of a person towards their socially harmful conduct (acts and omissions), and the ensuing consequences penalised by law.122 The concept of unlawfulness is a manifestation of the principle of legality: a person cannot be found criminally liable unless he committed the socially harmful act or omission criminalised by law.123 Punishability is defined as a threat to impose criminal responsibility for an act or omission penalised by law.124

120  A Raroga (ed), Criminal Law of Russian Federation: General Part, Fourth Edition, EKSMO Publisher, Moscow, 2010 (in Russian), translated in in I Marchuk, ‘Reconciliation of Major Legal Systems under the Umbrella of International Criminal Law: A Study on the Law of Mens Rea’ (PhD thesis, Faculty of Law, University of Copenhagen, 2011) 85–89. 121   L Gauhman, S Maksimov, Criminal Law of Russian Federation: General Part, Second Edition (Moscow: OMEGA-L Publisher, 2010) 82–83; A Raroga (ed), Criminal Law of Russian Federation: General Part, Fourth Edition (Moscow: EKSMO Publisher, 2010 (in Russian)) 49–51. 122   According to Article 5(1) of the Criminal Code of Russian Federation (hereinafter – CCRF): ‘A person shall be subject to criminal responsibility only for those socially harmful acts (omissions) and socially harmful consequences in respect to which his guilt has been established.’ 123   Article 3(1) of the CCRF reads: ‘The criminality of conduct, its punishability and other legal consequences shall be determined by the present Code alone.’ 124   I Kosachenko (ed), Criminal Law: General Part, Fourth Edition (Moscow: NORMA Publisher, 2009 (in Russian)) 170–71, translated in I Marchuk, ‘Reconciliation of Major Legal Systems under the Umbrella of International Criminal Law: A Study on the Law of Mens Rea’ (PhD thesis, Faculty of Law, University of Copenhagen, 2011); See also Badar and Marchuk, above (n 30).

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7 Mens Rea in Islamic Criminal Law I  Introduction to Islamic Law (Shari’a) Islamic law has developed over many centuries of juristic effort into a subtle, complex and highly developed reality. Such a complexity does not, however, make Islamic law indeterminable.1 The differences of legal opinions are considered as ‘different manifestations of the same divine will’ and form ‘a diversity within unity’.2 It has been noted by scholars that there is tendency for Islamic law to be a static or non-progressive legal system, whose main principles are derived from religious texts.3 Most Western scholarly debates have centred on Islamic criminal law on a basic level without an in-depth grasp of the subject. This has been thought to be due to a lacuna in the available English literature on Islamic criminal law that ‘cries to be filled’.4 It has also been argued that it is almost impossible for Islamic law to be compared to the Western legal system, because the legal systems of almost all Islamic states are based on the principles of Shari’a, making the path for the creation of a dialogue between Islamic law and international institutions virtually non-progressive.5 Islamic law, like any other, has its ‘sources’ (al-masadir); it also has its ‘guiding principles’ (al-usul) that dictate the nature of its ‘evidence’ (al-adilla); it equally employs the use of ‘legal maxims’ (al-qawa’id) and utilizes a number of underlying ‘objectives’ (almaqãsid) to underpin the structure of its legal theory.6 1   MA Baderin, International Human Rights and Islamic Law (New York: Oxford University Press, 2005) 32–33. 2   ibid, 32 referring to MH Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Text Society, 1991) 169 and WB Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul-al Fiqh (Cambridge: Cambridge University Press, 1997) 202. 3   A Maged, ‘Status of Ratification and Implementation of the ICC Statute in the Arab States’ in C Kress et al (eds), The Rome Statute and Domestic Legal Orders, vol II (Fagnano Alto: il Sirente, 2005) 469–78; See also the comments made by Ross Cranston, The Solicitor-General, on the UK International Criminal Law Bill at the House of Commons, available at: www.parliament.the-stationery-office.com/ pa/cm200001 /cmstand/d/st010503/pm/10503s04.htm. 4   MH Kamali, ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence’ (2006) 20 Arab Law Quarterly 77; G Badr, ‘Islamic Law: Its Relationship to Other Legal Systems’ (1978) 26 American Journal of Comparative Law 187. 5   M Zahraa, ‘Characteristic Features of Islamic Law: Perceptions and Misconceptions’ (2000) 15 Arab Law Quarterly 168; see also D Westbrook, ‘Islamic International Law and Public International Law: Separate Expressions of World Order’ (1993) 33 Virginia Journal of International Law 819. 6   Gavin Picken, Islamic Law, 4 vols (London: Routledge, 2010).

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Islamic law has its roots deeply embedded in the political, legal and social aspects of all Islamic states and it is the governing factor of all Islamic nations.7 It is often described by both Muslims and Orientalists as the most typical manifestation of the Islamic way of life – the core and kernel of Islam itself.8 Other commentators deem this an exaggeration and do not believe Islam was meant to be as much of a law-based religion as it has often been made out.9 In any case, Islamic law, one of the recognised legal systems of the world,10 is a particularly instructive example of a ‘sacred law’ and differs from other systems so significantly that its study is indispensable in order to appreciate adequately the full range of possible legal phenomena.11 Islamic law, like Roman law, used to be a ‘jurist law’, in the sense that it was neither a product of legislative authority nor case law, but a creation of the classical jurists, who elaborated on the sacred texts.12 However, with the first codifications in the mid-nineteenth century, Islamic law became ‘statutory law’, promulgated by a national territorial legislature.13

II  The Application of Islamic Law in Muslim States Today The modern Islamic society is divided into sovereign nation states. Today there are 57 Member States of the Organization of the Islamic Conference (OIC) which is considered the second largest intergovernmental organisation after the United Nations.14 The OIC claims to be the collective voice of the Muslim world and aims to safeguard and protect its interests.15 Most states which joined the OIC are predominantly Sunni, with only Iran, Iraq, Azerbaijan, Bahrain and Lebanon having 7  See H Enayat, Modern Islamic Political Thought (Austin: University of Texas Press, 1982); A Hourani, Arabic Thought in the Liberal Age: 1798–1939 (Cambridge: Cambridge University Press, 1983); Hallaq, A History of Islamic Legal Theories, above (n 2). 8   J Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964) 1. 9   MH Kamali, Shari’ah Law: An Introduction (Oxford: Oneworld Publications, 2008) 1. 10  See R David and J Brierly, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (New York: Free Press, 1978) 421. 11   Schacht, above (n 8) 2. 12   A Layish, ‘The Transformation of the Shari’a from Jurists Law to Statutory Law’ (2004) 1 Die Welt des Islams, New Series 86; see also FA Hassan, ‘The Sources of Islamic Law’ (1982) 76 American Society of International Law Proceedings 65. 13   Layish, above (n 12). 14   This number includes Palestine which is not yet considered a state under international law. For more information on the OIC see: www.oic-oci.org/page_detail.asp?p_id=52. 15   In 2004 the OIC made submissions on behalf of Muslim states regarding proposed reforms of the UN Security Council to the effect that ‘any reform proposal, which neglects the adequate representation of the Islamic Ummah in any category of members in an expanded Security Council will not be acceptable to the Islamic countries’. See UN Doc A/59/425/S/2004/808 (11 October 2004) para 56, quoted in MA Baderin (ed), International Law and Islamic Law (Burlington: Ashgate, 2008) xv.

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a predominantly Shi’a population. Apart from Lebanon and Syria, all Arab states consider Islam as the state religion and source of law.16 Bassiouni divides these countries into three categories. The first comprises secular states, like Turkey or Tunisia, who despite their moral or cultural connection with Islam do not subject their laws to the Shari’a. Countries from the second category, such as Iraq and Egypt, expressly state in their Constitutions that their laws are to be subject to the Shari’a, therefore their constitutional courts decide on whether a given law is in conformity with the Shari’a and can also review the manner in which other national courts interpret and apply the laws to ensure conformity.17 The third category of states proclaims the direct applicability of the Shari’a. According to one commentator, the majority of Muslim states fall between the two poles of ‘purist’ Saudi Arabia and ‘secular’ Turkey.18 Most states have been selective in determining which Shari’a rules apply to their national legislations.19 As a consequence of colonialism and the adoption of Western codes, Shari’a was abolished in the criminal law of some Muslim countries in the nineteenth and twentieth centuries but has made a comeback in recent years with countries like Iran, Libya, Pakistan, Sudan and Muslim-dominated northern states of Nigeria reintroducing it in place of Western criminal codes.20

III  Sources of Islamic Law – Shari’a and Fiqh Islam is a way of life akin to a system that regulates the believer’s life and thoughts in line with a certain set of rules.21 The term ‘Islamic law’ covers the entire system of law and jurisprudence associated with the religion of Islam. It can be divided into two parts, namely, the primary sources of law (Shari’a in the strict legal sense) and the subordinate sources of law with the methodology used to deduce and apply the law (Islamic jurisprudence or fiqh).22 Shari’a literally means the pathway23 and in its original usage it meant the road to the watering place or path leading to the water, ie, the way to the source of 16   CB Lombardi, ‘Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Shari’a in a Modern Arab State’ (1998) 37 Columbia Journal of Transnational Law 81. 17   MC Bassiouni, ‘The Shari’a and Post-Conflict Justice’ (on file with the author, 2010) 15. 18   J Esoisutim, ‘Contemporary Islam: Reformation or Revolution?’ in J Esposito (ed), The Oxford History of Islam (Oxford: Oxford University Press, 1999) 643. 19   H Hamoudi, ‘The Death of Islamic Law’ (2009) 38 Georgia Journal of International and Comparative Law 325. 20   R Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005) 124. 21   M Khadduri, ‘The Modern Law of Nations’ (1956) 50 American Journal of International Law 358. 22  Baderin, International Human Rights and Islamic Law, above (n 1) 32–34. Some scholars use the terms Islamic law, Shari’a and/or fiqh interchangably; eg, Kamali considers Shari’a to also include fiqh; see Kamali, Shari’ah Law, above (n 9). 23   I Abdal-Haqq, ‘Islamic Law: An Overview of its Origin and Elements’ (2002) 7 Islamic Law and Culture 4, referring to A Rahim, The Principles of Islamic Jurisprudence (New Delhi: Kitab Bhavan, 1994) 389.

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life.24 It rules and regulates all public and private behaviour as well as legal aspects.25 The word Shari’a occurs once in the Qurān: Thus we put you on the right way [sharī’atan] of religion. So follow it and follow not the whimsical desire (hawā) of those who have no knowledge (Qurān 45:18).

Shari’a is derived directly from the Qurān and the Sunnah, which are considered by Muslims to be of divine revelation and thus create the immutable part of Islamic law, while fiqh is mainly the product of human reason. ‘Muslim jurists throughout history have not been concerned with establishing a particular field or science or even theory – to them the divine sources are comprehensive enough to encompass any possible human action, conduct or transaction’.26 However, it is important to mention that in contrast with the belief of the Sunni, the Shi’a believe that divine revelation continued to be transmitted after the Prophet’s death to the line of their recognised religious leaders (imams).27 They thus consider as part of the divine revelation the pronouncements of their imams whom they believe infallible.28

A  Qurān The Qurān is considered by Muslims to be the embodiment of the words of God as revealed to the Prophet Muhammad through the angel Gabriel. It is the chief source of Islamic law and the root of all other sources.29 However, it is far from being a textbook of jurisprudence and is rather a book of guidance on all aspects of the life of every Muslim:30 We have sent down to thee the Book explaining all things, a Guide, a Mercy, and Glad Tidings to Muslims (Qurān 16: 89).

The Qurān consists of more than six thousand verses (ayat).31 Jurists differ on the number of verses which are of legal subject matter, as they use different methods of classification for determining what constitutes a legal verse – estimates range from 80 up to 800 verses.32 The legal verses are not accumulated in their own separate chapter (sura) but may occur alongside verses about belief, general   F Robinson, Atlas of the Islamic World since 1500 (Oxford: Phaidon, 1982) 320.   AS Alarefi, ‘Overview of Islamic Law’ (2009) 9 International Criminal Law Review 707–08; Schacht, above (n 8) 1–5. 26   Zahraa, above (n 5) 171. 27  Kamali, Shari’ah Law, above (n 9) 88. 28  ibid. 29   Alarefi, above (n 25) 709–10. 30   MS El-Awa, ‘Approaches to Shari’a: A Response to NJ Coulson’s A History of Islamic Law’ (1991) 2 Journal of Islamic Studies 143, 146. 31   6239 verses, Bassiouni, ‘Post-Conflict Justice’, above (n 17); 6235 verses, Kamali, Shari’ah Law, above (n 9); 6666 verses, Abdal-Haqq, above (n 23) 27. 32   There are 80 legal verses according to Coulson, 120 according to Bassiouni, 350 according to Kamali, 500 according to Ghazali, 800 according to Ibn Al-Arabi, while according to Shawkani any calclulation can only amount to a rough estimate. 24 25

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behaviour, the nature of existence or the history of bygone peoples. A particular judgement may occur on a number of different occasions and in different styles to deepen and broaden the understanding of the believer while reminding him of the rule.33 The Qurān is an indivisible whole and a guide that must be accepted and followed in its entirety.34 It was revealed, a few verses at a time, over a period of 23 years, ending with the demise of Prophet Muhammad in 632 ce. To properly understand its legislation one has to take into consideration the Sunnah as well as the circumstances and the context of the time of the revelation.

B Sunnah According to the common understanding of Muslims, the second source of Islamic law are the sayings and practice of the Prophet Muhammad or the Sunnah, collected in hadiths.35 While the Qurān is believed to be of manifest revelation, ie, that the very words of God were conveyed to the Prophet Muhammad by the angel Gabriel, the Sunnah falls into the category of internal revelation, ie, it is believed that God inspired Muhammad and the latter conveyed the concepts in his own words.36 The Sunnah is complementary to the Qurān as a source for knowing the divine will, which is explicitly stated in the Qurān itself: And what the Messenger gives you, take; and what he has forbidden you, leave alone (Qurān 59:7).

The Qurān authorises the Prophet Muhammad to make legal decisions in response to the developments in the Muslim community and delegates to him the task of explaining the judgements of the Qurān:37 Judge between them according to what God has revealed, and do not follow them in their vein desires (Qurān 5:49); No, by your Lord, they are not (truly) believers until they make you the judge of the disputes that arise among them, and find no resistance in their- selves to what you decide but accept (it) with complete submission (Qurān 4:65).

When an issue is not specifically addressed in either the Qurān or the Sunnah the Prophet mandated the use of sound reasoning in reaching a judgement.38 When appointing a judge to Yemen, the Prophet asked him: According to what shalt thou judge? He replied: According to the Book of Allah. And if thou findest nought therein? According to the Sunnah of the Prophet of Allah. And   El-Awa, above (n 30) 146.  Kamali, Shari’ah Law, above (n 9) 22.   El-Awa, above (n 30) 153. 36  Kamali, Shari’ah Law, above (n 9) 18. 37   El-Awa, above (n 30) 147. 38   Abdal-Haqq, above (n 23) 35. 33 34 35

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Sources of Islamic Law – Shari’a and Fiqh if thou findest nought therein? Then I will exert myself to form my own judgement. [The Prophet replied] Praise be to God Who had guided the messenger of His Prophet to that which pleases His Prophet.39

This concept of exerting one’s reasoning in determining a matter of law is called ijtihad and it is the essence of ūsūl al- fiqh, a legal method of ranking the sources of law, their interaction, interpretation and application.40 The result of this method is fiqh which literally means human understanding and knowledge on deducing and applying the prescriptions of the Shari’a in real or hypothetical cases.41 As such it does not command the same authority as that of the Shari’a and it is the subject of different Sunni and Shi’a scholarly and methodological approaches.42 In the formative period of Islamic law, the science of ūsūl al-fiqh did not yet exist as a separate branch of intellectual endeavour and no fixed hierarchy of sources was adopted.43 Later, however, it became almost universally recognised that the Qurān has primacy over the Sunnah, followed by the two main proofs of law attained through human reasoning, namely, Ijmā’ and Qiyas.

C  Consensus by Collective Reasoning (Ijmā’) When the Qurān and the Sunnah do not provide an answer on an issue, learned jurists are to reach a consensus of opinion (ijmā’), a practice established by the companions of the Prophet (Sahaba).44 Ijmā’ is a rational proof of Shari’a and because of its binding nature it requires that the consensus is absolute and universal; however in practice it has often been claimed also for rulings on which only a majority consensus existed.45

D  Analogical Deduction by Individual Reasoning (Qiyas) 46 Qiyas is the extension of Shari’a value or ruling from an original case to a new case, not found in the Qurān, the Sunnah or a definite ijmā’, because the new case has the same effective cause as the original one.47 An example of qiyas is the   S Rammadan, Islamic Law its Scope and Equity, 2nd edn (London: Macmillan, 1970) 75.  Kamali, Principles of Islamic Jurisprudence, above (n 2) 469. 41  Kamali, Shari’ah Law, above (n 9) 40–41. 42   Bassiouni, ‘Post-Conflict Justice’, above (n 17) 10. 43   JE Brockopp, ‘Competing Theories of Authority in Early Maliki Texts’ in BG Weiss (ed), Studies in Islamic Legal Theories (Leiden: Brill, 2002) 3. 44   Abdal-Haqq, above (n 23) 55. 45   ibid, 228–29. 46   ‘Refutations of the validity of qiyas are to be found in Imami Shi’i collections of reports, all available Shi’i works of ūsūl al-fiqh, polemics against Sunni thought and not infrequently in works of furu al-fiqh’. (RM Gleave, ‘Imami Shi’i Refutations of Qiyas’ in BG Weiss (ed), Studies in Islamic Legal Theories (Leiden: Brill, 2002) 267. 47  Kamali, Principles of Islamic Jurisprudence, above (n 2) 264. The ulama (Muslim jurists) are in unanimous agreement that the Qurān and the Sunnah constitute the sources of the original case, but there is some disagreement as to whether ijmā’ constitutes a valid source for qiyas, see Kamali, ibid, 268. 39 40

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extension of the prohibition of wine to a prohibition of any drug that causes intoxication, because the prevention of the latter is the effective cause of the original prohibition.48 Other methods include istihsān (equity in Islamic law), maslahah mursalah (considerations of public interest), ’urf (custom), istishāb (presumption of continuity).49 According to Bassiouni, the sources of law applicable to Islamic criminal justice are as follows: 1. The Qurān – applicable to everything. 2. The Sunnah – applicable to everything. 3. Enacted laws and treaty obligations – includes Ijmā’ as part of the legislative process and ratification of treaties. 4. Ijmā’ (consensus) – applies essentially to legislation, jurisprudence of the courts, and doctrinal development. 5. Qiyas (judicial analogy) – applies to legislation, jurisprudence of the courts, and doctrinal development. 6. Istishāb, the deviation from certain rules based on precedents derived from other rules based on relevant legal reasoning, applicable to legislation, jurisprudence of the courts, and doctrinal development. 7. Istislah – an unprecedented judgment not explicitly covered by the Qurān or the Sunnah and necessitated by public interest, applicable to legislation, jurisprudence of the courts, and doctrinal development. 8. ’Urf (custom and usage) – applicable to legislation, jurisprudence of the courts, and doctrinal development. 9. Ijtihad (reasoning by analogy) – a process which relies on all other sources of law, and can be relied on in legislation, jurisprudence of the courts and doctrinal development.50

IV  Categories of Crimes in Islamic Criminal Law In Islamic law, offences have been divided into three categories according to complex criteria which combine the gravity of the penalty prescribed, the manner and the method used in incriminating and punishing and the nature of the interest affected by the prohibited act.51

  Kamali, ibid, 267.  ibid. 50   MC Bassiouni, Understanding Islamic Law (on file with the author, 2011). 51   S Nagaty, The Theory of Crime and Criminal Responsibility in Islamic Law: Shari’a (Cairo: Office of International Criminal Justice, 1991) 50. 48 49

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The first category is hudūd crimes. These crimes are penalised by the community and punishable by fixed penalties as required in the Qurān and the Sunnah.52 Both crime and punishment are precisely determined with some flexibility for the judge depending on the intent of the accused and the quality of the evidence.53 Mostly there are seven recognised hudūd crimes: ridda (apostasy); baghi (transgression); sariqa (theft); haraba (highway robbery); zena (illicit sexual relationship); qadhf (slander); and shorb al-khamr (drinking alcohol).54 It has been argued that these matters cover the most vital areas of collective life (in the following order of priority: religion, life, family, intellect, wealth)55 and require collective commitment to these values as law.56 In these offences it is the notion of man’s obligation to God rather than to his fellow man that predominates.57 The state owes the right to Allah to implement the hudūd.58 Opinions vary on which crimes are to be considered hudūd. For the Maliki School of law, there are two different sets of hudūd offences. Mawardi (Shafi’ī School) claims there are four hudūd offences: adultery, theft, drunkenness and defamation, while Ibn Rushid and Al Gazali (Shafi’ī School) claim there are seven: apostasy, rebellion, adultery, theft, highway robbery, drunkenness and defamation.59 The second category consists of qisas and diyya crimes. In Islamic law, the punishment prescribed for murder and the infliction of injury is named qisas, that is, inflicting on the culprit an injury exactly equal to the injury he inflicted on his victim. The right to demand retribution or compensation lies with the victim or in cases of homicide the victim’s next of kin.60 Sometimes the relationship between this person and the offender can prevent retaliation.61 Qisas and diyya crimes fall into two categories: homicide and battery.62 These crimes are thus treated in Islamic law as private not public offences.63 The third category of crimes in Islamic law is called Ta’azir crimes. These crimes are punishable by penalties left to the discretion of the ruler or the judge (qadi). They are not specified by the Qurān or Sunnah; any act which infringes private or community interests of the public order can be subject to ta’azir.64 It is 52   A Mansour, ‘Hudud Crimes’ in MC Bassiouni (ed), The Islamic Criminal Justice System (London: Oceana Publications, 1982) 195–209. 53  Kamali, Principles of Islamic Jurisprudence, above (n 2) 161. 54   MC Bassiouni, ‘Crimes and the Criminal Process’ (1997) 12 Arab Law Quarterly 269. 55   IAK Nyazee, General Principles of Criminal Law: Islamic and Western (Islamabad: Advanced Legal Studies Institute, 2000) 28. 56   El-Awa, above (n 30) 157. 57   NJ Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964) 124. 58   Nyazee, above (n 55) 18. 59   B Al-Muhairi, ‘The Islamisation of Laws in the UAE: The Case of the Penal Code’ (1996) 11 Arab Law Quarterly 363. 60   Rules establishing the next of kin vary according to different schools, see Peters, Crime, above (n 20) 45. 61   ibid, 48. 62  MC Bassiouni, ‘Quesas Crimes’ in MC Bassiouni (ed), The Islamic Criminal Justice System (London: Oceana Publications, 1982) 203. 63   Coulson, above (n 57) 124. 64   G Benmelha, ‘Ta’azir Crimes’ in MC Bassiouni (ed), The Islamic Criminal Justice System (London: Oceana Publications, 1982); Bassiouni ‘Quesas Crimes’, above (n 62) 213.

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the duty of public authorities to lay down rules penalising such conduct. These rules must, however, draw their inspiration from the Shari’a.65 An example of a ta’azir crime is the trafficking of persons. It is not defined in the Qurān or the Sunnah, but it constitutes a clear violation of the right to personal security, one of the five essentials of Islam.66 Ta’azir is used for three types of cases: 1. Criminal acts which must by their very nature be sanctioned by penalties which relate to hudūd, for example, attempted adultery, illicit cohabitation or simple robbery. 2. Criminal acts normally punished by hudūd, but where by reason of doubt, for procedural reasons or because of the situation of the accused, the hudūd punishment is replaced by ta’azir. 3. All acts under the provisions of the law, which are not punished by hudūd.67

V  The Leading Schools of Law (Madhāhib) Scholars tracing their doctrine to the same early authority regarded themselves as followers of the same school. Early interest in law evolved where men learned the Qurān and began discussions of legal issues while assuming the role of teachers.68 At first, students rarely restricted themselves to one teacher and it only became the normative practice in the second half of the ninth century for jurists to adopt a single doctrine.69 When prominent jurists70 began to have loyal followers who would apply their doctrine exclusively in courts of law, the so-called ‘personal schools’ emerged and only a few of these leaders were raised to the level of founder of a ‘doctrinal school’, what is referred to in Islamic law as the madhāhib.71 When they emerged, the doctrinal schools did not remain limited to the individual doctrine of a single jurist but possessed a cumulative doctrine in which the legal opinions of the leading jurists were, at best, primi inter pares.72 The four Sunni schools are the Hanafi, named after Imam Abu Hanifa, the Maliki, named after Imam Malik, the Shafi’ī, named after Imam Al Shafe’i and the Hanbali named after Imam Ibn Hanbal. Out of these schools, the Hanafi School   Bassiouni, ‘Quesas Crimes’, above (n 62) 213.   UNDOC, Combating Trafficking in Persons in Accordance with the Principles of Islamic Law, 45, available at: www.unodc.org/documents/human-trafficking/Islamic_Law_TIP_E_ebook_18_March_ 2010_V0985841.pdf. 67  Benmelha, above (n 64) 213–14. 68   WB Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press 2005) 153. 69  ibid. 70   ibid. Those jurists are Abu Hanifa, Ibn Abi Layla, Abu Yusuf, Shaybani, Malik, Awza’i, Thawri and Shafi’ī. 71   Hallaq, ibid, 157. 72   ibid, 156. 65 66

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was geographically the most widespread and for much of Islamic history the most politically puissant. The Shi’a schools are the Twelvers, the Isma’ili and the Zaydi.73 Out of these, the Twelvers are the best known and make up the largest percentage in Iran and Iraq.74 It is hard to find consensus among the various schools and sub-schools; however some consensus can be found among the four Sunni schools and some consensus among the four Shi’a schools. The difference in the rules for interpreting the Qurān is the fundamental element that separates the madhāhib from one another.75 While there is no question that the Qurān is the first source of the Shari’a, followed by the Sunnah, there are differences among the schools as to the ranking of the other sources of law. In order to create greater legal certainty, rulers could direct the judge (qadi) they appointed to follow one school.76 This was the practice of Ottoman sultans, while Saudi kings left their qadi totally free in choosing the madhāhib and opinions for deciding cases, as there is a strong sense of independence among the religious scholars staffing the courts, based on their view that the realm of the fiqh is their prerogative and the state should not interfere.77 While today there is a general understanding of Islamic republics that the law has to comply with the Shari’a, the concurrence of legislation with the whole body of Islamic law, including Islamic jurisprudence (fiqh) and the doctrine of a particular school of Islamic law is not always included.78 An example can be derived from the Constitution of the Islamic Republic of Pakistan, which states that: ‘All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qurān and Sunnah’. Similarly, the Afghanistan Constitution declares that ‘no law can be contrary to the sacred religion of Islam’, but restricts the application of the Hanafi jurisprudence in Article 130 only to cases ‘when there is no provision in the Constitution or other laws regarding the ruling on an issue’. In Saudi Arabia, on the other hand, Hanbali legal rules constitute the laws of the kingdom.79 In Iran, the Constitution states that laws and regulations must be based on Islamic criteria, which in practice covered the Shari’a, the fiqh, fatwā and doctrine of the Ja’fari faction of Islam.80

 ibid.   Bassiouni, ‘Post-Conflict Justice’, above (n 17) 15. 75   Rahim, above (n 23) 73–110. 76  Peters, Crime, above (n 20) 6. 77  Hallaq, The Origins, above (n 68); nevertheless Saudi qadis as a rule follow the Hanbali School. 78   R Moschtaghi, Max Planck Manual on Afghan Constitutional Law, Vol I, Structure and Principles of the State, Amended 3rd edn (2009) 31 (available online at: http://www.mpil.de/shared/data/pdf/mpil_ court_organization_3rd_edition_2009_engl.pdf. 79  S Mahmoudi, ‘The Sharia in the New Afghan Constitution: Contradiction or Compliment?’ (2004) 868 (available online at: http://www.mpil.de/shared/data/pdf/mahmoudi,_the_shari%27a_in_ the_new_afghan_constitution_contradiction_or_compliment.pdf. 80   ibid, 871. 73 74

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VI  Criminal Responsibility under Islamic Law One of the basic general maxims agreed on by Muslim scholars is al-Umūr bi Maqāsidihā, which implies that any action, whether physical or verbal, should be considered and judged according to the intentions of the doer.81 The first element of the maxim, umūr, plural for amr, is literally translated as a matter, issue, act, physical or verbal.82 The second word is al-maqãsid, plural of maqsad, which literally means willing, the determination to do something for a purpose.83 Thus, for an act to be punishable the purpose of the perpetrator has to be known. Evidences of this maxim can be found in the Qurān and the Sunnah. The Qurān ensures ‘That man can have nothing but what he strives for’ (Qurān 53:39). This is reiterated by the mutawātir hadith: ‘The reward of deeds depends upon the intentions and every person will get the reward according to what he has intended’.84 Although the Hanafi School considers this to be the rule only with respect to the hereafter, it is otherwise regarded as a general principle for all worldly acts.85 Al-Bukhari honoured the importance of this hadith by putting it as the first in his collection of hadiths.86 The Qurān furthermore emphasises the importance of intention in the context of mistake: ‘But there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is Oft-Returning, Most Merciful’ (Qurān 33:5). This is reiterated by the following traditions of the Prophet: i. Verily, Allah has for my Sake overlooked the unintentional mistakes and forgetfulness of my Ummah (Community) and what they are forced to do.87 ii. Unintentional mistakes and forgetfulness of my Ummah (Community) are overlooked.88

81   L Zakariyah, ‘Applications of Legal Maxims in Islamic Criminal Law with Special Reference to Sharī’ah Law in Northern Nigeria (1999–2007)’ (DPhil thesis, University of Wales, 2009) 64. 82  Muhammad Ibn Mandhūr, Lisan al-’Arab (Beirut: Daru Sādir, nd) vol 1, 96; al-Raghib al-alAsfahānĩ: al-Mufradād fi gharib ial-Qurān (ed) Muhammad Sayyid Kaylani (Lebanon: Dar alMa’rifah, nd) explained the meaning of Amr in verses 97, 123 and 154 of Suwar al-Hũd, al-Imran, respectively. See Muhammad Siddiq Ibn Ahmad al-Burnuu, Mawsū’ah al-Qawā’id al-fiqhiyyah n.p. 1416, vol 1, 133, in Zakariyah, above (n 81) 64. 83   Zakariyah, above (n 81) 65. 84   Al-Bukhari, Sahih, vol 1, Bk 1, hadith no 1, narrated by ‘Umar bin Al-Khattab; Muslim, Sahih, Bk 20, hadith no 4692. 85   Nyazee, above (n 55) 97. 86   MI Bukhari, Sahih Al-Bukhari (trans MM Khan) vol I (Riyadh: Darussalam, 1996). 87   Transmitted by Bukhari as quoted by MM Khan (1931 H); Sahih al-Bukhari; vol 9, Daral Arabia, Beirut, 65 as quoted in Y Bambale, Crimes and Punishment under Islamic law (Malthouse Press, 2003, at 7. 88   Sahih al-Bukhari, above (n 87).

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Intent and mistake form the two different aspects of fault, which is the basis of criminal responsibility.89 Different degrees of responsibility correspond to different legal sanctions, where a distinction is made between retaliation (qisas), expiation (kaffāra)90 and blood money (diyya).91 When it comes to retaliation, one of its basic conditions is that it must be equal with the crime.92 The equality in punishment needs to be both in form and content and only intentional crimes completely meet this condition.93 In contrast, unintentional crimes partially meet it in form only, and therefore they create merely the duty to pay blood money (diyya) or other similar financial procedures.94 As is the prevalent case in the criminal laws of other legal systems, in Islamic law ‘[a]ccording to the Imams Abu Hanifa, Shafi’ee and Ahmed the criminal intent should be proven beyond doubt’.95

A  The Material Element In the same way as acts cannot be judged separately from intentions, a man cannot be held responsible for a mere thought. ‘The principle . . . is that the mental processes of ideation and volition are not punishable unless they are given expression to or acted upon’.96 In other words, the existence of an actus reus is necessary for a crime to exist. Ebrahim Ghodsi suggests that a group of precedents have inspired some Islamic jurists to believe that the mere existence of the mental element of a crime is sufficient for a crime to have been committed.97 Others, however, strongly reject this approach and claim that in Islam, a good thought is recorded as an act of piety and a bad thought is not recorded at all, let alone is sufficient for the establishment of a crime.98 The following tradition underlines this principle: Allah has forgiven my Ummah for any temptations or for any wrongs coming into their minds except when they are uttered or translated into action.99

Abd el Qadir ’Oudah further claims that Islamic law respects this principle more rigorously than the majority of secular laws, as it does not recognise a difference 89   AF Bahnassi, ‘Criminal Responsibility in Islamic Criminal Law’ in MC Bassiouni (ed), The Islamic Criminal Justice System (London: Oceana Publications, 1982) 176. 90  The kaffāra consists of the manumission of a Muslim slave or, if the culprit is unable to perform this, in fasting during two consecutive months. Schacht, above (n 8) 185. 91   Schacht, above (n 8) 181. 92   E Ghodsi, ‘Murder in the Criminal Law of Iran and Islam’ (2004) 68 Journal of Criminal Law 160. 93   M Abu Zahra, Al Jarima Wal Uquba Fil Islam (Crime and Punishment in Islamic Law) (1974) 108. 94  ibid. 95   AQ ’Oudah, Criminal Law of Islam (trans Z Aijaz) vol IV (New Delhi: Kitabbhavan, 2005) 103. 96   AQ ’Oudah, Criminal Law of Islam (trans Z Aijaz) vol II (New Delhi: Kitabbhavan, 2005) 77. 97   Ghodsi, above (n 92) 165. 98   AO Naseef (1982); Encyclopedia of Seerah, vol III (The Muslim Schools Trust, London) 741 in YY Bambale, Crimes and Punishment under Islamic Law (Ibadan, Nigeria: Malthouse Press, 2003) 6. 99  ’Oudah, Criminal Law of Islam vol II, above (n 96) 77.

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in punishment between premeditated and non-premeditated offences, and thus refuses to punish intention in isolation from action.100 The actus reus is usually a positive act, but it can also be an omission. An example of the latter is refusing to give water to a traveller, knowing that this would cause his death.101 Shafi’ī and Hanbali Schools, however, admit a liability in the case of an omission to act, only when it is coupled with a positive act,102 for instance, if the perpetrator imprisons a person and withholds food and drink from him.103 In the view of the Maliki, ‘if a person fails to act when acting is obligatory, and if this omission inevitably results in the death of another person, the former can be sentenced to retaliation for homicide’.104

B Motive In Islamic law motive does not affect the characterisation of the crime or the penalty set for it and is not related to the offender’s intent.105 In cases of doctrinal provisions and qisas the jury is not to take into account the motive, in ta’azir, on the other hand, the jury may consider it.106 However there are instances of dolus coloratus, where the motive of the perpetrator is a constituent element of the offence. For example heinous murder (qatl ghīla), a legal category introduced by the Malikiyyah and unrecognised by the others, is defined as ‘killing a person for his money after having him treacherously brought to an isolated place’.107 This crime also demands an obligatory death sentence, regardless of the pardon of the next of kin.108

C Intent Criminal ‘[i]ntent is the inclination of one’s will toward the performance of a punishable act or toward a punishable omission’.109 It is mainly divided into two categories – general and specific intent. In the case of general intent, the criminal intends to carry out a prohibited act, but does not plan to realise any specific consequences.110 Such an intent usually suffices, except in crimes where a specific intent is required, ie, that the perpetrator intends a definite result of his inten  ibid, 78–79.   Bahnassi, above (n 89) 175. 102  Peters, Crime, above (n 20) 42. 103   ibid, 42. 104  ibid. 105   Abdul Qadir ’Oudah, Encyclopedia in Islamic Criminal Jurisprudence: With Commentary by Ayat Allah Ismail Al Sadr and Opinions of Tawfik Al Shawy Etal vol I, part 3 (Cairo: Dar Al Shirouq, 2001) 45. 106   ibid, 45–46. 107   Ibn Qudāma, al-Mughnī, II vols (Beirut: Dār Ihyā’al-Turāth al-’Arabī, nd) vol VII, 648–49 in Peters, Crime, above (n 20) 44. 108   Peters, ibid, 44. 109   Bahnassi, above (n 89) 177. 110  ’Oudah, Encyclopedia vol I, above (n 105) 49. 100 101

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tional unlawful act. Such crimes are: intentional homicide (specific intent to bring about death); treason (specific intent to harm a Muslim); bribery (specific intent that the bribed person does something or refrains from doing something); practising apostasy (specific intent to become an infidel); embezzlement (the intent of unlawful possession).111 The Qurān identified intent (’amd/deliberate)112 in the offence of murder and it is the variety of opinions which has developed around this offence, that provides the most intriguing illustration of the different implications of general and specific intent and how objective criteria have been used to establish (ir)refutable assumptions, de facto becoming a part of the mens rea requirement.

D  Different Degrees of Homicide and their Definition Jurists typically distinguish between three degrees of homicide according to the offender’s intent: deliberate (’amd), quasi-deliberate (shibh al amd) and accidental (al-khata’); most also address a fourth category, indirect homicide (qatl bi-sabab) and some Hanafis talk in addition of homicide committed by ‘what looks like a mistake’ or ‘equivalent to accidental’ (mā ujriya mujrā al-khata’).113 These will be examined below.

i  Intentional Homicide (Al-Qatl al-’amd) The main condition for intentional homicide is that the perpetrator wills the death of the victim. According to the Jumhur (ie, majority of the jurists), mere intention of committing excess on the victim is not sufficient to make it a case of deliberate homicide.114 The intention needed is therefore established when a mature person of sound mind decides to kill another person. However, there is an additional condition to intentional homicide, ie, that the perpetrator uses an instrument or a method, which would generally be fatal (ie, would cause fatal injuries).115 Jurists have not provided concrete illustrations of this requirement, but have merely introduced some examples in which the fault element of murder is established.116 The question which concerns the jurists is related to the nature and proof of that category of homicide and the way intention can be inferred and 111   Bahnassi, above (n 89) 178; N Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law, Shari’a (Office of International Criminal Justice: The University of Illinois at Chicago, 1991) 87. 112   Intentional homicide is mentioned in the Qurān (4:93) ‘and whoever kills a believer deliberately’; Schacht, above (n 8) 181. 113   JND Anderson, ‘Homicide in Islamic Law’ (1951) 13 Bulletin of the School of Oriental and African Studies 811, 818; PR Powers, ‘Offending Heaven and Earth: Sin and Expiation in Islamic Homicide Law’ (2007) 14 Islamic Law and Society 42, 47. 114  ’Oudah, Criminal Law of Islam (trans Z Aijaz) vol IV, above (n 95) 87. 115  Peters, Crime, above (n 20) 42. 116   Ghodsi, above (n 92) 165.

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whether they relied on a subjective or objective criterion will be explained further below. A definition of deliberate homicide according to Islamic law is provided for in Article 300 of the Pakistan Penal Code of 1997: Qatl-i-amd: Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd.117

Most notably the definition of intentional homicide in the Pakistan Penal Code encompasses the three degrees of dolus, namely dolus directus, dolus indirectus and dolus eventualis.

ii  Quasi-deliberate Homicide (al-qatl shibh al-’amd) Al-qatl shibh al-’amd or quasi-deliberate homicide is also the killing of a human being but at a lesser liability than murder.118 In the case of ’amd both the criminal act that causes the death and the resulted death itself are in the intention of the doer, while in the case of quasi-deliberate, the criminal act is intended, but the resulted death is not.119 The word shibh means ‘approximately’ or ‘close to it’. The perpetrator only intends to commit a prohibited act, but does not intend the death of the victim which results from that act. In this case retaliation is not allowed, but compensation is assigned usually in its ‘heavier form’, so it is only distinguished from accidental homicide in terms of the weight of the diyya.120 The scholars of hadith have mostly agreed that among the various reported hadiths on the matter, the next two are authentic:121 Ibn Amr narrates that the Prophet said: The diyah for intentional murder which resembles intentional (qatl al-khata’ shibh al’amd), such as is committed with a whip or a stick is a hundred camels, forty of which are pregnant.122

117   Qisas and diyat law enacted in 1997: Act II of 1997, Criminal Law (Amendment) Act 1997, An Act further to amend the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898 (Gazette of Pakistan, Extraordinary, Part I, 11 April 1997) reprinted in Tahrir Wasti, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (Leiden: Brill, 2009) App D, 331. 118   SS Haneef, Homicide in Islam: Legal Structure and the Evidence Requirements (Kuala Lumpur: AS Noordeen, 2000) 30. 119   ibid, 30–39. 120   R Peters, ‘Murder on the Nile: Homicide Trials in 19th Century Egyptian Sharia Courts’ (1990) 30 Die Welt Des Islams 103, 104, 105; Anderson, above (n 113) 818–19. 121   Haneef, above (n 118) 31. 122   See Sunan Abi Daud, Kitab al-Diyat vol 3, 185, cited in Haneef, ibid, 30.

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Amr Ibn Shuayb narrates that the Prophet said: The diyah for what resembles intentional murder must be made as severe as that of intentional murder, but the culprit is not to be killed in qisas.123

In line with the above two hadiths, an ijmā’ of the Companions is also established to the effect that the killing by a whip or a stick amounts to quasi-deliberate homicide.124 From the various schools only the Maliki do not recognise quasi-deliberate homicide;125 they claim ‘there is no intermediate class between intending to kill and not intending it’.126 They thus distinguish only between deliberate murder and accidental homicide, including in the first category any act with the intention of aggression (or wrongdoing the victim) even if the killing itself was not intended, ie, when there is general intent.127 However, the Maliki do recognise (and presuppose) quasi-deliberate homicide in the case of a father killing his own son while disciplining him or a mother who refrains from nursing her child until he dies.128 The reason behind this exception is that the parents are not supposed to have any ill intentions towards their own children, so intention will only be considered to have existed if there is conclusive evidence of it.129 The Maliki furthermore recognise specific intent as a precondition for retaliation in cases of wrestling and play.130 It is important to note, that quasi-deliberate as a form of mens rea is specific to homicide. When it comes to bodily harm, for example, intent and quasi-intent merge into one.131 A definition of quasi-deliberate homicide according to Islamic law is provided for in Article 315 of the Pakistan Penal Code of 1997: Qatl shibh-i-amd: Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death, is said to commit qatl shibh-i-amd.132

 ibid.   Caliph Umar, Caliph Uthman and Caliph Ali, cited in Haneef, ibid, 32. 125   Ibrahim ibn Muhammad ibn Dūyān, translation and commentary by George M Baroody, Crime and Punishment under Islamic Law: being a translation from Manār al-sābil in explanation of the text al-Dalīl, in accordance with the School of the Imām Ahmad ibn Hanbal (Thesis, American University in Cairo, 1961). 126   Ibn Rushd, cited in Haneef, above (n 118) 32–33. 127   Bahnassi, above (n 89) 177; ’Oudah, Criminal Law of Islam vol IV, above (n 95) 88. 128   Al-Dasuqi, Commentary 215, 237; Bahnassi, above (n 89) 177. 129   Muhammed Abu Zahra, Crime and Punishment in Islamic Jurisprudence, vol I: Crimes (Cairo: Dar al Fiqr al ‘Araby, 1998) 289. 130   Ahmad Ibn Idris al-Qarafi, ‘al-Dhakhirah 387’ (Cairo: Matba’at Kulliyat al-Shari-’ah, 1961) in Bahnassi, above (n 89) 177. 131   Schacht, above (n 8) 181. 132   Art 315, Pakistan Qisas and diyat law enacted in 1997, above (n 117) 337. 123 124

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The Pakistan Act of 1997 provides the following scenario for Qatl shibh-i-amd: A, in order to cause hurt, strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death; Z dies as a result of such hurt. A shall be guilty of qatl shibh-i-amd.133

In such a situation where there is no intention to kill, the doer will be liable to diyya and may also be punished with imprisonment of either description for a term which extend to fourteen years as ta’azir.134

iii  Indirect Homicide (qatl bi-sabab) A further form of homicide is worth mentioning, ie, indirect homicide, where the perpetrator sets in motion a lethal chain of events, such as opening a dam or setting a building on fire which eventually causes the death of a person or of several people.135 Interestingly, here again, the perpetrator will usually only be liable for compensation, regardless of whether he had (specific) intent to kill or not.136 However, the Shafi’ī and Hanbali would treat death in some indirect way as intentional homicide. Furthermore, if the chain of events was not caused by an unlawful act and the perpetrator did not intend the consequence as well as took all necessary precautions to avoid harming others, according to the Shafi’ī and Hanafi there is no fault or liability.137 This elaborate classification which is adopted by the Hanafi School finds a definition in the Pakistan Penal Code in Article 321: Qatl-bis-sabab: Whoever, without any intention to cause death of, or cause harm to, any person, or does any unlawful act which becomes a cause for the death of another person, is said to commit Qatl-bis-sabab.

An example of this category is illustrated by the following hypothetical scenario: A unlawfully digs a pit in the thoroughfare, but without any intention to cause the death of, or harm to, any person. B, while passing from there, falls in it and is killed. A has committed qatl-bis-sabab.138

iv  Homicide by Mistake (al-qatl al-khata’) In a case of homicide by mistake (al-qatl al-khata’) a Qurānic verse explains the liability which it entails:  ibid.  ibid. 135   M Lippman, S McConville and M Yarushelmi, Islamic Criminal Law and Procedure (New York: Greenwood Press, 1988) 51. 136  ibid. 137   Haneef, above (n 118) 44. 138   See ‘illustration’ to Art 321, Pakistan Qisas and diyat law enacted in 1997, above (n 117) 338. 133 134

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Criminal Responsibility under Islamic Law Never should a believer kill a believer; but (if it so happens) by mistake, (compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to Allah. For Allah hath all knowledge and all wisdom (Qurān 4:92).

Therefore, there is no option of retaliation in these cases, but regular compensation is due, coupled with the requirement of freeing a Muslim slave or fasting for two consecutive months. Article 318 of the Pakistan Penal Code defines homicide by mistake in the following words: Qatl-i-khata: Whoever, without any intention to cause death of or cause harm to a person causes death of such person either by mistake of act or by mistake of fact, is said to commit qatl-i-khata.139

The Pakistan Penal Code provides the following scenarios as an illustration: i. A aims at a deer but misses the target and kills Z, who is standing by. A is guilty of qatl-i-khata. ii. A shoots at an object to be a boar but it turn out to be a human being. A is guilty of qatl-i-khata.

E  Standards used for Determining Intention There is some confusion in the way jurists employ subjective and objective criteria in determining intent in homicide. In fact because the inner intention of a person is difficult to determine, and truly only known to Allah, the jurists do not imagine an exploration of the psyche of the killer, or any extensive examination of behaviour patterns or the nuances of the relationship between the killer and the victim.140 Instead they consider the objects used in the crimes described by the hadiths as external standards that are likely to convey the inner working of the offender’s mind and thus distinguish between ’amd and shibh al-amd.141 Apart from the above-mentioned hadith which talks of quasi-intent when death is caused by a whip or a stick, another hadith has been referred to: ‘Al-qawd [qisas] should be by sword’.142

  See Article 318 of the Pakistan Penal Code.   Powers, above (n 113) 48; Lippman, McConville and Yarushelmi, above (n 135) 50. 141   Nyazee, above (n 55) 98; ’Oudah, Criminal Law of Islam vol IV, above (n 95) 88. 142   Ali Ibn ’Umar al-Dāraqutni, Sunan al-Darāqutni el Sayyid Abdullah Hashim al-Madani vol 3 (Beirut: Dar al-Ma ‘rifah 1966/1386) 107, hadith 89; Ali Ibn Ahmad Ibn Hazm, al-Mahallah (ed), Lajnah Ihya’ al-Turath al-Arabi vol 10 (Beirut: Dar al-Afaq al-Jadid, nd) 372; Ahmad Ayni, Umdah alQari vol 24 (Beirut: Dar ‘Ihya’ al-Turath al-Arabi, nd) 39 in Zakariyah, above (n 81) 68. 139 140

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One of the interpretations of this hadith suggests that the use of a sword is an external standard for the intention to kill, since it leads to qisas.143 In drawing analogies from the hadiths, the majority of Muslim scholars concluded that mens rea of murder is found when the offender uses an instrument that is most likely to cause death or is prepared for killing, such as a sword, a spear, a flint or fire.144 Which tools are to be regarded as deadly has generally been discussed with much casuistry.145 Abu Hanifa excluded all blunt instruments, such as a wooden club, from the list of lethal weapons, and claimed they testify to quasi-intention, irrespective of the size of the instrument or the force applied.146 However, he did not exclude an iron rod, relying on the words of the Qurān: ‘We sent down Iron, in which is (material for) mighty war’ (Qurān 57:25).147 Such an interpretation does not seem just and Hanifa’s disciples, Imam Abu Yusuf and Imam Muhammad al-Shaybani, rebutted his arguments saying that the stone and stick mentioned in the hadith refer to a stone and stick which in the ordinary course do not cause death, not just any stone or stick.148 This is also the opinion of the majority of jurists.149 Furthermore, how to classify drowning and strangling is controversial.150 The following quote from al-Mabsut allegedly presents the view of Imam Abu Hanifa: If a man drowns another in water, according to Abu Hanifa, he is not subject to retribution. His argument is that water cannot be viewed as a weapon in that it does not cause the destruction of body parts. It is in this respect similar to a stone or a stick. He further explains that a drowning man draws the water himself. It is as though he is bringing it upon himself.151

In the Supreme Court of Iran, the following were considered ‘generally fatal actions’: (a) hitting the victim’s head with a spade breaking his scull;152 (b) hitting the victim’s head with a piece of wood;153 (c) hitting the victim’s head with a stone.154

F  Summary of Jurists’ Opinions Table 1 below shows a comparison of the definitions of intentional and quasi-intentional homicide as laid down by various jurists. It clearly shows the   Nyazee, above (n 55) 98.   Haneef, above (n 118) 17; Abu Hanifa, cited in Powers, above (n 113) 48.   Schacht, above (n 8) 182. 146   Nyazee, above (n 55) 99; Haneef, above (n 118) 35. 147   Nyazee, above (n 55) 99. 148  Al-Tahawi, Sharih Ma’ani al-Athar vol 3, 186 in Haneef, above (n 118) 36. 149   Haneef, above (n 118) 36. 150   Schacht, above (n 8) 182. 151   Bahnassi, above (n 89) 174. 152   Verdict no 639 of 26 May 1957; I Goldozian, Special Criminal Law (Tehran: Moassese Entesharat Tehran University, 2001) 62 in Ghodsi, above (n 92) 166. 153   Verdict nos 3834, 3835 and 3836 of December 1956; Verdicts 640 and 641 of 26 May 1957; Verdict 4098 of 27 January 1957; Goldozian, ibid. 154   Verdict 1684 of 14 June 1957; Goldozian, ibid. 143 144 145

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interchangeability between a specific mens rea and proof thereof in the way jurists define the crimes. Table 1: Definitions of intentional and quasi-intentional homicide Intentional

Quasi-intentional

Imam Zela’ee (Hanafi School)

Committing the criminal act Striking wilfully with something wilfully and with a medium that is not normally mortal155 which is provided for murder and which is normally mortal

Author of Badae’wal-Sanae (Hanafi School)

Intentionally attempting to kill with the object of killing156

Author of Al-Muhazzab (Shafi’ī School)

Intending to strike with a normally mortal implement and killing the victim with such an implement157

Al Mawardi (Shafi’ī School)

Intending to commit murder with a normally fatal implement

Intending to commit the criminal act but not intending to commit murder158

Majority of Shafi’ī School

Intending to commit a criminal act, against a definite person and using an implement which is generally mortal159

Intending to murder a definite person, but using an implement which is not normally mortal

Authors of Al-Mughni and Al-Sharh-ul-Kabeer (Hanbali School)

Hitting with an implement which is normally mortal

Hitting with an implement which is not normally mortal160

Author of Al-Iqna’ (Hanbali School)

Killing wilfully with an implement from which death probably occurs

Intending to commit the offence as a wrongful act or by way of excessive chastisement using an implement which is not mortal161

  Al-Zela’ee vol 6, 97–100 in ’Oudah, Criminal Law of Islam vol IV, above (n 95) 89, 90.   Badae’-wal-Sanae’ vol 7, 233–34 in ’Oudah, ibid, 90. 157   Al Muhazzab vol 2, 184–85 in ’Oudah, ibid. 158   Al-Ahkamus-Sultania, 219–20 in ’Oudah, ibid. 159   Tuhfat-ul-Muhtaj vol 4, 372–74 in ’Oudah, Criminal Law of Islam vol II, above (n 96); Nihayatul-Muhtaj vol 7, 235, 240 in ’Oudah, Criminal Law of Islam vol IV, above (n 95); Hashiat-ul-Juberi Al-Minhij vol 4, 129, 131. Although they do not mention it in the definition of intentional homicide, these jurists however in drawing a line between intentional and quasi-intentional homicide, say that intentional murder is that in which the offender intends to kill the victim. 160   Al Mughni vol 9, 321, 337 in ’Oudah, Criminal Law of Islam vol IV, above (n 95) 91. 161   Al Iqna’ vol 4, 181 in ’Oudah, Criminal Law of Islam vol IV, above (n 95) 163, 168. 155 156

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Mens Rea in Islamic Criminal Law Intentional

Quasi-intentional

Ibn Mawdud alMusili (Hanafi School)

Deliberately striking with that which secerns into parts, such as a sword, a spear, a flint or fire162

Ibn Qudama (Hanbali School)

Any homicide committed with an instrument thought likely to cause death when used in its usual manner163

Examining the table, one can say the overall balance between using subjective and objective criteria in determining intent tips decidedly in favour of reliance on objective evidence.164 In the case of intentional homicide, the use of a lethal weapon seemingly becomes a substitute for intent itself.165 However, this is a false impression. Although rarely in the definition itself, jurists nevertheless, usually when describing the difference between intentional and quasi-intentional homicide, state that an actual intent to kill is a condition of the former.166 As has already been observed, according to the Imams Abu Hanifa, Shafi’ī and Ahmed the criminal intent should be proven beyond doubt.167 ’Oudah thus describes the situation as follows: [T]he deadliness of the homicidal implement is not an irrefutable argument. If the offender has had no intention of committing murder he has the right to prove it. If he does prove that in spite of the employment of a deadly implement he has had no intention to murder the victim, then his act will be a case of quasi-intentional homicide. . . [T]he appropriate cause to follow would be to take into account the real circumstances of the event as well as those of the offender. Beside the statements of the witnesses should also corroborate the charge of murder.168

In contrast, when it comes to quasi-intentional homicide, the assumption suggested by the use of a non-lethal weapon is irrefutable: [W]hen an implement not normally mortal is used the absence of homicidal intent cannot be negatived, although the offender may confess that he had intention of committing murder, for the implement used gives the lie to his confession.169

In summary, intentional homicide requires two elements: the intention or aim to kill another person (ie, specific intent to kill) and the use of a lethal weapon or method. If the first element is lacking, the perpetrator has the chance to prove his   Cited in Powers, above (n 113) 48.   Cited in Powers, ibid, 49. 164   See Powers, ibid, 48; Peters, Crime, above (n 20) 43; Nyazee, above (n 55) 98. 165  ’Oudah, Criminal Law of Islam vol IV, above (n 95) 89. 166   Anderson, above (n 113) 811–28, 819, cited in Powers, above (n 113) 47; ’Oudah, ibid, 88–92. 167   ’Oudah, ibid, 103. 168  ibid. 169   ibid, 92–93. 162 163

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supposedly different state of mind by presenting other evidence. If the second element is lacking, an irrefutable assumption automatically negates the first element. In turn, in cases of quasi-intentional homicide, the weapon or method used, de facto establishes an irrefutable assumption that there was no specific intent, regardless of the perpetrator’s actual mental state at the time of the commission of the crime. This is not, however, the opinion of the Malikiyyah, who do not recognise the category of semi-intentional killing. For them, general intent creates an irrefutable assumption of specific intent, except in some cases such as wrestling, play or disciplining a child, where there is a refutable assumption of a general intent, however specific intent may be proven. The Shi’a also take a different stand and have the following approach: [i]f the victim’s death is caused by an instrument or an act that normally would not be fatal, they try to establish whether or not the intention to kill or wound existed by looking at other circumstances, such as anger or hatred on the part of the offender.170

This is reflected in the penal code of the (Shia’a) Islamic Republic of Iran, which considers an act to be an intentional homicide or murder in three main circumstances: a. Where the murderer, through doing an action, decides to kill a particular person or an unspecified person or persons within a group, whether or not the action would be generally fatal, but it actually ends with murder. b. Where the murderer does something intentionally which is generally fatal, whether he has the intention of killing or not. c. Where the murderer does not have an intention to kill and his action is not generally fatal, but because the victim is ill, old, disabled, an infant, or because of other factors, it causes his death and the murderer is aware of this.171 It is evident that in the first scenario (a) the existence of an actual intention to kill overrides a generally non-lethal action and establishes intentional homicide. In the second scenario (b), however, a generally lethal action overrides a lack of an intention to kill and also establishes intentional homicide. For example, if A shoots towards B to stop him without having the intention of killing him, but actually causes his death, he is considered a murderer.172 In this regard, the approach is again contrary to that of the majority of Sunni schools, which give the perpetrator the option of refuting the assumption established by the use of a lethal weapon/method. In the third scenario (c) the perpetrator does not have the specific intent to kill and does not even use a generally fatal action, but because he is aware of the susceptibility of the victim to the injury he is liable for intentional homicide the same way as if he would have been had he performed a generally fatal action on an average person.  Peters, Crime, above (n 20) 43.   Art 206, 1991 Penal Code of the Islamic Republic of Iran. 172   Ghodsi, above (n 92) 166. 170 171

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VII Mistake An offence committed by mistake is of a lesser degree of criminality than an offence committed with the two forms of mens rea discussed above.173 In cases of mistake, the result is never intended, while the act may or may not be intended. Although literal translations of the words used for this concept are doubt (shubhah), ignorance, uncertainty (jahl) and mistake (khata’), all are similar in their technical meaning to what in Western law are called ‘mistake of law’ and ‘mistake of fact’.174 The term khata’ however is a broader, generic term that includes all cases of unintended consequences, be it where there was an intention to cause harm, in cases of negligence as well as in cases of strict liability.175

A  Mistake of Fact Writers namely differentiate between two kinds of mistakes of fact: a. Mistake in the criminal intent/purpose (shubhah fil-qasd) where an example would be a perpetrator who aims directly at a certain target and correctly hits it, mistakenly thinking it is an animal, enemy or person whose bloodshed is legalised by Islam, when in reality it is an innocent victim. b. Mistake in the act/accuracy of carrying out the act (shubhah fil-f’il), where an example would be a perpetrator who aims at a certain target, but by mistake hits something or someone else instead.176 As we have already mentioned, it is laid down in several verses of the Qurān that when there is mistake (khata’), there is no blame. A tradition of the Prophet further commands that that hudūd penalties are to be waived in case of shubhah. Although this tradition is accepted generally in a sense that guilt should be proven beyond doubt, jurists claim that it in fact talks about doubt in the mind of the offender at the time of the commission or omission of the act.177 However ‘[a]ny damage caused must be compensated as far as possible in order to remove its effects and consequences. It is immaterial that such harm was inflicted unlawfully or in the course of a permissible conduct’.178

  Haneef, above (n 118) 39.   Nyazee, above (n 55) 140. 175   ibid, 102. 176   Muhammed Abu Zahra, above (n 129) 107; Schacht, above (n 8) 182; Lippman, McConville and Yarushelmi, aboe (n 135) 51; Peters, Crime, above (n 20) 22. 177   Nyazee, above (n 55) 140. 178   Haneef, above (n 118) 41. 173 174

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Mistake

B  Mistake of Law Generally speaking, excuse of ignorance of Islamic injunctions is not acceptable.179 The criterion for criminal responsibility is the ‘ability to know’ and not ‘the actual knowledge’.180 The relevant Qurānic verse states: ‘Nor would We visit with Our Wrath until We had sent an apostle (to give warning’). Mistake of law (shubhah fī al-dalīl) 181 can therefore be an excuse only for someone who is a new convert or those who are living in non-Muslim territories or in a remote area where knowledge of Islam has not arrived.182 This is the majority position: that a person who has lived in complete isolation so that no message, law or guidance has been communicated to him is non-compos mentis (ghayr mukallaf). Such a person could not, therefore, be rewarded for his good deeds nor could he be punished for his evil conduct and crime. For it is a prerequisite of responsibility (taklīf) that the law is communicated to its proper audience.183

Caliph Umar prohibited men and women from mixing around the Ka’ba, so when he saw a man wandering with women, he struck him with a rod.184 The man said to Umar: ‘By Allah, if I have done wrong, you have not educated me’. Umar said: ‘Are you not aware of my decree against men and women walking together around the Ka’ba?’ The man said: ‘I have not seen such a decree’. Umar handed the man the rod and said: ‘Iqtas (retaliate)’. When the [man] refused to retaliate, ‘Umar asked him to forgive him’.185 A mistake in the true meaning of the stipulations is the same as ignorance of the texts themselves.186 Where the matter is clearly known – or is supposed to be known to Muslims by necessity – there can be no exemption; however when the matter is subject to ijtihad, exemptions for mistake of law are given.187 Peters, however, claims that ‘uncertainty on the details of the law is almost always regarded as excusable’ and enumerates examples such as drinking wine for medical purposes or stealing from one’s children in the belief that one is entitled to their property.188 The latter would be a case of mistake as to ownership (shubah fī al-fi’l).189

 ’Oudah, Criminal Law of Islam vol II, above (n 96) 136.  ’Oudah, Encyclopedia vol I, above (n 105) 64. 181   Nyazee, above (n 55) 140. 182   AQ ’Oudah, Criminal Law of Islam (trans Z Aijaz) vol I, 430. 183  Khallāf, ‘Ilm Usūl al-Fiqh 98’ in Kamali, Shari’ah Law, above (n 9) 187. 184   HM Zawati, ‘Civilians’ Fundamental Rights Under Islamic and Public International Law in Jihad and its Challanges to International and Domestic Law’ in CM Bassiouni (ed), Jihad and its Challenges to International and Domestic Law (The Hague: Hague Academic Press, 2010) 188. 185  ibid. 186  ’Oudah, Encyclopedia vol I, above (n 105) 64. 187   Nyazee, above (n 55) 141. 188  Peters, Crime, above (n 20) 22. 189   Nyazee, above (n 55) 140–41, note however that Nyazee classifies this under mistake of fact. 179 180

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Sometimes the defendant is not even required to plead a mistaken belief, because there is an assumption of uncertainty,190 for example, if the supposed belief stems from an abrogated Qurānic verse or hadith or an interpretation not shared by the majority of the jurisprudents or is based on a minority opinion.191

C  Cases Similar to Mistake Some Hanafi and Hanbali jurists differentiate between cases of pure mistake (alkhata’ al-mahd ), ie, where there is a mistaken intention, while the action is intended; and cases similar or equivalent to mistake (mā ujriya mujr ā al-khata’) ie, where there is neither criminal intention, nor an intended act.192 Such crimes are committed unconsciously or not knowingly. The Prophet is reported to have said: ‘Recording of deed is closed for a sleeping person till he wakes up, and an infant till he attains the age of puberty, and an insane person till he regains his sense’.193 Since these categories of people are not responsible for legal acts, crimes committed by them are treated as crimes caused by what looks like a mistake.194 An example frequently referred to is a person in his sleep turning over a baby and suffocating it.

D  Negligence as an Element of Mistake Schacht claims that ‘[t]he concept of negligence is unknown to Islamic law’.195 Indeed it is not a category in itself, however it is a part of khata’ (mistake), which includes all acts with unintentional consequences, as mentioned above.196 Jurists and the interpreters of the Qurān have remarked that mistake is a ‘neglect of duty to exercise due care and caution’197 and that ‘it is within the human capacity and control to avoid making such mistakes, if [one] exerts utmost efforts and tries very hard’.198 In the words of ’Oudah: The basis of accountability for unintentional killing is failure to exert due care and caution . . . Therefore, if someone wilfully and consciously commits an act, in the course of which death occurs, he will only be liable, if he is found to be negligent. Even in the case  Peters, Crime, above (n 20) 22.   ibid, 2. 192   Schacht, above (n 8) 182; Abu Zayd Al-Qayrawani, al-Risalah (Beirut: Dar alFikr, nd) 121–31; Abdul Rahman Doi, Shariah: The Islamic Law (London: Ta Ha Publishers, 1984/1404) 227 in Zakariyah, above (n 81) 72; Haneef, above (n 118) 43. 193   Abu Dawd al-Sunan, Kitab al-Huduud, hadith no 4398; Muhammad Ibn ‘Isa al-Tirmithi, Sunan al-Tirmithi (ed), Hisham al-Bukhari (Beirut: Dar Ihua’ al-Turath al-Arabi, 1995) hadith no 1446; Ibn Majah al-Sunan, hadith no 2041 in Zakariyah, above (n 81) 72. 194   Muhammed Abu Zahra, above (n 129) 108. 195   Schacht, above (n 8) 182. 196   Nyazee above (n 55) 102. 197   Haneef, above (n 118) 40. 198  ibid. 190 191

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Participation in Crime of a person, who is unconscious of his conduct like a sleeping person, he is still presumed to have failed to guard against it.199

For example, killing in traffic accidents (Al-Qatl-fi al-Hadithat) is said to be a mistaken killing by fault or negligence (khata’ al-taqsiri).200 The right of passage on the road is coupled with a duty of care, the extent of which ‘is measured upon man’s capability to guard against; within human capacity. . . because Allah (s.w.t.) does not ask his servant for what is beyond his ability’.201 It is held that the standard of care required is that of a reasonable man.202 Another example is liability for death caused by vicious animals. The basis for liability is again negligence (ihmal) to observe the duty to keep the animal safe from attacking anyone,203 for example, if a keeper of a bull does not tie it up, although he knows it has a tendency to gore, and the animal kills a person.204 In such cases only compensation is due and there will be no liability at all if the person was not negligent.205 It is the latter case which the Prophet was referring to when he said that ‘an injury caused by an animal is irredeemable’.206

VIII  Participation in Crime The Qurān generally discourages participation in crime in the following verse: Help ye one another in righteousness and piety, but help ye not one another in sin and rancour (Qurān 5:2).

When it comes to murder, the two Qurānic verses that provide the rule of equality in punishment: an eye for an eye and a free for a free,207 have been interpreted by all major Sunni schools in a sense that a group can be killed for killing an individual.208 The underlying objective of these Qurānic injunctions, ie, to prevent the commission of killing, which usually occurs by way of cooperation, has been preferred to the literal interpretation of the verses.209 This stance has been further supported by unanimous agreement of the Companions. Sa’īd ibn al-Musayyib related on the authority of Umar, that he (Umar) killed seven of the people of Sanā a ‘who killed a man, and he said ‘had [all] the people of Sanā a assisted in   ibid, 40–41.   ibid, 40. 201   ibid, 52–53. 202   ibid, 53. 203   ibid, 62. 204   Fakr Al-Din Al-Ramli, al-Fatawa al-khayriyah 43 (Cairo: Matba’at Bulaq, 1854); Al-Kasani, Badat Al-Sana’i’ 273 in Bahnassi, above (n 89) 176. 205   Bahnassi, ibid, 175. 206   Haneef, above (n 118) 61. 207  Qurān (2: 178); Qurān (5:45). 208   Haneef, above (n 118) 101; Schacht, above (n 8) 185. 209  Al-Jassas, Ahkam al- Quran vol 1, 180 in Haneef, ibid. 199 200

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killing him, I would have killed all of them for him’210 and on the authority of ’Alī, ‘that he killed three (persons who) killed a man’, and on the authority of Ibn ’Abbās, ‘that he killed a group (of persons who) killed one person’.� But the practice of Umar stated above is applied only in situation where each member had performed an act which, by itself, would be possible to cause death.211 Peters claims that there is no general doctrine of complicity or legal distinction between primary and secondary participation in Islamic law.212 Nevertheless, jurists have indirectly established a theory of complicity while addressing questions of liability which naturally arise, when more than one perpetrator is involved in an offence.213 ’Oudah thus distinguishes between direct accomplices, as those who physically participate in carrying out the material part of the crime and indirect accomplices, as those who participate in the cause of an offence, and asserts that Islamic jurists have dedicated much less attention to the latter. He claims the following as the main reasons for this relative indifference: A general rule of the Shariah is that the prescribed punishments are applied to the agent who directly commits an offence and not to one who simply has as share in the cause of the commission thereof . . . Thus if the direct agent commits hud and quisas offences, he will be liable to these prescribed punishments; whereas one with complicity in the cause of such an offence will not be liable to them. He will rather be awarded penal punishment.214

According to most schools, when it comes to hudūd and qisas there is an additional condition which must be met for the participants to be held liable for a particular offence, ie, that they have individually carried out all elements of that offence.215 For example, if a person breaks into a house, takes a precious object and throws it to his partner who then runs away with it, ‘neither one can be punished with the fixed punishment for theft, because they have not individually carried out all the acts essential to the definition of theft’.216 An exception to this rule is the crime of banditry, where all the participants are punished with the fixed punishment, if one of them seizes the property of one of the victims.217 Some jurists further exempt from these rules crimes which involve loss of life and corporal injury, and have discussed indirect complicity in relation thereof.218

210   Imam Malik, al-Muwatta 756; al-Zarqani, Sharh al-Muwatta vol 3, 201; al-Kahlani, Subul alSalam vol 3, 242; al-Hallawi, Fatawa wa ‘Uqdiyat ‘Umar 199 in Haneef, ibid, 101, 102. 211  ibid. 212  Peters, Crime, above (n 20) 28. 213  ibid. 214  ’Oudah, Criminal Law of Islam vol II, above (n 96) 55, 56. 215  Peters, Crime, above (n 20) 28. 216  ibid. 217  ibid. 218  ’Oudah, Criminal Law of Islam vol II, above (n 96) 56.

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A  Direct Complicity When the essential part of an offence is committed by several individuals, we talk of direct complicity.219 Here we distinguish between a crime committed in concurrence and one committed with pre-meditated concurrence or agreement/conspiracy.

i  A Crime Committed in Concurrence When a crime is committed in concurrence, the accomplices are inclined towards the commission of the same or different offences against the same person at the same time, but do not beforehand prepare a plan for it.220 In homicide this form of participation is called ‘al-ishtirak bi-ghayr tawatu’.221 An example would be when several people witness a person being beaten and join in the attack.222 In this situation, the accomplices are only accountable for their respective acts and not for the acts committed by others or for the consequences of those acts.223 Therefore, if two individuals attack a victim with swords and the first attacker chops off the hand of the victim while the other beheads him, the former will only be responsible for the amputation of the hand and not for homicide.224 He will be made to bear diyya , while the one who has inflicted the fatal blow will be liable for qisas.225 Following the same line of reasoning, if both inflict one or more mortal wounds, they will both be liable for intentional homicide, provided that each of them had the intention of killing the victim.226 The acts must, however, be strictly contemporaneous; otherwise the responsibility for intentional homicide will fall on only one of the attackers.227 An Egyptian court in 1879 dealing with a case of two men, one of whom hit the victim on the head with a rock, and the other who stabbed him in the belly with a knife (it was established that both acts would have been lethal if they had been carried out separately), gave the following decision: Since the hitting with a stone and the stabbing with the knife had been consecutive acts and the victim had lived for more than one day after the attack, the cause of his death was to be ascribed to the second defendant.228   ibid, 57.   ibid, 58. 221   Haneef, above (n 118) 25. 222   ibid, 25. 223  ’Oudah, Criminal Law of Islam vol II, above (n 96) 58. 224  ibid. 225  al-Khurashi, al-Khurashi ‘Ala Mukhtasar Khalil vol 4, 13; al-Shirbini, Mughni al-Muhtaj vol 4, 22; al-Bahuti, Kashshaf al-Qina vol 5, 516; Ibn Abidin, Hashiyat Radd al Mukhtar vol 6, 557 in Haneef, above (n 118) 25. 226  ’Oudah, Criminal Law of Islam vol IV, above (n 95) 47; Peters, Crime, above (n 20) 29. 227   Haneef, above (n 118) 25. 228  Mahdī, Fatāwā vol VI, 25 in Peters, Crime, above (n 20) 29. 219 220

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The rule is therefore that if the victim lives for more than a day after the infliction of the first mortal wound, the responsibility for his death will fall on the second perpetrator. Similarly, when the acts of each of the offenders are not by themselves fatal, but taken together result in the victim’s death, some Shafi’ī jurists regard each of the offenders liable for homicide.229 Expressing the Hanafi opinion, Al-Kassani noted in this regard: If a group of people kill a single person, they are all generally liable for the killing because death is the culmination of their collective acts. [Q]isas is necessary in such cases.230

However, if the acts cannot be differentiated, and it is not clear which of the wounds was fatal and which not, the majority of imams hold that all the offenders will only be treated as guilty of wounding the victim and not of homicide.231 No one would be liable for qisas but all should pay diyah.232 A Hanafite fatwā issued in Egypt in 1858 provides an illustration of this view: A man was attacked by two persons, one of whom hit him on the head with a rock. When he was found, just before he died from his wounds, he told that he had been attacked by two men, whom he identified, and that one of them had hit him on the head with the rock, but that he did not know which of them it has been. The mufti, upon the qādī’s request, explained that the qādī should dismiss such a claim, since it did not identify the person who actually had caused the victim’s death.233

Some Hanafi jurists, on the contrary, hold that all the participants should be treated as guilty of homicide.234 This is also the position of the Malikiyyah, who follow a doctrine of collective liability.235

ii  A Crime Committed with Premeditated Concurrence/by Agreement/by Conspiracy When a crime is committed with premeditated concurrence the accomplices beforehand work out a plan and agree to carry it out in order to achieve the desired object of the plan.236 Their intentions are identical.237 In homicide this is  ’Oudah, Criminal Law of Islam vol IV, above (n 95) 47.  Al-Kasani, Bada’i’ al-Sana’i’ vol 10, 4628, see also al-Mirghinani, al-Hidayah vol 4, 168; al-Sarakhsi, al-Mobsut vol 26, 127 in Haneef, above (n 118) 102. 231   Nihayat-ul-Muhtaj, above (n 159), 263; Al Iqna’, above (n 161) 170 in ’Oudah, Criminal Law of Islam vol IV, above (n 95) 47. 232  Al-Dasuqi, Hashiyat al-Dasuqi vol 4, 245; al-Shirbini, Mughni al-Muhtaj, above (n 225) 22; alBahuti, Kashshaf al-Qina, above (n 225) 516; Ibn Abidin, Hashiyat Radd al Mukhtar, at 557 in Haneef, above (n 118) 25. 233  Mahdī, 25 in Peters, Crime, above (n 20) 29. 234   Hashiya Ibn’ Abideen, 490 in ’Oudah, Criminal Law of Islam vol II, above (n 96) 47. 235   ibid; Peters, Crime, above (n 20 ) 28. 236  ’Oudah, Criminal Law of Islam vol II, above (n 96) 58. 237   ibid, 65. 229 230

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called al-sharikah bi al tamalu’ 238 or bi al-tawatu’239. In this scenario all the accomplices will account for the offence jointly committed.240 Therefore, if two individuals plan to kill a victim and one chops of his hand, while another beheads him, both will be responsible for the victim’s death.241 As a jurist observed: A group conspiring to kill or beat someone is . . . sentenced to death on the basis that they all intended the beating even though only one of them dealt the fatal blow, since if it were the case that the particular perpetrator had not dealt the blow, surely one of the other non-perpetrators would have dealt it.242

The majority of imams follow this principle.243 Abu Hanifa, on the other hand, does not make the distinction between concurrence and agreement and in both scenarios holds each accomplice accountable for his own part in the crime.244 Importantly, there is no complicity if the agreed plan is different from the crime actually committed, as such an agreement cannot be treated as valid.245 In other words when an offence does take place but not as the result of agreement between the offenders, no complicity is involved.246

iii  Presence at the Scene of the Crime According to Imam Malik, if an inducer or an abettor or a person who agrees with another to commit an offence is present during the commission of the offence, he is considered to be a direct accomplice, even if he does not actually take part in the commission but would have committed the crime himself, had the agent not done so.247

iv  Providing Indispensable Help for the Achievement of the Crime Imam Malik further considers the next situation to fall within the same category of complicity: if ‘the accomplice facilitates for the principal offender the commission 238   Tamalu’ is derived from the root word malia which means to agree together against, conspire and plot. See Elias, Elias’ Modern Dictionary – Arabic English (Beirut: Dar al-Jalil, 1986) 677 in Haneef, above (n 118) 24. 239   Tawatu’ comes from the word watiya, wata’a means collusion, secret agreement and fraudulent; see Elias, ibid, 801 in Haneef, ibid, 24. 240   Haneef, ibid. 241  ’Oudah, Criminal Law of Islam vol II, above (n 96) 58. 242   Ahmad Ibn Muhammad al-Dardir, al-Sharh al-kabir 217 (Beirut: Dar al-Fikr, nd). 243   Sharah-ul-Durdeer vol 4, 217, 218 in ’Oudah, Criminal Law of Islam vol II, above (n 96) 59; Nihayat-ul-Muhtaj, above (n 159) 261, 263 in ’Oudah, ibid, 59; Tuhfat-ul-Muhtaj , above (n 159) 14, 15 in ’Oudah, ibid, 59; Hashi-a-tul bujerini Ala minhaj vol 4, 40 in ’Oudah, ibid, 59; Al Iqna, above (n 161) 17. 244   Al Zaila’ee, vol 6, 114 in ’Oudah, Criminal Law of Islam vol II, above (n 96) 59; Al Bahrul Raiq, vol 8, 310 in ’Oudah, ibid, 59. Some jurists from the Hanbali and Shaifi’ī Schools also share his view. See Al Mughi, vol 9, 366 in ’Oudah, ibid, 59; Al Sharh’ul Kabeer, vol 9, 335 in ’Oudah, ibid, 59; Al Muhazzab, above (n 157) 716 in ’Oudah, ibid, 59. 245  ’Oudah, Criminal Law of Islam vol II, above (n 96) 65 246  ibid. 247   ibid, 66, 67, 69, 73; Haneef, above (n 118) 25.

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of murder such as holding the victim for the principal offender, knowing that the latter intends the killing, and it is not possible to be achieved without the help of the former’.248 However, the majority of jurists do not share his view and consider this a mere act of facilitation.249

B  Complicity in Indirect Homicide If a group of people indirectly causes fatalities by setting in motion a lethal chain of events, they are all held responsible, provided they were all at fault.250 Whereas when some participate directly and others indirectly, only the direct perpetrators are liable.251 This will, however, not be the case when the direct perpetrator is excused by law, such as a child who is given a sword and injures himself and dies.252

C  Causal Complicity Under Maliki law, liability is not only confined to the person whose conduct has directly caused the death of a victim, but also to any other person who was involved in the crime, for example, through abetting or offering assistance is also held liable.253 According to ’Oudah such a person is a causal accomplice and ‘may be defined as a person who agrees with another person on the commitment of a culpable act or incites him to commit such an act or abets him in the commitment thereof, provided that agreement, incitement or abetment on his part is intentional’.254 The agreement, incitement and abetment have to be instrumental in the commission of the act and the accomplice intends to cause the crime.255 Such an accomplice will be accountable for the offence even if the offence committed by the main culprit is more serious than the one originally intended by the accomplice provided that the offence of which the main culprit is guilty is also the probable result of the complicity and also that it may possibly constitute the consequence of the intended offence.256

For example, if one incites another to strike a victim and the incited person does so causing the death of the victim, the incitor will be guilty for quasi-wilful mur248  Al-Dasuqi, Hashiyat al-Dasuqi, above (n 232) 245; Imam Malik, al-Muwatta, 757; Yusuf, al-Kafi, 589; al-Kurashi, al-Khurashi ‘Ala Mukhtasar Khalil, above (n 226) 9 in Haneef, ibid. 249  Al-Shirbini, Mughni al-Muhtaj, above (n 225) col 4, 9; Imam al-Shafi’ī, al-Umm vol 6, 26; alNawawi, al-Majmu’ vol 18, 382; Ibn Qudamah; al-Mughni vol 12, 597–98; al-Bahuti, Kashshaf al-Qina’, above (n 225) 519 in Haneef, ibid, 26. 250   Haneef, ibid, 48. 251   ibid, 48, 49. 252   ibid, 49. 253  Peters, Crime, above (n 20) 29. 254  ’Oudah, Criminal Law of Islam vol II, above (n 96) 64. 255  ibid. 256   ibid, 74.

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der, even though death was not in his intention, because death is a probable result of striking someone.257

i  Punishment for Causal Complicity As we have mentioned, causal accomplices are not liable to hud or qisas, however they are liable to penal punishment.258 This gives the judge the discretionary power to award the offender whatever punishment he deems fit, taking into consideration the circumstances of the case, which may be more severe, lighter or equal to the punishment of the main offender.259

D Ordering Ordering or commanding another to commit a crime generally constitutes incitement.260 If such a situation arises, the person who commits the offence and the person who orders it are equally liable.261 However, when a person successfully orders a simpleton, or a man with good intentions, to kill a victim, such a person is considered the main culprit according to the three Imams Malik, Shafi’ī and Ahmed.262 ‘The reason given by these jurists is that the person ordered to commit homicide serves as a mere tool in the hands of the commanding person having no choice in the matter’.263 Imam Abu Hanifa considers the person ordering the commission of a crime as a main culprit only when the ordering involves coercion, otherwise he treats him as an indirect accomplice.264 ‘If the commanding person enjoys superiority over the agent, as does the father over his young son or the teacher over his pupil, then his order assumes the character of compulsion’.265 According to Egyptian law until 1984, a person inviting the agent to homicide and in possession of coercive means for the commission thereof was condemned to death as the actual murderer.266 After 1984, the law started treating such a person as an indirect accomplice; however the courts continued to declare him to be the direct accomplice.267  ibid.   ibid, 73. 259   ibid, 74. 260   ibid, 66. 261  Mawdūdī, Human Rights in Islam (London: Islamic Foundation, 1980) 33. 262  ’Oudah, Criminal Law of Islam vol II, above (n 96) 60. 263   ibid, referring to All Sharh-ul-Kabeer lil Durdeer vol 4, 216, 218; Al Muhazzab, above (n 157) 189; Al Shrhul Kabeer vol 9, 344; Al Mughni, above (n 160) 331; Nyazee, above (n 55) 114. 264   Bada-e-wal-Sana’e vol 7, 180, in ’Oudah, Criminal Law of Islam vol II, above (n 96) 60. 265   ’Oudah, ibid, 67, referring to All Sharh-ul-Kabeer lil Durdeer, above (n 263) 216, 218; Al Muhazzab, above (n 157) 189; Al Shrhul Kabeer, ibid; Al Mughni, above (n 160) 331. 266   Arts 223 and 224, Egyptian Draft Law of 1883 in ’Oudah, ibid, 60, 61. 267   ’Oudah, ibid, 61. 257 258

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Article 108 of the Pakistan Penal Code, contrary to Islamic law, also considers a perpetrator who acts through an innocent, irresponsible, or unwilling agent, only to be an abettor and not the main culprit.268

IX Conclusion As the intention is completely a subjective matter which is only known to the Creator (Allah) and the accused, Muslim jurists adopted the following propositions in order to ascertain whether the killing was intended or not: 1. The size and nature of the object used in the killing should be considered. 2. The body part on which the blow was delivered should be examined. 3. The state of health and physical strength of the deceased should be taken into full account.269 The three-tier classification of homicide, namely, murder, quasi-intentional homicide and homicide committed by mistake is agreed by the majority of Sunni schools to be the ‘correct hierarchical division of the offence’.270 As consequence it is the element of mens rea which forms the basis of classifying homicide into variant categories and the consequences that they entail.

  Nyazee, above (n 55) 113; Pakistan Penal Code, Art 108, Illustration (b).   See Sayed S Shah, ‘Homicide in Islam: Major Legal Themes’ (1999) 14 Arab Law Quarterly 159– 68, 162. 270   ibid, 161. 268 269

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8 Mens Rea in post-World War II Trials, the Travaux Préparatoire of the Genocide Convention and the Work of the International Law Commission I Introduction On 26 June 1945 representatives of the governments of the Four Powers, namely, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States met in London to decide on a common course of action with respect to the trial of the major European war criminals. The conference had before it an American ‘Draft of Proposed Agreement’ submitted on 14 June 1945 to the embassies of the above governments in Washington in order to serve as a basis for discussion at the scheduled conference. This draft contained a number of rules in a chapter entitled ‘Declaration of Legal Principles’ which the proposed International Military Tribunal would have to follow. On the one hand, a certain number of acts were declared criminal; on the other, substantive rules concerning the liability and the defence of persons charged with the above crimes were laid down. As far as the rules of liability and defence are concerned, the above declaration provided that the International Military Tribunal which was to be created ‘shall apply the general rule of liability that those who participate in the formulation or execution of a criminal plan involving multiple crimes are liable for each offence committed and responsible for the acts of each other.’1 On 8 August 1945, the governments of the Four Powers, entered into an agreement for the prosecution and punishment of the major war criminals of the European Axes, and established the Charter of the International Military Tribunal at Nuremberg.2 Article 6 of the Nuremberg Charter recognised any of the following 1   See the report of Robert H Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington DC: US Department of State, 1949) 28, 35. 2   Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279. For a thorough and systematic analysis of the International Military Tribunal at Nuremberg, see Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Alfred Knopf,

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acts as crimes within the jurisdiction of the Nuremberg Tribunal for which there would be individual responsibility: a. Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing. b. War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not to be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. c.  Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecution on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.3 Six months after the functioning of the International Military Tribunal at Nuremberg (IMT), the International Military Tribunal for the Far East (IMTFE) opened its hearing in Tokyo.4 According to Article 5 of the Tokyo Charter, the IMTFE has the power to try and punish Far Eastern war criminals for offences similar to those charged at Nuremberg, including crimes against peace.5 1992); James F Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (London: Greenwood Press, 1982); Robert E Conot, Justice at Nuremberg: The First Comprehensive Dramatic Account of the Trial of the Nazi Leaders (New York: Harper & Row Publishers, 1983); Drexel A Sprecher, Inside the Nuremberg Trial: A Prosecutor’s Comprehensive Account, vol 1 (New York: University Press of America, 1999); Bradley F Smith, Reaching Judgment at Nuremberg (New York: Basic Books Publishers, 1977); Bradley F Smith, The American Road to Nuremberg: The Documentary Record 1944 –1945 (Stanford: Hoover Institution Press, 1982). 3   Art 6 of the Charter of the International Military Tribunal, quoted in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Judgment, 1 October 1946, (Judgment of the IMT) 11. 4   The International Military Tribunal for the Far East was first contemplated by the Cairo Declaration of 1 December 1943. Further references were made in the Declaration of Potsdam of 26 July 1945, the Instrument of Surrender of 2 September 1945 and the Moscow Conference of 26 December 1945. There were 55 counts, dealing with crimes against peace and war crimes. There were no charges of membership of criminal organisations and no crimes against humanity except where borne directly on war crimes. For more details on the IMTFE see John Alan Appleman, Military Tribunals and International Crimes (USA: Greenwood Press, 1971) 237–64. 5   Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946, reprinted in M Cherif Bassiouni, Crimes against Humanity in International Criminal Law (Dordrecht: Martinus Nijhoff Publishers, 1992) 606–11.

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Introduction Following the unconditional surrender of Germany, the supreme legislative authority in that country was exercised by the Allied Control Council composed of the authorised representatives of the Four Powers. On 20 December 1945, that body enacted Control Council Law No 10 (CCL No 10) to regulate the apprehension, surrender and trial of war criminals throughout Germany.6 According to this law, each occupying authority within its own zone of occupation had the right to bring to trial before an appropriate tribunal all persons accused of committing any of the crimes provided for in Article II of CCL No 10. During the period from 26 October 1946 to 14 April 1949 twelve subsequent Nuremberg trials were held. These trials were undertaken by civilian judges who were selected and brought to Germany to try the secondary leaders of those same classes of crimes as had been tried by the IMT.7 In addition to the trials of the major war criminals other trials were conducted to try ‘minor war criminals’. According to the Moscow Declaration of 30 October 1943, German officers, men and members of the Nazi Party who took part in the various atrocities, massacres and executions, were to be brought back to the scene of their crimes and tried on the spot, ‘according to the law of these liberated countries’.8 These trials were conducted by Russia, the United States, Great Britain, Australia, France, the Netherlands, Poland, Norway, Canada, China, and Greece.9 In the International Military Tribunal at Nuremberg the indictment charged the 24 defendants with crimes against peace for the planning, preparation, initiation and waging of wars of aggression, war crimes and crimes against humanity.10 The defendants were also charged with participating in the formulation or execution of a common plan or conspiracy to commit the foregoing crimes.11 Yet, in the Nuremberg judgment the mens rea concept was discussed in relation to conspiracy. 6   Allied Control Council Law No 10 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945 (CCL No 10), Official Gazette of the Control Council for Germany, No 3 (Berlin, 31 January 1946) reprinted in Bassiouni, above (n 5) 590–95. 7   See Appleman, above (n 4) IX. 8   The Moscow Conference, 19–30 October 1943 (Declaration of German Atrocities), 1 November 1943, reprinted in Bassiouni, above (n 5) 573–74. 9   Of these trials, the United States conducted 950, of which 500 were held in Europe and 450 in the Pacific theatre. See Appleman, above (n 4) X–IX. 10   Judgment of the IMT, above (n 3) 171. The IMT held its first session on 18 October 1945. The actual trial of 22 alleged major war criminals began on 20 November 1945. The defendant Robert Ley committed suicide in prison on 25 October 1945. On 15 November 1945, the IMT decided that the defendant Krupp could not stand trial because of his physical and mental condition. By the judgment of 1 October 1946 the following 12 defendants were sentenced to death: Göring, Bormann (tried in absentia), Keitel, Jodl, von Ribbentrop, Frick, Kaltenbrunner, Frank, Seyss-Inquart, Rosenberg, Streicher and Sauckel. Three defendants were given life imprisonment: Hess, Raeder and Funk. Four defendants were given lesser prison terms: Schirach – 20 years, Speer – 20 years, von Neurath 15 – years and Doenitz – 10 years. The IMT found three of the defendants not guilty: Schacht, von Papen and Fritzche. 11   One of the most controversial questions raised in the IMT was related to the charges in the indictment against the individual defendants as conspirators to perform the acts charged in counts II, III and IV which detailed the several offences. For more on conspiracy as a collective responsibility at the Nuremberg Trial see Appleman, above (n 4) X–XI. See Art 6 of the Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945.

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This was not the case regarding the International Military Tribunal for the Far East and other trials conducted under Control Council Law 10. Shortly after the International Military Tribunal at Nuremberg had rendered its judgment, the General Assembly of the United Nations established the International Law Commission in 1947 – a United Nations body devoted to the codification and progressive development of international law.12 Pursuant to General Assembly Resolution 177 of 1947, the International Law Commission was directed to ‘formulate the principles of international law recognised in the Charter of the Nürnberg and in the judgment of the Tribunal’.13 Between 1947 and 1996, the Commission adopted the Nuremberg Principles, the 1954 Draft Code of Offences against the Peace and the Security of Mankind, the 1991 Draft Code of Crimes against the Peace and Security of Mankind and the 1996 Draft Code of Crimes against the Peace and Security of Mankind. The debates on the 1991 and 1996 drafts were enriched by discussion of the mens rea concept. In light of this brief introduction, section II of this chapter commences with a general examination of the notion of mens rea as applied by the International Military Tribunal at Nuremberg, the International Military Tribunal for the Far East and other trials conducted under Control Council Law 10. Section III examines the criminal liability for conspiracy. Liability for being a member of a criminal organisation is the focus of section IV. The notions of ‘persons concerned in’ a crime, and complicity will be looked at in sections V and VI. Section VII examines the mens rea required for triggering the responsibility of commanders. The question whether a mistake of law or mistake of fact may negate the mental element of the offence is examined in section VIII, section IX examines the concept of mens rea in travaux préparatoire of the Genocide Convention. Finally, section IX examines how the concept of mens rea was developed through the debates of the International Law Commission from 1947 until 1996.

II  Mens Rea – Guilty Knowledge Several passages in the Nuremberg judgment demonstrate that ‘knowledge’ was decisive for imputing individual criminal responsibility to the defendants. However, the IMT found that it was not necessary to consider whether the defendants had particular knowledge of each step performed in the common plan.14 Analysing the common purpose theory, the Tribunal held that: ‘When they 12   The International Law Commission is composed of 34 experts representing the world’s principal legal systems, each elected for a term of five years by the UN General Assembly to serve in their personal capacity rather than as representatives of governments. 13   GA Res 177(II), UN Doc A/519. 14   Appleman, above (n 4) 60–61. Appleman observed that ‘[n]ot one defendant admitted personal knowledge of the slaughter of the Jews’. Moreover, ‘[n]one of them admitted prior knowledge of Hitler’s plans for aggressive war’. For a systematic analysis on the defendants’ statements, recognition and challenge of guilt see Appleman, ibid, 59–67.

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[defendants], with knowledge of his [Hitler’s] aims, gave their co-operation, they made themselves parties to the plan he had initiated’.15 Concerning the defendant Hans Frank the IMT ruled [b]ut it is also true that Frank was a willing and knowing participant in the use of terrorism in Poland; in the economic exploitation of Poland in a way which led to the death by starvation of a large number of people; in the deportation to Germany as slave labourers of over a million Poles; and in a program involving the murder of at least 3 million Jews.16

In the case of Frick, the IMT found that the defendant ‘knew full well what the Nazi policies of occupation were in Europe, particularly with respect to the Jews’.17 The judgment noted that the euthanasia practice had been conducted under Frick’s jurisdiction: ‘He had knowledge that insane, sick, and aged people, “useless eaters”, were being systematically put to death. Complaints of these murders reached him, but he did nothing to stop them’.18 Streicher, one of the earliest members of the Nazi Party and the publisher of Der Stürmer, an anti-Semitic weekly newspaper, was found guilty of crimes against humanity. In pronouncing judgment on Streicher, Lord Justice Lawrence declared: With knowledge of the extermination of the Jews in the Occupied Eastern Territory, this defendant continued to write and publish his propaganda of death. . . Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with War Crimes, as defined by the Charter, and constitutes a crime against humanity.19

The English originated doctrine of ‘wilful blindness’ or ‘turning blind eyes to the obvious fact’ was employed by the IMT in establishing the guilt of the defendant Walter Funk. The judgment declared that: In 1942 Funk entered into an agreement with Himmler under which the Reichsbank was to receive certain gold and jewels and currency from the SS. . . As a result of this agreement the SS sent to the Reichsbank the personal belongings taken from the victims who had been exterminated in the concentration camps. . . Funk has protested that he did not know that the Reichsbank was receiving article of this kind. The Tribunal is of the opinion that he either knew what was being received or was deliberately closing his eyes to what was being done.20

However, in cases where the IMT found that the defendant lacked the knowledge required to hold him criminally responsible for a crime within its jurisdiction,   Judgment of the IMT, above (n 3) 226.   ibid, 298 (emphasis added).   ibid, 301. 18  ibid. 19   ibid, 303–04 (emphasis added). 20   ibid, 305–06 (emphasis added). Most notably the SS (Die Schultzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartie) was considered a criminal organisation by the IMT. 15 16 17

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acquittal was granted. In the case of Schacht, the defendant was acquitted because the ‘necessary inference [that Schacht had knowledge of the Nazi aggressive plans] has not been established beyond a reasonable doubt’.21 As evidenced by the United States Military Tribunal sitting at Nuremberg in the IG Farben Trial: [T]he IMT approached a finding of guilty of any defendant under the charges of participation in a common plan or conspiracy or planning and waging aggressive war with great caution. It made findings of guilty under Counts I and II only where the evidence of both knowledge and active participation was conclusive. No defendant was convicted under the charge of participating in the common plan or conspiracy unless he was, as was the defendant Hess, in such close relationship with Hitler that he must have been informed of Hitler’s aggressive plans and took action to carry them out.22

As far as the Tokyo judgment is concerned, the IMTFE clearly suggests that knowledge was the relevant standard for responsibility. With regard to the defendant Hirota, the IMTFE related his knowledge to either the purpose or the activities/design: In early 1938 the plan and legislation for mobilisation of man power, industrial potential, and natural resources was adopted. This plan with little change was in essence, the basis on which the preparations to continue the China War and for waging further aggressive wars were carried out during the succeeding years. All these plans and activities were fully known to and supported by [the defendant].23

Concerning the defendant Kimura, the IMTFE considered his knowledge about plans and preparations that had been made: ‘He had full knowledge of the plans and preparations for the Pacific War and the hostilities in China’.24 With regard to the defendant Koiso, the IMTFE presumed his knowledge regarding the atrocities committed from the position he held by that time: When KOISO became Prime Minister in 1944 atrocities and other war crimes being committed by the Japanese troops in every theatre of war had become so notorious that a man in KOISO’s position would not have been well-informed either by reason of their notoriety or from interdepartmental communications.25

In the Farben case,26 a case decided by the United States Military Tribunal sitting at Nuremberg under Control Council Law 10, the subjective element of individual criminal responsibility relied more or less on the matter of knowledge.27 In   Judgment of the IMT, ibid, 310.   US v Carl Krauch & Others (IG Farben case – UNWCC); UNWCC, Law Reports of Trials of War Criminals, vol X (London: His Majesty’s Stationary Office, 1949) 34 (emphasis added). 23   International Military Tribunal for the Far East (IMTFE), Tokyo Trial Transcripts, vol II, 447 (emphasis added). 24   ibid, 452 (emphasis added). 25   ibid, 453 (emphasis added). 26   United States v Carl Krauch & Others (IG Farben case – TWC), United States Military Tribunal, Nuremberg, 14 August 1947–29 July 1948, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Case No 6, vol VIII (Washington DC: US Government Printing Office, 1953) 1085, 1096–97, 1108. 27   In this case the theory was that the defendant, Carl Krauch, and 22 others have individually and collectively used the Farben organisation as an instrument by and through which they committed the 21 22

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examining whether the defendants had knowledge that the rearmament of Germany was mainly to launch aggressive war, the United States Tribunal sitting at Nuremberg found that ‘[t]he evidence does not show that any of them knew the extent to which general rearmament had been planned, or how far it had progressed at any given time’.28 In examining whether the defendants were guilty under counts dealing with common purpose or design the Tribunal had this to say: ‘Thus we come to the question which is decisive of the guilt or innocence of the defendants . . . the question of knowledge’.29 ‘In order to be a participant in a common plan or conspiracy’, the Tribunal asserted, ‘it is elementary that the accused must know of the plan or conspiracy’.30 In the Justice case, the United States Military Tribunal’s conviction for crimes against humanity by Rothaug, the former Chief Justice of the Special Court in Nuremberg and for war crimes and crimes against humanity by Lautz, the Chief Public Prosecutor of the People’s Court, for their participation respectively in the plan of racial [persecution], to enforce the criminal laws against Jews and Poles of which they were aware, recalls a form of individual criminal responsibility similar to joint criminal enterprise as applied by the Yugoslavia and Rwanda tribunals. The Tribunal stated its view on the matter of guilty knowledge in the following words: [T]he essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offence charged in the indictment and established by the evidence, and that he was connected with the commission of that offence.31

With regard to the requisite mens rea for common design, the Tribunal held that having knowledge of the broad outlines of a common design was sufficient to incur criminal responsibility for individuals: The pattern and plan of racial persecution has been made clear. General knowledge of the broad outlines thereof in all its immensity has been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.32

This was given effect in the determination of individual defendants such as the defendant Schlegelberger. The Tribunal found that he was guilty under counts crimes enumerated in the indictment. Farben as a company was involved in a variety of activities, such as the spoliation of public and private property in Poland, Norway, France and Russia. The activities of Farben as a company also included manufacturing poison gas, manufacturing deadly pharmaceuticals that were used in medical experiments and the use of slave labour. These activities and their results needed to be connected with the defendant in order to secure a conviction. Needless to say, all the defendants in the Farben case held high positions in the business enterprise and had connections with, and held office in, other agencies. 28   IG Farben case – TWC, above (n 26) 1113 (emphasis added). 29  ibid. 30   IG Farben case – UNWCC, above (n 22) 40 (emphasis added). 31   US v Alstötter et al (Justice case – TWC), US Military Tribunal, Judgement, 3–4 December 1947, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, vol III (Washington DC: US Government Printing Office, 1951) 1093 (emphasis added). 32   ibid, 1081 (emphasis added).

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two and three of the indictment since ‘Schlegelberger knew of the pending procedures for the evacuation of the Jews and acquiesced in them’.33 In the Krupp case,34 the Tribunal stressed that before deciding that the defendant’s activities could be said to constitute crimes against peace the following elements had to be established: (i) it must be shown that the defendants were parties to the plans of the Nazi Government to wage aggressive war; and (ii) that the evidence is sufficient to show that the defendants participated in such plans under circumstances which would make them guilty under the conspiracy count.35 With regard to the mens rea required to trigger the criminal responsibility of the defendants, Judge Anderson spelled out the following thoughtful guidelines: It is essential . . . to determine whether the proof was sufficient to show that the defendants manufactured and sold armaments to the Government with the knowledge that the product was going to be used in some invasion or war of aggression against another nation . . . and with the intent to aid in the accomplishment of the criminal purpose of those initiating and waging such conflict. This question is not to be determined by objective standards. Actual knowledge is required. The rule applicable in cases of ordinary negligence and similar actions has no place in criminal law.36

Judge Anderson devoted special attention regarding the following issues: (i) how guilty knowledge may be inferred; (ii) the test to be applied (subjective or objective); and (iii) the additional mens rea required to be proved on the part of the accused who participated in the plan: The requisite knowledge . . . can be shown either by direct or circumstantial evidence but in any case it must be knowledge of the facts and circumstances which would enable the particular individual to determine not only that there was a concrete plan to initiate and wage war, but that the contemplated conflict would be war of aggression and hence criminal. Such knowledge being shown, it must be further established that the accused participated in the plan with the felonious intent to aid in the accomplishment of the criminal objective.37

In the Medical case,38 several passages in the judgment demonstrate that ‘knowledge’ was decisive when establishing individual criminal responsibility of the   ibid, 1084 (emphasis added).   US v Alfred Krupp & Eleven Others, US Military Tribunal, Nuremberg, 17 November 1947–30 June 1948; UNWCC, Law Reports of Trials of War Criminals, vol X (London: His Majesty’s Stationary Office, 1949) 69–73. In this case, the prosecutor indicted Alfred Krupp and another 11 defendants who were officials of the firm Fried–Krupp which allegedly played a part in the rearmament of Germany, and in the preparation and plans for aggressive war. The prosecution maintained that the high positions held by the defendants had facilitated the coordination between the activities of the Krupp firm and the German programme for rearmament. 35   ibid, 122. 36   ibid (emphasis added). 37   ibid (emphasis added). 38   US v Karl Brandt et al (US v Karl Brandt et al Medical case – TWC) 9 December 1946–22 November 1947, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Case No 1, vol II (Washington DC: US Government Printing Office, 1951) 1–300. In this case, the prosecution indicted 23 defendants, who were for the most part medical men, with four counts. Whereas, count one (conspiracy to commit war crimes and crimes against humanity), met with little approval from the Tribunal, and no defendant was found guilty on that count, count two (war crimes) and count three (crimes against humanity) were the chief counts of this case. See Appleman, above (n 4) 141. 33 34

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defendants. ‘Knowledge of the fact that human subjects could be made available for experimentation’ was deemed sufficient by the Tribunal to hold the defendant Karl Brandt criminally responsible under counts two, three and four of the indictment.39 Mere knowledge of the nature of the experiments conducted by other defendants was not sufficient to hold the defendant Poppendick criminally liable for the ‘sulphanilamide experiments’, so long as he was not implicated or connected with any such experiments.40 In establishing the guilt of the defendant, Becker-Freyseng, regarding his involvement in the ‘sea-water experiments’ the Tribunal found that [t]hrough out all the stages of the affair, from its inception to its conclusion, the defendant knew of the dangerous nature of the experiments. He knew that deaths were reasonably to be expected. He knew that concentration camp inmates were to be used as experimental subjects.41

In pronouncing judgment on the defendants Rulf, Romberg, and Weltz, for their alleged implication in criminal experiments (high-altitude experiments) the Tribunal noted that all of the evidence which points in this direction is circumstantial in its nature.42 The Tribunal’s thoughtful explanation of the nature and value of circumstantial evidence merits lengthy quotation: The value of circumstantial evidence depends upon the conclusive nature and tendency of the circumstances relied on to establish any controverted fact. The circumstances must not only be consistent with guilt, but they must be inconsistent with innocence. Such evidence is insufficient when, assuming all to be true which the evidence tends to prove, some other reasonable hypothesis of innocence may still be true; for it is the actual exclusion of every other reasonable hypothesis but that of guilt which invests mere circumstances with the force of proof. Therefore, before a court will be warranted in finding a defendant guilty on circumstantial evidence alone, the evidence must show such a well-connected and unbroken chain of circumstances as to exclude all other reasonable hypothesis but that of the guilt of the defendant. What circumstances can amount to proof can never be a matter of general definition. In the final analysis the legal test is whether the evidence is sufficient to satisfy beyond a reasonable doubt the understanding and conscience of those who, under their solemn oaths as officers, must assume the responsibility for finding the facts.43

On this particular specification, the Tribunal found that the three defendants were not guilty with regard to the ‘high-altitude experiments’.44 In the Trial of Oswald Pohl et al, the Tribunal dismissed all the tests of individual guilt of the defendant Rudolf Scheide in the following terms: The defendant admits membership in the SS, an organisation declared criminal by the Judgment of the International Military Tribunal, but the prosecution has offered no   US v Karl Brandt et al (Medical case – TWC), above (n 38) 195.   ibid, 250. 41   ibid, 284. 42   ibid, 275–76. 43   ibid, 276. 44  ibid. 39 40

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Mens Rea in post-WWII Trials evidence that the defendant had knowledge of the criminal activities of the SS, or that he remained in the said organization after September, 1939, with such knowledge or that he engaged in criminal activities while a member of such an organisation.45

In the same Trial, the Tribunal applied extensively circumstantial evidence to admit proof of guilty knowledge as charged by the prosecution with regard to the defendant August Frank.46 In view of the accused’s position and the field of his competence, the Tribunal concluded that ‘anyone who worked, as Frank did, for eight years in the higher councils of that agency cannot successfully claim that he was separated from its political activities and purposes’.47 The Tribunal found Frank guilty of ‘participating and taking a consenting part’ in the ‘slave labour programme . . . and in the looting of property of Jewish civilians for the eastern occupied territories’. Applying an objective test in ascertaining the guilt of the accused, the Tribunal further concluded, Frank ‘could not have been ignorant’ or that he ‘must have known’ of the purposes as well as of the above criminal acts.48

A  Evidence – Facts from which Tribunals Infer Knowledge Several passages in the IMT judgment suggest that by virtue of being in a position of authority it is possible to assume knowledge on behalf of the defendant. Yet in the case against the accused Dönitz – at the relevant time the commander-in-chief of the German Navy – the IMT held, concerning the use of forced labour for building war ships: ‘A man in his position must necessarily have known that citizens of occupied countries in large members were confined in the concentration camps’.49 In the Justice case, the knowledge of the defendant can also be established from a variety of factors which form the structure or system of information: The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nation-wide pogrom of November 1938 officially directed from Berlin and Hitler’s announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ, ‘The Reichsgesetzblatt’. Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. 45   Official Transcripts of the American Military Tribunal in the matter of the United States of America, against Oswald Pohl et al, 8132, quoted in UNWCC, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: His Majesty’s Stationary Office, 1948) 337 (italics in original). 46   Frank was Pohl’s chief deputy of the SS Economic and Administrative Main Office, known as WVHA (Wirtschafts – und Verwaltungshauptampt) – one of the 12 main departments of the SS and to which was added the main office of the Inspector of Concentration Camps. 47  UNWCC, History of the United Nations War Crimes Commission, above (n 45) 339. 48   ibid. 49   Judgment of the IMT, above (n 3) 314.

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Common Plan or Conspiracy They knew that the law against Poles and Jews had been extended to occupied territories, and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation. They could hardly be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of Interior, to issue legal and administrative regulations for ‘implementation of the decree’. They read The Stuermer. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands, never.50

In pronouncing judgment on Herbert Klemm (at the relevant time State Secretary of the Reich Ministry of Justice) the Court held that: Klemm knew of abuses in concentration camps. He knew of the practice of severe interrogations. He knew of the persecution and oppression of the Jews and Poles and gypsies. He must be assumed to have known, from the evidence, the general basis of Nacht und Nebel procedure under the Department of Justice.51

III  Common Plan or Conspiracy The Nuremberg Charter gave no clear definition as to what should be included in the concept of conspiracy, thus leaving the task to the IMT.52 The prosecution adopted the following theory regarding the criminal responsibility for ‘conspiracy’: No formal meeting or agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action and working together with a common design to accomplish a common purpose. Secondly, one may be liable even though he may not have known who his fellow conspirators were or just what part they were to take or what acts they committed, and though he did not take personal part in them or was absent when the criminal acts occurred. Third, there may be liability for acts of fellow conspirators although the particular acts were not intended or anticipated, if they were done in execution of the common plan. One in effect makes a fellow conspirator his agent with blanket authority to accomplish the ends of the conspiracy. Fourth, it is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of the criminal acts. When one becomes a party to a conspiracy, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators.53   US v Alstötter et al (Justice case – TWC), above (n 31) 1081.   ibid, 1094 (emphasis added).   In the words of the UNWCC, ‘the doctrine of “conspiracy” is one under which it is a criminal offence to conspire or to take part in an alliance to achieve an unlawful object, or to achieve a lawful object by unlawful means’. See UNWCC, History of History of the United Nations War Crimes Commission, above (n 45) 196. 53   See Justice Jackson, Trial of German Major War Criminals, 28th February 1946, 365–66. 50 51 52

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According to the prosecution ‘any significant participation in the affairs of the Nazi Party or Government is evidence of a participation in a conspiracy that is in itself criminal’.54 The Nuremberg Tribunal opposed such a broad and far ranging concept put by the prosecution: [T]he conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party programme. . . . The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.55

Applying this rule, the Nuremberg Tribunal held proof of actual knowledge of the concrete plans of the Nazi Government to wage aggressive war to be essential to a conviction under the conspiracy count. Shortly before stating the reasons in declaring its judgment on the guilt or innocence of the defendants, the IMT wrote: Many of these men have made a mockery of the soldier’s oath of obedience to military orders. When it suits their defence they say they had to obey; when confronted with Hitler’s brutal crimes which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know.56

Contrary to Article 6(a) of the Nuremberg Charter which explicitly criminalised ‘conspiracy’ to commit crimes against peace, there is no such provision in regard to ‘conspiracy’ to commit war crimes or crimes against humanity. However, the prosecution charged the defendants as conspirators to commit the three crimes within the jurisdiction of the Nuremberg Tribunal. Addressing this point, the IMT held that: Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides: ‘Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such a plan’. In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit War Crimes and Crimes against Humanity, and will consider only the common plan to prepare, initiate, and wage aggressive war.57

A common plan can therefore be both a crime and a mode of liability. In the former case (aggressive war) the agreed crime is alone sufficient to incur   Judgment of the IMT, above (n 3) 224.  ibid. 56   ibid, 278–79. 57   ibid, 226 (emphasis added). 54 55

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liability,58 whereas in the latter (war crimes and crimes against humanity) crimes have to be committed which can be connected with the defendant. That is to say, the IMT was of the opinion that a common plan is a specific crime, in some, but not all situations. Conspiracy was also the backbone of the prosecution strategy before the International Military Tribunal for the Far East (IMTFE).59 The defendants were all charged with conspiring as leaders, organisers, instigators or accomplices to wage wars of aggression against any country which might have opposed Japan’s securing of military, naval, political and economic domination of East Asia, the Pacific and Indian Oceans and adjoining territories.60 Similarly to the IMT position, the IMTFE held that conspiracy is not a specific crime in the case of war crimes and crimes against humanity: A similar provision appeared in the Nuremberg Charter although there was an independent paragraph and was not, as in our Charter incorporated in sub-paragraph (c). The context of this provision clearly relates it exclusively to sub-paragraph (a), Crimes against Peace, as that is the only category in which a ‘common plan or conspiracy’ is stated to be a crime. It has no application to Conventional War Crimes and Crimes against Humanity as conspirators to commit such crimes are not made criminal by the Charter of the Tribunal. . . . We hold therefore that we have no jurisdiction to deal with charges of conspiracy to commit murder as contained in Counts 37 and 38 and decline to entertain these charges.61

Control Council Law No 10 recognises this principle of ‘confederacy’ (common plan) when it provides in Article II(2) that ‘any person . . . is deemed to have committed a crime as defined in paragraph 1 of this article if he was . . . connected with plans or enterprises involving its commission’.

58   This is explicitly mentioned in the IMT Judgment: ‘As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a), dealing with Crimes against Peace’: IMT Judgment, ibid, 253. 59   For the theory pleaded by the prosecution regarding the criminal responsibility for conspiracy see Tokyo Trial Transcripts, above (n 23) 433–34. 60   For more details on the IMTFE see Leon Friedman (ed), The Law of War: A Documentary History, vol II (New York: Random House, 1972). 61   Judgment of the IMTFE 31–32. In the Tokyo Charter, Section II headed ‘Jurisdiction and General Provisions’ reads as follows: Article 5: Jurisdiction over Persons and Offenses. The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organisations are charged with offenses which include Crimes against Peace. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a. Crimes against Peace: namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; b. Conventional War Crimes: namely, violations of the laws or customs of war; c. Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.

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In the Oswald Pohl and Others trial,62 the United States Military Tribunal acting under CCL No 10 provided further clarification regarding the notion of common plan or criminal enterprise: An elaborate and complex operation, such as the deportation and extermination of the Jews and the appropriation of all their property, is obviously a task for more than one man. Launching or promulgating such a programme may originate in the mind of one man or a group of men. Working out the details of the plan may fall to another. Procurement of personnel and the issuing of actual operational orders may fall to others. The actual execution of the plan in the field involves the operation of another, or it may be several other persons or groups. Marshalling and distributing the loot, or allocating the victims, is another phase of the operations which may be entrusted to an individual or a group far removed from the original planners. As may be expected, we find the various participants in the programme tossing the shuttlecock of responsibility from one to the other. The originator says: ‘It is true that I thought of the programme, but I did not carry it out’. The next in line says: ‘It is true I laid the plan out on paper and designated the modus operandi but it was not my plan and I did not actually carry it out’. The third in line says: ‘It is true I shot people, but I was merely carrying out orders from above’. The next in the line says: ‘It is true that I received the loot from this programme and inventoried it and disposed of it, but I did not steal it nor kill the owners of it. I was only carrying out orders from the higher level’. . . . Under these circumstances the acts of any of the four, within the scope of the overall plan, become the acts of all others.63

The basic form of joint criminal enterprise as recognised in the jurisprudence of the ad hoc Tribunals finds support in the Einsatzgruppen case,64 although the judgment did not consider accessories as perpetrators or principals. The judgment demonstrated that such mode of responsibility requires that the accused intended the commission of the crimes forming part of the common plan. In this case a United States Tribunal sitting at Nuremberg noted that the elementary principle must be borne in mind that neither under Control Council Law No10 nor under any known system of criminal law is guilt for murder confined to the man who pulls the trigger or buries the corpse. In line with recognized principles common to all civilized legal systems, paragraph 2 of Article II of Control Council Law No 10 specifies a number of types of connection with crime which are sufficient to establish guilt. Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission of crime or are concerned with plans or enterprise involved in its commission, those who order or abet crime, and those who belong to an organization or group engaged in the commission of crime. These provisions embody no harsh or novel principles of criminal responsibility.65 62   US v Oswald Pohl and Others (US v Oswald Pohl and Others – UNWCC), United States Military Tribunal at Nuremberg, 10 March–3 November 1947, not fully reported by the UNWCC (Supplemental Judgment, dated 11 August 1948) quoted in Law Reports of Trials of War Criminals, vol XV, Digest of Laws and Cases (London: His Majesty’s Stationary Office, 1949) 53. 63   ibid, 53–54. 64   The United States of America v Otto Ohlendorf et al (Einsatzgruppen), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, vol IV (Washington DC: US Government Printing Office, 1951) 3. 65   ibid, 373.

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The Tribunal went on to say: Even though these men [Radetsky, Ruehl, Schubert and Graf] were not in command, they cannot escape the fact that they were members of Einsatz units whose express mission, well known to all the members, was to carry out a large scale program of murder. Any member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit. The cook in the galley of a pirate ship does not escape the yardarm merely because he himself does not brandish a cutlass. The man who stands at the door of a bank and scans the environs may appear to be the most peaceable of citizens, but if his purpose is to warn his robber confederates inside the bank of the approach of the police, his guilt is clear enough. And if we assume, for the purposes of argument, that the defendants such Schubert and Graf have succeeded in establishing that their role was an auxiliary one, they are still in no better position than the cook or the robbers’ watchman.66

In Ponzano,67 a British Military Court sitting at Hamburg, had broadly linked the notion of common purpose to that of causation. Adopting the approach suggested by the prosecutor, the Judge Advocate emphasised the requirement that an accused, before he can be found guilty, must have been concerned in the offence. [. . .] to be concerned in the commission of a criminal offence [. . .] does not only mean that you are the person who in fact inflicted the fatal injury and directly caused death, be it by shooting or by any other violent means; it also means an indirect degree of participation [. . .] in other words, he must be the cog in the wheel of events leading up to the result which in fact occurred. He can further that object not only by giving orders for a criminal offence to be committed, but he can further that objet by a variety of other means.68

Most interestingly, in English courts, the issue whether the basic level of secondary liability is founded on a principle of causation is highly controversial.69

  ibid (emphasis added).   Trial of Feurstein and others (Ponzano case), Proceedings of a War Crimes Trial at Hamburg, Germany (4–24 August 1948), Judgment, 24 August 1948 (original transcripts in the Public Records Office, Kew). 68   ibid, 7–8. 69  In Bryce [2004] EWCA Crim 1231; [2004] 2 Cr App R 35, the UK Court of Appeal upheld D’s conviction as an accessory to murder by P because there was no ‘overwhelming supervening event’ sufficient to break the chain of causation between D’s act of assistance (driving P to the scene the day before) and P’s commission of the offence. The same view was upheld by the UK Court of Appeal in R v Mendez and Another [2010] EWCA Crim 516, para 18: ‘At its most basic level, secondary liability is founded on a principle of causation, that a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission’. But see contra R v Luffman [2008] EWCA Crim 1739, stressing that in all secondary liability cases other than those of procuring, there need be no causal link between the act of the accessory and that of the principal. 66 67

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IV  Membership of Criminal Organisations – Presumed Knowledge Pursuant to Articles 9, 10 and 11 of the Nuremberg Charter, certain groups or organisations of which the defendants were members had been declared criminal by the Nuremberg Tribunal.70 The IMT stressed that membership of a criminal organisation can entail responsibility only if the defendant actively took part in the acts of the organisation and knew of their criminal character. Therefore, in addition to the crimes referred to in Article 6, the Nuremberg Charter had defined a special crime, namely participation in criminal organisations. The judgment stressed that mere membership of criminal organisations was not, per se, criminal in nature and gave further clarification as to the nature of such criminal groups or organisations: A criminal organization is analogous to a criminal conspiracy in that the essence of both is co-operation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purpose or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations.71

Subsequent trials conducted by the United States Military Tribunals adopted the position taken by the IMT without clarifying who was to bear the onus of proof regarding the test of personal guilt when an alleged member is brought to trial. The UNWCC commentary noted that two alternative courses were open to the competent courts with regard to the onus of proof: The first would be to hold the view that the declaration made by the Nuremberg Tribunal creates a presumption of guilt against every member, and that consequently all the prosecution is required to do is to establish that the accused was a member of the organization. In this case it was to be presumed, until proof to the contrary was established by the defendant, that he knew of the criminal purposes or acts of the organization or that, if he did not join the organization on a voluntary basis, he was personally implicated in the commission of crimes. The second course would be to hold the view 70   Judgment of the IMT, above (n 3) 255–79. The following are the groups or organisations which had been declared criminal by the IMT: The Leader Corps of the Nazi Party; the Gestapo and the SD and the SS. 71   Judgment of the IMT, ibid, 256–79 (emphasis added). It is worth pointing out that in no instance had the accused been condemned solely because of his membership of a group or organisation which had been declared criminal. In addition, no organisation had been declared criminal as a whole. It was only groups within those organisations, composed of persons who had taken an important part in their activities, who had been aware of their criminal objectives that had been declared criminal.

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Persons Concerned in the Killing that no presumption of individual guilt derives from the declaration of the Nuremberg Tribunal, and that consequently, the prosecution is called to prove not only that the accused was a member of the organization declared criminal, but also that he knew the relevant facts or (if an involuntary member) that he was personally implicated in the commission of crimes.72

In the Justice case, the Tribunal seemed to adopt the first course – the presumption of guilt – when it held that no man with Joel’s intimate contacts with the Reich Security Main Office, the SS, the SD and the Gestapo ‘could possibly have been in ignorance of the general character of those organizations’.73 Elsewhere in the judgment, the evidence regarding the mens rea of the accused was entirely of a circumstantial nature. The Tribunal held that the crimes of Leadership Corps of the Nazi Party were of such wide scope and were so intimately connected with the activities of the (Gauleitung) that ‘it would be impossible for a man of the defendant’s [Oeschey’s] intelligence not to have known of the commission of these crimes, at least in part if not entirely’.74 In pronouncing judgment on Altstötter, the Tribunal said, inter alia, that the activities of the SS and the crimes which it committed . . . are of so wide a scope that no person of the defendant’s intelligence, and one who had achieved the rank of Oberfuehrer in the SS, could have been unaware of its illegal activities.75

Even though Altstötter was not found guilty on the basis of presumed knowledge alone, the above citations clearly show that the Tribunal was willing, in suitable instances, to assume knowledge on the part of defendants of the criminal purposes of the organisations referred to.76

V  Persons Concerned in the Killing Some British and US courts, influenced by common law concepts, have utilised the notion of ‘persons concerned in’, for instance, the killing of prisoners of war. In the trial of Karl Adam Golkel, 14 accused were ‘concerned in’ taking prisoners of war to a wood and shooting them without legal justification.77 It was not proven that any of the defendants had taken part in the actual shooting. The Judge Advocate, in his summing up, made the following comment: It is for the members of the Court to decide what participation is fairly within the meaning of these words. But it is quite clear that those words do not mean that a man  UNWCC, Law Reports of Trials of War Criminals vol XV, above (n 62) 150–51.   US v Alstötter et al (Justice case – TWC), above (n 31) 1142. 74   ibid, 1170. 75   ibid, 1175. 76   UNWCC, Law Reports of Trials of War Criminals, vol XV, above (n 62) 152. 77   Trial of Karl Adam Golkel & Thirteen Others Case No 30, British Military Court, Wuppertal, Germany, 15–21 May 1946; UNWCC, Law Reports of Trials of War Criminals, vol V (London: His Majesty’s Stationary Office, 1949) 45–53. 72 73

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Mens Rea in post-WWII Trials actually had to be present at the site of the shooting; a man would be concerned in the shooting if he was 50 miles away if he had ordered it and had taken the executive steps to set the shooting in motion. You must consider not only physical acts done at the scene of the shooting, but whether a particular accused ordered it or took any part in organizing it, even if he was not present at the wood.78

It is not clear from the above citation which degree of mens rea is sufficient to trigger the criminal responsibility of individuals for this mode of participation. The trial of Werner Rohde, however, provides further clarification. Nine accused were ‘concerned in the killing’ of four British women when prisoners in the hands of the Germans.79 However, none of the accused was actually charged with killing any of the women concerned. According to the commentary on the case, the Judge Advocate explained the meaning of the term ‘concerned in the killing’ in the following words: If two or more men set out on a murder and one stood half a mile away from where the actual murder was committed, perhaps to keep guard, although he was not actually present when the murder was done, if he was taking part with the other man with the knowledge that that other man was going to put the killing into effect then he was just as guilty as the person who fired the shot or delivered the blow.80

But where the activities of persons are related to the time after the commission of the offence, they are exempting from responsibility as being concerned in the killing. As the Judge Advocate put it clearly in the Franz Schonfeld trial: Conduct on the part of an accused subsequent to the death, while it may throw the light on the nature of the killing and the reason for it, that is to say whether it was justifiable or a crime, cannot by itself be regarded as constituting the offence of ‘being concerned in the killing’, or any degree thereof.81

VI Complicity It might perhaps be argued whether the IMT recognised different modes of criminal participation other than those of common plan or conspiracy, since the plain meaning of the last paragraph of Article 6 of the Nuremberg Charter does not concern all cases of complicity, but is limited to the participation in a common plan or conspiracy. Shortly before the creation of the IMT a Russian commentator had this to say:   ibid, 53.   Trial of Werner Rohde and Eight Others, Case No 31, British Military Court, Wuppertal, Germany, 29 May–1 June 1946; UNWCC, Law Reports of Trials of War Criminals, vol V (London: His Majesty’s Stationary Office, 1949) 54–59. 80   ibid, 56. 81   Trial of Franz Schonfeld and Nine Others, Case No 66, British Military Court, Essen, Germany, 11–26 June 1946; UNWCC, Law Reports of Trials of War Criminals, vol XI (London: His Majesty’s Stationary Office, 1949) 69. 78 79

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Complicity Different and special is the position of the Hitlerite superiors – the commanding authorities of Germany. They are the creators and practitioners of the whole system of atrocities committed by the German Fascist invaders. It would therefore be a profound mistake to regard them only as accomplices (organizers, inciters, promoters) of the common crimes committed and being committed by German troops. . . . The Hitlerite superiors are the perpetrators of these international crimes.82

The Special Rapporteur of the International Law Commission in his Report on the Formulation of Nuremberg Principles noted that: Several of the defendants were convicted of war crimes and crimes against humanity because they gave orders resulting in atrocious and criminal acts which they did not commit themselves. They were accomplices in the wide sense of the word. In practice, therefore, the Tribunal must be considered as having applied either the last paragraph of article 6 by analogy or general principles of criminal law regarding complicity.83

This position is supported by the expression used by the IMT in assessing the guilt of particular defendants. With respect to the defendant Göring, the Nuremberg Tribunal said that the record was filled with his admission of ‘his complicity in the use of slave labor’.84 Rosenberg ‘helped to formulate the policies of Germanization, exploitation, forced labor, extermination of Jews and opponents of Nazi rule, and he set up the administration which carried them out’.85 Funk ‘participated in the economic exploitation of occupied territories’ and was also ‘indirectly involved in the utilization of concentration camp labor’.86 Dönitz permitted an order to shoot certain prisoners of war ‘to remain in full force when he became Commander inChief’ and was ‘to that extent . . . responsible’.87 Fritzche was acquitted on the ground that he lacked the intention to incite the German people to commit atrocities on conquered peoples. 88 The Tribunal which conducted the Justice case asserted that: ‘The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principles or a accessories to the crime’.89 In the Gustav Becker trial,90 17 of the accused were prosecuted as accomplices to illegal arrests and ill-treatment. According to the case commentary, ‘[i]t is a 82   AN Trainin, Hitlerite Responsibility under Criminal Law (AY Vishiski (ed), trans Andrew Rothstein) (London: Hutchinson Co, 1945) 81. 83   Report by J Spiropoulos, Special Rapporteur, ‘Formulation of Nuremberg Principles’ Yearbook of the International Law Commission (1950) vol II, 191–92 (UN Doc A/CN.4/22). 84   Judgment of the IMT, above (n 3) 281. 85   ibid, 295. 86   ibid, 306. 87   ibid, 314. 88   ibid, 338. 89   US v Alstötter et al (Justice case – TWC), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10; UNWCC, Law Reports of Trials of War Criminals, vol VI (London: His Majesty’s Stationary Office, 1949) 62. 90   Trial of Gustav Becker, Wilhelm Weber and 18 Others (Trial of Gustav Becker, Wilhelm Weber and 18 Others – UNWCC), Permanent Military Tribunal, Lyon, concluded 17 July 1947; UNWCC, Law Reports of Trials of War Criminals, vol VII (London: His Majesty’s Stationary Office, 1949) 67.

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principle of penal law that accomplices are held responsible in the same manner as actual perpetrators, and this principle is recognised in the field of war crimes as it is in that of common penal law’.91 In the trial of Dr Joseph Buhler,92 the accused was charged with ordering, preparing, abetting and aiding war crimes and crimes against humanity in Poland on behalf of the German Government and the Nazi Party.93 According to the case commentary: In the words of the Polish Tribunal, Buhler was the type of war criminal who did not directly commit any common crime himself, but one who sitting comfortably in his cabinet office, took part in the commission of war crimes and crimes against humanity by directing and supervising the actual perpetrators, and providing them with the useful instrument of administrative and legal measures; he was the chief engineer of the complicated and widespread criminal machinery, who guided thousands of the willing tools in how to use it. In his manifold official capacity, Buhler regularly took part in the meetings of the Government-General’s cabinet, and in drafting and approving laws and orders, especially those which resulted in deportation, persecution and extermination of people, and had a detailed knowledge of how all these measures were being put into practice.94

In the Oswald Pohl and Others trial,95 the United States Military Tribunal recognised the liability of accessories after the fact and assigned knowledge as the mens rea required for this mode of participation. The supplemental judgment contains the following observation: The fact that Pohl himself did not actually transport the stolen goods to the Reich or did not himself remove the gold from the teeth of dead inmates, does not exculpate him. This was a broad criminal programme, requiring the co-operation of many persons, and Pohl’s part was to conserve and account for the loot. Having knowledge of the illegal purposes of the action and of the crimes which accompanied it, his active participation even in the after-phases of the action make him particeps criminis in the whole affair.96

The Tribunal provides further clarification with regard to this mode of participation: Assuming that Frank ultimately heard of the extermination measures, can it be said as a matter of law that his participation in the distribution of the personal property of the inmates exterminated makes him a participant or an accessory in the actual murders? Any participation of Frank’s was post facto participation and was confined entirely to the distribution of property previously seized by others. Unquestionably this makes him a participant in the criminal conversion of the chattels, but not in the murders which preceded the confiscation.97   ibid, 70.   Trial of Dr Joseph Buhler, Case No 85, Supreme National Tribunal of Poland, 17 June–10 July 1948; UNWCC, Law Reports of Trials of War Criminals, vol XIV (London: His Majesty’s Stationary Office, 1949) 23. 93   ibid, 24. 94   ibid, 35. 95   US v Oswald Pohl and Others – UNWCC, above (n 62) 53. 96  ibid. 97  UNWCC, Law Reports of Trials of War Criminals, vol XV, above (n 62) 53. 91 92

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Complicity The trial of Bruno Tesch and Two Others (Zyklon B Case) before the British Military Court98 at Hamburg provided further clarification as to the mens rea required for complicity.99 The case is concerned with the complicity of German industrialists in the murder of interned allied civilians by means of poison gas. In this case, Bruno Tesch (owner of the firm), Weinbacher (second in command) and Drosihn (the firm’s first gassing technician), were charged with war crimes for supplying ‘poison gas used for killing allied nationals interned in concentration camps, knowing that it was so to be used’.100 The crux of the prosecution’s argument was that knowingly to supply a commodity to a branch of the State which was using that commodity for the mass extermination of Allied civilian nationals was a war crime, and that the people who did it were war criminals for putting the means to commit the crime into the hands of those who actually carried it out.101

Not surprisingly, the defence turned on the accused’s lack of knowledge of the use to which the poison was being put. In the closing address, the defence contended that since the charge was not one of destroying human life but only of supplying the means of doing so, such action would only be contrary to the laws and usages of war if the means supplied were necessarily intended to kill human beings. To supply a material which also had quite legitimate purpose was no war crime.102

The English translation of the defence speech subsequently contained the following passage, ‘even if he (Tesch) knew something about it, still the laws of this procedure would not suffice to find him guilty’.103 The Judge Advocate instructed the Court that in order to convict, they must be sure of the following: 1. that Allied Nations had been gassed with Zyclon B; 2. that the gas had been supplied by the defendants’ firm; and 3. that the accused knew that the gas was to be used for the purpose of killing human beings.104 98   Trial of Bruno Tesch et al (Trial of Bruno Tesch et al Zyklon B case – UNWCC), Case No 9, British Military Court, Hamburg, Germany, 1–8 March 1946; UNWCC, Law Reports of Trials of War Criminals, vol I (London: His Majesty’s Stationary Office, 1949) 93–104. 99   It is worth pointing out that the jurisdiction of the British Military Courts for the trial of war criminals is based on the Royal Warrant dated 14 June 1945, Army Order 81/45, with amendments. For more details see Annex I – British Law Concerning Trials of War Criminals by Military Courts in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol I (London: His Majesty’s Stationary Office, 1949) 10–110. For United States Law and Practice Concerning Trials of War Criminals by Military Commissions and Military Government Courts see ibid, 111–24. 100   Trial of Bruno Tesch et al (Zyklon B case – UNWCC), above (n 98) 93. 101   ibid, 94. 102   ibid, 98. 103   ibid, 98 fn 2. Evidently, the defence (Dr Zippel) a German lawyer was influenced by the German law regarding the mens rea required for aiding (Beihilfe) in which knowledge alone does not suffice to incur responsibility for this mode of secondary participation. See ch 5 of this volume. 104   ibid, 101.

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Both Tesch and Weinbacher were convicted of knowingly supplying the gas and Drosihn was acquitted. The Court found that there was evidence that Tesch had actual knowledge that the gas was to be used for the purpose of killing human beings, whereas Weinbacher had knowledge imputed to him by virtue of his position as second in command and his access to relevant documents. As such this case stands for the propositions that (i) both actual and constructive knowledge are sufficient to incur criminal liability for complicity in war crimes; and (ii) criminal liability will be triggered if a provider supplies lawful material knowing of its intended unlawful use. In contrast, in the IG Farben case, the Tribunal concluded that company executives reasonably believed that the gas they shipped to concentration camps was being deployed for lawful purposes.105 In other cases, however, the prosecution was subjected to a slightly higher burden, that of proving intent or at least reckless indifference. In summarising a series of French trials dealing with complicity committed by means of denunciation, the UNWCC commentary concludes that the ‘informer’ becomes a party to, or accomplice in, a war crime if the following circumstances constituting complicity are present: if the informer knew that his action would lead to the commission of a war crime and either intended to bring about this consequence or was recklessly indifferent with regard to it . . . This condition was present in circumstances of the trial referred to above, the individuals denounced by the accused [Ferrarese] having all been arrested, detained, some of them tortured and deported, and the accused having deliberately sought these consequences.106

VII  Responsibility of Commanders In cases where the defendant holds military rank (commanders) the mens rea threshold varies between actual knowledge – and mere negligence on the part of the accused. In the High Command case,107 the prosecution charged 14 defendants who held high military rank in Germany with four counts, namely: (1) crimes against peace; (2) war crimes; (3) crimes against humanity; and (4) a common plan or conspiracy to commit the crimes charged in counts one, two and three.108 With regard to the responsibility in a charge of conspiracy, or in a charge of planning, initiating, or waging aggressive war, the Tribunal asserted that it should rest   IG Farben case – TWC, above (n 26) 1168–72.   Trial of Gustav Becker, Wilhelm Weber and 18 Others – UNWCC, above (n 90) 71–72 (discussing complicity cases). 107   US v Wilhelm von Leeb, et al (High Command case – TWC), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Case No 12, vol XI (Washington DC: US Government Printing Office, 1951) 1–698. 108   ibid, 463. The trial commenced on 5 February 1948, and on that day General Johannes Blaskowitz committed suicide. Accordingly, the trial proceeded against the remaining thirteen defendants. 105 106

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solely on the political leaders.109 The Tribunal found that mere knowledge by military leaders of such plans is not sufficient to consider them personal participants therein. According to the judgment, it is also necessary that ‘the person possessing such knowledge should be in a position to shape or influence the policy that brings about the initiation of war or its continuation, once started’.110 The mens rea standards applied by the Tribunal with respect to counts two, three and four vary between actual knowledge and mere negligence. Thus, whereas the defendant von Leeb was found not guilty on crimes against civilians because he lacked the knowledge of the murder of civilians within his area of command,111 the Tribunal based its finding on the guilt of the defendant Reinhardt with regard to the deportation and enslavement of civilians on an objective or should have known standard: Not only were civilian workers conscripted for use in the army areas but the orders and reports cited, . . . show clearly that the deportation of civilian workers to the Reich was of such long continued and general practice, that even were there no orders signed by the defendant authorising it, he must be held to have had knowledge of the practice, and of its extent.112

In the Hostage case,113 12 leaders of the German Army were charged with unlawfully, wilfully and knowingly committing war crimes and crimes against hu­manity.114 They were charged with being principal in and accessories to the murder of thousands of persons from the civilian populations of Greece, Yugoslavia, Norway and Albania between September 1939 and May 1945 by the use of troops of the German armed forces.115 In this case, it was claimed that the German armed forces had the right to take hostages from the innocent civilian population of occupied territory as a guarantee against attacks by unlawful resistance forces and further right to execute them if the unilateral guarantee is violated.116 When examining the guilt or innocence of the defendant Knutze, the Tribunal found that shortly after the defendant assumed command, criminal activities including the collection of Jews in concentration camps and the killing of one large group of Jews and gypsies were carried out by units that were subordinate to him.117 The records before the Tribunal did not show that Knutze ordered the shooting of the Jews or their transfer to concentration camps. However, the   High Command Case – TWC, above (n 107) transcript 10,034, quoted in Appleman, above (n 4)

109

231.  ibid.   ibid, 562. 112   ibid, 609. 113   US v Wilhelm List et al & Others (Hostage case – TWC), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Case No 7, vol XI (Washington DC: US Government Printing Office, 1951) 759–1322. 114   ibid, 1230–34. The defendant Franz Boehme committed suicide before arraignment. 115   ibid, 1230. 116   ibid, 1248. 117   ibid, 1279. 110 111

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evidence did show that he had notice from the reports that units under his subordinate did carry out the aforementioned criminal activities.118 The Tribunal found that Knutze ‘did have knowledge that troops subordinate to him were collecting and transporting Jews to concentration camps’.119 Elsewhere in the judgment, the Tribunal based its finding regarding the guilt of Knutze on an objective standard: [H]e knew or ought to have known that the killing of thousands of the population under the guise of carrying out reprisal measures when such reprisal measures were legitimate in no sense of the word made them crimes no matter what name was applied to them.120

When the defendant claimed that he never heard of any criminal activities against Jews or gypsies in the southeast, the Tribunal invoked the concept of ‘wilful blindness’ or ‘wilfully shutting one’s eyes’.121 Applying that concept, the Tribunal went on to hold, ‘[h]e cannot close his eyes to what is going on around him and claim immunity from punishment because he did not know that which he is obliged to know’.122 Based on the aforementioned factors and circumstantial evidence, the Tribunal found Knutze guilty of counts one, three and four beyond reasonable doubt.123 The Tribunal reasoning regarding the acquittal of the defendant Förtsch marked a significant contribution with regard to the law of mens rea. In pronouncing judgment on Förtsch, the Tribunal found that the prosecution has failed to make a case against the defendant. The judgment indicates, ‘[n]o overt act from which a criminal intent could be inferred, has been established’.124 The Tribunal provides further clarification on the concept of mens rea: That he had knowledge of the doing of acts which we have herein held to be unlawful under international law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was. . . The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law. He must be one who orders, abets, or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation.125

  ibid, 1279–80.  ibid. 120   ibid, 1281. 121   For more information on the doctrine of ‘wilful blindness’ see ch 3 of this volume. 122   Hostage case – TWC, above (n 113) 1281. 123   ibid. The four counts on the indictment included the following crimes respectively: mass murder; spoliation; illegal executions; and slave labour. 124   ibid, 1286. 125  ibid. 118 119

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Mistake of Law and Mistake of Fact

VIII  Mistake of Law and Mistake of Fact Mistakes – whether of fact or law – were often claimed before post-Second World War trials. As noted by the United Nations War Crimes Commission, in its commentary on the post-Second World War trials, a mistake of fact may constitute a defence to war crimes just as it may to crimes under national laws.126 Despite the fact that the post-Second World War trials, especially those conducted by British courts in the occupied zones, were heavily influenced by the English law rule that ignorance of law is no excuse (ignorantia juris neminen excusat) still the defence of mistake of law was often pleaded by the defendants. As far as mistake of law is concerned, the commentary of the UNWCC observed that in the field of international law, there has been a trend to recognise that an alleged war criminal cannot be expected to have been quite as well aware of the provision of international law as those of his own municipal law.127 Yet in the Peleus trial, a case concerned with the killing of unarmed enemies, the Judge Advocate noted that ‘[i]t is quite obvious that no sailor and no soldier can carry with him a library of international law, or have immediate access to a professor in that subject who can tell him whether or not a particular command is lawful’.128 In the High Command case, the United States Military Tribunal at Nuremberg, stressed that ‘many of the defendants were field commanders and were charged with heavy responsibilities in active combat. Their legal facilities were limited. They were soldiers – not lawyers’.129 The Court further emphasised: Military commanders in the field with far reaching military responsibilities cannot be charged under International Law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under International Law. Such a commander can not be expected to draw fine distinctions and conclusions as to the legality in connection with orders issued by his superiors. He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held responsible for a mere error in judgment as to disputable legal questions.130

According to the Court, a field commander can incur criminal responsibility for transmittal of such an order only if that order was ‘criminal upon its face, or one 126  UNWCC, Law Reports of Trials of War Criminals, vol XV, above (n 62) 184. See also Massimo Scaliotti, ‘Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1’ (2000) 1 International Criminal Law Review 111; Massimo Scaliotti, ‘Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 2’ (2002) 2 International Criminal Law Review 1. 127  UNWCC, Law Reports of Trials of War Criminals, vol XV, ibid, 182. 128   Trial of Eck and Others (The Peleus Case), British Military Court, Hamburg, 20 October 1945, Annual Digest and Reports of Public International Law Cases, vol 13 (1946) 249. 129   Trial of Wilhelm von Leeb and Thirteen Others (The German High Command Trial), United States Military Tribunal, Nuremberg, 30 December 1947–28 October 1948; UNWCC, Law Reports of Trials of War Criminals, vol XII (London: His Majesty’s Stationary Office, 1949) 1–127. 130   ibid, 73–74.

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which he is shown to have known was criminal’.131 Another way of putting the point is to say that the order should be ‘manifestly unlawful’. To date, there is no better judgment regarding the exact meaning of the phrase ‘manifestly unlawful order’ than the one held by the Supreme Court of Israel, in the Eichmann case: The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above the order given, as a warning saying ‘Prohibited’. Not formal unlawfulness, hidden or half-hidden, nor unlawfulness discernible only to the eyes of legal experts, is important here, but a flagrant and manifest breach of the law, definite and necessary unlawfulness appearing on the face of the order itself, the clearly criminal character of the acts ordered to be done, unlawfulness piercing the eye and revolting the heart, be the eye not blind nor the heart not stony and corrupt, that is the measure of ‘manifest unlawfulness’ required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts.132

In its commentary on the High Command case, the UNWCC observed that ‘the use of the word “error” indicates that the Tribunal had not in mind a situation in which a defendant is to be regarded as innocent because the law relating to his acts is too vague to give a definite answer as to the legality of those acts (mistake of law)’. The commentary realised that the attitude usually taken by the courts to the plea of superior orders seemed to involve admitting that a mistake of law may be pleaded in mitigation.133 Once again, the question of ignorance of the provisions of international law and its possible effects arose in the trial of Karl Buck before a British Military Court sitting in Wuppertal, Germany.134 The Judge Advocate, in his summing up, said that the Court must ask: What did each of these accused know about the rights of a prisoner of war? That is matter of fact upon which the Court has to make up its mind. The Court may well think that these men are not lawyers: they may not have heard either of the Hague Convention or the Geneva Convention; they may not have seen any book of military law upon the subject; but the Court has to consider whether men who are serving either as soldiers or in proximity to soldiers knows as a matter of the general facts of military life whether a prisoner of war has certain rights and whether one of those rights is not, when captured, to security for his person. It is a question of fact for you.135

As for mistake of fact the Scuttled U-Boats case is illustrative.136 In this case the defendant Gerhard Grumpelt was accused of having scuttled two U-boats which   ibid, 74.   Attorney-General of the Government of Israel v Adolf Eichmann (Supreme Court of Israel) (1962) 36 International Law Reports 275–77. 133  UNWCC, Law Reports of Trials of War Criminals, vol XV, above (n 62) 182. 134   Trial of Karl Buck and Ten Others, British Military Court, Wuppertal, Germany, 6–10 May 1946; UNWCC, Law Reports of Trials of War Criminals, vol V (London: His Majesty’s Stationary Office, 1948) 39-44. 135  ibid. 136   Trial of Oberleutnant Gerhard Grumpelt (The Scuttled U-Boats case), British Military Court, Hamburg, 12–13 February 1946; UNWCC, Law Reports of Trials of War Criminals, vol I (London: His Majesty’s Stationary Office, 1947) 55–70. 131 132

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had been surrendered by the German Command to the Allies. The question which confronted the Court was whether the accused at the relevant time knew of the surrendering of the German armed forces in the North West region of Germany. It was a matter for the Court to decide ‘whether or not the scuttling of German U-boats on the late evening of 6th May after these terms of surrender had been entered into was a war crime or not, done with the knowledge that these terms had been entered into’.137 In his summing up, the Judge Advocate was to a large extent confined to the facts of the case, and centred predominantly on the defendant’s mens rea. He advised the Court in the following words: Do you think it is at all reasonably possible that the accused had heard nothing at all which would put him upon his guard as regards the handing over of the submarines, remembering that he was with this security flotilla, and was in a naval port at a time when rumours were presumably going round like wild fire? Are you satisfied that the man’s state of mind at the time in question was this: ‘I honestly believed I had an order: I did not know anything about any surrender: it was not for me to inquire why the higher command should scuttling submarines; I honestly, conscientiously and genuinely believed I had been given a lawful command to scuttle these submarines and I have carried out that command and I cannot be held responsible’? Gentlemen, that is a matter for you to consider.138

Many cases reported by the UNWCC showed that the executioners of allied victims have sometimes been found not guilty on the grounds of their having reasonably believed that the executions they were carrying out were legal. The trial of Lieutenant-General Shigeru Sawada and three others before the United States Military Commission in Shanghai is illustrative on that matter.139 The case as reported by the UNWCC included the following facts. Sotojiro Tatsuta – one of the accused in this trial – was found guilty of causing the death of three US prisoners of war by ‘knowingly, unlawfully and wilfully’ executing the order of a Japanese Military Tribunal. The summons of execution, however, appeared on its face to be legal and there was no conclusive proof that he had either actual or constructive knowledge of the illegality of the Enemy Airman’s Act, the trial held under it or the sentences passed at the trial. The Reviewing Authority disapproved the finding of guilty against the defendant on this point.140 Having discussed the concept of mens rea in post-Second World War trials, the following section will be devoted to an examination of the law of mens rea in the travaux préparatoire of the Genocide Convention.

  ibid, 64.   ibid, 60–70. 139   Trial of Lieutenant-General Shigeru Sawada and Three Others, United States Military Commission, Shanghai, 27 February–15 April 1946; UNWCC, Law Reports of Trials of War Criminals, vol V (London: His Majesty’s Stationary Office, 1948) 1–24. 140   ibid, 1–2, 6–8. 137 138

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IX The Mens Rea of Genocide in the Drafting History of the 1948 Genocide Convention Genocide141 has been described as a ‘disease of the spirit’ against which the Genocide Convention has not been proved to be an effective vaccination.142 The permanence of the genocide definition over almost six decades is remarkable, considering the enormous criticism directed against it since the adoption of the Genocide Convention in 1948.143 The exact meaning of the intentionality clause in the Genocide Convention – Article II – receives enormous criticism and remains one of the ongoing dilemmas of the Genocide Convention.144 The following is an attempt to clarify the contour of the genocidal intent through an in depth examination of the travaux préparatoires of the Genocide Convention.

A  The UN General Assembly and the ECOSOC Resolutions Soon after the conclusion of the trials of the major war criminals before the IMT, the United Nations General Assembly adopted Resolution 96(1) of 11 December 141   It was during the Fifth International Conference for the Unification of Criminal Law in Madrid in 1933 that Raphael Lemkin, a jurist, submitted a proposal ‘to declare the destruction of racial, religious or social collectivises a crime under the law of nations’; see Raphael Lemkin, ‘Genocide as a Crime Under International Law’ (1947) 41 American Journal of International 146. An idea he developed further in his work Axis Rule in Occupied Europe, Laws of Occupation, Analysis of Government, Proposals for Redress (Washington: Carnegie Endowment for International Peace, Division of International Law, 1944, New Jersey: The Lawbook Exchange Ltd, 2005) 79: ‘New conceptions require new terms. By “genocide” we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homicide, infanticide, etc’. In a footnote, Lemkin noted that ‘[a]nother term could be used for the same idea, namely, ethnocide, consisting of the Greek word “ethnos” – nation – and the Latin word “cide”’; ibid, fn 1. 142  Mark Harmon, Prosecutor v Radovan Karadzić and Ratko Mladić, Case No IT-95-18-R61, Transcript, 8 July 1996, quoted in Nina HB Jørgensen, ‘The Definition of Genocide: Joining the Dots in the Light of Recent Practice’ (2001) 1 International Criminal Law Review 285. 143   Soon after the ratification of the Genocide Convention by the United States in 1986 the editors of the Wall Street Journal expressed their concerns regarding the exclusion of political and social groups from those deemed worthy of protection under the Convention: ‘[L]ike so many of the fine words issued from the UN, these are worse than toothless. The Convention actually manages to exempt every contemporary act of genocide. . . . Stalin’s men insisted that “political genocide” be struck off the list of outlawed practices. Under the treaty, the Kremlin can send political dissidents to Serbia without having committed genocide. Likewise, Ethiopia’s Mengistu can starve and relocate Tigreans and Eritreans, Nicaragua’s Ortega can decimate Miskito Indians, Cambodia’s Pol Pot could kill a third of his countrymen, and Uganda’s Amin could butcher his opponents. Even where the victims are of one ethnic or religious group, the tormentors can claim that this is merely political genocide’; Wall Street Journal (24 February 1986) quoted in Frank Chalk, ‘Redefining Genocide’ in George J Andreopoulos (ed), Genocide: Conceptual and Historical Dimensions (Philadelphia: University of Pennsylvania Press, 1994) 47, 52. See Leo Kuper, ‘Theoretical Issues Relating to Genocide: Uses and Abuses’ in Andreopoulos (ed), ibid, 1–46. 144   George J Andreopoulos, ‘Introduction: The Calculus of Genocide’ in Andreopoulos (ed), ibid, 2–3; Chalk, ibid, 53–58.

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The Mens Rea of Genocide 1946 affirming that ‘genocide is a crime under international law for the commission of which principals and accomplices . . . whether the crime is committed on religious, racial, political or any other grounds – are punishable’.145 The ‘genocidal intent’ was not taken into consideration. The same Resolution requested the Economic and Social Council (ECOSOC) ‘to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly’. Acting on Resolution 96(I), the ECOSOC adopted Resolution 47(IV) of 28 March 1947 wherein it instructs the Secretary-General of the United Nations: a. to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and b. after consultation with the general Assembly Committee on the Development and Codification of the International Law and if feasible the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.146

B  The UN Secretary-General’s Draft In pursuance of ECOSOC Resolution 47(IV), the UN Secretary-General requested that the Director of the Human Rights Division should prepare an initial draft convention.147 Based on the comments of the experts on the preliminary draft prepared by the Division of Human Rights, the Secretary-General amended and supplemented the text and submitted a document entitled ‘Draft Convention on the Crime of Genocide’ (the Secretariat Draft).148 The Secretariat Draft and its commentary devoted special attention to the subjective element of the crime of genocide. The Preamble of the Draft states: The high Contracting parties proclaim that Genocide, is the intentional destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on 145   Genocide: Draft Convention and Report of the Economic and Social Council, ‘Report of the Sixth Committee’ by J Spiropoulos (Greece) (Doc A/760) (3 December 1948) 1. To date, four scholars have published detailed review of the travaux préparatoires of the genocide Convention: William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000); Matthew Lippman, ‘The 1948 Convention on the Prevention and Punishment of Genocide: Forty-Five Years Later’ (1994) 8 Temple International and Comparative Law Journal 1; Matthew Lippman, ‘The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’ (1985) 3 Boston University International Law Journal 1; Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960); and Pieter Nicolaas Drost, Genocide, United Nations Legislation on International Criminal Law (Leyden: AW Sythoff, 1959). 146   ESC Res 47(IV). 147   For more information on the Draft, see Schabas, above (n 145) 52–58. For a detailed commentary on the Draft, see Drost, above (n 145) 8–28. 148   UN Doc E/447 (26 June 1947).

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Mens Rea in post-WWII Trials humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations.149

Article I of the Secretariat Draft defines genocide as meaning a criminal act directed against a racial, national, linguistic, religious, or political group of human beings ‘with the purpose of destroying it in whole or in part, or of preventing its preservation or development’.150 According to the commentary on Article 1, the act must be deliberate, meaning ‘that its object must be the destruction of a group of human beings’.151 Article II(I)(2) criminalises preparatory acts notably, ‘studies and research for the purpose of developing the technique of genocide’.152 Mere preparatory acts, such as the setting up of installations and the obtaining of articles or substances with the knowledge that they are intended for genocide are criminalised pursuant to Article II of the Draft Convention.153 Any contribution to the acts of genocide is punishable, subject to the participation being wilfully committed.154

C The Ad Hoc Committee Draft During the second session, the General Assembly adopted Resolution 180(II) of 21 November 1947 in which it declared, inter alia, that: [G]enocide is an international crime entailing national and international responsibility on the part of individuals and States [and requested] the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention.

Pursuant to this Resolution, the ECOSOC adopted Resolution 117(VI) of 3 March 1948 at which time it established an ad hoc Committee, composed of the representatives of seven Member States, to draw up a draft Convention on genocide for consideration at the next session of the Council.155 The Ad Hoc Committee met at the headquarters of the United Nations during the period from 5 April to 10 May 1948 and prepared a report containing a draft Convention on the prevention and punishment of the crime of genocide.156

  ibid, 5.   ibid (emphasis added).   ibid, 22. 152   ibid, 7 (emphasis added). 153   Art II(I)(2)(b) of the Secretariat Draft, UN Doc E/447 (26 June 1947) 7. See also the comments on that Art at 29–31, ibid. 154   Art II(II)(1) the Secretariat Draft, UN Doc E/447 (26 June 1947) 7. 155  The Ad Hoc Committee was composed of the following members of the ECOSOC: China, France, Lebanon, Poland, the USSR, the United States and Venezuela. 156   Ad Hoc Committee on Genocide, ‘Report of the Committee and Draft Convention Drawn up by the Committee’ (24 May 1948) UN Doc E/794. 149 150 151

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The Mens Rea of Genocide During the discussion of the draft Convention on genocide submitted by the delegation of the Union of Soviet Socialist Republics (USSR), the representative of France expressed the significance of the subjective element of the crime of genocide in the following words: Behind the physical act which was its outcome (assassination, violence or some other form of crime) there was a deliberate intention, directed not against the victims but against the group to which they belonged . . . In order to determine the crime it was absolutely imperative to take cognizance not only of the physical act but also of the intention behind the act.157

The Lebanese delegate pointed out that in situations where an offender participates in an act of genocide, although he lacks the specific intention of destroying a group as such, the offender could be prosecuted for murder, but not for genocide.158 Influenced by United States law, the chairman contended that ‘any person who participated, to any extent whatsoever, in a criminal act, was held responsible for the crime, even though he personally had no intention of committing it’.159 The Polish representative favoured a definition of genocide based on an objective factor instead of a subjective one. He contended that ‘a definition of genocide founded on the motive for acts which had been committed, would introduce a psychological or subjective factor, whereas a legal text should rather be based on objective criterion’.160

i  With the Intent to Destroy versus for the Purpose of Destroying Unlike the Secretariat Draft which employed the phrase ‘with the purpose of destroying’ in defining the word genocide,161 the Ad Hoc Committee Draft favoured the words ‘with intent to destroy’.162 The Chinese representative noted that the phrase ‘with the intention of’ is clearer than ‘for the purpose of’ without giving further illustration.163 By a unanimous vote, with three abstentions, the Committee adopted the introductory paragraph of Article II to read as follows:

157   UN Doc E/AC.25/SR.7, 8 (emphasis in original). Mr Ordonneau, the French representative, was of the opinion that any discussion related to the drawing up of an international convention for the prevention and suppression of genocide, ‘should base its work on a broader idea, by placing it within the general framework of crimes against humanity’, ibid, at 7–8. 158   UN Doc E/AC.25/SR.9, 8–9. 159   ibid, 9. Mr Martos, the Chairman who represents the United States gave the following example ‘if a person intended to take part in a robbery and stood on watch, and another participant committed a murder, the accomplice was held responsible’, ibid. 160   UN Doc E/AC.25/SR.12, 12. Mr Rudzinski (Poland) submitted the following text: ‘In this convention genocide means any of the following deliberate acts committed as a result of national, racial or religious persecution and directed against a national, racial or religious group as such’. 161   UN Doc E/447, 20. 162   UN Doc E/794, 54, Annex, Article II, Draft Convention on the Prevention and Punishment of the Crime of Genocide. 163   UN Doc E/AC.25/SR.11, 4.

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Mens Rea in post-WWII Trials In this Convention, genocide means any of the following deliberate acts committed with the intention of destroying a national, racial, religious or political group, on grounds of national or racial origin, religious belief or political opinions.164

ii Motive Whether or not motive should be included in the definition of the crime of genocide was the subject of long consideration by the Ad Hoc Committee. The representative from Lebanon suggested that the definition of genocide consists of three essential elements: (1) the aim of the act – destruction; (2) the character of that destruction and; (3) its motive (national, racial, political, etc).165 The representative from Poland noted that a distinction should be made between the motives of genocide, and its aims, since the Committee had decided to include the phrase ‘deny the right of existence to groups of human beings on grounds of religion, nationality or political groups’.166 The representative of Venezuela shared the same views as France, Lebanon and the USSR assuring that ‘it was indispensable to refer to intent and motive’.167 However, he realised that the element of motive was implied by the words ‘as such’ provided for in the chairman’s amendment.168 Some members of the Committee believed that it was unnecessary to articulate the motives for genocide since it was indicated in the text that the intent to destroy the group must be present. Further, motives should not be mentioned since the destruction of human group on any grounds should be prohibited.169 Mr Schwelb (Secretariat) ‘emphasized the difficulty experienced by the prosecution in proving the motive of a crime’.170 Surprisingly, the final report of the Committee used the term ‘dolus specialis’ as interchangeable with the expression ‘specific motives’ despite the vast diversity between the two terms.171 Finally, the Committee agreed on the adoption of the following terms in Article II of the Draft Convention: ‘on grounds of the national or racial origin, religious belief, or political opinion of its members’.172 Article II of the Ad Hoc Committee Draft Convention on the Prevention and Punishment of the Crime of Genocide reads as follows:   UN Doc E/AC.25/SR.13, 13.   UN Doc E/AC.25/SR.10, 10. Mr Ordonneau the French representative was in entire agreement with Mr Azkoul’s suggestion. 166   ibid, 11. 167   UN Doc E/AC.25/SR.11, 2. Mr Morosov of the USSR was of the opinion that ‘the definition of genocide should include two specific elements: the groups to be protected, and the motives behind the criminal act’. 168   ibid, 2. Most notably, the Secretariat Draft had purposely left out consideration of motives; see UN Doc E/447. 169   UN Doc E/AC.25/SR.12. 170   UN Doc E/AC.25/SR.10, 12. 171   See UN Doc E/794, 14: ‘The majority view was that the inclusion of specific motives (dolus specialis) was indispensable’. 172   UN Doc E/794, 54, Annex, Article II, Draft Convention on the Prevention and Punishment of the Crime of Genocide. 164 165

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The Mens Rea of Genocide In this Convention genocide means any of the following deliberate acts committed with the intent to destroy a national, racial, religious or political group, on grounds of the national or racial origin, religious belief, or political opinion of its members: 1. killing members of the group; 2. impairing the physical integrity of members of the group; 3. inflicting on members of the group measures or conditions of life aimed at causing their deaths; 4. imposing measures intended to prevent births within the group.173

According to the Ad Hoc Committee’s report, the above definition of the crime of genocide contains four elements: (1) the notion of premeditation; (2) the intent to destroy a human group; (3) the human groups protected; and (4) the motives of genocide.174

iii Analysis The essential elements of the crime of genocide as proposed by the Ad Hoc Committee Draft are self explanatory; genocide is a direct intent crime, nothing lower than dolus directus of first degree would be sufficient to trigger the criminal responsibility for that heinous crime. This position is supported by the element of premeditation which the Ad Hoc Committee considered an essential element of genocide. The element of premeditation requires that, at a minimum, the accused held a deliberate plan to destroy a group as such prior to the act causing the destruction, rather than forming the intention simultaneously with the act. However, this is one understanding of the element of premeditation; the alternative meaning is that premeditation is a mere aggravating factor and has nothing to do with the elements of the offence. According to the Ad Hoc Committee, in order to sustain a conviction for the ‘crime of crimes’ the prosecution must prove the perpetrator’s motive. Whether the General Assembly Sixth Committee adhered to the definition given to the crime of genocide by the Ad Hoc Committee is examined and discussed below.

D  The General Assembly Sixth Committee The Ad Hoc Committee submitted its Draft Convention on the Prevention and Punishment of the Crime of Genocide to the General Assembly. At the third session the General Assembly referred the matter to the Sixth Committee. The Sixth Committee examined the Draft Article by Article, together with certain 173   Report of the Committee and Draft Convention Drawn up by the Committee, Annex: Draft Convention on the Prevention and Punishment of the Crime of Genocide, Article II (24 May 1948) UN Doc E/794 54–55. 174   ibid, 13–16.

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amendments, and submitted a revised text to the General Assembly. The concept of mens rea was quite contentious before the Sixth Committee. During the drafting process, three controversial issues relating to the concept of mens rea were discussed and examined. These debates turned on the precise wording of the mens rea concept vis-à-vis the crime of genocide.

i Premeditation In the Sixth Committee, the word ‘deliberate’ – which was used interchangeably with ‘premeditation’ – provoked a discussion concerning whether genocide was a crime requiring premeditation.175 There were two opposing trends of thought. According to one, the word ‘deliberate’ should be stated in the definition; according to the other, it should not. The discussion then turned to what precisely the word deliberate means. The representative from the Philippines noted that ‘premeditation’ has a special meaning, distinct from that of intention, as the former signifies persistent thought devoted to the realisation of a goal which one had set for oneself.176 The representatives from Egypt, Haiti and Venezuela held a different opinion, however. They viewed premeditation as an aggravating factor that would not affect the nature of the offence, but only the judicial application of the penalty.177 The representative from Yugoslavia expressed his concerns about retaining the word deliberate in the definition of genocide in the following words: From a practical point of view, it would be difficult to distinguish, in an act of genocide, between the action of the instigators who had premeditated the crime and the action of the agents whose intent might have been purely momentary. To accept the concept of premeditation would be tantamount to making suppression dependent upon a subjective psychological condition, and not upon the objective character of the criminal act alone. Further, that concept would allow many cases of genocide to go unpunished.178

Peru was of the opinion that the retention of the concept of premeditation would have the drawback of excluding from responsibility individuals who, through negligence or omission, were guilty of the crime of genocide.179 According to Poland, the word deliberate was superfluous, in view of the statement that such acts were committed ‘with intent to destroy’. 180 They argued further that it was unnecessary to prove that the act was deliberate, since intention implied premeditation. 181   See Schabas, above (n 145) 216–17.   UN Doc A/C.6/SR.73 (Paredes, Philipnes). 177   UN Doc A/C.6/SR.72 (Raafat, Egypt; Demesmin, Haiti; and Pérez Perozo, Venezuela). 178   ibid (Bartos, Yugoslavia). 179   ibid (Maúrtua, Peru). 180   ibid (Lachs, Poland). 181   ibid. A similar view was held by the USSR representative: ‘the question of premeditation did not arise, inasmuch as the crime of genocide could be committed only with a definite aim’. See UN Doc A/C.6/SR.71 (Morozov, USSR). 175 176

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The Mens Rea of Genocide In fact the element of premeditation played an important role in the juris­ prudence of many countries which apply the death penalty. The representative from Yugoslavia cited cases where charges involving lynching of blacks had been dismissed because the element of premeditation had not been established against the defendants.182 In its seventy-third session the Committee decided by a vote of 27 to 10, with six abstentions, to delete the word ‘deliberate’ from the text drafted by the Ad Hoc Committee.183 This put an end to a long lasting debate regarding whether premeditation is an essential element in the crime of genocide.184

ii  Intent to Destroy or Aimed at the Destruction Article II of the Ad Hoc Committee Draft added a new element to acts already punishable under national penal legislation, namely, the intention to destroy particular groups as such. The USSR argued that if the Ad Hoc Committee’s phrase ‘committed with the intent to’ were retained there would be a risk of ambiguity for the followings reasons: The perpetrators of acts of genocide would in certain cases be able to claim that they were not in fact guilty of genocide, having had no intent to destroy a given group, either wholly or partially; they might likewise assert that they had simply carried out superior orders and that they had been unable to do otherwise. . . [I]t was essential, in a general definition, to eliminate everything relating to the concept of responsibility. The general definition should on no account be susceptible of two different interpretations. Rather, therefore, than stipulate the intent to destroy, the article should define acts of genocide as acts ‘resulting in’ destruction.185

Surprisingly, France agreed with the USSR that the objective criterion is more effective than the subjective one. According to France, the presence of the word intent ‘might be used as a pretext, in the future, for pleading not guilty on the grounds of absence of intent’.186 Belgium, however, expressed its concern that if the Committee were to accept the USSR objective criterion this would rule out the idea of ‘special intent’ from the definition of genocide which would make it impossible to draw a distinction between genocide and ordinary crime.187 The USSR’s amendment which proposed replacing the words ‘committed with intent to destroy’ with the words ‘aimed at the . . . destruction’ was rejected by a vote of 36 to 11, with four abstentions.188 182   UN Doc A/C.6/SR.72 (Bartos, Yugoslavia). See also Schabas, above (n 145) 217. In the criminal law of Egypt, the element of premeditation in murder is essential for the application of death penalty (Arts 230, 231 Penal Code of Egypt), whereas in the French criminal law assassination consists of murder where there has been premeditation, and is punished by life imprisonment (Art 221-3 of the new French Penal Code). 183   UN Doc A/C.6/SR.73. 184   See Schabas, above (n 145) 225–26. 185   UN Doc A/C.6/SR.73 (Morozov, USSR). 186   ibid (Chaumont, France). 187   ibid (Kaeckenbeeck, Belgium). 188   UN Doc A/C.6/SR.73. For the USSR amendment, see UN Doc A/C.6/223.

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It is difficult to conclude from the aforementioned discussion which degree of intent is required for the crime of genocide. The only statement which may provide some clarity on the issue under consideration is that given by the representative from Belgium to retain the ‘special intent’ requirement within the definition of the crime of genocide.

iii Motive During the drafting process the most controversial question was whether the Committee wished to include, in Article II, a statement as to the motives under which genocide is committed.189 It was clear that some representatives were confusing ‘intent’ with ‘motive’. The representative from Haiti provided thoughtful clarification as to the nature of these two concepts in the following words: There was a great difference between intent, which was a constituent factor of the crime, and the motives for which that crime could be committed. Criminal intent could exist without motives, but motives could not exist without intent. Moreover, intent was a constant factor of the crime while the motives for which the crime was committed could be very varied and did not affect the crime itself. In other words, there was no crime unless there was a criminal intent, and the motives for the crime affected only the punishment to be inflicted, making a sentence either more severe or more lenient.190

He also noted that ‘intent was a positive factor of crime; motive was not. Knowledge of intent did not automatically entail knowledge of motive’.191 Many representatives opposed the idea of including motives within the text of Article II. The UK for instance thought that, ‘the phrase was completely useless, for the concept of intent had already been expressed at the beginning of the article’.192 It stated that ‘once the intent to destroy a group existed, that was genocide, whatever reasons the perpetrators of the crime might allege’.193 Venezuela, Brazil and Panama had the same concerns.194 They thought that if motives were to be included this would be a powerful weapon in the hands of the guilty parties and would help them avoid being charged with genocide.195 They argued that this would open the door for future genocidaires to claim that they had not acted under 189   UN Doc A/C.6/SR.75 (Alfaro, Chairman). Three amendments had been submitted to that part of Art II. The first, by the United Kingdom, suggested that the phrase ‘on grounds of national or racial origin, religious belief, or political opinion of its members’ should be deleted. The second by Venezuela, would substitute for the phrase the words ‘as such’. The third, by the USSR, proposed a text which differed completely from the whole of the first part of Art II. 190   UN Doc A/C.6/SR.75 (Demesmin, Haiti). The representative of Brazil was of the same opinion as that of Haiti: ‘[t]he determination of the motives was useful only in connexion with the application of the penalty not in connexion with the definition of the crime’. See UN Doc A/C.6/SR.76 (Amado, Brazil). 191   UN Doc A/C.6/SR.75 (Demesmin, Haiti). 192   ibid (Fitzmaurice, UK). 193  ibid. 194   UN Doc A/C.6/SR.75 (Pérez Perozo, Venezuela); UN Doc A/C.6/SR.76 (Amado, Brazil) and (Alemán, Panama). 195  ibid.

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The Mens Rea of Genocide the impulse of one of the motives necessary to prove genocide.196 The United States noted the fundamental aim of Article II was to define the crime in terms of intention, to include motive in that definition would lead to ambiguity.197 The arguments made by the supporters who wished to include motives in the text of Article II were not convincing.198 The Philippines, for instance, argued that if motives were to be deleted, the destruction of a national, racial or religious group for motives different from those which characterised genocide, such as economic rivalry between groups, would fall under the realm of genocide.199 Such an outcome, the representative from the Philippines argued, would run contrary to the Ad Hoc Committee’s objective which restricts the scope of the word ‘genocide’ to the destruction of a group for certain reasons.200

E  Analysis The drafting history of the Genocide Convention reveals the following facts. First, the final report of the Ad Hoc Committee used the term ‘dolus specialis’ as interchangeable with the phrase ‘specific motives’.201 Secondly, the adjectives ‘premeditation’ and ‘deliberation’ were used interchangeably during the discussion in the General Assembly Sixth Committee. According to some delegates, premeditation ‘signifies persistent thought devoted to the realization of a goal which one had set for oneself’.202 Others viewed it as an aggravating factor that would not affect the nature of the offence, but only the judicial application of the penalty.203 It was contended that the retention of the concept of premeditation would have the drawback of excluding from responsibility individuals who, through negligence or omission, were guilty of the crime of genocide.204 The outcome was to delete the word ‘deliberate’ from the text drafted by the Ad Hoc Committee. Finally, it is obvious that there was a breakdown in communication between those delegates who presented different schools of legal systems. Yet it would be a profound mistake if we were to draw from the travaux préparatoires of the Genocide Convention a clear statement regarding which degree of mens rea is sufficient to trigger the criminal responsibility for the ‘crime of crimes’.   UN Doc A/C.6/SR.75 (Pérez Perozo, Venezuela); UN Doc A/C.6/SR.76 (Amado, Brazil).   UN Doc A/C.6/SR.76 (Gross, USA). 198   See for instance UN Doc A/C.6/SR.75 (Paredes, Philippines); UN Doc A/C.6/SR.76 (Messina, Dominican Republic): ‘under common law intent sufficed to determine that crime had been committed . . . that principle could not be applied to genocide, which was a new crime under international law, which had its own characteristics and which should not be confused with crime under common law’. 199   UN Doc A/C.6/SR.75 (Paredes, Philippines). 200   ibid; UN Doc A/C.6/SR.72 (Raafat, Egypt): ‘ it would be wrong to eliminate the part of the article dealing with that point, as had been proposed by the United Kingdom delegation; it was the motives which characterized the crime’. 201   UN Doc E/794, 14. 202   UN Doc A/C.6/SR.73 (Pardes, Philippines). 203   UN Doc A/C.6/SR.72 (Raafat, Egypt; Demesmin, Haiti; and Pérez Perozo, Venezuela). 204   UN Doc A/C.6/SR.72 (Maúrtua, Peru). 196 197

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X  The Developing Law of Mens Rea through the Work of the International Law Commission

A  Codification of the Nuremberg Principles by the International Law Commission Pursuant to General Assembly Resolution 177 of 1947, the International Law Commission (the Commission) was directed to ‘formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal’.205 During second session in 1950, the Commission had adopted a formulation of the principles recognised in the Nuremberg Charter and in the judgment of the Nuremberg Tribunal (Nuremberg Principles).206 Despite the Commission’s task to formulate principles of substantive character, neither the Nuremberg Principles nor its commentary provided any guidance with regard to the mens rea required to trigger the individual criminal responsibility as provided for in Principle I; the mens rea required for the crimes set out in Principal VI; or the degree of intent required for complicity in the commission of such crimes (Principal VII).207 It is worth stressing that the formulation of the Nuremberg Principles was only a stage in the process of the codification of international law. The full texts of these Principles which are related to our current research are listed below: Principle I Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.208 205   GA Res 177(II), UN Doc A/519, 111, 112 (1947). One of the main questions which confronted the ILC was whether or not it had to ascertain to what extent the principles contained in the Charter and Judgment constitute principles of international law. The conclusion of the ILC was that, ‘since the Nürnberg principles had been affirmed by the General Assembly in its resolution 95 (I) of 11 December 1946, it was not the task of the Commission to examine whether these principles were or were not principles of international law. The Commission had merely to formulate them’. See the report by J Spiropoulos, Special Rapporteur, ‘Formulation of Nuremberg Principles’, above (n 83) 189. 206   For the full text and comments of the ‘Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal’ (Nuremberg Principles) see Yearbook of the International Law Commission (1950) vol II, 374–78 (hereafter Yearbook). 207   During the efforts undertaken by the ILC to formulate the Nuremberg Principles one member of the Commission was of the opinion that ‘the definition of crimes against peace should be altered so as to indicate that the element of intention was necessary’. See Yearbook (1949) (27th meeting) 196–97. The chairman noted, however, that ‘the element of intention was understood in the planning, preparation, initiation or waging war’; ibid, 196. Discussing the issue of superior orders it has been stated that ‘the essential principle of all law lay in the free choice of the individual. If he [an official who received a formal order] was not acting freely he might not have mens rea. That condition might also be lacking if he were subject to force majeure – ie, if he were confronted by an event which prevented him from taking a decision and he had to obey an order’. See Yearbook (1950) vol I (46th meeting) 42. 208  See Yearbook (1950) vol II, 374. For the comments on Principal I, see ibid, 374–75, paras 100–03.

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Principle VI The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b. War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or destruction not justified by military necessity. c. Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population or persecutions on political, racial or religious grounds when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.209 Principle VII Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.210

B  The 1954 Draft Code of Offences against the Peace and Security of Mankind In 1950, the Commission reported to the General Assembly its formulation under subparagraph (a) of Resolution 177(II) of 21 November 1947. In subparagraph (b) of the aforementioned Resolution, the General Assembly directed the Commission to ‘prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above [Nuremberg Principles]’ . At its sixth session, in 1954, the Commission had adopted a Draft Code of Offences against the Peace and Security of Mankind and submitted it with commentaries to the General Assembly.211 As evidenced by Mr Boutros Ghali, a member of the Commission, the 1954 Draft Code had been too closely tied to the Nuremberg Principles and had been embarked on in a Cold War context.212   ibid, 376–77. For the comments on Principal VI, see ibid, paras 110–24.   ibid, 377. For comments on Principal VII, see ibid, 377–78, paras 125–27. 211   Yearbook (1954) vol II, 151–52, para 54 (UN Doc A/2693). 212   Yearbook (1983) vol I (1757th meeting) 16. 209 210

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Moreover, the Code had been criticised due to the fact that it lacked references to general principles of criminal law; such as nulla poene sine lege, the theory of justified acts, or that of extenuating circumstances.213 Regardless of the opinion as to the principle on which it was founded, the 1954 Draft provided a sound basis for the preparation of a code. Article 1 set forth the principle of the responsibility of individuals for crimes under international law; Article 2 contained a list of acts considered to be offences against the peace and security of mankind;214 Article 3 recognised the criminal responsibility of heads of state and of government officials; and Article 4 recognised responsibility in international law for acts committed pursuant to an order of a superior.215

C  The 1991 Draft Code of Crimes against the Peace and Security of Mankind By its Resolution 36/106 of 10 December 1981, the General Assembly invited the Commission to resume its work with a view towards elaborating the Draft Code of Offences against the Peace and Security of Mankind.216 In 1982, the Commission appointed Mr Doudou Thiam Special Rapporteur for the topic. In 1983 and 1984, the Commission considered two reports submitted by the Special Rapporteur.217 By the end of its thirty-sixth session, in 1984, the Commission was convinced that the Draft Code should cover only the most serious international offences. From its thirty-seventh session (1985) to its fortieth session (1988), the Commission considered four further reports submitted by the Special Rapporteur.218 It also referred to the Drafting Committee Draft Articles 1 to 11 as 213   ibid. See also the ‘First Report on the Draft Code of Offences against the Peace and Security of Mankind’ (Mr Doudou Thiam, Special Rapporteur) Yearbook (1983) vol II, 146 (UN Doc A/CN.4/364) para 49: ‘The first observation that comes to mind on examining the draft code prepared by the Commission in 1954 is that it contains no general part, except for the statement that offences against the peace and security of mankind are crimes under international law’. 214   It appeared from the formal proposals which lay at the origin of the 1954 Draft Code and from the work which had led to its adoption that it was confined to offences against the peace and security of mankind. In its report on its third session, the ILC pointed out that ‘the term “offences against the peace and security of mankind” . . . should be limited to offences which contain a political element and which endanger or disturb the maintenance of international peace and security. For these reasons, the draft code does not deal with questions concerning conflicts of legislation and jurisdiction in international criminal matters; nor does it include such matters as piracy, traffic in dangerous drugs . . ., etc’. See Yearbook (1951) vol II, 134 (UN Doc A/1858) para 58(a). 215   For the text of the 1954 Draft Code see Yearbook (1981) vol I, 4. 216   In its resolution 42/151 of 7 December 1987, the General Assembly endorsed the Commission’s recommendations that the title of the topic in English be amended to be read: ‘Draft Code of Crimes against the Peace and Security of Mankind’. 217   These reports are reproduced as follows: First Report: Yearbook (1983) vol II (Part One) 137 (UN Doc A/CN.4/363); Second Report: Yearbook (1984) vol II (Part One) 89 (UN Doc A/CN.4/377). 218   These reports are reproduced as follows: Third Report: Yearbook (1985) vol II (Part One) 63 (UN Doc A/CN.4/387); Fourth Report: Yearbook (1986) vol II (Part One) 53 (UN Doc A/CN.4/398); Fifth Report: Yearbook (1987) vol II (Part One) 1 (UN Doc A/CN.4/404); Sixth Report: Yearbook (1988) vol II (Part One) 197 (UN Doc A/CN.4/411).

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submitted in those reports. At its thirty-ninth and fortieth sessions, the Commission provisionally adopted 12 Articles with commentaries thereto.219 In 1989, the Commission had before it the seventh report of the Special Rapporteur which included the new Draft Articles 13 (war crimes) and 14 (crimes against humanity) and referred them to the Drafting Committee.220 In 1991, the Commission provisionally adopted, on its first reading, the Draft Code of Crimes against the Peace and Security of Mankind.221

i Intent During the discussion of the Draft Code of Offences against the Peace and Security of Mankind there was unanimity among the members of the Commission that these offences are the most serious crimes which affect the very foundations of human society.222 As the commentary indicates: ‘it is this seriousness which constitutes the essential element of a crime against the peace and security of mankind – a crime characterized by its degree of horror and barbarity – and which undermines the foundations of human society’.223 In his third report on the Draft Code, Mr Doudou Thiam drew the Commission’s attention to the fact that the seriousness of any offence can be measured by subjective elements as well as objective ones. As far as the subjective elements are concerned, ‘seriousness is measured by the intention or motive, by the transgressor’s degree of awareness, by his personality, etc’.224 Furthermore, the Special Rapporteur emphasised that under international law, the same as in national legislation, the combination of the subjective and objective elements ‘characterizes a transgression’.225 219   Arts 1 (definition); 2 (characterisation); 3 (responsibility and punishment); 4 (obligation to try or extradite); 5 (non-applicability of statutory limitations); 6 (judicial guarantees); 7 (non bis in idem); 8 (non-retroactivity); 9 (exceptions to the principle of responsibility); 10 (responsibility of the superior); 11 (official position and criminal responsibility) and 12 (aggression). For a more detailed account of the Commission’s work on the topic at its thirty-seventh to fortieth sessions, see Yearbook (1988) vol II (Part Two) 56–57, paras 201–14. 220   For the Seventh Report see Yearbook (1989) vol II (Part Two) 81–90. For the summary of the debates on draft Art 13 (war crimes) and 14 (crimes against humanity) see Yearbook (1989) vol II (Part Two) 50–66. 221   For the full text of the 26 ‘Draft Articles Provisionally Adopted by the Commission on First Reading’ see Yearbook (1991) vol II (Part Two) 94–98. For the commentary see ibid, 98–107. 222   Yearbook (1987) vol I (2001st meeting) 59, para 3. See also the commentary on draft Art 1 in Yearbook (1987) vol II (Part Two) 13, para 2 of the commentary on Art 1. 223  ibid. 224   ‘Third Report on the Draft Code of Offences against the Peace and Security of Mankind’ (Mr Doudou Thiam, Special Rapporteur) Yearbook (1985) vol II (Part One) 69, para 49 (UN Doc A/CN.4/ SER.A/1985/Add.1 (Part 1)). With regard to the objective elements, ‘seriousness may, in fact, also be measured in relation to the interests or the property protected by law. In that case, it may be a matter of transgressions against rights, physical persons or property. In respect of persons, what is at stake is the life and physical well-being of individuals and groups. As for property, public or private property, a cultural heritage, historical interests, etc, may be affected’. See ibid (emphasis in original). 225  ibid.

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While discussing draft Article 9 (exceptions to the principle of responsibility) as set out in the Special Rapporteur’s fourth and fifth reports, it was questioned whether a rule should be included to the effect that an offence against the peace and security of mankind could only be committed with intent, never negligently.226 One member pointed out that ‘the rule proposed by the Special Rapporteur with regard to error [mistake of law or facts] suggested that an individual could be charged with negligent acts, since error provided a defence only if, and to the extent that, the error was unavoidable’.227 Another member explained that the Special Rapporteur’s own view was that ‘offences against the peace and security of mankind generally presupposed that the author had acted wilfully, deliberately and in full knowledge of what he was doing’.228 He further assured that the Special Rapporteur ‘did not exclude the hypothesis of extreme instances in which an act of negligence deserved to be characterized as an offence against the peace and security of mankind, but thought the matter called for further consideration’.229 With regard to draft Article 10 (responsibility of the superior) one member suggested that reference had to be made to the well-known concepts of ‘actual knowledge’; ‘constructive knowledge’ and; ‘contributory negligence’.230 Speaking as a member of the Commission, the chairman was of the opinion that ‘[i]ntent . . . should be a requirement for a crime under the code, given that the code’s main purpose was to serve as a deterrent. There would thus be little point in making unintentional conduct criminal’.231 He suggested that the requirement of intent could perhaps be embodied in draft Article 3 (responsibility and penalty).232 During the meetings of the thirty-ninth session, one member of the Commission recommended that the Draft Code should contain a provision setting out the constituent elements of an offence against the peace and security of mankind based on the definition of an international crime as set out in Article 19 of the Draft Articles on State Responsibility.233 He noted that Article 19 of the Draft Articles on State Responsibility contains the moral and material elements of criminal responsibility, and that the third element – the legal element – could be added 226   Yearbook (1987) vol I (1993rd meeting) 9. For the full text of draft Art 9 (exceptions to the principle of responsibility) see the ‘Fifth Report on the Draft Code of Offences against the Peace and Security of Mankind’ (Mr Doudou Thiam, Special Rapporteur) Yearbook (1987) vol II (Part One) 7 (UN Doc A/CN.4/404). 227   ‘Fifth Report’, ibid. 228  ibid. 229  ibid. 230   Yearbook (1987) vol I (1994th meeting) 17, para 32. The full text of draft Art 10, responsibility of the superior, reads as follows: ‘The fact that an offence was committed by a subordinate does not relieve his superiors of their criminal responsibility, if they knew or possessed information enabling them to conclude, in the circumstances then existing, that the subordinate was committing or was going to commit such an offence and if they did not take all the practically feasible measures in their power to prevent or suppress the offence.’ See the ‘Fifth Report on the Draft Code of Offences against the Peace and Security of Mankind’, above (n 226) 8–9. 231   Yearbook (1987) vol I (1998th meeting) 43–44, para 22 (emphasis added). 232   ibid. The full text of draft Art 3 as set out in the Special Rapporteur’s Fifth Report reads as follows: ‘Any individual who commits an offence against the peace and security of mankind is responsible therefore and liable to punishment’. (UN Doc A/CN.4/404) 3. 233   Yearbook (1987) vol I (1999th meeting) 44, para 3 (Mr Razafindralambo).

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without difficulty since it resulted from a breach of the conventions in force or of the laws and customs of war.234 Taking Article 19 as a model for a definition of an international crime, he suggested that an offence against the peace and security of mankind could thus be defined in the following terms: A deliberate breach of an international obligation essential for the protection of fundamental interests of the international community, constituted by acts calculated to endanger world peace, to cause intentional harm to the human person or status, or to infringe the laws and customs of war, is an offence against the peace and security of mankind.235

He concluded, ‘by emphasizing the intentional nature of an offence against the peace and the security of mankind, it would clarify the scope of certain exceptions to the principle of responsibility based on the absence of criminal intent’.236 Examining the question of intent as a constituent element of the crime of genocide, the Special Rapporteur, in his fourth report, explained that genocide could be considered ‘from two angles: its purpose and the number of victims involved’.237 One member of the Commission was of the opinion that in the case of genocide, as in that of apartheid, ‘it was not admissible to go by the intention of massive and systematic destruction’.238 He noted ‘the mass nature of genocide presupposed precisely the purpose of destroying a group of individuals, even if genocide was considered from its first manifestations, when a group was partly eliminated or when isolated but systematic murders were committed’.239 He opposed the idea that the gravity of genocide could be determined only by the subjective intent of the perpetrator, as this would leave for future genocidaire a loophole to escape responsibility.240 His concern deserves lengthy quotation: The history of the crime of genocide, in all known cases without exception, showed that authors of that crime had always publicly denied intent – which was expressed in secret documents in veiled terms such as ‘the final solution’ – arguing against the evidence of the facts that they had acted in the interests of the State or of national security, and never hesitating to destroy the evidence of their responsibility. But it was the facts that presupposed the intent, which manifested itself in the result and the massive and systematic nature of the crime, in other words by elements which could be objectively established. To say that the essence of a crime against humanity [genocide] was its intent would be to deprive the definition of its essential constituent and the rule of law of its main social function, since the danger of genocide lay precisely in the result and not in the intention.241  ibid.   ibid, 45, para 4 (emphasis added). 236  ibid. 237   ‘Fourth Report on the Draft Code of Offences against the Peace and Security of Mankind’ (Mr Doudou Thiam, Special Rapporteur) Yearbook (1986) vol II (Part One) 58, para 29 (emphasis added) (UN Doc A/CN.4/SER.A/1986/Add.1 (Part 1)). 238   Yearbook (1987) vol I (1999th meeting) 47, para 19. 239   ibid (emphasis added). 240  ibid. 241  ibid. 234 235

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He continued his observations: It did not seem necessary to raise the question of intent in order to show the need for a rigorous definition, for objectivity and for sound administration of justice to be assured. It was true that premeditation or intent constituted a normal element in ordinary criminal law, in the sense that inattention or negligence could explain how an act which might have been regarded as a crime had really been committed without intent to commit it. But how could it be accepted, for example, that the use of nuclear weapons of mass destruction had been ordered by negligence or inattention, when the consequences were known to everyone? How could it be accepted that millions of people had been murdered by negligence?242

In light of the above considerations, Mr Barsegov advised the Commission not to follow the definition of genocide by introducing the element of intent into the definition of all offences against the peace and security of mankind.243 He suggested that the element of intent as set out in the Chapeau element of Article 2 should be interpreted ‘not as an element necessary for proving the will of the criminal to annihilate a people, but a pursued purpose which could be established objectively in light of the acts committed’.244 Finally, he drew the Commission’s attention to the fact that international law was not merely a transposition of internal law to external relations.245 Another member put it differently, ‘[t]he Commission could be guided by the principles of ordinary criminal law, but it should be very careful about applying them to international situations’.246 As evidenced by the commentary on draft Article 1 (definition), which was provisionally adopted by the Commission at its thirty-ninth session, there were two schools of thought regarding the inclusion of a subjective element – intent – in the definition of a crime against the peace and security of mankind.247 According to one school which represented to the Commission, ‘intent is deduced from the massive and systematic nature of a crime, and when these elements are present a guilty intent must be presumed’.248 They were of the opinion that intention to commit genocide or apartheid need not to be proved as ‘it follows objectively from the acts themselves and there is no need to inquire whether the perpetrator was conscious of a criminal intent’.249 Applying such a strict rule of liability, they argued that the accused intent is presumed if the act has certain characteristics.250 According to another school of thought, ‘intent may not be presumed, but must always be established’.251

  ibid, para 20.   ibid, para 27. 244   ibid (emphasis added). 245   ibid, para. 73. 246   ibid, para 70 (Mr Sreenivasa). 247   Yearbook (1987) vol II (Part Two) 13, para 2 of the commentary on Art 1. 248  ibid. 249  ibid. 250  ibid. 251  ibid. 242 243

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In his seventh report and in introducing draft Article 14 on crimes against humanity, the Special Rapporteur stressed that intention was an essential constituent element of every crime, whether a crime against humanity or a common crime.252 Introducing the text proposed by the Drafting Committee for Article 22 (serious war crimes) Mr Pawlak, the Chairman of the Drafting Committee, drew attention to the fact that subparagraph 2(c) of the Article referred to methods or means of warfare which were either intended or could be expected to cause widespread, long-term and severe damage to the natural environment.253 He interpreted the phrase ‘may be expected to cause’ to cover ‘situations in which the user knew of the devastating effects on the environment, yet went ahead and used methods or means in question’.254 As for Article 26 (wilful and severe damage to the environment) the Chairman of the Drafting Committee explained that the scope of the present Article was ‘limited by the requirement that the causing of the damage must be wilful’.255 He asserted that ‘there had been general agreement in the Drafting Committee that the causing of accidental damage, even as a result of negligence, should not come within the terms of the article’.256 To put it differently, in the view of the Drafting Committee, the causing of damage that was a likely consequence of an act committed for a different purpose should not fall within the ambit of the Code, and only if such harm was the direct consequence of a deliberate act should be covered. That notion was conveyed by the word ‘wilful’.257

In its commentary on this Article, the Commission understood the word ‘wilfully’ as one of the essential elements of the definition of the crime and attributed it ‘to the express aim or specific intention of causing damage’.258 Some members expressed their concerns that the inclusion of the term ‘wilfully’ will not only exclude from the scope of draft Article 26 ‘cases of damages caused by negligence but also those caused by deliberate violation of regulations forbidding or restricting the use of certain substances or techniques if the express aim or specific intention was not to cause damage to the environment’.259 The commentary also indicates that Article 26 conflicts with Article 22 on war crimes because, under Article 22, it is a crime to employ means of warfare that might be expected to cause damage, even if the purpose of employing such means is not to cause damage to the environment.260

  Yearbook (1989) vol II (Part Two) 59, para 156.   Yearbook (1991) vol I (2240th meeting) 224, para 31. 254  ibid. 255   Yearbook (1991) vol I (2241st meeting) 235, para 61. 256  ibid. 257  ibid. 258   Yearbook (1991) vol II (Part Two) 107, para 6 (emphasis added). 259  ibid. 260   ibid, 107, para 5 of the commentary on Art 26. 252 253

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ii Motive During the negotiations in 1983, some members of the Commission suggested that the Draft Code should be reviewed from the standpoint of the motive for crimes, as this element had played a decisive role in the definition of offences against the peace and security of mankind.261 Reference was made to Article 6(c) of the Nuremberg Charter which referred to political, racial or religious grounds; the 1954 Draft Code which added cultural grounds; and the 1948 Genocide Convention which referred to acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.262 In its report on its thirty-eighth session, the Commission considered motive as an essential element of a crime against humanity: The fact that a heinous crime, however inhuman, was directed against an individual or a number of individuals was not enough to characterize it as a crime against humanity. It should, in addition, form part of a systematic plan to perpetrate acts against a human group or a people on the grounds, for instance, of racial or religious hatred. It followed that motive was essential for the characterization of an act as a crime against humanity.263

These findings were criticised by Barsegov, a member of the Commission, on the grounds that it was not in conformity with the 1948 Genocide Convention nor the Apartheid Convention.264 He also criticised the definition of a crime against humanity given by the Special Rapporteur in his fourth report for being imprecise and wrongly assimilating intent with motive.265 He went on drawing the border lines between intent and motive: To determine the intent was in fact to determine the purpose of which the act was committed, to determine whether its author consciously wished to achieve a criminal result or whether that result had occurred against his will. Motive, on the other hand, concerned the reasons and considerations which had led the author of the act to commit it. It was true that the concepts of intent, premeditation, motive and purpose partly overlapped and could easily be confused. Nevertheless, they produced well-defined legal consequences, so that it was important to determine the place of intent and motive in the whole group of offences against the peace and security of mankind.266

In reply to the comments made with regard to the distinction between intent and motive, the Special Rapporteur noted that the term intention means ‘the conscious will to commit an act, desiring and seeking the consequences’.267 He further stated that motive could be based on the most diverse feelings,268 and added that it is the   Yearbook (1983) vol I (1758th meeting) 18.  ibid. 263   Yearbook (1986) vol II (Part Two) 45, para 88 (UN Doc A/CN.4/SER.A/1986/Add.1(Part2)). 264   Yearbook (1987) vol I, 46, para 16, Summary records of the meetings of the thirty-ninth session, 4 May–17 July 1987 (UN Doc A/CN.4/SER.A/1987). 265  ibid. 266  ibid. 267   Yearbook (1989) vol II (Part Two) 59, para 156. 268  ibid. 261 262

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motive and not the intention which distinguished the different categories of crime from each other.269 Thus, said the Special Rapporteur, in the case of crimes against humanity, the motive struck sacred values, in that it was inspired by racism, religious intolerance or ideological or political intolerance.270 In light of the above discussion, the Commission decided to include Article 4 (motives) in the Draft Code so that future offenders may not invoke any motive as an excuse if the offence has the characteristics defined in the Code.271 Article 4 of the 1991 Draft Code of Crimes against the Peace and Security of Mankind reads: ‘Responsibility for a crime against the peace and security of mankind is not affected by any motives invoked by the accused which are not covered by the definition of the crime’.272 According to the commentary, the purpose of Article 4 is to ‘exclude any defence based on another motive, when the real motive of the act is within the definition of the crimes covered by the draft Code’.273

D  The 1996 Draft Code of Crimes against the Peace and Security of Mankind The 1991 Draft Code of Crimes against the Peace and Security of Mankind adopted on first reading by the International Law Commission at its forty-third session (the 1991 Draft Code) was transmitted through the Secretary-General to governments for their comments and observations. At its forty-fifth session in 1993, the Commission had before it the comments and observations received from the governments on the 1991 Draft Code.274 In 1994, the Commission had before it the Special Rapporteur’s twelfth report on the topic275 which was intended for the second reading of the Draft Code and focused on the general part of the draft dealing with the definition of crimes against the peace and security of mankind, characterisation and general principles. After considering this report, the Commission decided to refer draft Articles 1 to 14, as dealt with in that report, to the Drafting Committee. In 1995, the Commission had before it the thirteenth report of the Special Rapporteur on the topic.276 The report was prepared for the second reading of the Draft Code and focused on the crimes against the peace and security of mankind  ibid.  ibid. 271   Yearbook (1991) vol II (Part Two) 99, commentary on Art 4 – Motives. 272  ibid. 273  ibid. 274   For the comments and observations received from the governments, see Yearbook (1993) vol II (Part One) 60–109 (UN Doc A/CN.4/448 and Add.1). At its forty-fourth and forty-fifth sessions, in 1992 and 1993, the Commission had before it the Special Rapporteur’s Tenth and Eleventh Reports on the topic, which were entirely devoted to the question of the possible establishment of an international criminal jurisdiction. 275   Yearbook (1994) vol II (Part One) (UN Doc A/CN.4/460). 276   Yearbook (1995) vol II (Part One) (UN Doc A/CN.4/466). 269 270

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provided for in part two of the Code. After consideration of the thirteenth report, the Commission decided to refer to the Drafting Committee for consideration Articles 15 (aggression), 19 (genocide), 21 (systematic or mass violations of human rights) and 22 (exceptionally serious war crimes).277 The Drafting Committee began its work on the second reading of the draft Articles at the fortyseventh session of the Commission and completed its work at the forty-eighth session. The Commission considered the draft Articles adopted by the Drafting Committee on second reading at its meetings held between 6 June and 5 July 1996 and adopted the final text of a set of 20 draft Articles constituting the Code of Crimes against the Peace and Security of Mankind.278

i Intent As far as the subjective element is concerned, the Austrian Government was of the opinion that crimes enumerated in Part Two of the 1991 Draft Code are liable to punishment ‘if committed with intent, unless otherwise determined’.279 With regard to draft Article 3 (responsibility and punishment) Austria proposed that the text of paragraph 1 should be completed as follows: ‘if there are no circumstances excluding the criminal liability’.280 The Austrian proposal is known under German criminal law as Rechtswidrigkeit.281 As for Article 11 (order of a government or a superior), Austria suggested the inclusion of a subjective element within the text of the present Article.282 According to the Austrian amendment, the text of Article 11 should have been redrafted to read as follows (the Austrian amendment appears in italics): The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility if, he knew or should have known of the illegality of the order and if, in the circumstances at the time, it was possible for him not to comply with that order.

The subjective element of ‘wilfulness’ as it appears in the text of Article 26 (wilful and severe damage to the environment) was subject to criticism by the Austrian Government, suggesting that intent should not be a condition for liability and 277   Regarding Art 26 of the Draft Code, the Commission decided at its forty-seventh session to establish a working group to examine the possibility of covering in the Draft Code the issue of wilful and severe damage to the environment. 278   For the text of, and commentaries to, draft Arts 1–20 as finally adopted by the Commission at its forty-eighth session see Yearbook (1996) vol II (Part Two) 17–56. Most notably, the Commission had reduced the scope of the 1996 Draft Code. On first reading in 1991, the Draft Code comprised a list of 12 categories. The Commission, however, drew attention to the fact that ‘the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law’. 279   Yearbook (1993) vol II (Part One) 66, comments and observations on Art 1 (Austria). 280  ibid. 281   See ch 5, II.B of this volume. 282   Yearbook (1993) vol II (Part One) 66, comments and observations on Art 11 (Austria).

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punishment for this crime since perpetrators of such crime are usually acting out of a profit motive.283 Poland argued that Article 26 conflicts with Article 22(2)(d), which also deals with protection of the environment since under the provisions of the latter article, it is also a crime when an individual employs methods or means of warfare that may be expected to cause damage, even if the purpose of using such methods has not been to cause damage to the environment, whereas article 26 is based on the concepts of intent and will (‘who wilfully causes’).284

Uruguay preferred lowering the requisite mens rea for this offence to encompass negligent conduct: [G]iven the nature of the consequences of the conduct, namely, ‘widespread, long-term and severe damage to the environment’, the requirement of ‘wilfulness’ should be deleted and replaced by the principle of liability which, in the exceptional case of the environment, should encompass not only instances of wilfully caused damage (wilful wrongs), but also damage caused through negligence or lack of precaution (culpable wrongs), since the interest which it is proposed to protect is, in final analysis, the survival of mankind.285

Costa Rica agreed, in general, that the crimes set out in the Draft Code are extraordinarily serious, but questioned whether the substantial and systematic nature of these crimes ‘should not lead, as the Commission appears to be drawing, that guilty intent must always be presumed and need not be proved’.286 In Costa Rica’s view, the principal of strict liability as adopted by the Commission was no longer accepted in any liberal system of criminal law since it requires that responsibility be established without any assessment of the individual perpetrator’s intent when he committed the crime, it being sufficient for punishment of the act that he accepted the risk of a given outcome or the possibility that his act would result in the violation of a juridical interest.287   ibid, 68, para 30 of the comments and observations on Art 26 (Austria).   Yearbook (1993) vol II (Part One) 96, para 45 of the comments and observations on Art 26 (Poland). 285   ibid, 106, para 9 of the comments on the Draft Code (Uruguay). 286   ibid, 75, paras 5–7 of the comments and observations on Arts 1 and 2 (Costa Rica). 287   ibid, para 7. The Costa Rican Government continued its comments and observations on draft Arts 1 and 2 (definition and characterisation of crimes) stressing that: ‘ Most States subject to the rule of law, including Costa Rica, decided not to accept strict liability in their criminal law. They opted instead for individual responsibility based on whether the individual concerned showed wilfulness (dolus) or negligence (culpa) in committing the act in question. Under legal system such as Costa Rica’s, punishable acts are presumed to be wilful, unless otherwise stated, in which case the legislator usually describes the act as culpable. However, wilfulness is not presumed on the basis of the individual’s act; it must be demonstrated in order to prove the existence of the individual element required for the decision on characterization that is one of the initial steps in the judicial examination of a criminal case’. It continued: ‘The issue of wilfulness arises in the typical judicial examination. It is of enormous importance, not only because it concerns characterization itself (since wilfulness is regarded as a component of the description) but also because wilfulness must be demonstrated. It is thus necessary to establish whether in the specific case at issue an error of characterization has occurred. If there has indeed been such error, wilfulness does not apply and (if there is a parallel description based on the concept of negligence) the act in question is punished as culpable negligence (art 34 of the Costa Rican Penal 283 284

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Furthermore, the Government of Costa Rica strongly recommended the need to include an Article dealing with the principle of legality vis-à-vis the proscribed acts set out in Article 3 of the Draft Code, particularly a definition of one of the most important related principles, ‘the principal of culpability’.288 As a matter of general principles, and in order to dispel any thought that the Draft Code recognised the concept of strict liability which is viewed by Costa Rica as ‘a sword of Damocles hanging over the draft, threatening its potential’, the Costa Rican Government suggested the inclusion of culpability terms such as wilfulness and negligence in paragraph 1 of Article 3.289 The Nordic countries noted that one of the legal failures which shaped the 1991 Draft Code stemmed from the fact that it failed to specify the degree of accountability that must exist; for example, the state of mind necessary to be charged with a criminal violation.290 The Nordic countries suggested the inclusion of a general provision in Part One of the Code stipulating that ‘the Code basically only applies to acts committed wilfully’.291 Any exceptions to this rule, according to the Nordic countries, ‘can be specified in the articles in which the intention is to strengthen or weaken the requirements as to subjective accountability’.292 The United Kingdom expressed its concerns over the fact that paragraph 1 of Article 3, which deals with individual criminal responsibility, lacks any ‘requirement of intent – or mens rea – which is a fundamental element for serious crimes’.293 It noted that paragraph 1 of Article 3 reflects the approach of those members in the Commission who were of the opinion that intent can be deduced from the ‘mass scale and systematic nature of a crime’.294 In the United Kingdom’s view, such an approach ‘confuses the elements of a crime with their proof’.295 According to the United Kingdom, in establishing criminal liability for individuals for such heinous crimes, a distinction has to be made between the policymakers/senior executors and those at the lower levels of the echelon of command regarding the level of intent which needs to be proved:

Code). In Costa Rican criminal law it has been established that the issue of wilfulness does not depend on the degree of culpability but on the characterization and that the judge must therefore pay particular attention to the problems normally surrounding the phenomenon of intent (will and knowledge).’ See ibid, paras 7–8. 288   ibid, para 14 of the comments and observations on Art 3 (Costa Rica). 289   ibid, para 15. 290   Yearbook (1993) vol II (Part One) 89, para 9 of the general comments on the Draft Code (Nordic countries). In its comments on the Draft Code, the Nordic countries had this to say: ‘As the Nordic countries understand the draft, it is generally sufficient that an offence has actually been committed. However, in certain articles it is specified that the provision is only applicable to acts that are committed “wilfully”. In other cases it is stated that special motives must be present. An example is the wording in Art 20: “for the purpose of establishing” ’. 291   ibid (emphasis added). 292  ibid. 293   Yearbook (1993) vol II (Part One), comments and observations received from member States, 98, para 7 of the comments on Art 3 (UK). 294  ibid. 295  ibid.

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ILC & The Developing Law of Mens Rea The enormity of acts committed may raise a presumption of intent at the highest levels of command, though even there it should be permissible to introduce evidence to rebut the presumption, if such evidence exists. But the great majority of potential defendants will be those who have played only a small part in large events and in their case the state of the individual’s knowledge is crucial.296

Similar to the views upheld by Austria and Costa Rica, the United Kingdom asserted that the ‘Code should provide either in part one, or in part two in respect of each individual crime, that intent is an essential element.’297 Under the rubric ‘failure to specify the mental state necessary for the imposition of criminal liability’ the Draft Code had been criticised by the United States on the following grounds: A second fundamental flaw that permeates the Code is its failure to specify the requisite knowledge or intent necessary to impose criminal liability on a potential defendant. . . . The general failure of the Code to address a defendant’s knowledge and intent is further compounded because the article on environmental crimes – in contrast with the other articles – specifies that the crime must be committed ‘wilfully’. No other article has this provision, and the significance of this discrepancy is unclear.298

As for the mental element of the crime of genocide, the United States had considered that the definition contained in paragraph 2 of Article 19 of the Draft Code failed to establish the mental state needed for the imposition of criminal lia­ bility.299 One member of the Commission stressed the need to review the formulation of the phrase ‘intent to destroy [. . .] a national, ethnic, racial or religious group as such’ which in his opinion signifies the perpetrator’s motive. That is to say, the destruction of a group of persons on account of their person rather than the perpetrator’s mens rea which is the deliberate will to commit the crime or the awareness of the criminal nature of the act.300 In order to avoid any ambiguity, he suggested substituting the term ‘with intent to’ with the phrase ‘acts committed with the aim of’ or ‘acts manifestly aimed at destroying’.301

ii  Intent versus Knowledge In examining the elements of the crime of ‘causing damage to the environment’ as a war crime under Article 18(g) (then Article 22(2)(d)) the Drafting Committee  ibid.  ibid. 298   ibid, 103, para 6 of the general comments on the Draft Code (US). 299   ibid, 103–04, para 12 of the comments on Art 19 of the Draft Code (US). The US Government understood that the phrase ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’, means ‘the specific intent to destroy in whole or substantial part, a national, ethnic, racial or religious group as such by the acts prohibited in the Convention’, ibid. For more information on the development of the US understanding regarding the meaning of the phrase ‘intent to destroy, in whole or in part’, see Lawrence J LeBlanc, The United States and the Genocide Convention (Durham: Duke University Press, 1991) 34–56. 300   Yearbook (1995) vol I (2384th meeting) 39, para 51 (Mr Razafindralambo, Madgascar). 301  ibid. 296 297

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proposed two alternative provisions. The most significant difference between the two provisions was related to the mens rea required to trigger the criminal responsibility for the crime at issue. In alternative A, ‘the use of methods and means of warfare was specified as being with the intention to cause widespread, long-term and severe damage to the natural environment and the intent to gravely prejudice the health’;302 whereas in alternative B, ‘it would suffice to use such methods and means of warfare in the knowledge that they would cause widespread, long-term and severe damage to the natural environment’.303 It is clear from the above statement, that alternative A sets a high threshold of the mens rea required for the crime in question; while in alternative B, knowledge is sufficient. Some members of the Drafting Committee noted that the difference between the two alternatives derived from the fact that alternative A required double intent, notably, the intent ‘to cause widespread . . . damage’ and the intent to ‘gravely prejudice the health’. They argued that ‘[t]he two fold requirement seemed, to set a very high threshold, whose elements would in any event be almost impossible to prove’.304 One member argued that since the term ‘crime’ always involved an element of intent, it would be superfluous to include a requirement that the person who had done the damage had to have intended to cause it.305 According to the Czech Republic, ‘it would be both sufficient and more logical to specify that the person must have been aware of what he was doing’.306 Other members found that the difference between the two alternatives regarding the mental element required was not of major significance so long as ‘in both instances, the fact of a particular case would have to be weighed to determine whether there had been “intent” or “knowledge”’.307 The representative of Mali thought that the two alternatives were not, in fact, very different, but he supported alternative A ‘since the concept of intent was hallowed in legal writings’.308 He noted that ‘[i]t was difficult to have the intent to cause damage without knowing that one would in fact cause it and, conversely, it was difficult to commit an act without intent when one knew the consequences in advance’.309 In other words, if a person knew the consequences of his act and committed it nonetheless, he certainly had the intention to commit it.310 Japan drew the Committee’s attention to the fact that ‘it was easier to prove that the perpetrator of an act had had   Yearbook (1996) vol I (2248th meeting) 109–10, para 16 (UN Doc A/CN.4/SER.A/1996).   ibid (emphasis added). 304   ibid, 111, para 31 (Mr Tomuschat, Germany). See also the view expressed by Mr Kabatsi, Uganda: ‘Alternative A underlined the twofold intent the perpetrator of the crime should have: to cause damage and gravely to prejudice the survival of population. That . . . was a very high level of intent and would in any event be difficult to prove in practice’. See ibid, para 35. 305   ibid, 113, para 55 (Mr Mikulka, Czech Republic). 306  ibid. 307   ibid, 111, para 36 (Mr Kabatsi, Uganda). 308   ibid, 112, para 40 (Mr Fomba, Mali). 309  ibid. 310  ibid. 302 303

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the intent to commit that act than to establish that he knew the consequence in advance’.311 The Special Rapporteur supported alternative A because, in his opinion, it took account of intent which is an essential element of a crime. He re-emphasised that ‘there would be no crime in the event of environmental damage caused by negligence or lack of due care’.312 In its commentary to subparagraph (g) of Article (20) of the Draft Code of Crimes against the Peace and Security of Mankind, the Commission required the establishment of three elements in order to incur criminal liability for the crime at issue: First, the use of the prohibited methods or means of war was not justified by military necessity. . . . Secondly, the conduct was committed with the specific ‘intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population’. Thirdly, that such damage actually occurred as a result of the prohibited conduct.313

iii  Subjective versus Objective In discussing Article 18, subparagraph (g), one member of the Drafting Committee argued that while it was often necessary in criminal matters to base the definition of crimes on subjective elements, it was preferable in drafting an international instrument ‘to place as much emphasis as possible on an objective description of the acts in question in order to avoid problems of application, interpretation and proof’.314 He suggested the elimination of all the subjective elements (intent and knowledge) as laid down in the subparagraph at issue because ‘[i]n the event of war, the belligerents’ objectives were, by definition, always military objectives and the perpetrator of the harmful acts could argue that he had never “intended” to cause damage’.315

iv Motive Article 4 (motives) as adopted by the Commission on first reading had been a bone of contention between several states, and had prompted many reservations from the governments concerned. For some governments (for example, Costa Rica) the provision of Article 4 interferes with the right of defence, in so far as it prohibits the accused from invoking his own motive in his defence.316 Austria,317   ibid, 112, para 43.   ibid, 110, para 20 (Mr Thiam, Special Rapporteur). 313   Yearbook (1996) vol II (Part Two) 56, para 15 of the commentary on the text of subpara (g) of Art 20 as finally adopted by the Commission at its forty-eighth session (UN Doc A/CN.4/SER.A/1996/ Add.1 (Part 2)). 314   ibid, 112, para 48 (Mr Carreño, Chile). 315   ibid, para 50. 316   Yearbook (1993) vol II (Part One) 77, paras 20–21 of the comments on Art 4 (Costa Rica). 317   ibid, 67, para 7 of the comments on Art 4 (Austria). 311 312

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the Netherlands318 and the United Kingdom thought that motive should be taken into account as being aggravating or extenuating circumstances, and accordingly the text would be better placed in draft Article 14 which deals with defences and extenuating circumstances.319 In the Nordic countries’ view, ‘the article causes considerable problems and is not acceptable in its present form’.320 The Special Rapporteur noted the ambiguities which shaped this Article and he suggested its deletion: Sometimes the motive is part of the definition of an offence, sometimes it is not. In the case of genocide, for example, the motive is an element of the offence. Indeed, with the crime of genocide, the perpetrator is prompted by racial, political or religious motives. In the absence of such motives, that offence does not exist. There are, however, cases where the motive is not an integral part of the definition of the offence.321

E Analysis It is beyond any shadow of a doubt that the work of the International Law Commission has played a significant role in the developing law of the mens rea concept in the sphere of international criminal law. As early as 1985 – during the preparation of the 1991 Draft Code of Crimes against the Peace and Security of Mankind – a consensus appeared to be emerging among the majority of the members of the Commission that the general rule was that an offence against the peace and security of mankind could only be committed with intent, given that the Code’s main purpose was to serve as a deterrent. The chairman of the Commission went further, suggesting the inclusion of a general provision on intent in the Draft Code. By 1991, the concept of mens rea had reached a well-developed stage. Introducing the text proposed by the Drafting Committee for Article 22 (serious war crimes) the chairman of the Committee drew attention to the fact that there are two alternatives of intent, either of which may entail criminal liability for international crimes. The first alternative is intent stricto sensu whereas the second alternative of intent covers ‘situations in which the user knew of the devastating effects on the environment, yet went ahead and used methods or means in question’.322 These two levels of intent became known in the sphere of international criminal law as direct intent (dolus directus of the first degree) and indirect intent (dolus directus of the second degree).323

  ibid, 85, para 35 of the comments on Art 4 (Netherlands).   ibid, 99, para 9 of the comments on Art 4 (United Kingdom).   ibid, 89, para 15 of the comments on Art 4 (Nordic countries). 321   See the ‘Twelfth Report on the Draft Code of Crimes against the Peace and Security of Mankind’ (Mr Doudou Thiam, Special Rapporteur) Yearbook (1994) vol II (Part One) 101, paras 39–40. 322  See Yearbook (1991) vol I (2240th meeting) 224, para 31. 323   See the discussion in ch 11 of this volume. 318 319 320

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XI  Conclusion and General Remarks The present analysis of the post-Second World War trials illustrates that the ‘cognitive element’ was the decisive factor in determining the guilt or innocence of defendants. The ‘knowing standard of mens rea’ was clearly followed by the judgment of the IMT. In the Justice case, ‘repeated reference was made in the judgment to the fact that various accused had knowledge, or must be assumed to have had knowledge, of the use made of the German legal system by Hitler and his associates, of the Nacht and Nebel plan’.324 However, in other trials conducted under Control Council Law No 10, negligence or blameworthy ignorance was also sufficient. Many of the postwar trials invoked a species of the doctrine of common purpose to convict individuals of crimes they did not personally commit, or even intended to commit, but which they were otherwise ‘concerned in’. The cases analysed have highlighted a variety of facts which could be used as circumstantial evidence in proving the existence of a programme with a common purpose, the accused’s participation in the programme/policy and the requisite mens rea. The following were used as circumstantial evidence: (a) prior acts indicating intent and/or motive; (b) the defendant’s high position indicating knowledge; (c) special skills on the part of the defendant indicating knowledge; (d) commission of specific criminal acts indicating intent of the defendant to participate in a nationwide, organised system; and (e) a set of different acts forming a structure or system of information from which knowledge could be inferred. In the Judgment of the International Military Tribunal at Nuremberg, no defendant was convicted of the charge of participating in a common plan or conspiracy unless he occupied a high position in the Nazi regime and had a close relationship with Hitler which allowed him to be aware of Hitler’s aggressive plans and consequently took action to carry them out. The same can be said regarding the Tokyo Judgment and other trials conducted under Control Council Law No 10. The Tribunal which conducted the Alstötter trial (Justice case) held that the knowledge of the broad outlines of a common design was sufficient to incur criminal responsibility for individuals. The degree of knowledge differs from one case to another. In the Krupp case, actual knowledge of the facts and circumstances which would enable the particular individual to determine the criminal nature of the aggressive war was required. While the IMT made it clear that in charges relating to ‘membership in criminal organization’ knowledge of the criminal purpose of such organisation had to be proved on the part of the defendant, the presumption of guilt (presumed knowledge) was evidently adopted by the Tribunal which conducted the Justice trial. One commentator contended that ‘such a generous use of presumptions on  UNWCC, Law Reports of Trials of War Criminals, vol XV, above (n 62) 55–57.

324

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the subjective level’ by the post-Second World War trials ‘does not only affect the guilt principle, but also implies substantial limitations regarding the possibility of an error . . . as a valid defence’.325 Many of the post-Second World War cases addressed issues of accessorial liability.326 While there are few clear trends, these tribunals generally required the prosecution to demonstrate that the accomplice acted with a knowing mental state. In other words, the accomplice knew that a crime was being committed when he so acted. As far as responsibility of commanders is concerned, actual knowledge or mere negligence (the ‘should have known standard’) were sufficient to hold a commander liable for crimes committed by his subordinates. As far as mistake of law is concerned, post-Second World War trials recognised that an alleged war criminal could not be expected to have been as aware of the provisions of international law as those of his municipal law. However, the courts recognised that proof of either actual knowledge or constructive knowledge (‘had reason to know’) that the orders were unlawful was a sufficient mens rea to establish guilt on the part of the accused. It should be borne in mind, however, that some of the cases discussed were brought under special domestic or military legislation, so it is unclear to what extent these cases provide general principles of international law.

325   Kai Ambos, ‘Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis – From Nuremberg to The Hague’ in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, vol 1 (The Hague: Kluwer Law International, 2001) 5–31, 14–15. 326   See International Law Commission, ‘Formulation of the Nuremberg Principles’ UN GAOR 5th Session Supp No 12 UN Doc A/1316 (1950) noting, while formulating the principles of law elucidated at Nuremberg, that ‘the Tribunal convicted several of the defendants of war crimes and crimes against humanity because they gave orders resulting in atrocious and criminal acts which they did not commit themselves. In practice, therefore, the Tribunal seems to have applied general principles of criminal law regarding complicity. The view is corroborated by expressions used by the Tribunal in assessing the guilt of particular defendants’.

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9 Mens Rea of Crimes in the Jurisprudence of the Former Yugoslavia and Rwanda I Introduction Even though two decades have passed since the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) the law of the most fundamental concept in international criminal law – mens rea – remains unsettled.1 Unlike the Statute of the International Criminal Court (ICC), that of the ICTY and ICTR lacks a general provision on the mental element.2 In the absence of such a provision, the issue was left to judges sitting at these Tribunals to determine the requisite mens rea for each crime within the subject matter jurisdiction of the Tribunal. Some judges viewed criminal intent as encompassing a cognitive element of knowledge and a volitional element of acceptance,3 whereas others were of the opinion that mere foreseeability of harm is sufficient to trigger the criminal responsibility of individuals for serious violations of international humanitarian law.4 Some judges 1   The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 was established pursuant to the Security Council Resolution 827 of 25 May 1993 (UN Doc S/RES/827 (1993)). Pursuant to Security Council Resolution 955 of 8 November 1994, the International Criminal Tribunal for Rwanda was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. It may also deal with the prosecution of Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighbouring states during the same period. 2   Professor Schabas noted that ‘[a] literal interpreter of the statutes might argue that absent words in the definitions of crimes indicating a mental element, it should be sufficient to establish that the accused perpetrated the material act or mission. Given the silence of legislation respecting the mental element of crime, common law justice systems have taken the view that the mental element is a presumption that can only be set aside by precise and specific legislation. Essentially this is the same approach that the Tribunals have taken. It is consistent with general principles of law. Moreover, it is probably mandated by the presumption of innocence, which is enshrined in international human rights law as well as in the statutes themselves’; see William A Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) 293. 3  See Orić Trial Judgement, para 279. 4   Surprisingly, the Blaškić Trial Chamber stretched the fault element required for serious violations of Art 2 of the ICTY Statute to reach the boundaries of criminal negligence; see Blaškić Trial Judgement para 152.

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have employed common law terms such as ‘direct intent’, ‘indirect intent’, ‘oblique intent’ and ‘recklessness’,5 whereas others have adhered to continental law terms such as ‘dolus coloratus’, ‘dolus directus’ and ‘dolus eventualis’, regardless of the vast diversity between these terms.6 In a few cases, the Chambers have applied a subjective test in order to ascertain the guilt of the accused, while in other cases the objective test has been clearly adopted. Through their jurisprudence, the Yugoslavia and Rwanda Tribunals have made enormous efforts to assign various types of mens rea to different crimes under their Statutes. In descending order, these degrees of mens rea are the following: premeditation, special intent or dolus specialis, direct intent or dolus directus, advertant recklessness or dolus eventualis. In many judgments, the ICTY has adopted an element analysis approach, requiring different degrees of mens rea with regard to each of the material elements of the offence at issue. This chapter is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the two ad hoc Tribunals. Among these issues are the following: what precisely is to be understood by the terms ‘specific intent’, ‘special intent’, ‘dolus specialis’, ‘surplus intent’ or ‘with intent to’? Similarly, what are the precise meanings of the terms ‘deliberately’, ‘intention’, ‘intent’, ‘intentionally’, ‘wilful or wilfully’, ‘knowledge’ and ‘wanton’, as provided for in the Statutes of the Yugoslavia and Rwanda Tribunals or as employed by the Chambers within its judgments? For example, what is the actual meaning of the term ‘wilful’? Does the term require a proof of direct intent, indirect intent, dolus eventualis, or recklessness? Does the meaning of the term differ when it is attached to different offences under the Statute? Other confusion arises regarding the mens rea for ‘wilful killing’ and ‘murder’ in establishing whether foresight of probable consequences would amount to intention in the strict sense, or whether it is mere evidence from which intent may be inferred. Is it the act which should be intentional or the consequence or both? Where a factual or circumstance element constitutes an ingredient element of an offence (for example, the civilian status of the victims – Article 3 ICTY Statute), which degree of awareness has to be established on the part of the accused, if any? To put it differently, is it a question of knowledge, recklessness or mere negligence, and is the applied test objective or subjective? The above queries will be discussed and examined through a systematic analysis of the case law of the Yugoslavia and Rwanda Tribunals.7 Due to the fact that the two ad hoc Tribunals devoted enormous attention to the notion of mens rea with regard to the crimes under their subject matter jurisdiction, it is preferable to start this survey by examining the notion of mens rea 5  See Judge Shahabuddeen, Separate Opinion, in Brđanin Decision on Interlocutory Appeal, para 6. 6   The term dolus coloratus, or motivated intent, as a requisite mens rea for the crime of genocide was employed by Judge Pavel Dolenc in his Separate and Dissenting Opinion in Ntagerura et al Trial Judgement, fn 13. 7   This chapter covers the case law of the Yugoslavia and Rwanda Tribunals up until April 2012.

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under the ‘Special Part’. Chapter ten will be devoted to examining the mens rea concept under the ‘General Part’.

II  Special Intent or Primary Purpose Crimes In the Statutes as well as in the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda there are particular crimes which require proof of a specific intent on the part of the accused. Through their jurisprudence the Yugoslavia and Rwanda Tribunals have recognised the following crimes as falling within the ambit of specific intent crimes: the crime of terror against the civilian population, torture, persecution as a crime against humanity and genocide. Each of these crimes will be discussed and examined accordingly.

A  The Crime of Terror against the Civilian Population The crime of acts or threats of violence, the primary purpose of which is to spread terror among the civilian population (the crime of terror against the civilian population) was first defined by Trial Chamber I of the ICTY in the Galić case.8 The Chamber found that a ‘protracted campaign of shelling and sniping on civilian areas of Sarajevo and on the civilian population’ constitutes a serious violation of the laws or customs of war.9 While the acts of terrorising the civilian population is not explicitly found in the ICTY Statute, these acts qualified, inter alia, as a crime of terror as set forth in Article 51(2) of the first Additional Protocol to the Geneva Conventions of 1949 and are, accordingly, punishable under Article 3 of the ICTY Statute.10 Based on the prohibition enshrined in Article 51(2) of the first Additional Protocol, the Chamber defines the objective and subjective elements of the offence of ‘terror against the civilian population’ as follows: (i) acts of violence [conduct element] directed against the civilian population or individual civilians not taking direct part in hostilities [circumstance element] causing death or serious injury to body or health within the civilian population [result element]; 8   Galić Trial Judgement, paras 65–66. Whereas in the Galić case ‘terrorisation’ was pleaded as an independent count, namely as a violation of the laws or customs of war pursuant to Art 3 of the ICTY Statute, in the Blagojević case, the prosecution has charged ‘the terrorising of Bosnian Muslim civilians in Srebrenica and at Potoćari as an act of persecution’; see Blagojević and Jokić Trial Judgement, para 8. 9   Galić Trial Judgement, paras 132–33. 10   Art 51(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977 provides: ‘The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’.

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Mens Rea of Crimes in the ICTY & ICTR (ii) the offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence [mens rea]; (iii) the above offence was committed with the primary purpose of spreading terror among the civilian population [mens rea].11

The Chamber further found that the actual infliction of terror is not a constitutive legal element of the crime of terror.12 Accordingly, the prosecution needs only to prove that the acts of terror were carried out in an atmosphere of terror among a civilian population. On 30 November 2006, the Appeals Chamber endorsed this finding with further clarification regarding the actus reus and mens rea of this offence.13 As far as the actus reus is concerned, the Galić Appeals Chamber found that the ‘crime of terror against the civilian population’ can comprise ‘attacks or threats of attacks against the civilian population’.14 In so doing, the Appeals Chamber widened the definition given to this crime by the Trial Chamber by including threats of violence or acts of violence not causing death or injury. The Appeals Chamber provided further clarification as to the objective elements of this offence: The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof. The nature of the acts or threats of violence directed against the civilian can vary; . . . Further, the crime of acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, is not a case in which an explosive device was planted outside of an ongoing military attack but rather a case of ‘extensive trauma and psychological damage’ being caused by ‘attacks [which] were designed to keep the inhabitants in a constant state of terror’. Such extensive trauma and psychological damage form part of the acts or threats of violence.15

With respect to the subjective element of this offence, the Galić Appeals Chamber endorsed the Trial Chamber findings that the requisite mens rea of the crime of terror is the specific intent to spread terror among the civilian population.16 The 11   Galić Trial Judgement, para 133 (emphasis added). The original text of element (iii) reads as follows ‘the above offence was committed’, however, it is preferable to substitute the word ‘acts’ for ‘offence’. 12   ibid, para 134. 13   Galić Appeal Judgement. In his appeal, Galić argued that the Yugoslavia Tribunal had no jurisdiction over the ‘crime of terror against civilian population’ because ‘there exists no international crime of terror’. He also contended that ‘there is no such . . . criminal offence in customary law’. He added, ‘this alleged offence was never criminalized’, and ‘such an alleged offence could not be based on treaty law’. In para 85 of its judgment, the Appeals Chamber rejected the appellant’s arguments asserting that ‘while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom’. The Appeals Chamber found that the prohibition on terror against the civilian population in the Additional Protocols was declaratory of customary international law. See ibid, para 98. 14   ibid, para 102 (emphasis added). 15   ibid, para 102. Furthermore, the Appeals Chamber agreed with the Trial Chamber that the actual infliction of terror is not a constitutive legal element of the crime (para 134). 16   ibid, paras 102, 104.

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Galić Trial Chamber found that the phrase ‘primary purpose’, which signifies the mens rea of the crime of terror, is to be understood as excluding dolus eventualis, or recklessness, from the intentional state specific to terror.17 According to the Trial Chamber, in order to sustain a conviction for this offence, the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that was the result which he specifically intended. The crime of terror is a specific-intent crime.18

The judgment clearly shows that the mens rea required for this offence is established where it is proved that the perpetrator’s primary purpose or his conscious objective was directed to spread terror among civilian population. However, there are two important aspects with regard to the mens rea of this offence. First, the crime of terror against the civilian population requires not merely the establishment of a ‘specific intent’ as set out in element (iii), but different mental states with respect to different material elements of the offence. That is to say, elements (i) and (ii) have their own ‘offensive package’ actus reus and mens rea. This offensive package consists of the following material elements: acts of violence (conduct element); directed against the civilian population (circumstance element); causing death or serious injury to body or health (result element). These material elements have their own mental state – the element of wilfulness.19 Thus, the presence or the absence of such ‘surplus of intent’ has nothing to do with the survival of the ‘offensive package’, but, where this surplus of intent exists, it does aggravate the nature of this package to reach the threshold of the crime of terror.20 The second aspect is the degree of mens rea required with regard to the circumstance element of this offence – the civilian status of the person attacked. Interestingly, the Galić Trial Chamber addressed this point while examining the facts of ‘Incident 16’, namely ‘Scheduled Sniping’.21 The Chamber found that ‘the manner in which the victim was dressed . . . and the activity in which she was engaged at the time of the incident clearly reflected her civilian status’.22 Taking all the circumstances into consideration, the Chamber found that ‘the perpetrator, or a reasonable person in those circumstances, should not have ignored the probability that the victim was a civilian’.23 It concluded, ‘the victim was targeted from the SRK-controlled area, if not with the intention to attack her as a civilian, then at least in full awareness of the high risk that the target was a civilian’.24   ibid, para 136.   ibid (emphasis added). 19   According to the Galić Trial Judgement, ‘willfully’, as a mens rea standard, is satisfied whenever the accused acts deliberately or recklessly; Galić Trial Judgement, para 596. 20   The term ‘surplus of intent’ was first employed by the Yugoslavia Tribunal in reference to the ‘specific intent’ of the crime of genocide; see Stakić Rule 98 Trial Decision, paras 17, 26, 29. 21   The prosecution alleges two specific incidents of targeting of civilians as representative small arms fire against civilians in an area called Briješko brdo. 22   Galić Trial Judgement, para 433 (emphasis added). 23  ibid. 24  ibid. 17 18

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It is not clear from the judgment whether the fault element required for the circumstance element is intention, recklessness or mere negligence (a reasonable person . . . should not have ignored). However, one can discern that mere negligence is not a sufficient fault element with regard to the circumstance element since wilfulness, as set out in element (ii), has to cover the material elements of this offensive package. Furthermore, the words employed by the Galić Trial Chamber in defining the degree of mens rea required with regard to the circumstance element deserve more attention. First, it seems preferable not to use the word ‘intention’ with regard to the circumstance element, as circumstances are always related to the knowledge or awareness and not to the actor’s intention.25 Secondly, when knowledge of the existence of a particular fact is an element of the offence, two different levels of awareness can be established: (i) the perpetrator is aware of the existence of such circumstances (actual knowledge); or (ii) the perpetrator is aware of the high probability of its existence.26 There is, however, another degree of awareness with regard to the circumstance element. A person is said to be reckless as to a circumstance element ‘if he is aware of the possibility that such a circumstance exists and does an act regardless of it’.27 In cases where a lower threshold is sufficient, the test has to be objective: ‘a reasonable person in those circumstances should not have ignored the probability of its existence’.28 However, the beauty of this judgment is that it implicitly establishes the concept of ‘element analysis’ in place of ‘offence analysis.’ The former concept requires the prosecution to prove beyond reasonable doubt that the defendant carried out each of the material elements of the offence (conduct, circumstances and result) with a culpable state of mind.29 Furthermore, the Galić judgment made it clear that where a crime within the subject matter jurisdiction of the Yugoslavia Tribunal requires a specific purpose or special intent, no lower threshold than the one of direct intent (dolus directus of the first degree) would be sufficient to hold a person criminally responsible or liable for such category of crimes. Thus, in specific intent crimes, the prosecution must prove that the perpetrator’s primary purpose or his conscious objective was directed to achieve a particular consequence. Accordingly, oblique intent (dolus directus of the second degree) or advertent recklessness (dolus eventualis) are not sufficient mental states for specific intent crimes.

 ibid.   See the Model Penal Code (MPC) § 2.02 (2)(b)(i), § 2.02(7). On that point see the discussion in ch 4 of this volume. 27   See Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Steven & Sons, 1961) 56. 28  See Galić Trial Judgement, para 433. 29   For the Model Penal Code’s element analysis, see § 2.02(4) of the Model Penal Code and the discussion in ch 4 of this volume. 25 26

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B Torture Torture is outlawed in the legislation of nearly all states and is prohibited under both conventional and customary international law, whether in times of peace or armed conflict.30 In Limaj et al, Trial Chamber II concurred with previous judgments of the Yugoslavia Tribunal that the ‘definition of torture is the same regardless of the Article of the Statute under which the accused has been charged’.31 Both Trial Chambers and the Appeals Chamber of the Yugoslavia Tribunal agreed that, in order to sustain a conviction for the offence of torture, the following elements must be met: (i) there must be an act or omission [conduct element] inflicting severe pain or suffering, whether physical or mental [result element]; (ii) the act or omission must be intentional [mens rea as to the conduct and result elements]; and (iii) the act or omission must have been carried out with a specific purpose [mens rea – primary purpose] such as to obtain information or confession, to punish, intimidate, or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.32

With regard to the mens rea required for the crime of torture, the jurisprudence of the Yugoslavia Tribunal holds consistent that two mental states are required in order to sustain a conviction for this offence. The first mental state required is a direct intent: ‘the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental to his victim’.33 The test is subjective; it has to be established that the 30   The corpus of international humanitarian law applicable during an armed conflict which embodies this norm includes the Hague Conventions, especially, Arts 4 and 46 of the Regulations annexed to Convention IV of 1907 Respecting the Laws and Customs of War on Land, read in conjunction with the so-called ‘Martens Clause’ laid down in the Preamble to the same Convention; common Art 3 and grave breaches of the 1949 Geneva Conventions; Art 2 of Additional Protocol I; and Arts 5(2)(e), 6, 7 of Additional Protocol II. The provisions of the Hague Conventions regarding prisoners of war or those relating to civilians expressly prohibit torture. However, it is to be observed that torture is, in any event, implicitly forbidden against these individuals, since the provisions prescribe that they be treated with humanity. See DH Derby, ‘Torture’ in M Cherif Bassiouni (ed), International Criminal Law, vol 1 Crimes, 2nd edn (New York: Transnational Publishers, 1999) 719. See also Schabas, The UN International Criminal Tribunals, above (n 2) 205–09. 31   Limaj Trial Judgement, para 235, fn 723; Brđanin Trial Judgement, para 482; Krnojelac Trial Judgement, para 178; Furundžija Trial Judgement, para 139. It is to be noted that torture is sanctioned as a grave breach, violation of the laws and customs of war and as a crime against humanity under Arts 2(b), 3 and 5 of the ICTY Statute, respectively. 32   Limaj Trial Judgement, ibid, para 235; Kunarać et al Appeal Judgement, paras 142, 144, confirming Kunarać et al Trial Judgement, para 497; Brđanin Trial Judgement, ibid, para 481; Krnojelac Trial Judgement, ibid, para 179. It is to be noted that where torture is charged as a crime against humanity under Art 5 of the ICTY Statute, knowledge of the nature of the attack is considered an additional element which must be established on the part of the accused. 33   Limaj Trial Judgement, ibid, para 238; Kunarać et al Appeal Judgement, ibid, para 153. The Limaj Trial Chamber used the term ‘direct intent’. The Kunarać Appeals Chamber and Krnojelac Trial Chamber used the term ‘deliberately’; paras 154 and 184 respectively. The Furundžija and Kunarać Trial Chambers used the term ‘intentional’; paras 162 and 497 respectively. Thus, ‘direct intent’, ‘intentional’ and ‘deliberately’ are mens rea terms used interchangeably by the ICTY.

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actor (and not a reasonable person) in carrying out the proscribed conduct was aware that it would almost certainly cause severe pain or suffering to his victim.34 In light of the above, any lower degree of mens rea (for example, dolus eventualis, or recklessness) is not sufficient for this ‘offensive package’.35 Yet, in order for this offensive package to fall under the definition of torture, it must be established that it has been carried out with a specific purpose, such as to obtain information or confession, to punish, intimidate, or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.36 As the Krnojelac judgment held, ‘[t]orture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain certain result or purpose’.37 Thus, ‘in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunal’s Statute’.38 The prohibited purpose must be neither the sole nor the main purpose of inflicting severe pain or suffering.39 In other words, the acts need not have been perpetrated solely for one of the purposes prohibited by international law.40 If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve another non-listed purpose is immaterial. In Kunarać et al, the Appeals Chamber concurred with the Trial Chamber that ‘the Appellants deliberately committed the acts of which they were accused and did so with the intent of discriminating against their victims because they were Muslim’.41 In addition to this discriminatory purpose, the Appeals Chamber noted that ‘the acts were committed against one of the victims with the purpose of obtaining information’.42 It is not clear in the jurisprudence of the ICTY if the actual achievement of one or more intentions of the accused (for example, obtaining information or confession) is a legal ingredient element in this offence. However, it is suggested that, similar to the crime of terror and genocide, the actual achievement of the accused’s intention is not a constitutive element of the crime of torture. To sum up, the crime of torture, in the subject matter jurisdiction of the ICTY, requires an additional mental element, namely specific purpose or special intent, which goes beyond the intent to inflict severe pain.43 34   See Andrew Byrnes, ‘Torture and Other Offences Involving the Violation of the Physical or Mental Integrity of the Human Person’ in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, vol 1 (The Hague: Kluwer Law International, 2001) 212. 35   Guénaël Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press, 2005) 116. 36   Limaj Trial Judgement, para 239. 37   Krnojelac Trial Judgement, para 180. 38  ibid. 39   Čelebići Trial Judgement, para 470. 40   Kunarać et al Appeal Judgement, para 155. 41   ibid, para 154. 42  ibid. 43   Most notably, the requirement of a specific purpose for the crime of torture was deliberately omitted from the Rome Statute as well as from Art 7(1)(f) of the Elements of Crimes. A footnote to the

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C  Persecution as a Crime against Humanity According to the ICTY Appeals Chambers, the crime of persecution, sanctioned under Article 5(h) of the Statute, consists of an act or omission that (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) is carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (mens rea).44

As for the actus reus of persecution, the act or omission must have discriminatory consequences.45 That is to say, ‘the persecutory acts must be intended to cause, and result in, an infringement on an individual’s enjoyment of a basic or fundamental right’.46 Accordingly, if the perpetrator was mistaken and the victim of discrimination did not actually qualify under these racial, religious or political grounds, no crime of persecution could be found. In German criminal law, this is known as error in persona. This error in persona could negate the mental element in cases of lacking legal equivalence between the injured object of the act as imagined by the perpetrator, and the one actually injured.47 The mens rea of persecution consists of different degrees of mental states which must be established exclusively, before a reasonable trier of fact can return a verdict of this offence. The Kordić and Čerkez Trial Chamber set forth a two-part test in order to hold a person criminally liable for the crime of persecution: The accused must have had the . . . [particular] intent to commit the underlying act (such as murder, extermination, or torture). Then, if the act is to entail additional, criminal, liability as a crime against humanity, the accused must also have had the requisite mens rea for crimes against humanity, which has been defined as knowledge of the context of a widespread or systematic attack directed against a civilian population. Elements reads: ‘It is understood that no purpose need be proved for this crime’. See the finalised draft text of the Elements of Crimes, UN Preparatory Commission for the International Criminal Court, UN Doc PCNICC/2000/1/Add.2 (2000), Art 7(1)(f), fn 14. 44   Stakić Appeal Judgement, para 327; Kordić and Čerkez Appeal Judgement, para 101; Blaškić Appeal Judgement, para 131; Vasiljević Appeal Judgement, para 113; Krnojelac Appeal Judgement, para 185; Blagojević and Jokić Trial Judgement, para 579. For more details on the objective and subjective elements of persecution in the case law of the ICTY, see Mohamed Elewa Badar, ‘From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity’ (2004) 5 San Diego International Law Journal 73, 122–40. 45   Krnojelac Appeal Judgement, ibid, paras 185 and 200–02, citing with approval the Krnojelac Trial Judgement, para 431; Blagojević and Jokić Trial Judgement, para 583; Stakić Trial Judgement, para 733; Vasiljević Trial Judgement, para 245. 46   Stakić Trial Judgement, ibid (emphasis in original), citing with approval Tadic´ Trial Judgement, para 715. The Stakić Trial Chamber found that the accused guilty of persecutions based on the underlying acts of murder and deportations, as well as torture, physical violence, rape, constant humiliation and degradation, and destruction of or wilful damage to religious and cultural buildings. 47   For more information on error in persona in German criminal law see the discussion in ch 5 of this volume. See also Mohamed Elewa Badar, ‘Mens Rea – Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 International Criminal Law Review 203, 238–39.

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Mens Rea of Crimes in the ICTY & ICTR With regard to the crime of persecution, a particular intent is required, in addition to the specific intent (to commit the act and produce its consequences) and the general intent (the objective knowledge of the context in which the accused acted). This intent – the discriminatory intent – is what sets the crime of persecution apart from other Article 5 crimes against humanity.48

The Krnojelac Judgment further provides some clarity as regards the quality or degree of discriminatory intent required. The judgment stated that the accused ‘must consciously intend to discriminate’ and that it ‘is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory’.49 The term ‘discriminatory intent’, as viewed by the Stakić Trial and Appeals Chambers, ‘amounts to the requirement of a dolus specialis’.50 Accordingly, recklessness, dolus eventualis, or gross negligence, are not a sufficient mens rea for the crime of persecution.51 One commentator observed that this additional element of discriminatory intent amounts to an ‘aggravated criminal intent’.52 To the extent that the accused acted as a direct or principal perpetrator in carrying out the crime of persecution, the Vasiljević and Krnojelac Judgments are certainly laudable.53 In such cases where the accused is closely related to the actual commission of crimes, one might agree that proof is required of the fact that the direct perpetrator acted with discriminatory intent in relation to the specific act. However, this requirement might be problematic in cases where the accused is considered the co-perpetrator behind the commission of the crime of persecution together with other persons. Addressing this point, the Stakić Trial Chamber ruled that: In cases of indirect perpetratorship, proof is required only of the general discriminatory intent of the indirect perpetrator in relation to the attack committed by the direct perpetrators/actors. Even if the direct perpetrator/actor did not act with a discriminatory intent, this, as such, does not exclude the fact that the same act may be considered part 48   Kordić and Čerkez Trial Judgement, paras 211–12 (emphasis added). It is not clear if the Trial Chamber wanted to say that the underlying act requires a ‘specific intent’ to the effect that purpose is required. 49   Krnojelac Trial Judgement, para 435; Vasiljević Trial Judgement, para 248; Kordić and Čerkez Trial Judgement, ibid, para 217. 50   Stakić Appeal Judgement, para 329, endorsing the Stakić Trial Judgement, para 737. 51   Being aware of the complexity of proving such a higher threshold of mens rea, the prosecution argued that it suffices to show that the accused had objective knowledge that his acts fitted within widespread or systematic attack based on discriminatory intent. See Kordić and Čerkez Trial Judgement, para 216. This argument was rejected by the Kordić Trial Chamber in para 249 of its Judgment on the following grounds: An adoption of the prosecution’s formulation of the requisite mens rea would eviscerate the distinction between persecution and the other enumerated crimes against humanity. Such an approach also would dilute the gravity of persecution as a crime against humanity, making it difficult to reach principled decisions in sentencing. Given the fact that the actus reus of persecution overlaps with the actus reus of other Article 5 crimes, the sole distinction between the two lies in the mens rea. 52   Kai Ambos, ‘Selected Issues Regarding the “Core Crimes” in International Criminal Law’ (2004) 19 Nouvelles Études Pénales 219, 259 (emphasis in original). 53   In these two cases, the accused were closely related to the actual commission of crimes. In such cases, proof is required of the fact that the direct perpetrator acted with discriminatory intent in relation to the specific act; see Stakić Trial Judgement, para 741.

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Special Intent or Primary Purpose Crimes of a discriminatory attack if only the indirect perpetrator had the discriminatory intent.54

The Trial Chamber held that ‘proof of a discriminatory attack against a civilian population is a sufficient basis to infer the discriminatory intent of an accused for the acts carried out as part of the attack in which he participated as a (co-) perpetrator’.55 According to the Stakić Judgment, once it is demonstrated that the coperpetrator was aware of the nature of the attack, he is considered to possess the discriminatory intent (without further evidence). One might disagree with the Stakić finding on the basis that awareness of the circumstances (the discriminatory nature of the attack) does not necessarily imply the existence of intention, although it may be a fact from which – when considered with all the other evidence – can lead a reasonable trier of fact to infer the discriminatory intent on the part of the co-perpetrator.56 Furthermore, such ‘automatic attribution’ of discriminatory intent might violate the rights of the accused.57 In Kvocˇka et al, the Appeals Chamber agreed with the appellant that ‘the discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity’.58 The Appeals Chamber went on to hold that ‘the discriminatory intent, however, may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime’.59

D  Taking Civilians as Hostages The offences of ‘taking civilians as hostages’ and ‘taking of hostages’ are punishable under Article 2(h) and Article 3 of the ICTY Statute, respectively. The former is listed as one of the grave breaches in Article 147 of Geneva Convention IV, whereas the latter is listed in common Article 3 of the Geneva Conventions which prohibits the ‘taking of hostages’ in non-international armed conflicts. According to the Yugoslavia Tribunal, the elements of both offences are essentially the same.60 The Commentary of the International Committee of the Red Cross (ICRC) is illustrative:   Stakić Trial Judgement, ibid, para 743.   ibid, para 742. 56  In Kordić, the Trial Chamber inferred the discriminatory intent of the accused from their active participation of the common criminal design. The Trial Chamber concludes that discriminatory intent of a perpetrator can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds. Kordić and Čerkez Trial Judgement, paras 829, 831. 57   Radić Appeal Brief, para 71, quoted in Kvočka et al Appeal Judgement, para 364. 58   Kvočka et al Appeal Judgement, ibid, para 366. 59  ibid. 60   Kordić and Čerkez Trial Judgement, para 320: ‘[T]he elements of the offence of taking hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage as described by Article 2(h)’; see also Blaškić Trial Judgement, para 187. It is to be noted that, the prohibition against hostage taking in common Art 3(1)(b) is nevertheless broader than the grave 54 55

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Mens Rea of Crimes in the ICTY & ICTR Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, ie the threat either to prolong the hostage’s detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is itself a very serious crime; it causes in the hostage and among his family a moral anguish which nothing can justify.61

As far as the ICTY jurisprudence is concerned, the crime of taking civilians as hostages consists of the following elements: (i) the unlawful deprivation of liberty, including the crime of unlawful confinement; (ii) the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained.62 The Kordić and Čerkez Trial Chamber stressed that ‘such a threat must be intended as a coercive measure to achieve the fulfilment of a condition’.63 The insertion of this additional element requires the prosecution to demonstrate that ‘at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage’.64 The Blaškić Appeals Chamber viewed this additional element as ‘the essential element in the crime of hostage-taking’.65 The Appeals Chamber went on to hold that a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person..66

As for the mens rea requisite for this offence, the Kordić defence submitted that ‘the accused must not only have deliberately detained the victims, he must have intended to detain them for the purpose of extracting a concession’.67 In the words of the prosecution, the subjective elements of this offence consists of the unlawful detention of civilians for the purpose of obtaining some advantage or securing some commitment from a Party to the conflict, or other person or group of persons; and there was a threat to the breach of taking civilians as hostages on the grounds that Art 2(h) of the Statute applies only to protected persons, whereas common Art 3(1)(b) of the Geneva Convention prohibits the taking of hostages in respect of persons taking no active part in hostilities, members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause. 61   ICRC Commentary (GC IV) 600–01. 62   Kordić and Čerkez Trial Judgement, paras 312–13. 63   ibid, paras 313 and 314. 64   Blaškić Trial Judgement, para 158 (emphasis added). The accused in the Blaškić case was found guilty of the taking of hostages for the purpose of prisoner exchanges and forcing the enemy to cease military operations against his forces, ibid, para 701. 65   Blaškić Appeal Judgement, para 639. 66   Blaškić Appeal Judgement, ibid. Reference has been made to Art 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979. 67   Kordić and Čerkez Trial Judgement, para 309 (emphasis added), quoting Kordić Pre-trial Brief, vol II, para 61.

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Special Intent or Primary Purpose Crimes life, well being or freedom of the civilians detained if such advantage was not obtained or such commitment not secured.68

From the foregoing discussion, it is evident that the occurrence of the threatened consequence in the case of non-compliance is conditional. It is the issuance of a threat to kill, to injure or to continue to detain the hostage that constitutes an ingredient element of the offence at issue and not the accomplishment of the consequence (ie, the killing of the hostage). Thus, the mens rea of the offence of taking civilian as hostages is twofold: (i) the perpetrator deliberately detained or otherwise held hostage one or more persons (direct intent); and (ii) the perpetrator intentionally threatened to kill, injure or continue to detain such person or persons (direct intent) with the primary purpose to obtain advantage from a third party (specific purpose).

E Genocide Generally speaking, Article 4, paragraphs (2) and (3) of the ICTY Statute, is a verbatim reproduction of Articles II and III, respectively, of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.69 The provision set out in Article 4 of the Statute characterises genocide by the following constitutive elements: (i) the underlying act of the offence, which consists of one or several of the actus reus enumerated in subparagraphs (a) to (e) of Article 4(2) carried out with the mens rea required for the commission of each; (ii) the specific intent of the offence, which is described as the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.70

In pronouncing judgment on Kambanda – the former Rwandese Prime Minister – one Trial Chamber of the International Criminal Tribunal for Rwanda declared that: 68   Kordić and Čerkez Trial Judgement, ibid, para 305, quoting the Prosecution Final Brief, Annex 5, para 64. 69   Convention on the Prevention and Punishment of the Crime of Genocide (1951) 78 UNITS 277. Art 4 of the ICTY Statute states: [. . .] 2.  Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent birth within the group; (e) forcibly transferring children of the group to another group. For more details on the mental element of the crime of genocide in the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda, see William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000) 207–56. See also Schabas, The UN International Criminal Tribunals, above (n 2) 164–72. 70   Brđanin Trial Judgement, para 681.

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Mens Rea of Crimes in the ICTY & ICTR The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. [H]ence the Chamber is of the opinion that genocide constitutes the crime of crimes.71

Even though the ICTR and ICTY Chambers have used different terms in referring to the intent required for triggering the criminal responsibility for the crime of genocide, such as ‘special intent’, ‘specific intent’ and ‘specific genocidal intent’, they unanimously adhere to the fact that genocide is characterised by a dolus specialis : Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.72

Similar to other specific intent or specific purpose crimes under the subject matter jurisdiction of the Yugoslavia and Rwanda Tribunals, the level of intent required for the crime of genocide is the dolus specialis.73 The absence of this dolus specialis, on the one hand, has nothing to do with the criminal characteristic of the enumerated acts of the crime of genocide, as those criminal acts have their own offensive package – material elements and mental elements. On the other hand, where the dolus specialis exists, this will aggravate the offensive package to fall into the realm of the crime of crimes. In Jelisić, the Appeals Chamber defined the specific genocidal intent as ‘intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such’.74 The Appeals Chamber formulated this as a requirement that the perpetrator ‘seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such’.75 The Krstić Trial Judgment states that the genocidal conduct must have been ‘committed with the goal of destroying all or 71   Kambanda Trial Judgement, para 16. Since then various ICTR and ICTY Trial Chambers have referred to the intent required for genocide as ‘special intent’, a ‘specific intent’, ‘specific genocidal intent’. These Chambers unanimously recognised that genocide is characterised by a dolus specialis. 72   Akayesu Trial Judgement, para 498. 73   The exact scope of this sub-element was the subject of the prosecution’s third grounds of appeal in the Jelisić case. The prosecution position on the requisite degree of intent was spelled out in para 4.9 of the Jelisić Appeal Brief: ‘The Prosecutor formulated the correct mental state standard under Article 4 in paragraph 3.1 of its pre-trial brief in the present case: The Accused committed the acts with the requisite intent if: (a) he consciously desired the acts to result in the destruction, in whole or in part, of the group, as such; (b) he knew his acts were destroying, in whole or in part, the group, as such; (c) he knew that the likely consequence of his acts would be to destroy, in whole or in part, the group, as such’. See Prosecutor v Goran Jelisić, Prosecutor’s Appeal Brief (Redacted Version) Case No IT-95-10-A, submitted 14 July 2000, para 4.9, 54. See also Prosecutor v Goran Jelisić, Prosecutor’s Pre-Trial Brief, Case No IT-95-10-T, 19 November 1998, para 3.1. 74   Jelisić Appeal Judgement, para 45. The Appeals Chamber further ruled that ‘the existence of a plan or policy is not a legal ingredient of the crime’, ibid, para 48. 75   Jelisić Appeal Judgement, ibid, para 46; Krstić Trial Judgement, para 550.

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part of a group’.76 In Stakić and Brđanin, Trial Chamber II noted that the proscribed acts set out in Article 4(2) of the ICTY Statute are elevated to genocide when it is proved that the perpetrator not only wanted to commit those acts, but intended to destroy in whole or in part the targeted group, as a separate and distinct entity.77 According to Stakić, genocide is characterised and distinguished by a ‘surplus of intent’.78 The above judgments clearly show that any lower degree of mens rea that falls short of the threshold of dolus specialis would not suffice to trigger criminal liability for the crime of genocide. To put it differently, in order to ascertain a conviction for genocide, it has to be established that, in addition to the requisite mens rea for the proscribed act(s) listed under Article 4(2) of the Statute, the prosecution has to demonstrate that the accused’s conscious object, primary purpose or goal was to destroy in whole or in part, the group, as such. Failure to demonstrate this surplus intent on the part of the accused means he will likely be convicted for some lesser offence under the ICTY Statute, or the offence in question may constitute an ordinary crime under national jurisdiction. Yet, in the Bagilishema case, the Rwanda Tribunal adopted a ‘purpose based’ approach regarding the degree of intent required for the crime of genocide: For one of the underlying acts to be constitutive of the crime of genocide, it must have been committed against a person because this person was a member of a specific group, and specifically because of his or her membership of this group. Consequently, the perpetration of the act is in realisation of the purpose of the perpetrator, which is to destroy the group in whole or in part.79

The issue whether a lower standard of mens rea rather than the one of direct intent (dolus directus of the first degree) is sufficient to trigger the criminal responsibility of individuals for genocide is still highly debated. However, it is suggested that the mens rea of genocide, like other specific intent crimes, requires proof of direct intent (dolus directus of the first degree) on the part of the accused. The above examination of the jurisprudence of the two ad hoc Tribunals regarding the mens rea requisite for specific intent crimes illustrates that these categories of crimes have similar features, namely, that they require proof of a 76   Krstić Trial Judgement, ibid, para 571. Interestingly, in para 571, the Krstić Trial Chamber opined that ‘some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequences is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act. Whether this interpretation can be viewed as reflecting the status of customary international law at the time the acts involved here is not clear’. Among those commentators referred to by the Trial Chamber is Alexander KA Greenwald, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’ (1999) 99 Columbia Law Review 2259. In his work, Greenwald observed that the Genocide Convention’s intent standard is subject to multiple interpretations, and the drafting history of this Convention does not ‘clearly support a purpose standard’, but rather ‘reveals a vigorous and confused debate over the intent standard that remained alarmingly unresolved at the time of the Convention’s adoption’. 77   Stakić Trial Judgement, para 520; Brđanin Trial Judgement, para 695. 78   Stakić Trial Judgement, ibid. 79   Bagilishema Trial Judgement, para 61. On the issue of determining the offender’s specific intent see ibid, para 62.

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further intent or ulterior intent on the part of the accused. The mens rea standard of this further intent is direct intent or dolus directus of the first degree. It is worth stressing that the comparative study undertaken in chapter three of this volume regarding the meaning of ulterior intent in common law jurisdictions is significant in this regard. There it was stated that that ‘ulterior intent’ or ‘further intention’ offences requires an intention which ‘extends beyond’ the actus reus of the offence.80 Yet for crimes which are worded in terms of doing x with intent to produce y, it is suggested to consider the possibility that the phrase should be read as referring to purpose, so as to exclude the doctrine of oblique intent (indirect intent or dolus directus of the second degree). While both specific intent crimes and direct intent crimes (discussed below) require a proof of direct intent on the part of the accused, the former require an intention which extends beyond the objective elements of the offence.

III  Direct Intent Crimes, Dolus Eventualis and Gross Negligence Crimes The jurisprudence of the Yugoslavia and Rwanda Tribunals assigned different degrees of mental state to particular crimes within the subject matter of their jurisdictions, namely direct intent, dolus eventualis and gross negligence crimes. These different degrees of fault elements as recognised by the two ad hoc Tribunals will be discussed in relation to the following crimes: rape as a war crime and a crime against humanity, the crime of outrages on personal dignity and the crime of extermination.

A  Rape – Direct Intent Crime (Intent and Knowledge) In the jurisprudence of the Yugoslavia Tribunal, the crime of rape has been charged under different headings, for example, as a war crime under Article 3, as a crime against humanity under Article 5(g) and as persecution under Article 5(h). The constituent elements of the crime are essentially identical, provided that respective jurisdictional requirements under each Article are met.81 The Kunarać et al Trial Chamber’s articulation of the elements of rape was as follows:

80   RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Basil Blackwell, 1990) 39. 81   A Trial Chamber may enter convictions for rape under both Art 3, and rape as a crime against humanity under Art 5(g) of the ICTY Statute. According to the Jelisić Appeal Judgement, Art 3 and Art 5 are crimes each containing ‘a special ingredient not possessed by the other’. Jelisić Appeal Judgement, para 82. But where rape is charged as part of Art 5(h) (persecution) and 5(g) and where all requirements for both charges are met, the former prevails over Art 5(g) for reasons of specificity.

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Direct Intent Crimes, Dolus Eventualis and Gross Negligence Crimes The actus reus of the crime of rape in international law is constituted by the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim. 82

In light of the above-quoted judgment, absence of consent clearly constitutes a circumstance element of the offence of rape which has to be covered by the mental state of the accused – that the accused is aware that such a circumstance exists. Such state of mind may be inferred from all the circumstances surrounding the events, including the coercive environment in which the act took place. Accordingly, the Kunarać et al Trial Chamber rejected the defence’s assertion that the accused (Kunarać) was not aware of the fact that the victim did not voluntarily have sexual intercourse with him. Considering the general context of the existing wartime situation, and the specifically delicate situation of the detained Muslim girls, the Trial Chamber was satisfied beyond reasonable doubt that Kunarać acted ‘in the full knowledge that the victim did not freely consent’.83 As far as the jurisprudence of the Rwanda Tribunal is concerned, the mens rea of the offence of rape as a crime against humanity is the intention to effect sexual penetration, with the knowledge that the act was perpetrated without the consent of the victim.84 In the Gacumbitsi Appeal Judgment,85 the prosecution had argued that non-consent of the victim and the perpetrator’s knowledge thereof should not be considered as constitutive elements of the offence that must be proved by the prosecution.86 According to the prosecution, the crime of rape should be viewed in the same way as other violations of international criminal law, such as torture or enslavement, for which absence of consent is not an essential element of the offence.87 Subject to the limitation of Rule 96 of the ICTR’s Rules of Procedure and Evidence, the prosecution contended that consent should be considered an affirmative defence.88 82   Kunarać et al Trial Judgement, paras 460, 437, approved in Kunarać et al Appeal Judgement, para 128. For the ICTR see Muhimana Trial Judgement, para 542, endorsing the definition given to this offence by the Kunarać et al Trial Judgement. 83   Kunarać et al Trial Judgement, ibid, para 647 (emphasis added). 84   Kamuhanda Trial Judgement, paras 708–09; Kajelijeli Trial Judgement, paras 914–15 endorsing the Kunarać et al Appeal Judgement, para 128; Kunarać et al Trial Judgement, ibid, para 412. See also Semanza Trial Judgement, paras 345–46, endorsing the Kunarać et al Appeal Judgement, ibid, paras 127–28. 85   Gacumbitsi Appeal Judgement. 86   ibid, para 147, quoting Prosecution Appeal Brief, paras 155, 156. 87   ibid, para 149, quoting Prosecution Appeal Brief, paras 159, 182. 88   ibid, para 147, quoting Prosecution Appeal Brief, para 160.

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The Gacumbitsi Appeals Chamber agreed with the prosecution that the matter should be considered as one of ‘general significance for the Tribunal’s jurisprudence’.89 Based on the definition given to the crime of rape by the Kunarać et al Appeals Chamber,90 the Gacumbitsi Appeals Chamber found that (1) non-consent and (2) knowledge thereof are constitutive elements of rape as a crime against humanity, and that the prosecution bears the burden of proving these elements.91 As for the prosecution’s argument that consent should be considered an affirmative defence based on Rule 96, the Appeals Chamber drew attention to the fact that ‘[t]he Rules of Procedure and Evidence do not, however, redefine the elements of the crimes over which the Tribunal has jurisdiction, which are defined by the Statute and by international law’.92 According to the Appeals Chamber, Rule 96 must be read simply to define circumstances under which evidence of consent will be admissible, rather than changing the definition of the crime by turning an element into a defence.93 The Gacumbitsi Appeals Chamber endorsed the Kunarać et al Trial Chamber’s analysis of Rule 96 vis-à-vis the element of consent in the crime of rape: The reference in the Rule [96] to consent as a ‘defence’ is not entirely consistent with traditional legal understandings of the concept of consent in rape. Where consent is an aspect of the definition of rape in national jurisdictions, it is generally understood [. . .] to be absence of consent which is an element of the crime. The use of the word ‘defence’, which in its technical sense carries an implication of the shifting of the burden of proof to the accused, is inconsistent with this understanding. The Trial Chamber does not understand the reference to consent as a ‘defence’ in Rule 96 to have been used in this technical way.94

In light of the foregoing, direct intent with regard to the proscribed conduct and knowledge with regard to the circumstance element are the requisite mental states for the crime of rape.

B  Outrages upon Personal Dignity – Direct Intent Crime The crime of ‘outrages upon personal dignity’ has been charged pursuant to Article 3 of the ICTY on the basis of common Article 3(1)(c) of the 1949 Geneva Conventions.95 The first ruling on the offence of outrages upon personal dignity   ibid, para 150 (fns omitted).   Kunarać et al Appeal Judgement, para 127. 91   Gacumbitsi Appeal Judgement, paras 151–53. 92  ibid, para 154, quoting Prosecutor v Duško Tadic´, Case No IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, para 25, fn 26. 93   Gacumbitsi Appeal Judgement, para 154, endorsing the view adopted by the Trial Chamber in the Kunarać et al Trial Judgement, para 464. 94   Gacumbitsi Appeal Judgement, ibid. 95   This provision expressly prohibits ‘outrages upon personal dignity, in particular humiliation and degrading treatment’. It is well established under the jurisprudence of the Yugoslavia Tribunal that Art 3 of the Statute permits the prosecution of offences falling under common Art 3 of the Geneva Conventions of 1949; Kunarać et al Trial Judgement, para 498; See also Tadic´ Appeal Decision on Jurisdiction, para 89. 89 90

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as a violation of the laws or customs of war was rendered by the Aleksovski Trial Chamber. In this case, the Chamber examined the legal basis of outrages upon personal dignity and held that the offence was a species of inhuman treatment.96 Its elements are said to consist of the following: (i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation, or otherwise be a serious attack on human dignity; and (ii) that he knew that the act or omission could have that effect.97

The reason that the Trial Chamber inserted element (ii) in the above-quoted judgment was to emphasise that the crime of outrages upon personal dignity does not require that the accused knew of the actual consequences of the act, mere knowledge of the possible consequences of the charged acts or omission is sufficient.98 Yet, the mens rea degree ‘intentionally’, as set out in element (i), applies only to the nature of the conduct and not to the result element. The relevant statement of the Kunarać et al Trial Judgment deserves lengthy quotation: The Trial Chamber is of the view that the requirement of an intent to commit the specific act or omission which gives rise to criminal liability in this context involves a requirement that the perpetrator be aware of the objective character of the relevant act or omission. It is a necessary aspect of a true intention to undertake a particular action that there is an awareness of the nature of that act.99 As the relevant act or omission for an outrage upon personal dignity is an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, an accused must know that his act or omission is of that character . . .. This is not the same as requiring that the accused knew of the actual consequences of the act.100

Thus, the offence of outrages upon personal dignity requires two different degrees of mens rea with regard to the nature of the conduct and the proscribed result. The former requires intent – the perpetrator intends to humiliate the victim – whereas the latter requires mere awareness, not certainty, of a substantial risk of the occurrence of the proscribed results.101 The required knowledge could be easily inferred from the factual findings. When ‘the objective threshold of the offence’ – that is, the serious consequence as described in element (i) – is met, ‘it would be rare that the perpetrator would not also know that the acts could have that effect’.102 96   Aleksovski Trial Judgement, para 54. The Aleksovski Appeals Chamber concurred that outrages on personal dignity is a category of inhuman treatment proscribed by Common Art 3 that resides within the broader concept of human dignity; see Aleksovski Appeal Judgement, para 26. 97   Kunarać et al Trial Judgement, paras 507, 514; Kunarać et al Appeal Judgement, paras 161, 163. 98   Kunarać et al Trial Judgement, ibid, para 512. On appeal, the Appeals Chamber rejected the appellant’s argument that, to be convicted under that heading, the perpetrator needed to know that his acts or omission would have had such an effect; Kunarać et al Appeal Judgement, ibid, paras 164–66. 99   Kunarać et al Trial Judgement, ibid. 100   ibid (emphasis in original). 101   According to the Kunarać el al Trial Chamber, the crime of outrages on personal dignity requires that the accused knew that his act or omission could cause serious humiliation, degradation or otherwise be a serious attack on human dignity; Kunarać et al Trial Judgement, ibid, para 514. 102   ibid, para 512.

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The Kunarać et al Appeal Judgment held that the nature of the acts inflicted, rapes, forced nudity, degrading submissions, ‘reached the objectivity threshold’ and therefore it would appear ‘highly improbable that the appellant was not aware that his acts could have such an effect’.103 The Appeals Chamber concurs with the Trial Chamber in that the crime of outrages upon personal dignity requires only knowledge of the possible consequences of the charged act or omission.104

C  Extermination – Direct Intent, Dolus Eventualis or Negligent Crime? According to the ICTY and ICTR jurisprudence, extermination is the act of killing on a large scale.105 The jurisprudence of the Yugoslavia Tribunal has consistently held that, apart from the question of scale, the core elements of extermination are essentially similar to those required for ‘wilful killing’ under Article 2 and ‘murder’ under Articles 3 and 5 of the Statute.106 The Blagojević, Brđanin and Stakić Trial Chambers agree that in addition to the general requirements which must be established for a finding of a crime against humanity as provided for in the chapeau element of Article 5 of the Statute, the elements of extermination are the following: (i) act or omission that results in the death of persons on a massive scale (actus reus), and (ii) the intent to kill persons on a massive scale, or to inflict serious bodily injury or create conditions of life that lead to the death in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons (mens rea).107

The act amounting to extermination ‘must be collective in nature rather than directed towards singled out individuals’.108 This requirement of massiveness as a constitutive element of the actus reus of extermination has to be determined on a   Kunarać et al Appeal Judgement, para 166.   ibid, para 165.   Stakić Appeal Judgement, para 259, citing Ntakirutimana Appeal Judgement, para 516. See also Seromba Appeal Judgement, para 190; Perišić Trial Judgement, para 106. 106   Perišić Trial Judgement, para 106; Krajišnik Trial Judgement, para 716; Blagojević and Jokić Trial Judgement, para 571; Brđanin Trial Judgement, para 388; Krstić Trial Judgement, para 492; Vasiljević Trial Judgement, para 226; Stakić Trial Judgement, para 638. The International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind defines extermination in the following terms: ‘[e]xtermination is a crime which by its very nature is directed against a group of individuals. In addition, the act used to carry out the offence of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crime of genocide’. See the ILC, Draft Code of Crimes against the Peace and Security of Mankind, ‘Report of the International law Commission on the work of its 48th Session’ (6 May–26 July 1996) UNGA 51st Session Supp No 10 UN Doc A/51/10, Art 18, 118. 107   Blagojević and Jokić Trial Judgement, para 572; Brđanin Trial Judgement, ibid; Stakić Trial Judgement, ibid, paras 638, 641. 108   Stakić Trial Judgement, ibid, para 639, citing with approval the Vasiljević Trial Judgement, para 227. 103 104 105

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case-by-case analysis of all relevant factors.109 According to the Perišić Trial Judgment it is not required that a massive number of killings occurred during a single incident in a concentrated place over a short period.110 The crime of extermination may also be found ‘on an accumulation of separate and unrelated incidents, meaning on an aggregated basis’.111 As for the mens rea for the crime of extermination, the jurisprudence of the Yugoslavia Tribunal mirrors the inconsistency with regard to this issue. Apart from the ICTR approach, which expands the fault element of this offence to include gross negligence, three different approaches can be identified in the jurisprudence of the ICTY.112 Pursuant to the first approach, which is formulated by the Krstić Trial Chamber, the mens rea of extermination, similar to the crime of murder, ‘consists of intention to kill or the intention to cause serious bodily injury to the victim which the perpetrator must have reasonably foreseen was likely to result in death’.113 Accordingly, the Krstić Judgment recognises recklessness as a sufficient mens rea for the crime of extermination. The Stakić Trial Chamber adopted a second approach ruling that the mens rea of extermination is either dolus directus or dolus eventualis.114 ‘It would be incompatible’, noted the Stakić Trial Chamber, ‘with the character of the crime of extermination and with the system and construction of Article 5 if recklessness or gross negligence sufficed to hold an accused criminally responsible for such a crime’.115 Thus, in order to sustain a conviction for extermination, the prosecution has to demonstrate either that the accused has the conscious objective to kill persons on a massive scale or to create conditions of life that lead to the death of a large number of individuals (dolus directus); or the accused acted in the knowledge that inhalation of mass people would be the probable outcome and he reconciled himself to and made peace with it (dolus eventualis). Interestingly, this finding by Trial Chamber I clearly shows that mere common law recklessness is not equivalent to the continental law dolus eventualis. The latter requires a cognitive element of awareness and a volitional element of acceptance of the risk, whereas mere recklessness lacks such a volitional element. The third approach has been articulated in the Vasiljević Trial Judgment which requires an additional element – the accused’s awareness that his actions were 109   Brđanin Trial Judgement, para 391, citing with approval the Stakić Trial Judgement, ibid, para 640, and other judgments of the ICTR. 110   Perišić Trial Judgement, para 107. 111   Martić Trial Judgement, para 63; Brđanin Trial Judgement, para 391. See also Stakić Trial Judgement, para 640. 112  In Kayishema, the Rwandan Tribunal found that the mens rea of extermination is that an accused through his act(s) or omission(s) must have intended the killing, or be reckless, or grossly negligent as to whether the killing would result and be aware that his act or omission forms part of mass killing event; see Kayishema and Ruzindana Trial Judgement, para 144. It is to be noted that the Kayishema Judgement requires ‘knowledge’ as to the circumstance element (the accused be aware that his act or omission forms part of mass killing event). 113   Krstić Trial Judgement, para 495. 114   Stakić Trial Judgement, para 642. 115  ibid.

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part of a vast murderous enterprise in which a large number of individuals were systematically marked for killing or were killed: The offender must intend to kill, to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission is likely to cause death, or otherwise intends to participate in the elimination of a number of individuals, in the knowledge that his action is part of a vast murderous enterprise in which a large number of individuals are systematically marked for killing or killed.116

Contrary to the position in Vasiljević, the Blagojević, Brđanin and Stakić Trial Chambers viewed the existence of a ‘vast scheme of collective murder’ as a mere evidence from which the accused’s knowledge that his act was a part of a widespread or systematic attack against civilian population may be inferred. According to these Trial Chambers the ‘vast scheme of collective murder’ is neither a legal ingredient element of the crime nor an additional layer of the mens rea for the commission of the crime.117 The ICTY Appeals Chamber put an end to this longlasting debate, ruling that ‘knowledge of “a vast scheme of collective murder” is not an element required for extermination, a crime against humanity’.118 The Stakić Appeals Chamber found that such an approach is permitted by what was said by the ICTR Appeals Chamber in the Ntakirutimana Appeal Judgment: The ICTR Appeals Chamber has clearly stated that the actus reus of extermination is ‘act of killing on a large scale’. The actus reus also includes ‘subjecting a widespread number of people to conditions of living that would inevitably lead to death’. The mens rea required for extermination is that the accused intended, by his acts or omissions, either killing on a large scale, or the subjection of a widespread number of people, or the systematic subjection of a number of people, to conditions of living that would lead to their deaths.119

It follows from the foregoing, that the mens rea of the crime of extermination requires ‘the intention to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths’.120 This mens rea is a clear reflection of the actus reus of the crime.121 Adopting, however implicitly, an element analysis approach, the Stakić Appeals Chamber found that there is no requirement of intent to kill a certain threshold number of victims simply because there is no numerical threshold established with respect to the actus reus of extermination.122 116   Vasiljević Trial Judgement, para 229 (emphasis added). However, the Stakić Appeals Chamber noted that ‘the Vasiljević Trial Judgement did not include “knowledge of a vast scheme of collective murder” in its summation of the elements of the crime of extermination’. See Stakić Appeal Judgement, para 258. 117   Blagojević and Jokić Trial Judgement, para 576, endorsing the view of the Brđanin Trial Judgement, para 394; Stakić Trial Judgement, para 640. 118   Stakić Appeal Judgement, para 259; Krstić Appeal Judgement, para 225. See also Perišić Trial Judgement, para 107. 119   Stakić Appeal Judgement, ibid. See also Perišić Trial Judgement, ibid. 120   Stakić Appeal Judgement, ibid, para 260. 121   ibid. The Stakić Appeals Chamber noted that there is no support in customary international law for the requirement of intent to kill a certain threshold of number of victims. 122   Stakić Appeal Judgement, ibid.

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In view of the above, the mens rea of the offence of extermination is satisfied by either dolus directus or dolus eventualis; mere recklessness and gross negligence are excluded. As far as the jurisprudence of the Rwanda Tribunal is concerned, it is evident that the case law of this Tribunal mirrors the same inconsistency which shaped that of the Yugoslavia Tribunal with regard to the requisite mens rea for the crime of extermination.123 Tracing the case law of the Rwanda Tribunal, three different approaches can be identified in defining the subjective element of this offence. Pursuant to the first approach, which is followed by the Bisengimana, Kajelijeli, Kayishema, and Bagilishema Trial Chambers, the mens rea of extermination consists of the accused’s intention to kill, or being reckless or grossly negligent as to whether the killings would result from his proscribed conduct.124 In the words of the Kayishema Trial Chamber the requisite elements of extermination are as follows: The actor participates in the mass killing of others or in the creation of conditions of life that lead to the mass killing of others, through his act(s) or omission(s); having intended the killing, or being reckless, or grossly negligent as to whether the killing would result and; being aware that his act(s) or omission(s) form part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.125

Notwithstanding the plain meaning of the above-quoted judgment, which explicitly attributed the mental state of the accused (intent, reckless or gross negligence) to the result element – mass killing – the Kamuhanda Trial Chamber paraphrased it in the following words: We [Kamuhanda Trial Chamber] do not interpret Bagilishema and Kayishema and Ruzindana to suggest that a person may be found guilty of a Crime against Humanity if he or she did not possess the requisite mens rea for such a crime, but rather to suggest that reckless or grossly negligent conduct are indicative of the offender’s mens rea. Understood in that way, the Semanza position is not at odds with the Bagilishema and Kayishema and Ruzindana judgments.126

The Kamuhanda Trial Chamber’s understanding of the Kayishema Judgment is not persuasive with regard to the requisite mens rea for extermination. The Kamuhanda Judgment attributed the subjective elements – recklessness or gross 123   It is to be noted that in addition to the mens rea required for each of the enumerated acts of crimes against humanity as provided for in Art 3 of the ICTR Statute, it is settled in the jurisprudence of the ICTR that it has to be established that the accused acted with knowledge of the broader context of the attack and knowledge that his act formed part of the attack on the civilian population. Bisengimana Trial Judgement, para 57, referring to the case law of the ICTR and ICTY. 124   Bisengimana Trial Judgement, para 71: ‘To establish the mens rea of extermination, the Prosecution must prove that the accused intended the killing, or was reckless or grossly negligent as to whether the killings would result and was aware that his acts or omissions formed part of mass killing event’; Kajelijeli Trial Judgement, paras 894–95; Kayishema and Ruzindana Trial Judgement, paras 144, 146; Bagilishema Trial Judgement, para 89. 125   Kayishema and Ruzindana Trial Judgement, para 141 (emphasis added). 126   Kamuhanda Trial Judgement, paras 695–96.

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negligence – to the accused conduct, ruling that the mens rea of extermination may be inferred from the reckless or gross negligent conduct of the accused, leaving aside the requisite mens rea for both the circumstance element (vast scheme of collective murders) and the result element (mass killing of population). The second approach, which is adopted by the Ntakirutimana Appeals Chamber, Simba and Ndindabahizi Trial Chambers, sets the bar high regarding the subjective element of this crime, ruling that the mens rea of extermination is the intent to perpetrate or participate in a mass killing.127 The Ntakirutimana Appeals Chamber’s articulation of the elements of the crime of extermination is illustrative in this regard: [T]he crime of extermination requires proof that the accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death, and that the accused intended by his acts or omissions this result.128

In the words of the Ndindabahizi Judgment, the mens rea of extermination is that the accused ‘participated in the imposition of measures against many individuals intending that their death should be brought about on a large-scale’.129 The Semanza and Ntagerura Trial Chambers adopted a third approach, ruling that the mens rea of extermination is the intent to perpetrate or to participate in mass killing, without giving any further explanation on whether this mental state covers all the material elements of the offence, and which degree of intent the Tribunal would satisfy the mens rea of this offence.130 Finally, it is worth pointing out that, contrary to the Yugoslavia Tribunal, the ICTR jurisprudence considers the vast scheme of collective murder an ingredient element (circumstance element) of the offence of extermination, and as a consequence, it has to be covered by the mental state of the accused.131 In light of the above discussion, it is obvious that the jurisprudence of the Yugoslavia and Rwanda Tribunals recognised three different degrees of fault elements, namely direct intent, dolus eventualis and gross negligence. The Tribunals assigned different degrees of mens rea with regard to each of the material elements of the offence (element analysis). 127   Ntakirutimana Appeal Judgement, para 522; Simba Trial Judgement, para 422; Ndindabahizi Trial Judgement, para 480: ‘The mens rea for the offence of extermination is that the Accused participated in the imposition of measures against many individuals intending that their death should be brought about on a large-scale’; Ntagerura et al Trial Judgement, para 701: ‘The mental element for extermination is the intent to perpetrate or to participate in mass killing’. 128   Ntakirutimana Appeal Judgement, para 522 (emphasis added). 129   Ndindabahizi Trial Judgement, para 480 (emphasis added). The word ‘intending’ as used by the Trial Chamber does not include recklessness as the Trial Chamber declared: ‘Given the facts of the present case, there is no need to consider whether recklessness would also satisfy the mens rea of extermination’; ibid. 130   Semanza Trial Judgement, para 341. 131   Bisengimana Trial Judgement, para 71, citing the Kayishema and Ruzindana Trial Judgement, paras 144, 145; Rutaganda Trial Judgement, paras 83, 84; Musema Trial Judgement, para 218; Bagilishema Trial Judgement, para 94; Semanza Trial Judgement, ibid; Kamuhanda Trial Judgement, para 696; Kajelijeli Trial Judgement, para 894.

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IV  Wilful Crimes Pursuant to Article 2 of the ICTY Statute, the term ‘wilful’ or ‘wilfully’ is attached to three different types of offences, namely wilful killing, wilfully causing great suffering or serious injury to body or health and wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial. In Article 3, the term is attached to ‘wilful damage’. Through its jurisprudence, the ICTY has adopted the term ‘wilful’ as the relevant mens rea standard with respect to offences that expressly contain that element. One of the meanings given to the term ‘wilful’ by the Oxford English Dictionary (1933) is ‘having the will to do something; purposing, intending; wishful, desirous’.132 As for the adverb ‘wilfully’ the Oxford English Dictionary gives it the following definition, among others, ‘[p]urposely, on purpose, by design, intentionally, deliberately’.133

A  Wilful Killing134   In the Čelebići case, the Trial Chamber found that the necessary intent, meaning mens rea, required to establish the crime of wilful killing and murder, as recognised in the 1949 Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life.135

In order to reach this conclusion, the Trial Chamber specifically relied on the ICRC Commentary to the Additional Protocols (ICRC Commentary) which defines the adjective ‘wilfully’ in the following terms: The accused must have acted consciously and with intent, ie with his mind on the act and its consequences, and willing them (criminal intent or malice aforethought); this encompasses concepts of wrongful intent or recklessness viz, the attitude of an agent 132   The Oxford English Dictionary, A New English Dictionary on Historical Principles, vol XII, V–Z (Oxford: The Clarendon Press, 1933) 128. 133  ibid. 134   It is to be noted that under the jurisprudence of the ICTY the elements of this offence are the same for murder under Arts 3 and 5. See in this regard, Brđanin Trial Chamber, fn 913: ‘the constitutive requirements of murder and wilful killing under the different provision of the Statute are the same’; Čelebići Trial Judgement, para 422: ‘there can be no line drawn between “wilful killing” and “murder” which affects their content’; Krnojelac Trial Judgement, para 323: ‘It is clear from the jurisprudence of the Tribunal that the elements of the offence of murder are the same under both Article 3 and Article 5 of the Statute’. 135   Čelebići Trial Judgement, ibid, para 439. In para 436 of the Čelebići Trial the Trial Chamber had this to say: ‘The Trial Chamber is mindful of the benefits of an approach which analyse the amount of risk taken by an accused that his action will result in death and considers whether that risk might be deemed excessive. Under this approach, all of the circumstances surrounding the infliction of harm and the resulting death of the victim are examined and the relevant question is whether it is apparent from these circumstances that the accused’s actions were committed in a manner manifesting extreme indifference to the value of human life’.

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The above-quoted definition of the term ‘wilfully’, as viewed by the ICRC, has two important aspects. First, the term ‘wilfully’ requires proof of the two components of the mental element: knowledge and intent. The test is conjunctive; it has to be proved that the accused acted (i) consciously, and (ii) with intent with regard to the material elements of the offence. The use of the phrase ‘willing them’ within the ICRC definition assures that a volitive element must be established on the part of the defendant. The second aspect of the ICRC definition is the expansion of the term ‘wilfully’ to encompass cases where the accused may well foresee death or serious injury as a possible result, and he accepts such a result. The inclusion of the verb ‘accept’ within the definition of recklessness entails proof of a volitive element in addition to the element of consciousness, no matter how weak the former element might be. This proposition is supported by the Appeals Chamber in the Blaškić case. In this case, the prosecution submitted that the existence of a volitive component must be present in all forms of responsibility under Article 7(1) of the Statute.137 The Blaškić Appeals Chamber asserted that ‘an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard’.138 The Chamber concluded that ‘[o]rdering with such awareness has to be regarded as accepting the crime’.139 Furthermore, the findings rendered by the Čelebići Trial Chamber on the law of wilful killing and murder support this proposition: While different legal systems utilise differing forms of classification of the mental element involved in the crime of murder, it is clear that some form of intention is required. However, this intention may be inferred from the circumstances, whether one approaches the issue from the perspective of the foreseeability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness.140

This finding by the Čelebići Trial Chamber has two important aspects. First, it requires that some form of intention is established on the part of the accused in order to satisfy the threshold of wilful killing or murder. Secondly, the Trial Chamber, remarkably, distinguished between the intent required for these offences and the relevant circumstances from which this intent may be inferred. That is to say, foreseeability of death, or taking an excessive risk which resulted in death, is not in itself the mens rea required for the crime of wilful killing or murder, but it is sole evidence from which intent may be inferred.

  ICRC Commentary on Additional Protocol I, Art 85, para 3474, 994 (emphasis added).   Blaškić Prosecution’s Respondent Appeal Brief, para 5.28. 138   Blaškić Appeal Judgement, para 41 (emphasis added). 139   ibid, para 42 (emphasis added). 140   Čelebići Trial Judgement, para 437 (emphasis added). 136 137

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In Strugar, the Trial Chamber found that the necessary mental state of wilful killing and murder exists when ‘the accused knows that it is probable that his act or omission will cause death’.141 However, the Chamber noted that this formulation may prove to require amendment so that ‘knowledge that death or serious bodily harm is a probable consequence is sufficient to establish the necessary mens rea’.142 From a German perspective, this formulation by the ICRC may be likened to the ‘consent and approval theory’ vis-à-vis the notion of dolus eventualis. This theory is applied by the German courts,143 and is usually referred to as the ‘theory on consent and approval’ (Einwilligungs- und Billigungstheorie).144 German legal scholars who subscribe to this theory are of the opinion that the offender must ‘seriously consider’ the result’s occurrence and must ‘accept the fact’ that his conduct could fulfil the legal elements of the offence.145 Another way of putting the point is to say the offender must ‘reconcile himself’ (sich abfinden) to the prohibited result.146 One might discern that, by including the acceptance element within the concept of recklessness, the ICRC commentators crossed the boundaries of common law recklessness to adopt the conception of dolus eventualis in continental law countries.147 The ruling of the Trial Chamber in Stakić supports this proposition. In Stakić, the Trial Chamber found that both a dolus directus and a dolus eventualis are sufficient to establish the requisite mental state of the crime of murder under Article 3 of the ICTY Statute and mutatis mutandis for wilful killing. According to the Stakić Judgment, the technical definition of dolus eventualis in German criminal law is the following: [I]f the actor engages in life-endangering behaviour, his killing becomes intentional if he ‘reconciles himself ’ or ‘makes peace’ with the likelihood of death. Thus, if the killing is committed with ‘manifest indifference to the value of human life’, even conduct of minimal risk can qualify as intentional homicide. Large scale killings that would be classified as reckless murder in the United States would meet the continental criteria of dolus eventualis.148

In a case before the Yugoslavia Tribunal, Trial Chamber II ruled that in order to hold an individual criminally liable for murder under Article 3 of the ICTY Statute   Strugar Trial Judgement, para 236.   Strugar Rule 98 Trial Decision, para 236.   BGHSt 36, 1; 44, 99; BGH NStZ (Neue Zeitschrift fuer Strafrecht, 1999) 507; BGH NStZ 2000,

141 142 143

583. 144   Johannes Wessels and Werner Beulke, Strafrecht: Allgemeiner Teil (Heidelberg: Müller Verlag, 2002) 76. 145   Claus Roxin, Strafrecht: Allgemeiner Teil (München: Beck’sche Verlagsbuchhandlung,1997) 376. 146  ibid. 147  See Michael Bothe, ‘War Crimes’, in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2001) 392: ‘[t]he term “wilful killing” was chosen by the drafters of the Geneva Conventions of 1949 without any clear idea as to what distinguishes killing which is wilful and which is not. . . . A conduct can only be called wilful if the perpetrator acted intentionally or recklessly in relation to the death of the protected person’. 148   Stakić Trial Judgement, para 587.

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and mutatis mutandis for the crime of wilful killing, it must be established that ‘the [accused’s] act or omission was committed with an intent to kill or inflict grievous bodily harm or serious injury, in the knowledge and with the acceptance that such act or omission was more likely than not to cause death’.149 As the Tribunal put it more clearly: Intent to kill is required in order to fulfil the mens rea of murder. This includes proof of a mental state wherein the perpetrator foresees as more likely than not that the death of the victim could occur as a consequence of his act or omission, and he nevertheless accepts the risk. Negligence and gross negligence do not satisfy the mens rea requirement. Further, premeditation is not a mens rea requirement.150

Interestingly, the Orić Trial Chamber asserted that individual criminal responsibility for serious crimes over which the ICTY has jurisdiction requires intention,151 and agreed with the defence submission that intent does not include recklessness.152 In the words of the Orić Judgment, ‘intention contains (1) a cognitive element of knowledge and (2) a volitional element of acceptance’.153 Accordingly, mere knowledge on the part of the accused is not sufficient to trigger the criminal liability for individuals for serious violations of international humanitarian law. Recent jurisprudence reveals that there is a consensus among the Trial and Appeals Chambers of the Yugoslavia Tribunal that direct intent or indirect intent are both sufficient mens rea for murder. The former mental state ‘requires the perpetrator’s desire to cause the death of the victim as a result of his act or omission’, whereas the latter ‘comprises the perpetrator’s knowledge that the death of the victim was the probable consequence of his act or omission’.154 It is also established in the ICTY jurisprudence that negligence and gross negligence cannot be construed as indirect intent.155 A further point that deserves particular mention is that the jurisprudence of the Yugoslavia Tribunal, in establishing the requisite mens rea for wilful killing, focused solely on the state of mind of the accused vis-à-vis the consequence of his conduct, leaving aside the mens rea required as to the circumstance element – the 149   Orić Trial Judgement, paras 346–47 (emphasis added). In para 345 of its judgment, the Orić Trial Chamber asserted that: ‘The definition of murder as a violation of the laws or customs of war is now settled in the jurisprudence of this Tribunal and of the ICTR. The elements defining murder under Article 3 of the Statute are identical to those required for “wilful killing” as a grave breach of the 1949 Geneva Conventions under Article 2 of the Statute and murder as a crime against humanity under Article 5 of the Statute’. 150   Orić Trial Judgement, para 348 (fns omitted). 151   ibid, para 279. 152   ibid, fn 1020. 153   ibid, para 279 (numbers added). 154   Perišić Trial Judgement, para 104, citing with approval the Kvočka et al Appeal Judgement, para 259; Delić Trial Judgement, para 48; Strugar Trial Judgement, para 235; Krstić Trial Judgement, para 495; Čelebići Trial Judgement, para 435. 155   Perišić Trial Judgement, para 104, citing with approval the Delić Trial Judgement, para 48; Martić Trial Judgement, para 60; Orić Trial Judgement, para 348; Stakić Trial Judgement, para 587; Strugar Trial Judgement, paras 235–36; Brđanin Trial Judgement, para 386.

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factual element that renders a particular individual a protected person.156 This element is considered under the jurisprudence of the ICTY as a factual element and not a jurisdictional one. In Čelebići, the Appeals Chamber noted that the definition of wilful killing under Article 2 contains a materially distinct element not present in the definition of murder under the other Articles of the Statute, namely the requirement that the victim be a protected person.157 Hence, the question as to whether the prosecution, in order to sustain a conviction for wilful killing under Article 2 of the ICTY Statute, had to prove that the defendant knew that his victim was a protected person is left unresolved under the jurisprudence of the Yugoslavia Tribunal. One might conclude that an accused, charged with wilful killing under Article 2, must be proved to have been aware of the fact that the victim was a protected person (circumstantial element), in addition to the mental state required with regard to the result element (dolus directus or dolus eventualis). In support of this conclusion, one might refer to Trial Chamber I in both the Galić and Perišić cases,158 which stated, concerning the crime of attacks on civilians set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II and punishable under Article 3 of the ICTY Statute: For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.159

This finding by the Galić Trial Chamber is cited with approval in the Halilović case, where the Trial Chamber asserted that ‘the mens rea of the perpetrator of murder must encompass the fact that the victims were persons taking no active part in the hostilities’.160 By analogy, to establish criminal responsibility for wilful killing under Article 2 of the ICTY Statute, the prosecution must prove that the defendant was aware or should have been aware of the status of the persons attacked. The same position was endorsed by Roger Clark and William Schabas: ‘the combatant who kills a protected person in error, believing that person to be a combatant and a lawful target, ought to have a defence of mistake of fact’.161 156   The chapeau of Art 2 of the ICTY Statute reads as follows: ‘The International Tribunal shall have the power to prosecute persons committed . . . grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention’. ‘Protected persons’ are defined in Art 4(1) of the fourth Geneva Convention as those ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. 157   Čelebići Appeal Judgement, paras 413, 423. 158   Perišić Trial Judgement, para 101. 159   Galić Trial Judgement, para 55. This finding by the Galić Trial Chamber was cited with approval in the Halilović Trial Judgement, para 36. 160   Halilović Trial Judgement, para 36; Strugar Trial Judgement, para 236; Naletilić Trial Judgement, para 248. 161   William A Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’ (2003) 37 New England Law Review 1015, 1021–02, citing Roger S Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Criminal Law Forum 291, 330–31.

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B  Wilfully Causing Great Suffering or Serious Injury to Body or Health Article 2(c) of the ICTY Statute embodies the grave breach of wilfully causing great suffering or serious injury to body or health.162 The Čelebići Trial Judgment defined this offence as ‘an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury’.163 It is distinguished from torture primarily on the basis that the alleged acts or omissions need not be committed for a prohibited purpose such as is required for the offence of torture.164 Hence, both torture and the crime of wilfully causing great suffering must be committed intentionally. For the latter offence, the perpetrator must have intended to act in a way which, in the normal course of events, would cause great suffering or serious injury to body or health.165 Similarly, in Kordić and Čerkez, the Trial Chamber found that the crime of wilfully causing great suffering constitutes ‘an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven’.166 In the Blaškić case, the defence submitted that the requisite mens rea of this offence ‘is the specific intent to cause the victim to suffer such treatment’.167 As with inhumane treatment, punishable under Article 2(b) of the ICTY Statute, the defence argued that the mens rea requirement for wilfully causing great suffering should be distinguished from the mens rea applicable to a charge of wilful killing under Article 2(a).168 It contended that, in order to sustain a conviction for ‘wilfully causing great suffering or serious injury to body or health, the prosecution must prove that the defendant or his subordinates intended that result, and, in addition, that the defendant or his subordinates acted because he or they meant for the victim to suffer.’169 In light of the foregoing, the offence of wilfully causing great suffering requires a direct intent. That is to say dolus eventualis, or indirect intent, is not a sufficient mens rea for this offence. The above analysis of the ICTY judgments evidenced that the term ‘wilfully’ is given two different degrees of mens rea. Where the term is attached to killing, it encompasses both mental states direct and indirect intent (dolus eventualis), whereas in the case of causing great suffering or serious injury, it means intent in the strict sense. Schabas has observed that ‘[i]f the term “kill  See Arts 50, 51, 130 and 147 of the 1949 Geneva Conventions I, II, III and IV respectively.   Čelebići Trial Judgement, para 511 (emphasis added).   ibid, para 442. 165   In the Limaj case, the Trial Chamber defined the mental state of torture as requiring direct intent, Limaj Trial Judgement, para 238. 166   Kordić and Čerkez Trial Judgement, para 245. 167   Prosecutor v Tihomir Blaškić, Case No IT-95-14-T, Defence Final Trial Brief, 22 July 1999, 57–58 (on file with the author). 168  ibid. 169  ibid. 162 163 164

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ing” were to stand alone, without the adjective “wilful”, it might be argued that the crime might also include non-intentional forms of homicide’.170

C  Destruction or Wilful Damage to Institutions Dedicated to Religion or Education This offence encompasses violations of customary rules of international humanitarian law concerning the protection of certain types of property in war.171 Article 3(d) of the ICTY Statute takes its expression from the corresponding conventional rule found in Article 27 of the Hague Regulations of 1907, Article 4 of the Hague Convention of 1954 and Article 53 of Additional Protocol II.172 In Strugar, the Trial Chamber noted that, while these provisions prohibit acts of hostility directed against cultural property, ‘Article 3(d) of the Statute explicitly criminalizes only those acts which result in damage to, or destruction of, such property’.173 According to the Strugar Trial Chamber, the actual damage or destruction occurring as a 170   Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’, above (n 161) 1020. 171   Art 3(d) ICTY Statute reads:

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not limited to: ... (d)  seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works or art and science; 172   Art 27 of the Hague Regulations of 1907 reads: In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable, purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. Article 4 of the Hague Convention of 1954 requires the States Parties to the Convention to: 1. [. . .] respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining of any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property. 2. The obligations mentioned in paragraph 1 of the present Article may be viewed only when military necessity imperatively requires such a waiver. ... 4. They shall refrain from any act directed by way of reprisals against cultural property. Article 53 of Additional Protocol II reads: Without prejudice to the Provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals. 173   Strugar Trial Judgement, para 308.

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result of an act directed against this property is an ingredient element in this offence.174 Despite the plural used in Article 3(d), it would be sufficient for the purpose of individual criminal liability that one institution protected under this provision – and, by analogy, one monument or one piece of work – is seized, destroyed or damaged.175 With respect to the requisite mens rea for the offence of destruction or devastation of property under Article 3(d), the jurisprudence of the ICTY consistently maintains that the destruction or damage must have been committed wilfully and that the accused must be shown to have intended, by his acts or conduct, to cause the destruction or damage to the property in question.176 That is to say, and as understood by the ICTY Trial Chambers, the mens rea requirement for this offence is dolus directus, or direct intent.177 While the Strugar Trial Chamber endorsed direct intent as the requisite mental element for this crime, it left open the possibility that a standard of mens rea lower than direct intent may also have been appropriate to trigger the criminal responsibility for this crime.178 Most notably, the Brđanin Trial Chamber disagreed with previous judgments’ restriction of the mens rea threshold of this offence for the following reason: [A]s religious institutions enjoy the minimum protection afforded to civilian objects the mens rea requisite for this offence should be equivalent to that required for the destruction or devastation of property under Article 3(b).179

Therefore, according to the Brđanin Trial Chamber, the mens rea required for ‘the destruction or wilful damage done to institutions dedicated to religion must have been either perpetrated intentionally, with the knowledge and will of the proscribed result or in reckless disregard of the substantial likelihood of the destruction or damage’.180 This lower threshold of mens rea was endorsed by the Appeals Chamber in the Strugar case which ruled that because the crime of destruction or wilful damage of cultural property under Article 3(d) of the Statute is lex specialis with respect to the offence of unlawful attacks on civilians objects, the mens rea requirement is also established if the acts of destruction or damage were wilfully (ie either deliberately or through recklessness) directed against such ‘cultural property.181

 ibid.   In the Naletilić case, the prosecution charged the accused for allegedly ordering the destruction of the mosque of Sovići (count 22: Seizure, destruction or wilful damage done to institutions dedicated to religion). 176   Strugar Trial Judgement, para 311; Blaškić Trial Judgement, para 185: ‘The damage or destruction must have been committed intentionally’; Naletilić Trial Judgement, paras 603–04: ‘[T]he perpetrator acted with intent to destroy the property’; Kordić and Čerkez Trial Judgement, para 361. 177   Strugar Trial Judgement, para 299. 178   It was questioned by the Strugar Trial Chamber ‘whether indirect intent ought also to be an acceptable form of mens rea for this crime’; para 311. 179   Brđanin Trial Judgement, para 599. 180  ibid. 181   Strugar Appeal Judgement, para 277. 174 175

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To conclude, wilfulness, for the purpose of the ICTY Statute, requires the prosecution to prove beyond reasonable doubt that the perpetrator, when he so acted, had one of the following mental states: (i) the intention to bring about the result; or (ii) reckless disregard of the likelihood of the consequence in question. This conclusion is supported by a recent judgment delivered by the Appeals Chamber of the ICTY in the Galić case.182 In discussing the requisite mens rea of the crime of attack on civilians as a violation of the laws and customs of war, the ICTY Appeals Chamber endorsed the finding of the Galić Trial Chamber that the meaning of wilfulness encompasses recklessness based on the ICRC Commentary to Article 85 of Additional Protocol 1.183 This finding was endorsed by the Strugar Appeals Chamber which interpreted the term ‘wilfully’ to incorporate wrongful intent, or recklessness but not mere negligence.184 Hence, in order to trigger the criminal responsibility for this crime the prosecution has to demonstrate that the acts of violence were wilfully directed against civilians, that is, either deliberately against them or through recklessness.185

V  Wanton Crimes Under the Statutes of the Yugoslavia Tribunal there are particular crimes which contain in their definition the adverb ‘wantonly’ or the noun ‘wanton’. Yet Article 2 (d) of the Statute of the Yugoslavia Tribunal provides that the Tribunal has the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions namely, ‘the extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’. Article 3(b) prohibits the ‘wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. According to the Oxford English Dictionary (1933) one of the definitions given to the word ‘wanton’ is ‘to deal carelessly or wastefully (with property, resources)’, whereas the adverb ‘wantonly’ means ‘recklessly, unadvisedly; without proper excuse or motive; in a way that betrays delight in wrong doing or mischief, wilfully’.186

  Galić Appeal Judgement.   ibid, paras 139–40.   Strugar Appeal Judgement, para 270, citing with approval the Galić Appeal Judgement, ibid, para 140, Galić Trial Judgement, para 54. 185   Strugar Appeal Judgement, para 270 (fns omitted). 186   The Oxford English Dictionary (n 132) 746–77. 182 183 184

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A  Unlawful and Wanton Extensive Destruction and Appropriation of Property Article 2(d) of the Statute sanctions ‘extensive destruction and appropriation of property when it is not justified by military necessity and is carried out unlawfully and wantonly’ as a grave breach of the Geneva Conventions of 1949.187 This provision combines two separate acts: (i) the destruction of property; and (ii) the appropriation of property.188 The plain meaning of Article 2(d) requires the destruction or appropriation to be extensive. However, one might well raise the question as to whether destruction or appropriation committed on a small scale fulfils the requirement of Article 2(d) in conjunction with Article 1 of the Statute which states that the Tribunal ‘shall have the power to prosecute persons responsible for serious violations of international humanitarian law’. Addressing this point, the Naletelić Trial Chamber ruled that ‘a single act may, in exceptional circumstances, be interpreted as fulfilling the requirement of extensiveness, as for instance the bombing of a hospital’.189 With regard to the mens rea requirement for destruction of property, the Brđanin, Naletelić and Kordić and Čerkez Trial Chambers agreed that, in order to uphold a conviction for this offence, the prosecution has to prove that the perpetrator had the intent to destroy the protected property or had acted in reckless disregard of the likelihood of its destruction.190 As far as the mens rea of appropriation of property is concerned, the Brđanin Trial Chamber held that ‘the perpetrator must have acted intentionally, with knowledge and will of the proscribed result’.191 In support of this conclusion, the Brđanin Trial Chamber endorsed the Naletelić Judgment with respect to the law of plunder where this offence, as sanctioned under Article 3(e) of the Statute, is defined as ‘wilful and unlawful appropriation of property’.192 The relevant paragraph has a footnote which reads as follows: The Celebici Trial Judgment . . . does not explicitly discuss the subjective element of plunder; however, it mentions looting by soldiers for their private gain and systematic 187   Art 2(d) of the ICTY Statute is based on Art 147 of Geneva Convention IV which sanctions as a grave breach the extensive destruction and appropriation of property protected by the Convention, not justified by military necessity and carried out unlawfully and wantonly. See Arts 50, 51 and 130 of the 1949 Geneva Conventions I, II and III respectively. 188   Brđanin Trial Judgement, para 584. In Naletelić, the Trial Chamber found that ‘two types of property are protected under the grave breach regime: (i) property, regardless of whether or not it is in occupied territory, that carries general protection under the Geneva Conventions of 1949, such as civilian hospitals, medical aircraft and ambulances; and (ii) property protected under Article 53 of the Geneva Conventions IV, which is real or personal property situated in occupied territory when the destruction was not absolutely necessary by military operations’; ibid, para 575 (fns omitted). 189   Naletelić Trial Judgement, para 576; Brđanin Trial Judgement, ibid, para 587; Blaškić Trial Judgement, para 157. 190   Brđanin Trial Judgement, ibid, para 589; Naletelić Trial Judgement, para 577; Kordić and Čerkez Trial Judgement, para 341. 191   Brđanin Trial Judgement, ibid, para 590 (emphasis added). 192   Naletilić Trial Judgement, para 612.

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The Naletelić Trial Chamber concluded that ‘intent in the appropriation of property is the necessary subjective element of plunder’.194 Thus, it is obvious that the Yugoslavia Tribunal assigned two different degrees of mens rea to the crimes of extensive destruction and appropriation of property. According to the Tribunal, recklessness is sufficient to trigger the criminal responsibility for the crime of ‘destruction of property’, whereas the crime of appropriation of property requires intention stricto sensu.

B  Wanton Destruction of Cities, Towns or Villages, or Devastation not Justified by Military Necessity Wanton destruction of cities, towns or villages, or devastation not justified by military necessity are two separate crimes punishable as a violation of the laws or customs of war under Article 3(b) of the Statute.195 The elements of the crime of wanton destruction not justified by military necessity were identified by the Trial and Appeals Chamber in the Kordić and Čerkez case in the following terms: (i) the destruction of property occurs on a large scale; (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.196

The mens rea required for the destruction or devastation of property under Article 3(b) was subject to a different understanding by the Yugoslavia Tribunal.   ibid, para 208, fn 1498.   ibid (emphasis added). Most notably, other grave breaches which do not include, in their definition, the words ‘wilful’, ‘wilfully’ or ‘wantonly’ must also be committed with intent. In Čelebići, the Trial Chamber found that grave breach of inhumane treatment consists of ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity’. Čelebići Trial Judgement, para 348. I am indebted to Professor Schabas for this observation; see Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’, above (n 161) 1021. 195   Strugar Trial Judgement, para 290. Whereas in the Kordić and Naletilić cases the accused were indicted with the offence of ‘wanton destruction not justified by military necessity’, in Blaškić and Strugar, the accused were indicted with the offence of ‘devastation not justified by military necessity’. In Brđanin, however, the prosecution has charged the accused with both offences ‘wanton destruction of cities, towns and villages, or devastation not justified by military necessity’. 196   Kordić and Čerkez Trial Judgement, para 346; Kordić and Čerkez Appeal Judgement, para 74. See also Naletilić Trial Judgement, para 579; Hadžihasanović Rule 98 Trial Decision, para 107; Stakić Trial Judgement, para 761. In Strugar, the Trial Chamber applied this definition to the crime of devastation with appropriate adaptations to reflect ‘devastation’, for the crime of ‘devastation not justified by military necessity’, 193 194

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According to the Blaškić Judgment, ‘the devastation must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused’.197 This approach was subject to slight modification by the Kordić and Čerkez, Naletilić and Stakić Trial Chambers in which the mens rea of the crime of wanton destruction was defined as ‘the intent to destroy the property in question or reckless disregard of the likelihood of its destruction’.198 In Strugar, the Trial Chamber used different terms with regard to the mens rea requisite for the offence in question. The Chamber ruled that ‘the mens rea requirement for a crime under Article 3(b) is met when the perpetrator acted with either direct or indirect intent, the latter requiring knowledge that devastation was a probable consequence of his acts’.199 However, one might well raise the question as to whether knowledge that the act will probably cause the proscribed result is the same mens rea standard as foresight of the result of the act. Addressing this point, the Naletilić Trial Chamber found that there is no substantial difference between the two standards; ‘reckless disregard’ is equal to ‘foreseeability of the consequences of the conduct and acceptance of the results as its very likely consequence’.200 To conclude, the term ‘wanton’ as it stands in the definition of the crimes under consideration appears to be superfluous. On many occasions the Yugoslavia Tribunal assigned different standards of mens rea to the crimes under consideration without having to discuss the exact meaning of the term wanton. In light of the foregoing discussion, one might discern that the presence or absence of the term ‘wanton’ within the definition of these crimes under consideration had nothing to do with the subjective elements of these crimes. It is, however, the type of the proscribed conduct – whether destruction or appropriation of the property concerned – which connotes the degree of mens rea required.

VI  Premeditated Crimes – Murder under Article 3(a) of the ICTR Statute Based on a comparison between the English (murder) and French (assassinat) provisions of the ICTR Statute with respect to crimes against humanity, some ICTR Trial Chambers held that murder as a crime against humanity includes the act of murder and need not reach the level of ‘assassinat’, meaning that premeditation is not required.201 Other Trial Chambers were of the opinion that it is premeditated murder (assassinat) that constitutes a crime against humanity under   Blaškić Trial Judgement, para 183 (emphasis added).   Kordić and Čerkez Trial Judgement, para 346; Naletilić Trial Judgement, para 579 (emphasis added). See also Kordić and Čerkez Appeal Judgement, para 74. 199   Strugar Trial Judgement, paras 296–97. 200   Naletilić Trial Judgement, fn 1440. 201  See Akayesu Trial Judgement, para 588; Rutaganda Trial Judgement, para 79; Musema Trial Judgement, para 214. 197 198

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Article 3(a) of the ICTR Statute.202 In his treatise on the UN International Criminal Tribunals Schabas has observed that the word assassinat would normally be translated into English as ‘premeditated murder’, which is one notch more serious than intentional homicide. Subsequent Frenchlanguage versions of the definition of crimes against humanity, notably the draft Code of Crimes adopted by the International Law Commission in 1996 and the Rome Statute of the International Criminal Court, use the term meurtre, which is also equivelant to the English word ‘murder’ and synonymous with intentional killing.203

In the words of the Semanza Trial Chamber: Premeditation requires that, at a minimum, the accused held a deliberate plan to kill prior to the act causing death, rather than forming the intention simultaneously with the act. The prior intention need not be held for very long; a cool moment of reflection is sufficient.204

The accused need not have premeditated the murder of a particular individual; rather, it is sufficient that he had a premeditated intention to murder civilians as part of the widespread or systematic attack on discriminatory grounds.205 According to the Kayishema Trial Chamber when the crime of murder is considered along with assassinat, the standard of mens rea required is twofold: intentional and premeditated killing.206 According to the Kayishema Judgment, the result is intended when it is the accused’s purpose to cause this result, or he is aware that it will occur in the ordinary course of events, whereas the result is premeditated when the accused formulated his intent to kill after a cool moment of reflection.207 Thus, in order to incur criminal liability for an accused for murder as a crime against humanity under Article 3(a) of the ICTR the following elements have to be established: (i) the accused engaged in a proscribed conduct which causes the death of another; (ii) by a premeditated act or omission; (iii) intending to kill any person or, intending to cause grievous bodily harm to any person.208 In light of the foregoing, murder as a crime against humanity under Article 3(a) of the ICTR Statute, is an intentional and premeditated crime; any other lower mental states (for example, dolus eventualis or recklessness) is not sufficient to trigger the criminal responsibility for this offence. Recent judgments delivered by the Yugoslavia Tribunal made it clear that premeditation is not an essential element for murder as a crime against humanity. 209 202   Muhimana Trial Judgement, para 569; Bagilishema Trial Judgement, para 84; Kayishema and Ruzindana Trial Judgement, para 139; Semanza Trial Judgement, paras 338–39. 203  Schabas, The UN International Criminal Tribunals, above (n 2) 198–99. 204   Semanza Trial Judgement, para 339. See also Muhimana Trial Judgement, para 569 and Kayishema and Ruzindana Trial Judgement, para 139. 205   Semanza Trial Judgement, ibid; Ntagerura et al Trial Judgement, para 700. 206   Kayishema and Ruzindana Trial Judgement, para 139. 207  ibid. 208   ibid, para 140. 209   Orić Trial Judgement, para 348. See also Brđanin Trial Judgement, para 386; Kordić and Čerkez Trial Judgement, para 235.

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In view of what has been examined and discussed above, an accused who lacks the element of premeditation would be acquitted by the Rwanda Tribunal, but if the same accused were to be tried before the Yugoslavia Tribunal he would be sent to prison for life.

VII  General Remarks and Conclusion This chapter reveals the evolutionary developments of the law of mens rea in the jurisprudence of the ICTY and the ICTR. Through their jurisprudence, the Yugoslavia and Rwanda Tribunals have employed different mens rea terms and expressions in order to maintain the culpability levels required for serious violations of international humanitarian law. The first culpability term used by the ICTY and ICTR is ‘specific intent’, or dolus specialis; both terms seem to be used interchangeably. It is evident from the case law of the ICTY that these terms are attributed to particular classes of crimes which require a surplus of intent; a particular intent to achieve some further consequence beyond the result that constitutes the actus reus of the offence in question. Since these crimes are worded in terms of doing x with intent to do or produce y, it is submitted that the phrase should be read as referring to purpose, so as to exclude any degrees of mens rea lower than direct intent. The ICTY has assigned, for this category of crime, a higher degree of mens rea which is equated to ‘purpose’, a culpability level known to both common and continental legal systems.210 Antonio Cassese once noted: International rules may require a special intent (dolus specialis, dol aggravé) for particular classes of crimes. There is such special intent when an international rule, in addition to requiring the intent to bring about a certain result by undertaking certain conduct (for example, death by killing), also requires that the agent pursue a specific goal that goes beyond the result of his conduct, with the consequence that attainment of such goal is not necessary for the crime to be consummated.211

The second culpability term used by the Yugoslavia Tribunal is ‘direct intent’, or dolus directus. The ICTY attributed this level of culpability for particular crimes such as rape and outrages upon personal dignity. The terms ‘intentional’, ‘intentionally’ and ‘deliberately’ are used interchangeably by the ICTY in order to signify this culpability level. In most cases, where the Tribunal required intent (in the strict sense) as a requisite mens rea for a particular crime under its jurisdiction, this degree of intent is not attributed to all the material elements of the crime in question (conduct, circumstance and consequence). Taking the crime of outrages upon personal dignity as an example, the ICTY assigned a higher degree of 210   This higher degree of mens rea is known in German criminal law as Absicht or dolus directus of the first degree. See the discussion in ch 5 of this volume. For the Model Penal Code definition of the culpability term ‘purpose’, see the discussion in ch 4 of this volume. 211   Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) 167–68.

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mens rea intentionally with regard to the nature of the conduct whereas, with regard to result element, it assigned a culpable mental state of recklessness as opposed to actual knowledge. The third level of culpability recognised by the Tribunal is ‘indirect intent’. Through its judgments, the Tribunal refers to this degree of mens rea as advertent recklessness, or dolus eventualis. Both terms are used interchangeably by the ICTY to refer to a state of mind where ‘the person foresees that his action is likely to produce its prohibited consequences, and nevertheless takes the risk of so acting’.212 Both dolus eventualis and advertent recklessness, as understood by the ICTY, require a risk assessment, for example, the appreciation of the likeliness of the result which excludes mere criminal negligence. The Rwanda Tribunal departed slightly from the mens rea standards adopted by the ICTY. Surprisingly, the ICTR assigned a very high mens rea standard (premeditation) for particular crimes, such as murder under Article 3 of the ICTR Statute, whereas gross negligence was considered sufficient fault element for crimes against humanity of extermination!213 The present analysis reveals that, in the jurisprudence of the ICTY, the concept of recklessness – just as with the continental law dolus eventualis – requires some sort of acceptance on the part of the accused of the risk that he has recognised and some sort of decision to act in spite of that risk. This decision to act anyway is equivalent to the manifest indifference towards and the complete disregard for the outcome of the conduct. However, the question of the degree of foresight or the assessment of the probability of the risk remains unclear.

  ibid, 168 (emphasis in the original).   Bisengimana Trial Judgement, para 71: ‘To establish the mens rea of extermination, the Prosecution must prove that the accused intended the killing, or was reckless or grossly negligent as to whether the killings would result and was aware that his acts or omissions formed part of mass killing event’. 212 213

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10 The Mens Rea of Perpetration and Participation in the Jurisprudence of the ICTY and ICTR The expansion of mens rea is an easy but dangerous approach . . . Stretching notions of individual mens rea too thin may lead to the imposition of criminal liability on individuals for what is actually guilt by association, a result that is at odds with the driving principles behind the creation of this International Tribunal.1

I Introduction The elements of a crime are those facts which the prosecution must prove to establish that the conduct of the perpetrator constituted the alleged crime. However, participants other than the principal perpetrator of the criminal act may also incur liability for a crime, and in many cases different mens rea standards may apply to principal perpetrators and other participants.2 The Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY/Yugoslavia Tribunal) and the International Criminal Tribunal for Rwanda (ICTR/Rwanda Tribunal) contain provisions which explicitly hold that these Tribunals are concerned with natural persons only.3 Legal entities such as an association or organisation cannot and may not be declared criminal as such, thereby excluding and barring the membership in an entity as a legal basis for criminal responsibility.4 Articles 7(1)(3) and 6(1)(3) of the ICTY and ICTR Statutes,   Kordić and Čerkez Trial Judgement, para 219.   Vasiljević Appeal Judgement, para 102; Brđanin Decision on Interlocutory Appeal, para 5.   See Arts 6 and 5 of the Statutes of the ICTY and ICTR respectively. 4   Report of the Secretary-General pursuant to para 2 of the Security Council Resolution 808 (1993), S/25704, 3 May 1993 (Secretary-General Report) paras 50–51. In Nuremberg, however, many organisations were declared criminal by the International Military Tribunal (IMT); see the discussion in ch 8 of this volume. Some legal scholars hold the opinion that corporate entities should be held criminally liable for violations of international criminal law. See, for instance, RC Slye, ‘Corporations, Veils, and International Criminal Liability’ (2008) 33 Brookline Journal of International Law 955–73; K Magraw, ‘Universally Liable? Corporate-Complicity Liability under the Principle of Universal Jurisdiction’ 1 2 3

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Introduction respectively, are the general provisions governing if, when and through which mode of liability, an accused may be held criminally responsible for a crime within the jurisdiction of these Tribunals. The full text of these provisions reads as follows: Individual Criminal Responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present [ICTY] Statute [Articles 2 to 4 of the ICTR Statute] shall be individually responsible for the crime. 2. [. . .] 3. The fact that any of the acts referred to in Articles 2 to 5 of the present Statute [Articles 2 to 4 of the ICTR Statute] was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrator thereof.5

The principle underlying the aforementioned provisions is that an individual is responsible for his acts and omissions.6 That is to say, an individual may be held criminally responsible for the direct commission of a crime, whether as an individual or jointly,7 or through his omissions for the crimes of subordinates when under obligation to act.8 As in chapter nine of this volume, this chapter will discuss and examine the degrees of mens rea assigned by the two ad hoc Tribunals to different modes of perpetration and participation in criminal conduct through a systematic analysis of the case law of these Tribunals.9

(2009) 18 Minnesota Journal of International Law 458–97; J Kyriakakis, ‘Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare’ (2008) 19 Criminal Law Forum 115–51; William A Schabas, ‘Enforcing International Humanitarian Law: Catching the Accomplices’ (2001) 83 International Review of the Red Cross 439–58; A Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ in MT Kamminga and S Zia-Zarifi (eds), Liability of Multinational Corporations Under International Law (The Hague: Kluwer, 2000) 139–95. 5   See Arts 7(1)(3) and 6(1)(3) of the Statutes of the ICTY and ICTR respectively. 6   Tadic´ Appeal Judgement, para 186; Kordić and Čerkez Trial Judgement, para 364. 7   Tadic´ Appeal Judgement, paras 220, 227–28; Furundžija Trial Judgement, para 216; Kordić and Čerkez Trial Judgement, para 364. 8   Tadic´ Appeal Judgement, para 188; Čelebići Appeal Judgement, paras 215–68; Kordić and Čerkez Trial Judgement, para 364; Aleksovski Trial Judgement, paras 69–81. See also Secretary-General Report, above (n 4) paras 53–58. 9   This chapter includes the case law of the two ad hoc Tribunals up until January 2012.

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II  Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes A Planning i  Actus Reus The notion of ‘planning’ implies that one or several persons plan or design the commission of a crime within the jurisdiction of the Tribunals at both the preparatory and execution phases.10 The legal elements of planning do not require an accused to be the originator of the plan.11 The crime planned must, however, be accomplished in order to trigger the criminal responsibility of the planner.12 The level of participation in planning to commit a crime must be substantial – such as actually formulating a plan or endorsing a plan proposed by another individual.13 The crime, however, need not be executed by the planners, nor is their intervention in the commission of the offence required in any other way. The jurisprudence of the two ad hoc Tribunals does not require the presence of the accused as an element for planning;14 however his presence may be one of the factors considered in determining his mens rea for planning a crime.15 However, in situations where the planner is found to have committed the crime he will not be found responsible for planning the same crime.16 In other words, the commission of a crime as a perpetrator consumes responsibility as planner for the same crime.17 As of January 2012, there have been no convictions for the 10   Boškoski and Tarčulovski Appeal Judgement, para 154; Gacumbitsi Trial Judgement, para 271, citing Blaškić Trial Judgement, para 386, Musema Trial Judgement, para 119, Akayesu Trial Judgement, para 480. See also Kajelijeli Trial Judgement, para 761; Kamuhanda Trial Judgement, para 592. For the ICTY, see Limaj Trial Judgement, para 513; Brđanin Trial Judgement, para 268; Krstić Trial Judgement, para 601; Stakić Trial Judgement, para 443; Milošević Appeal Judgement, para 268; Kordić and Čerkez Appeal Judgement, para 26. 11   Boškoski and Tarčulovski Appeal Judgement, fn 418. 12   Akayesu Trial Judgement, para 473; Limaj Trial Judgement, para 513; Kordić and Čerkez Appeal Judgement, para 26. But see Guénaël Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press, 2005) 279–80: ‘The position of the Akayesu Trial Chamber . . . seems to be based on a misunderstanding as to the required degree of realisation of the offence of “planning”. “Planning” constitutes, in most legal systems, an inchoate offence. It is therefore realised and complete, once all of its elements are met, without there being a need for the offence planned to have been committed’. Contra see William A Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) 299: ‘conviction for planning a crime must involve proof that the crime itself actually took place. Planning does not seem to exist as an inchoate or incomplete crime, capable of being committed merely upon evidence that a crime within the jurisdiction of the tribunals was contemplated and designed’. 13   Bagilishema Trial Judgement, para 30. 14   Boškoski and Tarčulovski Appeal Judgement, fn 347. 15   ibid, para 132. 16   Galić Trial Judgement, fn 280, citing Kordić and Čerkez Trial Judgement, para 386. 17  ibid.

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stand-alone crime of planning a crime within the jurisdiction of the two ad hoc Tribunals.

ii  Mens Rea Criminal responsibility for planning depends on the accused directly or indirectly having intended the crime in question to be committed.18 Thus, if ‘P’ planned the ethnic cleansing of a village by force, he could incur criminal responsibility for ‘planning’ the wilful killings of any civilians killed during the execution of the plan. In Limaj, Trial Chamber II of the ICTY ruled that ‘[a] person who plans an act or omission with an intent that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute for planning’.19 The Trial Chamber gave no further clarification regarding the degree of intent required in order to trigger the criminal responsibility of ‘planning’ under Article 7(1) of the ICTY Statute. In Nahimana et al and Milošević, the Appeals Chambers of the ICTR and ICTY respectively extended the mens rea requisite for this mode of liability to reach the one of dolus eventualis: ‘the intent to plan the commission of a crime or, at a minimum, the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned’.20 There is no requirement for the risk of crimes being committed to be ‘justified’ or ‘reasonable’.21 In Boškoski and Tarčulovski, the Appeals Chamber clarified that the notions of ‘unjustifiable’ or ‘unreasonable’ were referred to by the Blaškić Appeals Chamber only in the context of the mens rea of recklessness in common law jurisdictions.22 According to the ICTR jurisprudence, all forms of accomplice liability under Article 6(1) require that the alleged perpetrator possesses the following mental states: (1) knowledge that his acts assist in the commission of the crime by the actual perpetrator and (2) awareness of the essential elements of the crime, and that his acts thereby supported the commission of the crime.23 For an individual to be criminally liable for ‘planning’ a crime, it is not necessary to prove that any of the persons executing the plan had the requisite mens rea for the offence committed. Suppose high-level political and military leaders, from a distant location, plan the widespread destruction of civilian hospitals and schools in a particular area in order to demoralise the enemy, without the soldiers responsible for carrying out the attacks sharing the objective in question, or even knowing the nature of the relevant targets. In this hypothetical example, the   Blaškić Trial Judgement, para 278; Kordić and Čerkez Trial Judgement, para 386.   Limaj Trial Judgement, para 513 (emphasis added), citing with approval the Kordić and Čerkez Appeal Judgement, para 31. 20   Milošević Appeal Judgement, para 268; Nahimana et al Appeal Judgement, para 479. 21   Boškoski and Tarčulovski Appeal Judgement, para 174. 22   ibid, fn 470. 23   Kajelijeli Trial Judgement, para 768, citing Kayishema and Ruzindana Appeal Judgement, para 186 and Bagilishema Trial Judgement, para 32. 18 19

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high-level political and military leaders should bear criminal responsibility for planning, even though none of their troops are criminally liable in respect of execution of the plan. It is suggested that to entail criminal responsibility for ‘planning’ a crime within the subject matter jurisdiction of the two ad hoc Tribunals, both a cognitive and a volitional element have to be established on the part of the accused. Yet mere knowledge that crimes can be committed other than the one planned would not satisfy the mens rea threshold of planning under Articles 7(1) and 6(1) of the ICTY/ICTR Statutes. Two recent judgments delivered by the Yugoslavia Tribunal support this position. In the Blaškić case, the Appeals Chamber asserted that knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law [and that, therefore,] an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.24

Speaking in a rather similar vein, the Orić Trial Chamber expressly stated that individual criminal responsibility for serious crimes over which the Tribunal has jurisdiction requires intention.25 Both cases were concerned with individual criminal responsibility under Article 7(1) of the ICTY Statute.

B Instigating i  Actus Reus In the words of the ad hoc Tribunals, ‘instigating’ entails prompting another to commit an offence.26 Instigation encompasses incitement, but it is much broader than the latter. In particular, there is no requirement that instigation be direct and public.27 Instigation can be expressed or implied, and can also be by omission rather than by a positive act.28 According to the Orić Trial Chamber, it is not necessary for the original idea or plan to commit the crime to be produced by the instigator. The Chamber stated: Even if the principal perpetrator was already pondering on committing a crime, the final determination to do so can still be brought about by persuasion or strong encouragement of the instigator. However, if the principal perpetrator is an ‘omnimodo

  Blaškić Appeal Judgement, para 41.   Orić Trial Judgement, para 279.   Limaj Trial Judgement, para 514; Brđanin Trial Judgement, para 269; Kamuhanda Trial Judgement, para 593; Akayesu Trial Judgement, para 482; Blaškić Trial Judgement para 280; Krstić Trial Judgement, para 601; Kordić and Čerkez Trial Judgement, para 387. For the ICTR, see Gacumbitsi Trial Judgement, para 279; Kajelijeli Trial Judgement, para 762; Bagilishema Trial Judgement, para 30. 27   Gacumbitsi Trial Judgement, ibid, citing Semanza Trial Judgement, para 381, Bagilishema Trial Judgement, para 30, Akayesu Appeal Judgement, paras 478–82; Kajelijeli Trial Judgement, ibid. 28   Limaj Trial Judgement, para 514; Brđanin Trial Judgement, para 269, citing Blaškić Trial Judgement, para 280. For the ICTR, see Kajelijeli Trial Judgement, ibid; Kamuhanda Trial Judgement, para 593. 24 25 26

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Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes facturus’ meaning that he has definitely decided to commit the crime, further encouragement or moral support may merely, though still, qualify as aiding and abetting.29

Unlike ‘ordering’ as a form of participation under Article 7(1) of the ICTY Statute, the Orić Trial Chamber held that instigation ‘does not presuppose any kind of superiority’ between the instigator and the principal perpetrator.30 The Orić Trial Chamber ruled that ‘instigation influence can be generated both face to face and by intermediaries as well as exerted over a smaller or larger audience, provided that the instigator has the corresponding mens rea’.31 Although a nexus between instigation and the actual commission of the crime is required, it is not to be understood as requiring proof that, in terms of a conditio sine qua non, the crime in question would not have occurred without the instigator’s involvement.32 In Orić, the Trial Chamber followed neither the prosecution theory (the conduct of the accused was a clear and contributing factor of the commission of the crime) nor the defence submission (the conduct of the accused would have to have had a direct and substantial effect on the perpetration of the crime).33 Regarding the prosecution’s contention, the Chamber drew attention to the fact that ‘not any contributing factor can suffice for instigation, as it must be a substantial one’.34 Regarding the defence submission, it held that instigation ‘needs not necessarily have direct effect, as prompting another to commit a crime can also be procured by means of an intermediary’.35 In Gacumbitsi, however, the Appeals Chamber agreed with the prosecution’s contention that in order to trigger criminal responsibility for instigation ‘it suffices to show that the accused’s instigation “substantially contributed” to the commission of the crime – that is, that he set in motion a chain of events that were the foreseeable consequence of his instigation of the crime’.36 According to the Kordić Appeals Chamber, the ‘actus reus is satisfied if it is shown that the conduct of the accused [instigator] was a factor substantially contributing to the perpetrator’s conduct’.37 In Gacumbitsi, the Trial Chamber found that the accused incited the killing of Tutsi in Rusumo commune based on the following evidence: (1)The Accused, at various locations, publicly instigated the population to kill the Tutsi; (2) The Accused made speeches at the Rwanteru commercial centre where, following his instigation, those who listened to his speeches participated, shortly after, in looting property belonging to the Tutsi and killing the Tutsi.38   Orić Trial Judgement, para 271 (fns omitted).   ibid, para 272. 31   ibid, para 273 (emphasis added, fns omitted). 32   ibid, para 274. 33   ibid, paras 275–76. 34   ibid, para 276. 35   ibid (emphasis added). 36   Gacumbitsi Appeal Judgement, para 127, quoting the Prosecution Appeal Brief, paras 120–22, see also: Milošević Appeal Judgement, para 268. 37   Kordić and Čerkez Appeal Judgement, para 27. See also Brđanin Trial Judgement, para 269, citing Kordić and Čerkez Trial Judgement, para 387; Kvočka Trial Judgement, para 252. 38   Gacumbitsi Trial Judgement, para 279. 29 30

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In situations where the actus reus of an offence was carried out by several perpetrators, is it necessary to demonstrate that the instigator instigated the conduct of all the perpetrators? This issue is left unresolved under the jurisprudence of the ad hoc Tribunals. One might suggest that it is sufficient that the accused instigated the conduct of any of the perpetrators. A ‘chain of instigation’ would then be punishable under Articles 7(1) and 6(1) of the Statutes.

ii  Mens Rea With regard to the mens rea of ‘instigating’, the Yugoslavia Tribunal has consistently held that it is necessary to prove that the instigator either ‘(1) intended to provoke or induce the commission of the crime [direct intent], or (2) was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts [dolus eventualis]’.39 This runs contrary to the Trial Chamber’s ruling in the Kordić case. There, the Trial Chamber required proof of the accused’s direct intent ‘to provoke the commission of the crime’.40 In the Orić case, the Trial Chamber’s articulation of the instigator’s mens rea marked a decisive step on the way to a clearer recognition that individual criminal responsibility for serious crimes over which the ICTY has jurisdiction requires intention.41 The Chamber also agreed with the defence submission that ‘intent’ does not include ‘recklessness’.42 According to the Chamber, ‘intention contains (1) a cognitive element of knowledge and (2) a volitional element of acceptance and that this intention must be present with respect to both the participant’s own conduct and the principal crime he is participating in’.43 Accordingly, mere knowledge on the part of the accused is not sufficient to trigger the criminal liability of instigators for serious violations of international humanitarian law. As clarified by the Tribunal: [F]irst, (i) with regard to his own conduct, the instigator must be aware [cognitive component] of his influencing effect on the principal perpetrator to commit the crime, as well as the instigator, even if neither aiming at nor wishing so, must at least accept [volitive component] that the crime be committed. Second, (ii) with regard to the principal perpetrator, the instigator must be both aware of, and agree to, the intentional completion of the principal crime. Third, (iii) with regard to the volitional element of intent, the instigator, when aware that the commission of the crime will more likely than not to result from his conduct, may be regarded as accepting its occurrence. Although the latter does not require the instigator precisely to foresee by whom and under which circumstances the principal crime will be committed nor that it would exclude indirect inducement, the instigator 39   Kordić and Čerkez Appeal Judgement, para 32; Limaj Trial Judgement, para 514; Brđanin Trial Judgement, para 269, citing Kvočka Trial Judgement, para 252 (numbers added). 40   Kordić and Čerkez Trial Judgement, para 387. 41   Orić Trial Judgement, para 279. See also Blaškić Appeal Judgement, para 41. 42   Orić Trial Judgement, para 348, fn 1020. 43   ibid, para 279 (numbers added).

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Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes must at least be aware of the type and the essential elements of the crime to be com­ mitted.44

Elements (i) and (ii) as set out in the above quote clearly show that the instigator must possess ‘double intent’: in addition to the intent to incite, the instigator must intend that the main offence should be committed. Element (iii), however, extends the requisite mens rea for this mode of criminal participation to include dolus eventualis requiring the instigator to accept the inducing effect of his conduct. However, mere recklessness does not suffice to hold an instigator criminally responsible if he ‘did not expect and/or accept the conscious risk of his conduct’.45 As for the mens rea required for instigating the crime of genocide, the Appeals Chamber in Nchamihigo held that both the mens rea of instigating,46 and the specific intent for genocide must be established on the part of the instigator.47 This runs contrary to the finding of the Orić Judgment where the Trial Chamber makes it clear that in cases of ‘specific intent’ crimes, the ‘double intent’ requirement does not mean that the instigator would also have to share the ‘special intent’ which may be required for the commission of certain crimes within the subject matter jurisdiction of the ICTY.48

C Ordering i  Actus Reus The actus reus or the objective element of ‘ordering’ ‘requires that a person in a position of authority instructs another person to commit an offence’.49 There is no requirement that a person giving orders is a sole decision-maker or is the highest or only person in a chain of command. It is possible that a commander, who is himself acting on the orders of a hierarchical superior, or who is acting in concert with, or at the command of other political or military leaders, may nevertheless be criminally responsible for ordering crimes.50 With regard to the existence of a formal superior–subordinate relationship between the person giving the order and the one executing it, the two ad hoc Tribunals have ruled differently.51 Recent judgments rendered by the ICTY and   ibid (letters added).   ibid, para 103, fn 773. 46   Nchamihigo Appeal Judgement, para 61. 47  ibid. 48   Orić Trial Judgement, para 103, fn 772. 49   Limaj Trial Judgement, para 515, citing Kordić and Čerkez Appeal Judgement, para 28. See also Strugar Trial Judgement, para 331; ‘Ordering’ entails ‘a person in a position of authority using that position to convince another to commit an offence’. Krstić Trial Judgement, para 601; Renzaho Trial Judgement, para 738. 50   Blaškić Appeal Judgement, Partial Dissenting Opinion of Judge Weinberg De Roca, para 41. 51   There is a position that ordering implies the existence of a superior–subordinate relationship between the individual who gives the order and the one who executes it; Akayesu Trial Judgement, para 44 45

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the ICTR hold the position that ‘it is sufficient that the orderer possesses the authority, either de jure or de facto, to order the commission of an offence, or that his authority can be reasonably implied’.52 In the absence of such a relationship, however, the prosecution has to demonstrate that the accused’s words of incitement were perceived as orders within the meaning of Articles 7(1) and 6(1) of the ICTY/ICTR Statutes.53 There is no requirement regarding the form in which the order may be given;54 its existence ‘may be proven through direct or circumstantial evidence’.55 A causal link between the act of ordering and the physical perpetration of the crime at issue is an ingredient of the actus reus of ordering.56 This causal link, however, ‘need not be such as to show that the offence would not have been perpetrated in the absence of the order’.57 Finally, the authority creating the kind of relationship for ordering may be informal or of a purely temporary nature.58

ii  Mens Rea The authoritative judgment concerning the mens rea of ordering was delivered by the ICTY Appeals Chamber in the Blaškić case. In examining the issue of whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, the Appeals Chamber reversed the Trial Chamber’s articulations of the mens rea for ordering that:

483; Semanza Trial Judgement, para 382, citing with approval the Bagilishema Trial Judgement, para 30. Other Chambers hold the opinion that a formal superior–subordinate is not a requirement for a finding of ‘order’; see: Kajelijeli Trial Judgement, para 763; Kordić and Čerkez Trial Judgement, para 388; Strugar Trial Judgement, para 331. 52   Limaj Trial Judgement, para 515, citing Brđanin Trial Judgement, para 270. For the ICTR, see Gacumbitsi Trial Judgement, para 282. See also Renzaho Trial Judgement, para 738: ‘It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order’. 53   Gacumbitsi Trial Judgement, para 283. 54   Galić Trial Judgement, para 168, citing Krstić Trial Judgement, para 601; Akayesu Trial Judgement, para 483; Blaškić Trial Judgement, para 281; Kordić and Čerkez Trial Judgement, para 388. 55   Strugar Trial Judgement, para 331, citing Blaškić Trial Judgement, ibid; Kordić and Čerkez Trial Judgement, ibid. According to the Galić Judgement ordering ‘may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of the operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command’, Galić Trial Judgement, para 171. See also the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992) 27 May 1994 (S/1994/674) 17. 56   Strugar Trial Judgement, para 332. In Gacumbitsi, Trial Chamber III of the Rwanda Tribunal found that the accused incurred liability for having ordered the policemen to kill the Tutsi since the participation of those policemen was a direct consequence of the orders given by the accused, see Gacumbitsi, Trial Judgement, para 284. 57   Strugar Trial Judgement, ibid. 58   Renzaho Trial Judgement, para 738; Semanza Appeal Judgement, paras 361–63.

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Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber’s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.59

The Appeals Chamber concluded: A person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.60

Thus, in giving the order, two scenarios may be contemplated: (1) the accused possesses the requisite mens rea for an offence within the jurisdiction of the Tribunal and he ordered this offence to be committed, or (2) subject to strict conditions, the accused has the requisite mens rea, even if the crime which was ultimately committed was different from that initially ordered. The latter scenario can be illustrated by the following hypothetical example. If the accused orders the ‘ethnic cleansing’ of a village by force, he could be held responsible for ‘ordering’ the wilful killings of any of the civilians who are killed in execution of the plan, if he is aware of the substantial likelihood that killing will be committed in the execution of that order. Moreover, giving orders to a particular unit while being aware of the existence of criminals in its rank, amounts to accepting the risk that violent crime may result from their participation in the offensives.61 It is unnecessary to establish that those who execute the order possess the same mental state as those who have issued it. If a commander gives an order to attack a specific position, which he knows with certainty is not a military target, and civilians are taking refuge there, he could be held criminally liable pursuant to Articles 7(1) and 6(1) of the ICTY/ICTR Statutes for having ‘ordered’ the wilful killing of civilians, even if those who executed the order lacked the knowledge that they were shelling civilians. In such a situation, where none of the subordinates had the relevant mens rea, and were merely executing apparently legitimate orders, it may be that the commander could be regarded as having ‘committed’ wilful killing as an indirect perpetrator (mittelbarer Täter), using his subordinates as mere instruments.62 Addressing this point, the Blaškić Trial Judgment ruled that ‘what is important is the commander’s mens rea, not that of the subordinate executing the order’.63   Blaškić Appeal Judgement, para 41.   ibid, para 42. See also Limaj Trial Judgement, para 515; Kordić and Čerkez Appeal Judgement, para 30; Brđanin Trial Judgement, para 270. 61   Blaškić Trial Judgement, para 592. 62   See ch 5 of this volume. 63   Blaškić Trial Judgement, para 282. 59 60

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Evidence that a crime has been committed by members of a unit – and that its commander was present at the scene – ‘may be perceived as a significant indicium of his or her encouragement or support’ but it does not constitute prima facie evidence of the responsibility of the commander.64

D  Aiding and Abetting i  Actus Reus Aiding and abetting is a form of accessory liability or secondary participation to the ‘commission of a crime’.65 It applies to situations in which the actus reus or the objective elements of the crime are carried out by a person or persons other than the principal perpetrator. If the offender himself performed the actus reus of the offence, then he is no longer liable as an aider and abettor, but as a perpetrator or co-perpetrator of the crime at issue. One might discern that where the accused is responsible for aiding or abetting, and for other forms of liability under Articles 7(1) or 6(1) of the ICTY/ICTR Statutes (for instance, ‘ordering’ or ‘instigating’) the application of the lex specialis principle leads to the conclusion that the latter forms of participation prevail over aiding and abetting. Although the case law of the ICTY conflates ‘aiding’ and ‘abetting’ into a broad singular legal concept,66 ICTR case law views the two terms as distinct legal concepts.67 ‘Aiding’ is the provision of assistance to another in the commission of a crime, while ‘abetting’ is the facilitation of, or the provision of advice in relation to the commission of an act.68 The actus reus for ‘aiding and abetting’ is that the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime.69 The crime which the accused is said to have   Kajelijeli Trial Judgement, para 769.   Kunarać et al Trial Judgement, para 391. 66   On this point see Orić Trial Judgement, para 280. 67   Some ICTR judgments defined aiding to mean ‘giving assistance to someone’ and abetting to involve ‘facilitating the commission of an act by being sympathetic thereto’; see Akayesu Trial Judgement, para 484; Kayishema and Ruzindana Trial Judgement, para 196; Ntakirutimana Trial Judgement, para 787. Concerning abetting in particular, the ICTR Trial Chamber in the Semanza case refers to it as ‘encouraging, advising or instigating the commission of a crime’: Semanza Trial Judgement, para 384. Other cases further include ‘facilitating’ as well; see Kajelijeli Trial Judgement, para 765; Kamuhanda Trial Judgement, para 596. See also Limaj Trial Judgement, para 516. 68   Muhimana Trial Judgement, para 507; Gacumbitsi Trial Judgement, para 286; Ntakirutimana Trial Judgement, ibid; Semanza Trial Judgement, ibid; Kajelijeli Trial Judgement, para 763; Kvočka Trial Judgement, para 254. In Kajelijeli, the Trial Chamber noted that ‘[l]egal usage, including in the Statute and case law of ICTR and ICTY, so often inter-links the two terms that they are treated as a broad singular legal concept’; Kajelijeli Trial Judgement, para 765. 69   Blagojević and Jokić Trial Judgement, para 726; Brđanin Trial Judgement, para 271; Tadić Appeal Judgement, para 229; Aleksovski Appeal Judgement paras 163–64; Čelebići Appeal Judgement, para 352; Furundžija Trial Judgement, paras 235, 249; Vasiljević Appeal Judgement, para 102; Naletilić Trial Judegment, para 63; Simić et al Trial Judgement, para 161. In Tadic´, the Appeals Chamber held that the principal offender may not even be aware of the accomplice’s contribution: Tadic´ Appeal Judgement, ibid. 64 65

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aided or abetted must actually have been committed.70 Mere presence at the scene of the crime without taking action to prevent its occurrence does not, per se, constitute aiding and abetting.71 However, in cases of an ‘approving spectator’, or where the presence of a superior can be a significant indicium for encouragement or moral support, mere presence at the scene of a crime about to be committed can trigger the criminal responsibility for ‘aiding and abetting’.72 A causal link between the act of assistance and the conduct of the principal offender need not be such as to show that the offence would not have been committed in the absence of such assistance, ‘but it must have had a substantial effect on the commission of the crime by the principal offender’.73 Pursuant to the jurisprudence of the ad hoc Tribunals, ‘the act of assistance may consist of an act or an omission, and it may occur before, during or after the act of the actual perpetrator’.74 No prior agreement is required except in ex post facto aiding and abetting.75 In the words of the Blagojević Trial Chamber ex post facto aiding and abetting requires ‘that at the time of the planning, preparation or execution of the crime, a prior agreement exists between the principal and the person who subsequently aids and abets in the commission of the crime’.76 This finding by the ICTY Trial Chamber was upheld by the Blagojević Appeals Chamber in its judgment of 9 May 2007.77

ii  Mens Rea In Orić, Trial Chamber II of the Yugoslavia Tribunal noted that while it is undisputed that aiding and abetting requires a subjective element to be proved on the part of the accused, the structure and content of this mental element are described by the two ad hoc Tribunals in a different way.78 Several judgments of the Yugoslavia and Rwanda Tribunals identify intent from the knowledge or awareness of the aider and abettor that his conduct assisted or facilitated the 70   Akayesu Trial Judgement, paras 473–75; Aleksovski Appeal Judgement para 165; Blagojević and Jokić Trial Judgement, ibid; Brđanin Trial Judgement, ibid. 71   Orić Trial Judgement, para 283; Kvočka Trial Judgement, para 257; Krnojelać Trial Judgement, para 89; Vasiljević Trial Judgement, para 70; Limaj Trial Judgement, para 517. 72   Orić Trial Judgement, ibid. 73   ibid, para 284; see also Vasiljević Appeal Judgement, para 102; Blagojević and Jokić Trial Judgement, para 726; Furundžija Trial Judgement, paras 223–24, 249; Aleksovski Trial Judgement, para 61; Kunarać et al Trial Judgement, para 391; Kordić and Čerkez Trial Judgement, para 399, Vasiljević Trial Judgement, para 70. In the words of Kajelijeli: ‘Such act of assistance before or during the fact need not have actually caused the consummation of the crime by the actual perpetrator, but it must have had a substantial effect on the commission of the crime by the actual perpetrator’, Kajelijeli Trial Judgement, para 766. 74   Renzaho Trial Judgement, para 742; Bagosora et al Trial Judgement, para 2009; Kamuhanda Trial Judgement, para 597; Blagojević and Jokić Appeal Judgement, para 127; Blaškić Appeal Judgement, para 165; Čelebići Appeal Judgement, para 352. 75   Blagojević and Jokić Trial Judgement, para 731. 76  ibid. 77   Blagojević and Jokić Appeal Judgement, paras 177–81. 78   Orić Trial Judgement, para 286.

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commission of a crime by the principal offender,79 while others require that the aider or abettor was aware of the essential elements of the crime committed by the principal offender, including the principal offender’s state of mind.80 Recent judgments of the two ad hoc Tribunals demand some sort of volitional element (acceptance of the final result) in addition to the knowledge requirement.81 Bearing in mind the evolving law of mens rea in the jurisprudence of the ad hoc Tribunals the Orić Trial Chamber ruled that (i) aiding and abetting must be intentional; (ii) the aider and abettor must have ‘double intent’, namely both with regard to the furthering effect of his own contribution and the intentional completion of the crime by the principal perpetrator; (iii) the intention must contain a cognitive element of knowledge and volitional element of acceptance, whereby the aider and abettor may be considered as accepting the criminal result of his conduct if he is aware that in consequence of his contribution, the commission of the crime is more likely than not; and (iv) with regard to the contents of his knowledge, the aider and abettor must at the least be aware of the type and the essential elements of the crime(s) to be committed.82

The above-quoted judgment (the Orić test) evidences that the mental state of the aider and abettor has to encompass the two components of intent, namely the cognitive and the volitional components. The aider and abettor, however, need not share the intent of the principal offender, neither is it necessary that he must be aware of the specific crime that will be committed by the perpetrator.83 If the aider and abettor is aware that one of a number of crimes will probably be committed by the perpetrator, and one of those crimes is in fact committed, then he has intended to assist or facilitate the commission of that crime and is guilty as an aider and abettor.84 It has been said that the nature of mens rea required for this mode of secondary participation may differ somewhat depending on whether the participation involves aiding or abetting. In the words of Professor Schabas: In the case of aiding, the accomplice will often be responsible for a neutral or ambiguous act – for example, procuring insecticide, which might be used to exterminate pests 79   Vasiljević Appeal Judgement, para 102; Blaškić Appeal Judgement, paras 46, 49-50; Aleksovski Appeal Judgement, para 162; Tadic´ Appeal Judgement, para 229; Brđanin Trial Judgement, para 272; Kajelijeli Trial Judgement, para 768; Kayishema and Ruzindana Appeal Judgement, paras 186–87; Semanza Trial Judgement, para 387; Bagilishema Trial Judgement, para 32. This awareness need not have been explicitly expressed, it may be inferred from all relevant circumstances, see Limaj Trial Judgement, para 518. 80   Aleksovski Appeal Judgement, ibid; Blagojević and Jokić Trial Judgement, para 727; Krnojelać Trial Judgement, para 90. 81   Orić Trial Judgement, para 288; In Blaškić as in Bagilishema, the Trial Chamber required the aider and abettor, in addition to his knowledge that his conduct assisted and facilitated the commission of the crime, ‘intended to provide the assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct’: see Blaškić Trial Judgement, para 286; Bagilishema Trial Judgement, para 32. 82   Orić Trial Judgement, ibid (emphasis added, fn omitted). 83   Limaj Trial Judgement, para 518; Aleksovski Appeal Judgement, para 162; Krnojelać Trial Judgement, para 90. 84   Limaj Trial Judgement, ibid, citing Blaškić Appeal Judgement, para 50.

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Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes in a labour camp, but which might also be used for gas chambers in an extermination camp [such as in Zyklon B Case]. In such cases the Prosecutor will have to difficulty convincing judges that the accomplice intended the consequences of his or her acts, because two or more hypothesis may exist.85

There is reason to question whether an accused may incur criminal liability as an aider and abettor for other crimes that are natural and foreseeable consequences of the acts he knowingly aids and abets. The following example is illustrative. P (principal perpetrator) intended to forcibly transfer group X outside a particular area, in the knowledge that his conduct takes part in widespread or systematic attack against group X. S (secondary party/the aider and abettor) provides P with the vehicles needed to forcibly transfer group X. In so doing, S is aware that by providing these vehicles he is assisting P and facilitating the deportation of group X. Few deaths occur among group X as a result of less care taken during their deportation in the trucks. Can S incur criminal responsibility for murder as a crime against humanity as a foreseeable consequence of the acts he knowingly aids and abets? Applying the Orić test, S can only be held responsible for the crime he intentionally aids and abets (deportation) as long as he was ‘aware of the type and the essential elements of the crime to be committed’.86 S, however, can be held responsible for the further crime (murder as a crime against humanity) on proof that it was a foreseeable consequence of the forcible deportation of group X and he accepted that this could be the final result (dolus eventualis). It is not required that the aider and abettor ‘already foresees the place, time and number of the precise crimes which may be committed in consequence of his supportive contributions nor that a certain plan or concerted action with the principal perpetrator must have existed.’87 Recent appeal judgments have implicitly disregarded the Orić test (which requires both knowledge and intent) and held that the mens rea for aiding and abetting requires proof of double knowledge on the part of the aider and abettor. Yet the Tribunal which conducted the Brđanin Appeal of 3 April 2007 ruled: The requisite mens rea for aiding and abetting is knowledge that the acts performed by the aider and abettor assist in the commission of the specific crime of the principal. The aider and abettor must [also] be aware of the essential elements of the crime which was ultimately committed by the principal.88

In particular, with regard to crimes such as extermination, the prosecution must demonstrate the aider and abettor’s awareness of the ‘essential elements’ of the crime of extermination, which has to encompass both ‘the large-scale killings and of the state of mind of the perpetrators of extermination’.89 In such cases it is irrelevant whether the aider and abettor ‘became aware of the large-scale killings  Schabas, The UN International Criminal Tribunals, above (n 12) 306–07.   Orić Trial Judgement, para 288. 87  ibid. 88   Brđanin Appeal Judgement, para 484. 89   ibid, para 487. 85 86

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before, during or after their commission, as long as he knew that his acts assisted in the commission of the crime’.90

iii  Circumstantial Evidence which may lead to a Conviction for Aiding and Abetting In Limaj, the ICTY Trial Chamber found the second accused Haradin Bala responsible for aiding the crime of cruel treatment based on the following circumstantial evidence: (i) the accused provided practical assistance to the direct perpetrators of the offence of cruel treatment; (ii) he ensured that there was no prospect of the victim escaping from the beating, or of the beating being seen or disrupted by third persons; and (iii) his involvement had a substantial effect on the commission of the crime of cruel treatment.91 As for the mens rea required for aiding the crime of cruel treatment, the Chamber declared that ‘[i]n the circumstances, Haradin Bala could not have been ignorant of the intentions of the direct perpetrators. He certainly knew that a crime was being committed. Nonetheless, he remained and so facilitated its commission’.92

iv  Mens Rea for Aiding and Abetting Specific Intent Crimes In Akayesu, Trial Chamber I of the Rwanda Tribunal, when considering aiding and abetting under Article 6(1) of the ICTR Statute, ruled that in many legal systems, aiding and abetting constitutes acts of complicity. However, though akin to the constituting elements of complicity, they themselves [aiding and abetting presumably] constitute one of the crimes referred to in Article 2 to 4 of the Statute, in particular, genocide.93

The Trial Chamber therefore found that ‘when dealing with a person accused of having aided and abetted in the planning, preparation and execution of genocide, it must be proven that such a person did have the specific intent to commit genocide’.94 In Ntakirutimana, the Trial Chamber found that pursuant to Article 6(1) an aider and abettor has to have the intent to destroy, in whole or in part, an ethnic or racial group as such.95 Unfortunately, the Trial Chambers in Akayesu and Ntakirutimana failed to cite any authority to support the proposition that aiding and abetting genocide requires the aider and abettor to possess a genocidal intent.  ibid.   Limaj Trial Judgement, para 656. 92  ibid. 93   Akayesu Trial Judgement, para 485. 94   ibid (emphasis added). 95   Ntakirutimana Trial Judgement, para 787, citing with approval the Akayesu Trial Judgement paras 484–85 and Furundžija Appeal Judgement, paras 124–27. 90 91

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Despite the ruling of Akayesu and Ntakirutimana, a consensus appears to be emerging within the jurisprudence of the ad hoc Tribunals that the requisite mens rea for aiding and abetting specific intent crime is knowledge.96 The Krnojelać Appeals Chamber held that the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support and encouragement has a successful effect on its perpetration.97

Thus, to incur criminal responsibility for aiding and abetting persecutions, as a crime against humanity, the following mental states must be established: (i) the accused is aware of the discriminatory intent of the principal offender and of the discriminatory context in which the crime is committed; and (ii) the accused knows that his support or encouragement has substantial effect on its commission.98 The same test is applied by the Appeals Chamber of the Yugoslavia and Rwanda Tribunals with regard to aiding and abetting the crime of genocide. In Krstić, the Appeals Chamber asserted that an individual who aids and abets a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime. This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent.99

The Appeals Chamber concluded that ‘[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal’.100 The same position was endorsed by the Appeals Chamber in the Simić and Blagojević judgments.101 This position has been expressly endorsed by the Ntakirutimana Appeals Chamber which held that ‘a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal’.102 However, it would be a profound mistake to draw from the above quoted judgments a general conclusion that ‘knowledge’ alone is sufficient to trigger the 96   For the crime of genocide see Akayesu Trial Judgement, para 538; Semanza Trial Judgement, para 338; Ntakirutimana Appeal Judgement, para 499; Aleksovski Appeal Judgement, para 162; Furundžija Trial Judgement, para 245; Vasiljević Trial Judgement, para 71. For persecution see Krnojelać Appeal Judgement, paras 51–52; Blagojević and Jokić Trial Judgement, para 727. 97   Krnojelać Appeal Judgement, ibid. See also Kvočka Trial Judgement, para 262. 98   Blagojević and Jokić Trial Judgement, para 753, citing Krnojelać Appeal Judgement, para 52. 99   Krstić Appeal Judgement, para 140. 100  ibid. 101   Simić Appeal Judgement, para 86; Blagojević and Jokić Appeal Judgement, para 127. 102   Ntakirutimana Appeal Judgement, para 500.

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criminal responsibility for aiding and abetting specific intent crimes. The evolutionary developments of the law of mens rea in the jurisprudence of the ad hoc Tribunals demand that for the imposition of criminal responsibility for serious violations of international humanitarian law both a cognitive and volitional component must be incorporated in the legal standard.103 Applying the ‘Orić test’ to the case in point, it appears that the aider and abettor for a specific intent crime has to have a ‘double intent’, namely with regard to the furthering effect of his own contribution and the intentional completion of the crime by the principal perpetrator.104 Since both a cognitive element of knowledge and volitional element of acceptance must be incorporated in the legal standards, the aider and abettor who is aware that as a result of his contribution, the commission of the crime (genocide/persecution) is more likely than not to occur may be considered as accepting the criminal result of his intentional conduct (dolus eventualis). Most notably, in 1997, the Bayerisches Oberstes Landesgericht could not enter a conviction for genocide of the Bosnian Serb Djajić because it did not consider it to be proven that the accused ‘took into account’ or ‘had realised’ that the killings he aided and abetted were committed with genocidal intent. Djajić was found guilty of murder ‘only’.105

v  Complicity in Genocide versus Aiding and Abetting Genocide Is it less serious to be held guilty for aiding and abetting genocide than to be held guilty for complicity in genocide? To put it differently, does complicity in genocide require a higher threshold of mens rea than aiding and abetting genocide? And, to put it yet another way, are the two concepts essentially equivalent? Recent judgments of the Yugoslavia Tribunal have held that ‘complicity’ derives from the Genocide Convention, not from Article 7(1) of the Tribunal’s Statute, and as a consequence, there is a difference between complicity and the cognate ‘aiding and abetting’.106 In the Ntakirutimana and Krštić Appeal Judgments, the Appeals Chambers ruled that complicity, as provided for in the Genocide Convention, may encompass conduct broader than included in the ambit of aiding and abetting and accordingly, the prosecution must prove that the accomplice not only knew of the principal’s specific intent to destroy the protected group in whole or in part, but shared that intent himself.107 This was the opinion held by

  Blaškić Appeal Judgement, para 41.   Orić Trial Judgement, para 288. 105   Bayerisches Oberlandesgericht, Judgement, 23 May 1997, 3 St 20/96, (1998) Neue Juristische Wochenschrift (NJW)392–95. Stakić Rule 98 Trial Decision, para 58. 106   Krajišnik Trial Judgement, para 864. 107   Ntakirutimana Appeal Judgement, paras 500–01; Krstić Appeal Judgement, para 142. See also Krajišnik Trial Judgement, para 865. 103 104

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Schabas a few years prior to the delivery of the above-quoted judgments; however, other scholars disagreed.108 Aware that the Krstić Appeal Judgment set the bar too high for the requisite mens rea for complicity in genocide, the prosecution, in the Blagojević case, sought leave to amend the indictment in order to replace count 1B – complicity in genocide – with a charge of aiding and abetting genocide, pursuant to Article 4(3)(a) of the ICTY Statute.109 The defence understood the prosecution’s intention and simply objected to the amendment.110 According to the Blagojević defence, ‘the amendment sought would amount to a charge of a lesser gravity that was never pleaded and for which the Trial Chamber could not enter a conviction on the basis of the Indictment’.111 The Trial Chamber denied the prosecution’s motion and convicted Blagojević for complicity in genocide as an aider and abettor.112 Yet the Tribunal assigned a knowledge standard for aiding and abetting genocide; the aider and abettor of genocide must know the principal’s perpetrator genocidal intent but he does not need to share this intent. In practice, this knowledge standard, in genocide cases, proved not to be easy to establish with respect to aiding and abetting. The acquittal of Blagojević, by the Appeals Chamber, for his conviction in complicity in genocide as an aider and abettor, is illustrative of that matter. The main question which confronted the Appeals Chamber in that case was whether, in the absence of knowledge about the mass killings of the Bosnian Muslims of Srebrenica, other findings by the Trial Chamber113 form a sufficient basis to conclude that Blagojević knew of the principal perpetrator’s genocidal intent. The Appeals Chamber concluded that no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts related to the forceable transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent.114

108   Schabas holds the opinion that ‘[a]n accomplice to genocide must have the intent to destroy in whole or in part . . . in accordance with Article II of the [Genocide] Convention’. See William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000) 300. Contra see Chile Eboe-Osuji, ‘Complicity in Genocide’ versus Aiding and Abetting Genocide’ (2005) 3 Journal of International Criminal Justice 56, 63–64; Harmen G van der Wilt, ‘Genocide, Complicity in Genocide and International versus Domestic Jurisdiction: Reflections on the van Anraat Case’ (2006) 4 Journal of International Criminal Justice 239, 246: ‘Schabas confuses the intent on furthering the crime with the mens rea in respect of the elements of the crime’. 109  Prosecution’s Motion for Leave to File Fourth Amended Joinder Indictment, 14 May 2004, quoted in Blagojević and Jokić Trial Judgement, para 637. 110   Vidoje Blagojević’s Response to Prosecution’s Motion for Leave to File Fourth Amended Joinder Indictment, 26 May 2004, para 9, quoted in Blagojević and Jokić Trial Judgement, ibid. 111   Motion Hearing, 8 June 2004, T 10461-63, quoted in Blagojević and Jokić Trial Judgement, ibid. 112   Blagojević and Jokić Trial Judgement, paras 787, 797. 113   The Trial Chamber based its finding that Blagojević knew of the genocidal intent of the principal perpetrators on several facts related in general to forecible transfer operation but not on the mass killings of Bosnian Muslims of Srebenica. See Blagojević and Jokić Trial Judgement, para 786. 114   Blagojević and Jokić Appeal Judgement, para 123.

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E Committing i  Direct Perpetration The jurisprudence of the ad hoc Tribunals is consistent in holding that ‘committing’ ‘covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law’.115 In this sense, there can be several principal offenders in relation to the same offence where the conduct of each offender satisfies the requisite elements of the substantive offence.116 This is the most straightforward form of perpetrating an offence within the subject matter jurisdiction of the two ad hoc Tribunals, and the plain meaning of the word ‘committed’ under Articles 7(1) and 6(1) respectively of the Statutes of the Yugoslavia and Rwanda Tribunals. It is worth noting that, in some national legal systems, there are two different doctrines to distinguish between a principal and an accessory, and they are largely affected by subjectivism and objectivism tendencies.117 The former places more emphasis on the ‘will’ of the accused and his self-evaluation of the role he has to play. According to this approach, the principal offender regards himself as the master of the whole ‘offensive package’, acting for his own sake, while the accomplice considers himself a dependant on his master, acting for the sake of the latter.118 According to the objective approach, the nature of the proscribed conduct is the decisive factor. A principal offender is the one who materially performs the proscribed act: others are considered accomplices. As will be discussed below, the word ‘committed’ was defined by the Appeals Chambers of both ad hoc Tribunals to encompass not only those perpetrators who physically perform the criminal conduct, but, in certain circumstances, those who contribute to its commission in execution of a common criminal purpose or ‘joint criminal enterprise’.119 115   Limaj Trial Judgement, para 509: Krstić Appeal Judgement, para 188; Kunarać et al Trial Judgement, para 390; Gacumbitsi Trial Judgement, para 285: “  ‘Committing” refers generally to the direct and physical perpetration of the crime by the offender himself ’; Kayishema and Ruzindana Appeal Judgement, para 187; Vasiljević Trial Judgement, para 62: ‘The Accused will only incur individual criminal responsibility for committing a crime under Article 7(1) where it is proved the he personally physically perpetrated the criminal acts in question or personally omitted to do something in violation of international humanitarian law’; Kamuhanda Trial Judgement, para 595: ‘To commit a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law’; see also Tadic´ Appeal Judgement, para 188; Kunarać et al Trial Judgement, para 390; Krstić Trial Judgement, para 601; Krnojelać Trial Judgement, para 73. Simić et al Trial Judgement, para 137: ‘Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with requisite knowledge’. 116   Kajelijeli Trial Judgement, para 764. 117   Ahmed Belal, Egyptian Criminal Law: The General Part, 2nd edn (Cairo: The Academic Bookshop, 2005) 371–72. 118  ibid. 119   It is to be noted that unlike the ICC Statute, those of the ICTY and the ICTR lack a provision concerning the ‘intermediary perpetration’ in which the accused (indirect perpetrator or Hintermann)

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With regard to the actus reus required for ‘committing’, it must be established that ‘the accused participated, physically or otherwise directly, in the material elements of a crime provided for in the Statute[s], through positive acts or omissions’.120 Stretching the Boundaries of Commission Liability121 The ICTR Appeals Chamber, by majority, quashed the Trial Chamber’s finding that Seromba, a Catholic priest at Nyange Parish, aided and abetted genocide and held that he instead committed genocide as well as extermination as a crime against humanity, by virtue of his role in the destruction of the church in Nyange Parish.122 Pursuant to these findings, the Appeals Chamber quashed the sentence of 15 years’ imprisonment and entered a sentence of life imprisonment. The Appeals Chamber recalled that ‘committing’ is not limited to physical or direct perpetration and that other acts can constitute direct perpetration in the actus reus of the crime of genocide.123 It found that the Trial Chamber had applied the wrong legal standard when it held that committing required direct and physical perpetration. In the Appeals Chamber’s view, the accused is a principal perpetrator of genocide if his actions were ‘as much an integral part of the genocide as were the killings which [they] enabled’.124 When applying this legal standard to the factual findings of the Trial Chamber, the Appeals Chamber came to the conclusion that Seromba ‘approved and embraced as his own’ the decision to destroy the church in order to kill Tutsi refugees and was not an aidor and abettor but became a principal perpetrator.125 It held that it was irrelevant that Seromba did not personally drive the bulldozer that destroyed the church. What was important was that Seromba ‘fully exercised his influence over the bulldozer driver’ who accepted Seromba as the only authority and whose directions he followed.126 As for the mens rea, the Appeals Chamber found that Seromba intended that the Tutsi be killed and also acted with the requisite specific intent to destroy in whole or in part the Tutsi group.127 Thus, the Seromba Appeals Chamber widened the uses another innocent person (Tatmittler) as his instrument to perform the relevant conduct. See ch 5 of this volume. 120   Limaj Trial Judgement, para 509, citing Kordić and Čerkez Trial Judgement, para 376. 121   For a critical analysis regarding the ICTR Appeals Chamber’s approach to commission liability in recent case law see FZ Giustiniani, ‘Stretching the Boundaries of Commission Liability: The ICTR Appeal Judgement in Seromba’ (2008) 6 Journal of International Criminal Justice 783–99. 122   Seromba Appeal Judgement, paras 171, 172, 185, 190, Judge Liu dissenting. The Appeals Chamber affirmed the Trial Chamber’s finding that Seromba aided and abetted genocide in relation to the killings of Patrice and Meriam, which were separate acts from the killings resulting from the destruction of the church. 123   Seromba Appeal Judgement, para 161. 124   ibid. See similar wording in Gacumbitsi Appeal Judgement, para 60. 125   Seromba Appeal Judgement, paras 171, 172, 182. 126   ibid, para 171. 127   ibid, paras 174–81. For a different assessment of the facts of the case, see Dissenting Opinion of Judge Liu.

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scope of ‘committing’, a mode of liability that was so far mainly reserved for ‘hands-on perpetrators’.128 The finding that ‘committing’ may occur in the form of physical or direct perpetration but that the decisive criterion is that there is principal perpetration, constitutes a valuable clarification of the scope of that mode of liability that goes beyond the context of genocide. Persons who did not directly or physically take part in the commission of crimes but whose actions appear as an ‘integral part’ of the commission of the crimes or who assume a ‘central role’129 in the events, are adequately described as principal perpetrators. Further, this broader understanding of ‘committing’ has the effect that the mens rea becomes the distinctive criterion. While an aider and abettor acts with the knowledge that his actions will assist the principal perpetrator in the commission of the crime, a principal perpetrator himself must have the intent to commit the crime or in the Appeals Chamber’s words must ‘approve and embrace’ the crime ‘as his own’. b  Mens Rea The mens rea for ‘committing’ under Articles 7(1) and 6(1) respectively of the ICTY and ICTR Statutes differs from the one required for other modes of participation (for example, instigating and aiding and abetting) in that the accused, who physically performs the material elements of the offence, must possess the full mens rea required for the crime, including any specific intent or grounds required by it. Thus, to incur criminal responsibility for ‘committing’ a specific intent crime (for example, terror against the civilian population), the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that was the result which he specifically intended.130

Thus, knowledge, dolus eventualis or advertent recklessness are not sufficient mental states to hold an accused criminally liable for ‘committing’ specific intent crimes, although these mental states may be sufficient to trigger criminal responsibility for the same types of offences with respect to other modes of participation under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes.

ii  Committing through Participation in a Joint Criminal Enterprise Although the Statutes of the two ad hoc Tribunals do not make explicit reference to the theory of ‘joint criminal enterprise’ (JCE), the Appeals Chambers of these 128   It should also be noted that the participation in a joint criminal enterprise is implicit in Art 7(1) (Tadic´ Appeal Judgement, paras 188–91). In the absence of alleged participation in a joint criminal enterprise, an accused who did not physically or directly took part in the commission of the crimes, could be found to have ‘encouraged’, ‘assisted’ or instigated the commission of the crime. 129   Gacumbitsi Appeal Judgement, para 206. 130   Galić Trial Judgement, para 136.

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Tribunals held that participating in a JCE is a form of liability which exists in customary international law, and that is a form of ‘commission’ under Articles 7(1) and 6(1) of the Statutes.131 Discussing the concept of joint criminal enterprise,132 the Tadic´ Appeals Chamber stressed the importance of expanding the concept of primary participation (as opposed to secondary participation) beyond those who physically carry out the criminal conduct: Although only some members of the group may physically perpetrate the criminal act, [. . .] the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed different – from that of those who actually carrying out the acts in question.133

The Appeals Chamber went further asserting that: Under these circumstances, to hold criminally liable as perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.134

Speaking in rather a similar vein, the Tribunal which conducted the Krnojelać Trial held: The seriousness of what is done by a participant in a joint criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender. This is because a person who merely aids and abets the principal offender need only be aware of the intent with which the crime was committed by the principal offender, whereas the participant in a joint criminal enterprise with the principal offender must share that intent.135

Some ICTY judges have welcomed and fully approved the JCE doctrine as an effective tool for overcoming the problems of ascribing individual criminal 131  See Kvočka Appeal Judgement, paras 79–80, 99; Tadic´ Appeal Judgement, paras 188, 195–226; Milutinović et al, Decision on Ojdanić’s Motion Challenging Jurisdiction: Joint Criminal Enterprise) para 20; Vasiljević Appeal Judgement, para 111: ‘The Appeals Chamber recalls that the case-law of the Tribunal stemming from the Tadic´ Appeal Judgement, and that the Ojdanić Decision regards participation in a joint criminal enterprise as a form of commission’; Vasiljević Trial Judgement, paras 94–95. For the ICTR see Ntakirutimana Appeal Judgement, para 462: ‘Given the fact that both the ICTY and ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute’; See also Karemera Appeal Decision, para 16. 132   It is worth pointing out that in the jurisprudence of the ICTY various labels have been used by the Appeals Chamber and Trial Chambers to refer to a theory of criminal liability based on the participation of more than one person in the execution of a common plan. See Brđanin Decision on Further Amended Indictment. 133   Tadic´ Appeal Judgement, para 191. See also Furundžija Trial Judgement, para 256. 134   Tadic´ Appeal Judgement, para 192. The Appeals Chamber devoted an entire paragraph to explain the differences between co-perpetration and aiding and abetting, see Tadic´ Appeal Judgement, para 229. 135   Krnojelać Trial Judgement, para 75 (emphasis added).

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responsibility for international crimes. Others hold the opinion that the concept of ‘joint criminal enterprise’ – since its foundation and integration into the jurisprudence of the ICTY by the Tadic´ Appeals Chamber (1999) – ‘has caused confusion and a waste of time’136 and has been considered as a doctrine ‘of no benefit to the work of the Tribunal or the development of international criminal law’.137 It is beyond any shadow of doubt that joint criminal enterprise as a modality of criminal liability has become the prosecution’s ‘darling notion’,138 though legal commentators have looked at it doubtfully.139 a  General Requirements for Joint Criminal Enterprise Liability It is settled in the jurisprudence of the two ad hoc Tribunals that the word ‘committed’ as provided for in Articles 7(1) and 6(1) of the Statutes includes three forms of joint criminal enterprise, namely, the basic (JCE I), the systemic (JCE II) and the extended form (JCE III).140 The actus reus of a participant in a JCE is com136   Simić et al Trial Judgement, Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm, paras 2–5. 137   ibid. The entire passage of Judge Lindholm reads as follows, ‘I dissociate myself from the concept or doctrine of joint criminal enterprise in this case as well as generally. The so-called basic form of joint criminal enterprise does not, in my opinion, have any substance of its own. It is nothing more than a new label affixed to a since well-known concept or doctrine in most jurisdictions as well as in international criminal law, namely co-perpetration. . . . If something else than participation as co-perpetrator is intended to be covered by the concept of joint criminal enterprise, there seems to arise a conflict between the concept and the word “committed” in Article 7(1) of the Statute’; ibid, para, 2. In Krnojelać, the Trial Chamber declined to apply the second category of ‘joint criminal enterprise’ because in its view it did not comply with the principle of individual criminal responsibility, see Krnojelać Trial Judgement, para 78. 138   Antonio Cassese, ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’ (2007) 5 Journal of International Criminal Justice 109, 110. 139   It has been a source of endless fascination for commentators, generating an enormous amount of literature: Allen O’Rourke, ‘Joint Criminal Enterprise and Brđanin: Misguided Over-Correction’ (2006) 47 Harvard International Law Journal 307; Cassese, ibid, 109; Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Law (2005) 93 California Law Review 75; Kai Ambos, ‘Joint Criminal Enterprise and Command Responsibility’ (2007) 5 Journal of International Criminal Justice 159; Mohamed Elewa Badar, ‘  “Just Convict Everyone!” Joint Perpetration: From Tadić to Stakić and Back Again’ (2006) 6 International Criminal Law Review 293; Kai Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ (2007) 5(1) Journal of International Criminal Justice 208; Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 Journal of International Criminal Justice 69; Nicola Piacente, ‘Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy’ (2004) 2 Journal of International Criminal Justice 446 ; Katrina Gustafson, ‘The Requirement of an “Express Agreement” for Joint Criminal Enterprise Liability: A Critique of Brđanin’ (2007) 5 Journal of International Criminal Justice 134; Harmen G van der Wilt, ‘Joint Criminal Enterprise, Possibilities and Limitations’ (2007) 5 Journal of International Criminal Justice 91; Elies van Sliedregt, ‘Pathway to Convicting Individuals for Genocide’ (2007) 5 Journal of International Criminal Justice 184. 140   Stakić Appeal Judgement, para 64; Kvočka Appeal Judgement, paras 82–83; Vasiljević Appeal Judgement, paras 96–99; Krnojelać Appeal Judgement, para 30; Simba Trial Judgement, para 386. It is worth pointing out that while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY (since the Tadic´ Appeal Judgement 1999), the first two cases in which the ICTR has been called upon to address this issue were Rwamakuba Appeal Decision and Ntakirutimana Appeal

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mon to all three categories and comprises three elements. First, a plurality of persons is required. It is not required to identify by name each of the persons involved; reference to categories or group of persons is sufficient.141 ‘Such categories or groups must be adequately identified as to avoid vagueness or ambiguity’142 and they need not be organised in a military, political or administrative structure.143 In Krajišnik, the Appeals Chamber found that the Trial Chamber’s finding that the JCE included a ‘rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others’ was erroneously unspecific and impermissibly vague, so far as this finding was not further specified by the JCE members individually named in the following paragraph of the Trial Judgment.144 Secondly, the existence of a common plan, design or purpose, which amounts to or involves the commission of a crime provided for in the Statutes, must be established.145 According to a recent judgment rendered by the Ðorđević Trial Chamber: There is no need for the plan, design or purpose to have been previously arranged or formulated. Nor does JCE liability require an understanding or an agreement between the accused and the principal perpetrator of the crime to commit that particular crime. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a JCE.146

Thirdly, the participation of the accused in the common purpose must be established. This participation need not involve the physical commission of a specific crime by all the members of JCE, but may take the form of assistance in, or contribution to, the execution of the common purpose.147 Thus, ‘once a participant in a joint criminal enterprise shares the intent of that enterprise, his participation may take the form of assistance or contribution with a view to carry out the common plan or purpose’.148 In its judgment of 3 April 2007, the Brđanin Appeals Chamber extended the law of joint criminal enterprise.149 The Appeals Chamber ruled that (i) there is no Judgement. In Simić, the ICTY described the systematic or the second form of joint criminal enterprise as a ‘basic form of joint criminal enterprise’; see Simić et al Trial Judgement, para 50, fn 255. 141   Ðorđević Trial Judgement, para 1861, citing Krajišnik Appeal Judgement, para 156; Limaj Appeal Judgement, para 99; Brđanin Appeal Judgement, para 430; Stakić Appeal Judgement, para 69. 142   Ðorđević Trial Judgement, ibid. 143  ibid; Tadic´ Appeal Judgement, para 227; Stakić Appeal Judgement, para 64. 144   Krajišnik Appeal Judgement, para 157. 145   Tadic´ Appeal Judgement, para 227; Krnojelać Appeal Judgement, para 31; Vasiljević Appeal Judgement, para 100. Kvočka Appeal Judgement, para 81; Stakić Appeal Judgement, para 73; Brđanin Appeal Judgement, para 390; Krajišnik Appeal Judgement, para 704; Renzaho Trial Judgement, para 740. 146   Ðorđević Trial Judgement, para 1862, citing Tadic´ Appeal Judgement, ibid; Krnojelać Appeal Judgement, para 97; Vasiljević Appeal Judgement, paras 100, 109; Brđanin Appeal Judgement, paras 415, 418. 147   Stakić Appeal Judgement, para 64; Kvočka Appeal Judgement, para 96; Ntakirutimana Appeal Judgement, para 466; Vasiljević Appeal Judgement, para 100; Krnojelać Appeal Judgement, para 31; Simba Trial Judgement, para 386. See also Brđanin Decision on Motion for Acquittal, para 26. 148   Krnojelać Appeal Judgement, para 81. 149   Brđanin Appeal Judgement.

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requirement that the principal perpetrators must all be members of the JCE for liability to attach to a member of the JCE for their actions; (ii) there is no requirement of an additional understanding or agreement between the person physically committing the crime and other members of the JCE; and (iii) the mode of JCE is not limited to small cases but may encompass large scale enterprises. Principal Perpetrators need not be JCE Members The Brđanin Trial Chamber had dismissed the application of the JCE doctrine to describe the accused’s criminal responsibility.150 It ruled that the common plan of the JCE ‘has to amount to, or involve, an understanding or an agreement between two or more persons that they will commit a crime within the Statute’151 and that this entailed that the principal perpetrators must all be members of the criminal enterprise for liability to attach to a member of the JCE for their actions.152 In its appeal against the Trial Judgment, the prosecution claimed that the Trial Chamber erred in law by requiring that the principal perpetrator of a crime must be a member of the JCE.153 In order to support its position, the prosecution submitted that post-Second World War jurisprudence – particularly two Control Council Law No 10 cases, the Justice case and the RuSHA case – determined the responsibility of defendants on a senior hierarchical level, without referring to the physical perpetrators who carried out the crimes.154 According to the prosecution, the Justice case stands for the proposition that the only elements required to establish an accused’s guilt under JCE are: (i) that the accused had knowledge of an offence; and (ii) that he was connected to the commission of the crime.155 It further submitted that there is no explicit requirement that an accused and a physical perpetrator share a common purpose and, as a consequence, there is no requirement that principal perpetrators be members of the JCE.156 According to the prosecution, the existing safeguards integrated in the concept of JCE are sufficient to prevent unwarranted convictions.157 Brđanin disagreed. He claimed that the doctrine of JCE ‘is prone to overreaching and, therefore, has the potential to lapse into guilt by association’.158 The Brđanin Appeals Chamber found that the Justice and RuSHA cases provide strong support for the Prosecution’s contention that post-World War II jurisprudence recognizes the imposition of liability upon an accused for his participation in a common criminal purpose, where the conduct that comprises the criminal actus reus is perpetrated by persons who do not share the common purpose.159   Brđanin Trial Judgement, para 356.   ibid, para 344. 152   ibid, para 345. 153   Ground 1 of the Prosecution Appeal. 154   Prosecution Appeal Brief, para 3.18. 155   Brđanin Appeal Judgement, para 368, referring to the Prosecution Appeal Brief, para 3.21. 156   Prosecution Appeal Brief, paras 3.26–3.28. 157   Brđanin Appeal Judgement, para 370, referring to the Prosecution’s Transcript hearing on appeal of 7 December 2006, 116–19. 158   Brđanin Appeal Judgement, para 371, referring to Brđanin Response Brief, paras 4, 12. 159   Brđanin Appeal Judgement, paras 394, 404. 150 151

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While the Tadic´, Vasilivić and Krnojelać Appeal Judgments do not conclusively resolve whether principle perpetrators must be members of the JCE, the Brđanin Appeals Chamber found that the Krstić and Stakić Appeal Judgments provided exceptions to this general trend of inconclusiveness:160 As for the Krstić case, the Brđanin Appeals Chamber found that the Krstić Appeals Chamber did not explicitly require principal perpetrators – private and other low-ranking members of the Drina Corps of the Bosnian Serb Army – to be members of the JCE.161 As for the Stakić case, the Brđanin Appeals Chamber noted that the Trial Chamber treated a JCE operating in the municipality of Prijedor in 1992 as composed only of the leaders of political bodies.162 Based on the aforementioned two Control Council Law No10 cases and the ICTY’s jurisprudence, the Brđanin Appeals Chamber then reached the following conclusions: i. ‘What matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose’.163 ii. ‘In cases where the principal perpetrator of a particular crime is not a member of the JCE, this essential requirement [element (i)] may be inferred from various circumstances, including the fact that the accused or any other member of the JCE closely cooperated with the principal perpetrator in order to further the common criminal purpose’.164 iii. ‘In this respect, when a member of the JCE uses a person outside the JCE to carry out the actus reus of a crime, the fact that the person in question knows of the existence of the JCE – without it being established that he or she shares the mens rea necessary to become a member of the JCE – may be a factor to be taken into account when determining whether the crime forms part of the common criminal purpose. However, this is not a sine qua non for imputing liability for the crime to that member of the JCE’.165 As far as the ‘extended form’ of JCE is concerned the Brđanin Appeals Chamber set out the following rule: When the accused or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that   ibid, paras 406, 407.   ibid, para 408.   ibid para 410. 163   ibid, paras 410, 418–19. 164  ibid. 165  ibid. 160 161 162

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Mens Rea of Perpetration and Participation such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.166

In light of the aforementioned reasons, the Brđanin Appeals Chamber considered that the Trial Chamber erred in stating that, in order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the prosecution must, inter alia, establish that the persons who carried out the actus reus of the crimes in question were members of a JCE.167 Additional Agreement is not a sine qua non for JCE Liability In its second ground of appeal, the prosecution challenged the narrow definition of JCE given by the Brđanin Trial Chamber when it found that ‘the Prosecution must, inter alia, establish that between the person physically committing the crime and the Accused, there was an understanding or agreement to commit that particular crime’.168 The prosecution contended that there is no support for this additional requirement in either the ICTY jurisprudence or customary international law.169 The appellant Brđanin, however, contended that by attaching JCE liability to an individual who is structurally remote from the crime would increase the possibility of the individual being made guilty by ‘mere association’.170 While the Brđanin Appeals Chamber shared the Trial Chamber’s concern not to impose liability on an accused where the link between him and the physical perpetrators is ‘too tenuous’, it did not consider that any form of JCE liability requires an additional understanding or agreement between the accused and the principal perpetrators. According to the Appeals Chamber, ‘the common purpose need not be previously arranged or formulated; it may materialize extemporan­ eously’.171 The Appeals Chamber went further setting out the following rules: (i) In cases where the principal perpetrator shares that common criminal purpose of the JCE or, in other words, is a member of the JCE, and commits a crime in furtherance of the JCE, it is superfluous to require an additional agreement between that person and the accused to commit that particular crime. (ii) In cases where the person who carried out the actus reus of the crime is not a member of the JCE, the key issue remains that of ascertaining whether the crime in question forms part of the common criminal purpose. This is a matter of evidence.172

JCE applies to Large-scale Cases The Brđanin Trial Chamber held that ‘although JCE is applicable in relation to cases involving ethnic cleansing, as the Tadic´ Appeal Judgment recognises, it  ibid.   ibid, para 414. 168   Brđanin Trial Judgement, para 344. 169   Prosecution Appeal Brief, para 4.25. 170   Brđanin Response Brief, para 18. 171   Brđanin Appeal Judgement, para 418. 172  ibid. 166 167

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appears that, in providing for a definition of JCE, the Appeals Chamber had in mind a somewhat smaller enterprise than the one that is invoked in the present case’.173 The Brđanin Appeals Chamber considered this interpretation of Tadic´ as incorrect and agreed with the prosecution that the Trial Chamber erred in law.174 While the Brđanin Appeals Chamber recognised that seeking to include structurally remote individuals within the JCE creates difficulties in identifying the agreed criminal object of that enterprise, it concluded that ‘this does not as such preclude the application of the JCE theory’.175

iii  The ‘Basic Form of Joint Criminal Enterprise’ (JCE I) The first category of joint criminal enterprise arises where all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention.176 An example is a plan formulated by the co-defendants in the joint criminal enterprise to kill, where although each of the co-defendants may carry out a different role, each of them has the intent to kill.177 a  Actus Reus This basic form of joint criminal enterprise encompasses two different types of participation in a crime within the jurisdiction ratione materiae of the two ad hoc Tribunals. The first scenario (direct perpetration) appears where the conduct of each of the co-defendants satisfies the actus reus of the crime at issue. The second scenario appears where a participant in a joint criminal enterprise did not, or cannot be proven to have, affected the actus reus of the crime at issue. In this situation, the following objective and subjective prerequisites have to be established in order to hold him criminally responsible as a co-perpetrator in joint criminal enterprise: i. the accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitating the activities of his co-perpetrators; ii. the accused, even if not personally effecting the killing, must nevertheless intend this result.178

  Brđanin Trial Judgement, para 355.   Brđanin Appeal Judgement, para 425. 175   ibid, para 424. 176   Tadic´ Appeal Judgement, para 196; Krnojelać Appeal Judgement, para 84; Ntakirutimana Appeal Judgement, para 467. 177   Tadic´ Appeal Judgement, ibid; Vasiljević Appeal Judgement, para 97; Ntakirutimana Appeal Judgement, para 463. 178   Tadic´ Appeal Judgement, ibid. 173 174

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The mens rea required for the basic form of joint criminal enterprise is the intention to take part in a criminal enterprise and to further – individually and jointly – the criminal purpose of that enterprise. It must be established that the accused voluntarily participated in one aspect of the common design while being aware of the criminal character of the enterprise. That is not to say that the accused has to have knowledge of every criminal incident committed in pursuance of the enterprise. In the words of the Tadic´ Appeal Judgment, ‘what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all coperpetrators)’.179 In this category of JCE, all co-perpetrators must possess the mens rea required for the crime at issue. For instance, where the crime committed is extermination, it must be established that all the co-perpetrators, (even those not physically perpetrating the killing) had the conscious objective – direct intent – to kill persons on a massive scale, or inflict serious bodily injury or create conditions of life that lead to the death of a large number of person (direct intent); or proceeded in the knowledge that mass extermination would be the probable outcome and reconciled themselves to this and made peace with it (dolus eventualis). Dolus eventualis may also be sufficient in this basic type of JCE to hold all participants in the common plan criminally liable. Cassese’s hypothetical example is illustrative in that regard: If a group of servicemen decides to deprive civilians of food and water in order to compel them to build a bridge necessary for military operations or to disclose the names of civilians who have engaged in unlawful attacks on the military, and then some civilians die, the servicemen should all be accountable not only for a JCE to commit the war crimes of intentionally starving civilians and ‘compelling the nationals of the hostile party to take part in the operations of war directed against their own country’; they should also be held guilty of murder. Indeed, even if the servicemen did not intent to bring about the death of the civilians, the death was the natural and foreseeable consequence of their common plan and the follow-up action [and they reconcile themselves or make peace with such result].180

In situations where the circumstantial evidence does not constitute sufficient proof that the defendant shared the common purpose of the enterprise, particularly where the crime committed is a specific intent crime; he may incur liability for aiding and abetting this crime. The case against Radislav Krstić is illustrative, as in a sense it was based on circumstantial evidence, and the finding of the ICTY Trial Chamber was largely based on a combination of circumstantial facts. In this case, the Trial Chamber found that Krstić had participated in a joint criminal enterprise to commit genocide against the Bosnian Muslims in Srebrenica and sentenced him to 46 years in prison. The Appeals Chamber held instead that Krstić was only guilty for aiding and abetting genocide and reduced the sentence   ibid, para 228.   Cassese, above (n 138) 111–12.

179 180

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to 35 years’ imprisonment on the grounds that he did not share the genocidal intent of the criminal enterprise.181

iv  The ‘Systemic Form of Joint Criminal Enterprise’ (JCE II) The ‘systemic form’ of joint criminal enterprise is based on the so-called concentration camp cases post-Second World War, in which the notion of common purpose was applied to situations where the offences charged were alleged to have been committed by members of military or administrative units, such as those running concentration camps; fore example, by groups acting pursuant to a concerted plan.182 This mode of liability can be attached to those responsible for carrying out a task within a criminal design that is implemented in an institutional framework, such as an internment or a concentration camp.183 Cassese called this second type of joint criminal enterprise a ‘liability for participation in an institutionalized common criminal plan’.184 His thoughtful explanation as to the nature of this systemic form of joint criminal enterprise merits lengthy quotation: Plainly, in an internment camp where inmates are severely ill-treated and even tortured, not only the head of the camp, but also his senior aides and those who physically inflict torture and other inhumane treatment are responsible. Also those who discharge administrative duties indispensable for the achievement of the camp’s main gaols (for example, to register the incoming inmates, record their death, give them medical treatment or provide them with food) may incur criminal liability. They bear this responsibility so long as they are aware of the serious abuses being perpetrated (knowledge) and willingly take part in the functioning of the institution. That they should be held responsible is only logical and natural; by fulfilling their administrative or other operational tasks, they contribute to the commission of crimes. Without their willing support, crimes could not be perpetrated. Thus, however marginal their role, they constitute an indispensable cog in the murdering machinery.185

a  Actus Reus The actus reus of the systemic form of JCE entails the same objective elements as the first category, notably: (i) a plurality of persons; (ii) the existence of a common plan (system of ill treatment); and (iii) participation in a joint criminal enterprise. This participation need not involve the commission of a particular crime within   Krstić Appeal Judgement, paras 135–39.   Kvočka Appeal Judgement, para 82; Tadic´ Appeal Judgement, paras 202–03; Krnojelać Appeal Judgement, para 89: ‘The Appeals Chamber holds that, although the second category of cases defined by the Tadic´ Appeals Judgment “systemic” clearly draws on the Second World War extermination and concentration camp cases, it may be applied to other cases and specially to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’; Kvočka Trial Judgement, para 202. 183   Cassese, above (n 138) 109, 112. 184  ibid. 185  ibid. 181 182

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the subject matter jurisdiction of the Tribunals, but may take the form of assistance in, or contribution to, the execution of the common purpose.186 The argument that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable was rejected by the Kvočka Appeals Chamber on the grounds that ‘a participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met’.187 Given the fact that the general rule governing JCE liability does not require a proof of substantial contribution to the enterprise, it was argued that ‘opportunistic visitors’ who enter a camp occasionally, and maltreat its detainees could be held responsible as participants in this enterprise.188 Addressing this point, the Kvočka Appeals Chamber asserted that in the case of ‘opportunistic visitors’, a substantial contribution to the overall effect of the detention camp (Omarska camp) would be necessary to establish responsibility under the JCE doctrine.189 Is it fair to hold an accused criminally liable for participating in a systemic joint criminal enterprise in a camp where (i) there is no proof of an agreement between the accused and the other participants in that camp, and/or (ii) the accused is not involved in or responsible for the camp’s creation?190 In the Kvočka case, the prosecution argued that ‘once an accused wilfully joins and significantly contributes to a system of ill-treatment, the relevant agreement is either subsumed in, or replaced by, the acceptance of the system as a whole’.191 In Krnojelać, the Appeals Chamber confirmed that the systemic form of JCE does not require proof of an agreement: The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the [Krnojelać] Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadic´ case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelać knew the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers – the principal perpetrators of the crimes committed under the system – to commit those crimes.192  See Kvočka Appeal Judgement, para 96.   ibid, paras 99, 112; Tadic´ Appeal Judgement, para 192. 188   Kvočka Appeal Judgement, para 599. 189   ibid. In pronouncing judgment on Žigić the Appeals Chamber overturned the Trial Chamber conviction on the following grounds: ‘The incidents in which Žigić participated, despite their quality of grave crimes, form only mosaic stones in the general picture of violence and oppression . . .. [I]n the absence of further evidence of concrete crimes committed by Žigić no reasonable trier of fact could conclude from the evidence before the Trial Chamber that Žigić participated in a significant way in the functioning of the Omarska camp’. This view runs contrary to the one adopted by the Kvočka Trial Chamber, see paras 708–09. 190   Kvočka Appeal Judgement, para 115 (fns omitted). 191   Prosecution Respondent’s Brief, paras 3.3(ii), 3.20, 3.57, quoted in Kvočka Appeal Judgement, para 116 (emphasis added). 192   Krnojelać Appeal Judgement, para 97; Kvočka Appeal Judgement, para 118, quoting with approval the Krnojelać Appeal Judgement, ibid. 186 187

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In light of the forgoing, it is not necessary to demonstrate the existence of a formal agreement between all the participants: what is important is the existence of a common purpose which amounts to, or involves, the commission of a crime.193 b  Mens Rea There is a consensus within the jurisprudence of the Yugoslavia Tribunal that the mental state required for the systemic form of JCE is the participant’s personal knowledge of the nature of the system in question, and the intent to further the concerted system of ill treatment.194 Similar to the basic form, the participants in the systemic form of JCE must be shown to share the required intent of the principal perpetrators.195 In Krnojelać, the Appeals Chamber distinguished between three different scenarios with respect to crimes committed in the KP Dom: (i) crimes within the system’s common purpose (common denominator); (ii) crimes beyond the common purpose of the system; (iii) crimes which implicated several co-perpetrators but could not be recognised as constituting a purpose common to all the participants in the system. As for the mens rea required by a participant in a system where a ‘common denominator’ exists among all the participants in that system, it is sufficient to prove that the accused participating in the system was aware that particular crimes were being committed by another participant and that the accused intended to further the system in place.196 The Krnojelać Appeals Chamber held that in such scenarios, all the participants in the system should be considered as coming under a first category JCE without reference to the concept of system.197 Where the crimes committed fall beyond the common purpose of the enterprise, liability may be imputed to a participant (other than the one who physically committed it) if these crimes were natural and foreseeable consequence thereof.198 The test is subjective – the prosecution must demonstrate that the accused (and not just a ‘reasonable person’) had sufficient knowledge.199 This subjective test was viewed by the Kvočka Appeals Chamber as particularly important in relation to the systemic form of joint criminal enterprise, which may involve a large number of participants performing distant and distinct roles.200 The Appeals Chamber emphasised:   Krnojelać Appeal Judgement, ibid; Kvočka Appeal Judgement, para 117.   Krnojelać Appeal Judgement, paras 89, 96. 195   Kvočka Appeal Judgement, para 110. 196   Krnojelać Appeal Judgement, para 122. 197  ibid. 198   Kvočka Appeal Judgement, para 86; Krnojelać Appeal Judgement, para 121 (‘For alleged crimes, such as the killings, which albeit committed at the KP Dom clearly go beyond the system’s common purpose, liability may be imputed to a person participating in the system for crimes of this kind committed by another participant if it was foreseeable that a crime of this sort was likely to be committed by that other participant and the former willingly took the risk (or was indifferent to it’)). 199   Kvočka Appeal Judgement, ibid. 200  ibid. 193 194

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Mens Rea of Perpetration and Participation What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise.201

It should be borne in mind, however, that where a crime requires special intent, such as the crime of persecution, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial or religious grounds in order to incur criminal liability as a co-perpetrator.202 In the event of failure to prove this intent on the part of the accused, he may still be liable as an aider and abettor if he knowingly made a substantial contribution to the crime. A further point that deserves particular mention is the relevance of motive with respect to this form of joint criminal enterprise. In Kvočka, the appellants claimed that they lacked the necessary intent to further the joint criminal enterprise, and that they were merely doing their job.203 The prosecution responded that the shared intent to further the criminal enterprise ‘implies neither personal enthusiasm nor satisfaction, nor personal initiative in performing the relevant contribution to the common criminal design’.204 As far as motive is concerned, the prosecution stressed that ‘the motives of the accused are immaterial for the purpose of assessing the accused’s intent and criminal responsibility’.205 The Kvočka Appeals Chamber agreed with the prosecution and provided further clarification as to the distinction between intent and motive: The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadic´ Appeal judgment the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law.206

It has been argued before the Extraordinary Chambers in the Courts of Cambodia (ECCC) that the basis for JCE II is ambiguous and that this form ‘could be either treated as a sub-category of JCE I if it is interpreted narrowly, or as an extension of liability akin to JCE III if interpreted in a broad sense’.207 According to the Pre  ibid (emphasis in original).  ibid, para 110, citing with approval the Krnojelać Appeal Judgement, para 111, Simba Trial Judgement, para 388. 203   Kvočka Appeal Judgement, para 105. 204   ibid, quoting the Prosecution Respondent’s Brief, paras 3.36–3.38. 205  ibid. 206   Kvočka Appeal Judgement, para 106 quoting Jelisić Appeal Judgement, para 49 and Tadic´ Appeal Judgement, para 269. See also Krnojelać Appeal Judgement, para 102. 207   Prosecutor v Ieng Thirith, Ieng Sary and Khieu Samplan, Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Extraordinary Chambers in the 201 202

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Trial Chamber of the ECCC such ambiguity does not exist as the mens rea requirement for JCE II entails the prosecution to prove knowledge by the accused of the nature of the system and the intent to further the common concerted design (ie, to ill-treat inmates in an internment camp).208 There is a consensus among academics and practitioners that JCE I and II, as opposed to JCE III, are forms of responsibility that were recognised in customary international law since the post-Second World War trials.209

v  The ‘Extended Form of Joint Criminal Enterprise’ (JCE III) The third form of joint criminal enterprise concerns those participants who share a common purpose (for instance to forcibly transfer civilians from an occupied territory) but do not share the intent to subject one or more members of the transferred group to murder, so this falls beyond the common purpose. Under this category of JCE, participants who did not intend to commit murder would be held criminally responsible on proof that they were nevertheless in a position to foresee its commission and willingly took the risk. According to the Stakić Appeal Judgment, for the application of third category JCE liability, the following elements must be satisfied: a. crimes outside the Common Purpose have occurred; b. these crimes were a natural and foreseeable consequence of effecting the Common Purpose; and c. the participant in the joint criminal enterprise was aware that the crimes were a possible consequence of the execution of the Common Purpose, and in that awareness, he nevertheless acted in furtherance of the Common Purpose.210

a  The Fault Element In the words of the Tadic´ Appeal Judgment, liability attaches for the extended form of joint criminal enterprise ‘if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group; and (ii) the accused willingly took that risk’.211 Courts of Cambodia (ECCC), Case No 002/19-09-2007-ECCC/OCIJ (PTC38), 20 May 2010, para 71 referring to Kai Ambos’ Amicus Brief, 19, 22. 208   ibid, para 71. 209   In May 2010 the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia concluded that customary international does not support the existence of JCE III as a form of responsibility applicable to violations of international humanitarian law, see Prosecutor v Ieng Thirith, Ieng Sary and Khieu Samplan, above (n 207) paras 75–89. 210   Stakić Appeal Judgement, para 87 (capital letters in original). In the words of Tadic´ Appeal Judgement, para 204: ‘Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk’. 211   Tadic´ Appeal Judgement, para 228 (emphasis in original).

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Mens Rea of Perpetration and Participation Accordingly, the fault element requisite for this form of JCE is twofold: First, the accused must have the intention to participate in and contribute to the common criminal purpose. Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that it might occur by joining or continuing to participate in the enterprise.212

The distinctive feature of the extended form of JCE is the fault element, which subject to certain conditions permits criminal liability to be extended to crimes other than the one(s) initially agreed upon in the original plan or design. This third category of JCE requires not only that an individual by his controlled acts has taken unlawful risks in violation of international humanitarian law, but that he has assumed the risk of criminal results arising from the common criminal design, regardless of who commits those crimes. To date, many crimes within the jurisdiction of the ICTY and ICTR fall within the ambit of the extended form of JCE. The most recent was extermination as a crime against humanity.213 One serious problem which confronted the two ad hoc Tribunals was the applicability of the extended form of joint criminal enterprise to specific purpose crimes, notably, genocide. It is questionable whether individuals should be convicted of such high profile and morally culpable crimes, on the basis of mere foresight. Addressing this point, the Stakić Trial Chamber spelled out its concerns in the following words: [T]he application of a mode of liability cannot replace a core element of a crime. The Prosecution confuses modes of liability and the crimes themselves. Conflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished.214

To put it differently, those crimes which require specific intent are generally regarded as the most serious, and an attempt to undermine the mental element – charging individuals for specific intent crimes under the extended form of JCE – devalues the seriousness of the crime. These concerns were spelled out by the Brđanin Trial Chamber. It held that the specific intent required for a conviction of genocide cannot be reconciled with the mens rea standard of an extended form of JCE.215 The Trial Chamber concluded that the accused’s awareness of the risk that genocide would be committed by other members of the JCE is incompatible with and falls short of the threshold needed to satisfy the specific intent required for a conviction for genocide.216

212   Kvočka Appeal Judgement, para 83, citing Tadic´ Appeal Judgement, paras 204, 228 and Vasiljević Appeal Judgement, para 99. See also Ðorđević Trial Judgement, para 1865. 213   Stakić Appeal Judgement, para 98. 214   Stakić Trial Judgement, para 530. 215   Brđanin Decision on Motion for Acquittal, para 57. 216  ibid.

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Unfortunately, the Brđanin Trial Chamber’s finding was reversed by the Appeal Chamber’s Decision on Interlocutory Appeal on the following grounds: (i) the extended form of joint criminal enterprise liability is a mode of liability, such as aiding and abetting or command responsibility, and not an element of a particular crime; (ii) an accused convicted of a crime under this form need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed; (iii) it is sufficient that the accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise and it was committed; and (iv) where that different crime is the crime of genocide, it must be established that it was reasonably foreseeable to the accused that one of the enumerated acts of genocide would be committed with genocidal intent.217 By adopting a ‘reasonably foreseeable’ test the Brđanin Appeals Chamber has lowered the threshold of the mens rea requisite for this category of JCE to reach the one of negligence.218 Today the jurisprudence of the Yugoslavia Tribunal is arguably settled and retains Tadic´ third formulation of JCE III liability: [R]esponsibility for a crime other than the one agreed upon in the common plan arises only if [. . .] (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.219

A major source of concern with regard to the applicability of the extended form of JCE in the sphere of international criminal law is that under both the objective and subjective standards, the participant is unfairly held liable for criminal conduct in which he neither intended nor participated in. It is also unjust that the liability of the actual perpetrator (the one who carried out the crime outside the common plan) is tested subjectively whereas that of the participant is tested objectively. Moreover, if the accused had actually participated in crimes outside the initial plan ‘common purpose’ as an aider or abettor he would arguably have an increased chance of acquittal, as the prosecution would be confronted with having to prove a higher level of mental awareness, namely, that the accused knew that the principal perpetrator had the state of mind required for the crime at issue.220 The present author is of the opinion that if, one day, the prosecution succeeds in granting a conviction for one of the ‘specific purpose crimes’ under the third category of JCE, this will alter the JCE doctrine to become an umbrella to ‘just convict everyone’.221   Brđanin Decision on Interlocutory Appeal, paras 5–10.   Contra see Cassese, above (n 138) 123: ‘[A]t the international level what is required is not the secondary offender actually foresaw the criminal conduct likely to be taken by the primary offender; the test is rather whether a man of reasonable prudence would have foreseen that conduct under circumstances prevailing at the time’. 219   Tadic´ Appeal Judgement, para 228. 220   See ibid, para 229. 221   See Mohamed Elewa Badar, above (n 139) 293. 217 218

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vi  Co-perpetration (Mittäterschaft) as a Form of ‘Committing’ In examining the criminal responsibility of Milomir Stakić for the crimes alleged, the Trial Chamber applied a mode of liability which it termed ‘co-perpetratorship’ (committing ‘jointly with another person’), in lieu of ‘joint criminal enterprise’.222 ‘A more direct reference to ‘commission’ in its traditional sense’, according to the Stakić Trial Chamber, ‘should be given priority before considering responsibility under the judicial term “joint criminal enterprise”  ’.223 The Stakić Judgment defined the word ‘committed’ under Article 7(1) of the ICTY Statute in the following words: [T]he accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged through positive acts or, based on duty to act, omissions, whether individually or jointly with others. The accused himself need not have participated in all aspects of the alleged criminal conduct.224

In the words of the Stakić Trial Chamber the main features of co-perpetration are that the ‘co-perpetrators must pursue a common goal, either through an explicit agreement or silent consent, which they can only achieve by co-ordinated action and joint control over the criminal conduct. Each co-perpetrator must make a contribution essential to the commission of the crime’.225 According to the Stakić Trial Chamber, in order to meet the requirements of ‘co-perpetratorship’ as a mode of liability, the prosecution must prove beyond reasonable doubt that there was (i) an explicit agreement or silent consent between two or more individuals to reach a common goal; (ii) by coordinated co-operation; and (iii) joint control over the criminal conduct.226 The Stakić Judgment requires that the co-perpetrators can only realise their plan insofar as they act jointly, but each individual can ruin the whole plan if he does not carry out his part. To this extent, each of the co-perpetrators is in control of the act.227 In order to clarify its position, the Judgment referred to Claus Roxin’s example: If two people govern a country together – are joint rulers in the literal sense of the word – the usual consequence is that the acts of each depend on the co-perpetration of the other. The reverse side of this is, inevitably, the fact that by refusing to participate, each person individually can frustrate the action.228 222   Stakić Trial Judgement, paras 438–41. The Stakić Trial Chamber applied ‘a combination of two forms of commission, known in German criminal law as Mittäterschaft (co-perpetration) and mittelbare Täterschaft (indirect perpetratorship). 223   Stakić Trial Judgement, para 438. In Simić, Judge Per-Johan Lindholm was of the same the same opinion: Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm, para 2. 224   Stakić Trial Judgement, para 439. 225   ibid, para 440. The Stakić Trial Chamber held the opinion that ‘joint criminal enterprise is only one of several interpretations of the term “commission” under Article 7(1) of the Statute and that other definitions of co-perpetration must equally be taken into account’. 226   Stakić Trial Judgement, para 440. 227   ibid, quoting Claus Roxin, Täterschaft und Tatherrschaft, (Berlin, New York, 1994) 278. 228   Stakić Trial Judgement, para 440 (fns omitted).

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Applying the rule and the foregoing principles to the facts of the case, the Stakić Trial Chamber concluded: The co-perpetrators consented to the removal of Muslims from Prijedor by whatever means necessary and either accepted the consequence that crimes would occur or actively participated in their commission. The fact that Dr Stakić felt it necessary to replace Professor Čehajić and others who clearly would not have participated in the implementation of the common goal demonstrates Dr Stakić’s awareness that without his acts and the acts of the other co-perpetrators, the ultimate goal of the creation of a Serbian state could not be realised.229

The Trial Chamber went on to hold that: Dr Stakić knew that his role and authority as the leading politician in Prijedor was essential for the accomplishment of the common goal. He was aware that he could frustrate the objective of achieving a Serbian municipality by using his powers to hold to account those responsible for crimes, by protecting or assisting non Serbs or by stepping down from his superior position.230

In addition to the mens rea required for the particular crime, this mode of liability (co-perpetratorship) requires proof of (i) mutual awareness of substantial likelihood that crimes would occur; and (ii) the defendant’s awareness of the importance of his own role.231 In order to avoid any repetition, the subjective elements of co-perpetratorship will be discussed in greater detail when we examine this notion under the Statute of the International Criminal Court and in light of the recent decision delivered by Pre-Trial Chamber I in the Lubanga case.232 Despite the fact that the Stakić Trial Judgment limited itself to the clear wording of the Statute when interpreting ‘committing’ in the form of ‘co-perpetration’, in lieu of joint criminal enterprise, the recent judgment of the Appeals Chamber marked the death of this mode of liability in the jurisprudence of the ICTY. The Appeals Chamber declared that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of ‘co-perpetratorship’. This mode of liability . . . does not have support in customary international law . . . By contrast, joint criminal enterprise is a mode of liability which is firmly established in customary international law and is routinely applied in the Tribunal’s jurisprudence.233   ibid, para 496.   ibid, para 498. 231   ibid, paras 495–97. 232   See the discussion in ch 11 of this volume. 233   Stakić Appeal Judgement, para 62 (fns omitted). In his dissenting opinion in the Simić Appeal Judgement, Judge Schomburg contended that co-perpetratorship ‘is firmly entrenched in customary international law’. In support of this position, Judge Schomburg referred to a recent comparative survey of national legal systems conducted by the Max-Planck-Institute in Germany, which illustrates that at least 23 states, including the successor states on the territory of the former Yugoslavia, acknowledge the concept of co-perpetratorship in their criminal codes. According to Judge Schomburg, co-perpetratorship suits the needs of international criminal law particularly well and he also refered to the Statute of the International Criminal Court which includes the notion of co-perpetratorship in Article 25(3)(a). He concluded that, ‘[g]iven the ample acknowledgment of co-perpetratorship, the ICC does not create 229 230

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Mens Rea of Perpetration and Participation a  ‘Indirect Perpetratorship’ – An Effective Machinery to hold those who Acted ‘Behind the Scenes’ as Perpetrators

The notion of ‘indirect perpetration’ and its application in modern criminal law particularly in cases concerning organised crime, terrorism, ‘white collar crime’ or ‘state induced criminality’ was adequately examined and analysed by Judge Schomburg in his Separate Opinion in the Gacumbitsi Appeal Judgment. 234 This mode of indirect perpetratorship requires that the indirect perpetrator uses the direct and physical perpetrator as a mere ‘instrument’ to achieve his goal, ie, the commission of the crime. In such cases, the indirect perpetrator is criminally responsible because he exercises control over the act and the will of the direct and physical perpetrator.235

Judge Schomburg noted that the notion of ‘indirect perpetratorship’ suits the needs of both international criminal law and national law. He contended that the application of indirect perpetratorship in the sphere of international criminal law will significantly help ‘to bridge any potential physical distance from the crime scene of persons who must be regarded as main perpetrators because of their overall involvement and control over the crimes committed’.236 b  Co-perpetratorship vis-à-vis Customary International Law In his dissenting opinion in the Simić Appeal Judgment, Judge Schomburg contended that co-perpetratorship ‘is firmly entrenched in customary international law’.237 In support of this position, Judge Schomburg referred to a recent comparative survey of national legal systems conducted by the Max-Planck-Institute in Germany,238 which illustrates that at least 23 states, including the successor states on the territory of the former Yugoslavia, acknowledge the concept of co-

new law in this respect, but reflects existing law at least since the point in time when both ad-hoc Tribunals were vested with jurisdiction ratione temporis’; see Simić Appeal Judgement, Dissenting Opinion of Judge Schomburg. 234  See Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, paras 18–21, 26. Reference being made to the Argentinean National Appeals Court, Judgment on Human Rights Violations by the Former Military Leaders of 9 December 1985, which was upheld by the Argentinean Supreme Court on 30 December 1986. In this case the Argentinean courts have entered convictions for crimes committed by members of the of the Junta regime based on the notion of indirect perpetratorship. 235   Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, para 18 (fns omitted). 236   ibid, para 21. 237   Simić Appeal Judgement, Dissenting Opinion of Judge Schomburg, fn 20. 238   Simić Appeal Judgement, ‘Dissenting Opinion of Judge Schomburg’, referring to a survey entitled ‘Participation in Crime: Criminal Liability of Leaders of Criminal Groups and Networks, Expert Opinion, Commissioned by the United Nations – International Criminal Tribunal for the Former Yugoslavia, Office of the Prosecutor’ undertaken by the Max-Planck-Institute for Foreign and International Criminal Law, Freiburg, Germany.

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perpetratorship in their criminal codes.239 According to Judge Schomburg, coperpetratorship suits the needs of international criminal law particularly well and he also refers to the Statute of the International Criminal Court which includes the notion of co-perpetratorship in Article 25(3)(a). He concluded that, ‘[g]iven the ample acknowledgment of co-perpetratorship, the ICC does not create new law in this respect, but reflects existing law at least since the point in time when both ad-hoc Tribunals were vested with jurisdiction ratione temporis’.240 Judge Shahabuddeen, however, held a different opinion: [T]he required state practice and opinio juris do not exist so as to make either theory part of customary international law. That opens the risk of there being a non liquet on matter of substance in international criminal law as applied by the Tribunal. That risk was sensed in Erdemović. There too there was a clash between domestic legal systems. The majority in the Appeals Chamber was able to avoid the risk in that case only, on one view, by going outside the normal principles of international criminal law. Whether the risk in this case can be avoided by taking a less adventurous course is best left for future inquiry.241

c  Harmonisation between Joint Criminal Enterprise and Co-perpetratorship In the Gacumbitsi and Simić Appeal Judgments, Judge Schomburg noted that the notions of JCE and co-perpetratorship ‘widely overlap and have therefore to be harmonized in the jurisprudence of both ad hoc Tribunals’.242 According to Judge Schomburg, such harmonisation could provide the three categories of JCE ‘with sharper contours by combining objective and subjective components in an adequate way’.243 Furthermore, he added, this ‘harmonization will lead to greater acceptance of the Tribunal’s jurisprudence by international criminal courts in the future’.244 Such harmonisation was viewed by Judge Shahabuddeen as impracticable. He pointed out that the contribution of an accused to a JCE does not have to be a sine qua non of the commission of the crime. . . . By contrast, under the co-perpetratorship theory, since the non fulfilment by a participant of his promised contribution would ‘ruin’ the accomplishment of the enterprise as visualized, the making of his contribution would appear to be a sine qua non. Therefore, though the two theories overlap, they arrive at a point of incompatibility touching guilt or innocence: at that point one theory is wrong, the 239   Simić Appeal Judgement, ‘Dissenting Opinion of Judge Schomburg’, para 13; see also Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, para 22: ‘It is important to note that neither the law of Rwanda nor the law of the former Yugoslavia employs the theory of joint criminal enterprise’. 240   Simić Appeal Judgement, Dissenting Opinion of Judge Schomburg, para 16. 241   Gacumbitsi Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para 51 (emphasis in original). 242   Simić Appeals Judgement, Dissenting Opinion of Judge Schomburg, para 17; Gacumbitsi Appeal Judgement, Separate Opinion of Judge Schomburg, para 22. 243   Simić Appeals Judgement, ibid. 244  ibid.

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III  Responsibility under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes The principle of individual criminal responsibility of commanders for failure to prevent or punish crimes committed by their subordinates is not alien to international criminal law. It is a well-established rule of international customary law applicable to both international and internal armed conflicts.246 Articles 7(3) and 6(3) of the ICTY and ICTR Statutes, in contrast to Articles 7(1) and 6(1), create a form of indirect liability ‘predicated upon the power of the superior to control the acts of his subordinates’.247 A recent judgment expressly stated that command responsibility as provided for in Article 7(3) of the ICTY Statute is responsibility for an omission.248 As the Halilović Trial Chamber put it more clearly: The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus ‘for the acts of his subordinates’ as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his the subordinates, the commander should bear responsibility for his failure to act.249

A  General Requirements under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes For a superior, military or civilian,250 to be found criminally responsible under Articles 7(3) or 6(3) of the Statutes, the following elements have to be established beyond reasonable doubt: 245   Gacumbitsi Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para 50; See also Simić Appeal Judgement, Dissenting Opinion of Judge Shahabuddeen, para 32. 246   Halilović Trial Judgement, para 55, citing Čelebići Appeal Judgement, para 195; Čelebići Trial Judgement, para 343; Strugar Trial Judgement, para 357. For the applicability of command responsibility in internal armed conflicts, see Hadžihasanović Appeal Decision on Jurisdiction, para 31. 247   Čelebići Appeal Judgement, para 197, citing Čelebići Trial Judgement, para 377; Kordić and Čerkez Trial Judgement, para 369; Kayishema and Ruzindana Trial Judgement, para 217; Musema Trial Judgement, para 148. 248   Halilović Trial Judgement, para 54. For more details on omission as a culpable conduct in international criminal law see Michael Duttwiller, ‘Liability for Omission in International Criminal Law’ (2006) 6 International Criminal Law Review 1–61. 249   Halilović Trial Judgement, ibid. 250   There is a consensus in the jurisprudence of the ICTY and ICTR that the doctrine of command responsibility extends beyond the responsibility of military commanders to encompass civilian superiors in positions of authority; see Bagilishema Trial Judgement, paras 41–43.

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i. an act or omission incurring criminal responsibility within the subject matter jurisdiction of the Tribunals has been committed by other(s) than the accused (‘principal crime’); ii. there existed a superior–subordinate–relationship between the accused and the principal perpetrator(s) (‘superior–subordinate–relationship’); iii. the accused as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so (‘knew or had reason to know’); and iv. the accused as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator(s) thereof (‘failure to prevent or punish’).251

i  A Crime was Committed This requires that a crime or crimes within the subject matter jurisdiction of the two ad hoc Tribunals was accomplished by a perpetrator or group of perpetrators other than the accused. It was argued that since Article 7(3) of the ICTY Statute merely refers to ‘committing’, and does not expressly mention the other modes of liability set out in Article 7(1) of the Statute, a superior can incur criminal responsibility only if his subordinates ‘committed’ the crimes themselves, and not if they merely ‘aided and abetted’ the crime of others.252 Addressing this point, Trial Chamber II of the ICTY in the Orić Judgment, as well as in the Boškoski Decision,253 ruled that superior responsibility is not limited to crimes committed physically by the subordinates (principal perpetrators) as it also encompasses situations where the subordinates merely aided and abetted the crime of others (accessories/secondary participation). Adopting a broad interpretation of the word ‘committing’ in Article 7(3) of the ICTY Statute, the Orić Trial Chamber held that decisive weight must be given to the purpose of superior criminal responsibility as it aims at obliging commanders to ensure that subordinates do not violate international humanitarian law, either by harmful acts or by omitting a protective duty. This enforcement of international humanitarian law would be impaired to an inconceivable degree if a superior had to prevent subordinates only from killing or maltreating in person, while he could look the other way if he observed that subordinates ‘merely’ aided and abetted others in procuring the same evil.254

Moreover, a superior’s criminal responsibility is not limited to a subordinate’s active perpetration or participation, but also comprises their commission by

251   Orić Trial Judgement, para 294; Ntagerura et al Trial Judgement, para 627; Semanza Trial Judgement, para 400; Blaškić Appeal Judgement, para 484; Aleksovski Appeal Judgement, para 72. 252   Orić Trial Judgement, para 297, referring to the Defence Final Brief, para 507 et seq, and the Defence Closing Argument, T 16438. 253   Boškoski Decision, paras 18–48. 254   Orić Trial Judgement, paras 300–01.

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omission.255 The following hypothetical example given by the Orić Trial Chamber is illustrative: [I]f for instance the maltreatment of prisoners by guards, and/or by outsiders not prevented from entering the location, is made possible because subordinates in charge of the prison fail to ensure the security of the detainees by adequate measures, it does not matter any further by whom else, due to the subordinates’ neglect of protection, the protected persons are being injured, nor would it be necessary to establish the identity of the direct perpetrators.256

The ICTY emphasised that in whatever mode of criminal participation, ‘omission can incur responsibility only if there was a duty to act in terms of preventing the prohibited result from occurring’.257

ii  Superior Authority over the Subordinates The requirement of a superior–subordinate relationship which ‘lies in the very heart of a commander’s liability for crimes committed by his subordinates’,258 is best encapsulated by the Ntagerura Trial Chamber: (i) a superior–subordinate relationship is established by showing a formal or informal hierarchical relationship; (ii) the superior must have possessed the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates; (iii) the superior must have had effective control over the subordinates at the time the offence was committed.259

a  Identification of Subordinates The Appeals Chamber in the Orić case held that, while it is not necessary to identify the subordinates in person, at least “their existence” must be established before superior responsibility can arise’.260 The Appeals Chamber reversed the   ibid, para 302.   ibid, para 305. To support its proposition the Trial Chamber gave the following reasons: ‘(1) . . . this position is supported by the common usage of “act” and “committing” as legal umbrella-terms for conduct that consists of actively causing a certain result to occur or in failing to prevent its occurrence [para 302]. (2) . . . since commission through culpable omission is not limited to perpetration but, according to the case [law] of this Tribunal, is open to all forms of participation, instigating as well as aiding and abetting can also be carried out by omission [para 303]. (3) . . . with regard to the consequence for the superior’s responsibility, . . . his or her duty to prevent or punish concerns all modes of conduct a subordinate may be criminally responsible for under Article 7(1) of the Statute, be it perpetration by committing the relevant crime (alone or jointly with others) in person or be it participation, as in form of instigation or otherwise aiding and abetting, and further, that any of these modes of liability may be performed by positive action or culpable omission [para 305]’. 257   Orić Trial Judgement, para 304 (emphasis in original, fns omitted). For more details on the concept of ‘omission’ in international criminal law, see Duttwiller, above (n 248) 1–61. 258   Limaj Trial Judgement, para 521; Strugar Trial Judgement, para 359. 259   Ntagerura et al Trial Judgement, para 628. See also Halilović Trial Judgement, para 58; Galić Trial Judgement, para 173. 260   Orić Appeal Judgement, para 35. 255 256

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conviction of Naser Orić for crimes committed by the military police because the Trial Chamber did not mention the potentially culpable members of the military police but only established the existence of the military police as an entity.261 In the Renzaho case, Trial Chamber I of the ICTR recalled that ‘a superior need not necessarily know the exact identity of his or her subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute’.262 According to the Trial Chamber it was sufficient that the indictment identified Renzaho’s subordinates by general category and that it contained additional specificity in the relevant paragraphs referring to the crimes by providing specific names and further geographical and temporal limitations for broader categories of assailants such as militiamen.263 The identification of the subordinates and finding of their criminal responsibility is particularly important in cases where subordinates of the accused are alleged to be criminally responsible for the crimes of direct perpetrators who are not subordinates of the accused.264 b  Effective Control – Material Ability The concept of ‘effective control’, which is the decisive criterion for establishing the superior–subordinate link is defined by the Čelebići Appeals Chamber as connoting the commander’s material ability to prevent and punish criminal conduct.265 In the words of the Blaškić Appeals Chamber ‘effective control’ is more a matter of evidence than of law and that ‘those indicators [of effective control] are limited to showing that the accused had the power to prevent, punish or initiate measures leading to proceedings against the alleged perpetrators where appropriate’.266 Thus, the effective control requirement is not satisfied by a showing of mere general influence on the part of the accused.267 In reaching the conclusion that Renzaho had effective control over the local officials within his prefecture Trial Chamber I of the ICTR considered that, ‘by virtue of his position as prefect and with his high military rank, Renzaho was clearly an important and influential 261   ibid. The Trial Chamber had only identified one member of the Military Police as a subordinate of Orić, but failed to establish on what basis this person was criminally responsible for the crimes committed by the principal perpetrators, see paras 36–49. 262   Renzaho Trial Judgement, para 751, citing with approval the Muvunyi Appeal Judgement, para 55, Blagojević and Jokić Appeal Judgement, para 287. 263   Renzaho Trial Judgement, ibid. 264   As confirmed by the Appeals Chamber, superior responsibility is not only imposed when the subordinates physically committed crimes, but also for either the omissions of subordinates or crimes perpetrated by subordinates by means of modes of liability other than ‘committing’, see Blagojević and Jokić Appeal Judgement, paras 280, 281; Nahimana et al Appeal Judgement, paras 485–86. 265   Čelebići Appeal Judgement, para 256. See also Blaškić Appeal Judgement, para 69: ‘the indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leadings to proceedings against the alleged perpetrators where appropriate’. 266   Blaškić Appeal Judgement, ibid. 267   Orić Trial Judgement, para 311; Ntagerura et al Trial Judgement, para 628; Semanza Trial Judgement, para 402.

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authority of the Rwandan government entrusted with the administration of a key strategic location during a time of war’.268 However, the Chamber found that ‘given his position within the civilian administration, and the formal limitations on his authority over gendarmes, the Chamber is not convinced beyond reasonable doubt that Renzaho’s effective control extended to all gendarmes or every army soldier of a lesser rank’.269 c  De Jure and/or De Facto The jurisprudence constante of the ICTY and the ICTR Trial Chambers confirms that formal designation as a commander (or a superior) is not a necessary prerequisite for superior responsibility, and that such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position of authority or powers of control.270 In the words of the Orić Trial Chamber, ‘regardless of which chain of command or position of authority the superior–subordinate relationship may be based it is immaterial whether the subordination of the perpetrator to the accused as superior is direct or indirect, and formal or factual’.271 d  Effective Control – No Reversal of the Burden of Proof in Case of a De Jure Superior In the seminal Čelibići case, the Appeals Chamber held that [in] general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.272

The Appeals Chamber in the Hadžihasanović and Kubura case confirmed the finding in the Čelebići case, but clarified that there is no legal presumption and no reversal of the burden of proof.273 The Appeals Chamber in the Orić case also stated that de jure authority is not synonymous with effective control. While the possession of de jure authority may suggest a material ability to prevent or punish, it may be neither necessary nor sufficient to prove such ability. De jure authority only provides ‘some evidence’ of effective control.274   Renzaho Trial Judgement, para 753.   ibid, para 755. 270   Čelebići Trial Judgement, paras 353–54, 370, 736, confirmed by Čelebići Appeal Judgement, paras 195 et seq; Aleksovski Trial Judgement, para 76; Blaškić Trial Judgement, para 301; Kunarać et al Trial Judgement, para 396; Kordić and Čerkez Trial Judgement, para 416; Naletilić Trial Judgement, para 67; Stakić Trial Judgement, para 459; Halilović Trial Judgement, paras 58, 60; Musema Trial Judgement, para 148; Kayishema and Ruzindana Trial Judgement, paras 218, 222. 271   Orić Trial Judgement, para 310. 272   Čelebići Appeal Judgement, para 197. 273   Hadžihasanović Appeal Judgement, para 21. 274   Orić Appeal Judgement, paras 91, 92. 268 269

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It is noteworthy that the Appeals Chamber in the Hadžihasanović and Kubura case even declined to address whether one of the accused had de jure authority arguing that ‘de jure authority is only one factor that helps to establish effective control, and because the present question is resolvable on the basis of effective control alone’.275 e  Effective Control or Cooperation? Military Benefits achieved through Independent Units not a Factor to Consider Both in the Hadžihasanović and Kubura case and in the Delić case, it was in dispute whether the accused exercised effective control over Mujahedin detachments, which fought alongside the units of the accused, and whether the accused were responsible for crimes committed by these detachments. The issue was whether the accused bear responsibility since they benefited militarily from the cooperation with those units. The Appeals Chamber clarified that the alleged benefit from the cooperation with other units is not a relevant factor when assessing whether the superior had effective control.276 It added that it may entail ‘some form of responsibility’ if ‘the particulars of such responsibility are adequately pleaded in an Indictment’. However, ultimately the superior responsibility is only triggered on a showing of effective control.277 In the Hadžihasanović and Kubura case, the Appeals Chamber found that the relationship between the accused and the Mujahedin detachment was one of cooperation and did not evolve into a superior–subordinate–relationship.278 In the Delić case, the majority found that the Mujahedin detachment was not an independent unit merely cooperating with the Army of Bosnia and Herzegovina, although it enjoyed a certain degree of autonomy.279 The majority found that Delić exercised effective control over the Mujahedin and was, therefore, criminally responsible for a number of crimes committed by the Mujahedin. In his dissenting opinion, Judge Moloto considered that the relationship between the Mujahedin detachment and the Army of Bosnia was throughout one of cooperation rather than one of effective control.280 f  Superior Responsibility for Crimes Committed before Superior had Effective Control Superiors may not be held responsible for crimes committed before they assumed command and exercised effective control. This was the debatable finding of the   Hadžihasanović Appeal Judgement, para 189.   ibid, paras 213, 214, 217.   ibid, para 213. 278   ibid, paras 200, 210, 214, 217, 221. 279   Delić Trial Judgement, para 466. Judge Moloto dissenting. 280  ibid. 275 276 277

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Appeals Chamber in a jurisdiction decision in the Hadžihasanović and Kubura case of July 2003 that was reached by majority.281 In the Orić appeal, the issue came back to the Appeals Chamber. The prosecution argued that the Trial Chamber erred in law when it found that Orić could not be held responsible for crimes, of which he had knowledge, because they were perpetrated before he assumed effective control over the military police.282 The majority of the Appeals Chamber in the Orić case declined to address the issue arguing that the ratio decidendi in the Hadžihasanović and Kubura case could not have an impact on the outcome of the case.283 Judge Schomburg and Judge Liu dissented holding that the Appeals Chamber should have discussed the validity of the ratio decidendi as a matter of general significance. Judge Shahabuddeen did not formally dissent, but attached a declaration.284 In substance, all three judges agreed that the finding of the Appeals Chamber in the Hadžihasanović and Kubura case was wrong, thus forming a ‘silent’ reversing majority. Judge Liu and Judge Schomburg demonstrated that the restriction in the Hadžihasanović decision does not reflect customary international law and defeats the object and purpose behind the concept of superior responsibility which is to ensure compliance with the laws and customs of war and international humanitarian law in general.285 The Appeals Chamber in the Hadžihasanović and Kubura case was wrong to point to missing state practice and/or opino iuris. It is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. In fact, the framework indicating the customary rule already existed.286

iii  Mens Rea – ‘Knew or had Reason to Know’ It has been repeatedly cautioned – at least as it is understood and applied within the framework of the Yugoslavia and the Rwanda Tribunals – that command responsibility is not a mode of strict liability.287 A commander, whether military   Hadžihasanović Appeal Decision on Jurisdiction, para 51.   Orić Prosecution Appeal Brief, para 102. 283   Orić Appeal Judgement, para 167. 284   Judge Shahabuddeen was one of the Judges who had dissented in the Hadžihasanović jurisdiction decision. With Judge Schomburg and Judge Liu dissenting in the Orić appeal, his vote was decisive. In his declaration, Judge Shahabuddeen puts the question whether a judge who dissented in one decision can subsequently properly form part of a reversing majority and comes to the conclusion that, in the circumstances of the case, ‘a reversal should await such time when a more solid majority’. Declaration, paras 13–15. 285   Partially dissenting opinion and declaration of Judge Liu, paras 29–31; Separate and partially dissenting opinion of Judge Schomburg, para 7. 286   Separate and partially dissenting opinion of Judge Schomburg, para 14; partially dissenting opinion and declaration of judge Liu, para 33; Judge Shahabuddeen highlighted that the Appeals Chamber in the Hadžihasanović decision reached that general finding unanimously. Declaration, para 17. 287   Orić Trial Judgement, para 318; Čelebići Appeal Judgement, para 239; Čelebići Trial Judgement, para 383; Halilović Trial Judgement, para 65; Brđanin Trial Judgement, para 278; Blagojević and Jokić Trial Judgement, para 792; Kajelijeli Trial Judgement, para 776. 281 282

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or civilian,288 will be found to possess the requisite mens rea sufficient to hold him responsible under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes where he knew (actual knowledge) or had reason to know (imputed or constructive knowledge) that the subordinate was about to commit or had committed a crime.289 It must be established either that (i) the commander had actual knowledge that his subordinates were committing or about to commit crimes within the subject matter jurisdictions of the Tribunals, or that (ii) the commander had in his possession information which would at least put him on notice of the risk of such offences.290 With regard to the latter form (imputed knowledge), one Trial Chamber of the Yugoslavia Tribunal noted that by permitting the attribution of criminal responsibility to a superior for what is in actual fact a lack of due diligence in supervising the conduct of his subordinates, Article 7(3) in this respect sets itself apart being satisfied with a mens rea falling short of the threshold requirement of intent under Article 7(1) of the Statute.291

a  Had ‘Reason to Know’ due to a Failure to Punish Past Crimes If superiors do not punish past crimes, subordinates may understand that failure as acceptance or even encouragement and might continue committing crimes. However, as the Appeals Chamber held in Krnojelać, the failure to punish a past crime cannot be taken as proof of knowledge that similar crimes would be committed in the future. It may be taken as ‘alarming information’ to justify further inquiry.292 The Appeals Chamber in the Hadžihasanović and Kubura case further clarified that this does not mean that the superior’s failure to punish past crimes automatically constitutes sufficiently alarming information to meet the threshold of ‘had reason to know’. It held that the assessment has to take into account the circumstances of the case.293 b  Mens Rea – Actual Knowledge As a mode of liability, command responsibility requires the prosecution to establish that a commander whether military or civilian ‘knew’ of the criminality of subordinates. Thus, this mode of liability does not require proof of intent on the 288   In the jurisprudence of the ICTY, the mens rea standard under Art 7(3) knew or had reason is the same for military and civilian superiors. 289   Limaj Trial Judgement, para 523; Halilović Trial Judgement, para 64; Ntagerura et al Trial Judgement, para 629. 290   Ntagerura et al Trial Judgement, para 629; Semanza Trial Judgement, para 405; Halilović Trial Judgement, para 65. 291   Orić Trial Judgement, para 317. 292   Krnojelać Appeal Judgement, para 169. 293   Hadžihasanović and Kubura Appeal Judgement, paras 30–31.

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part of the superior before criminal liability can attach.294 The term ‘knew’ as provided for in Articles 7(3) and 6(3) of the Statutes implies actual knowledge – the superior’s awareness that the relevant crimes were committed or were about to be committed.295 This is the highest standard of knowledge and the hardest to prove, as it requires evidence establishing beyond reasonable doubt that the commander actually knew of the crimes committed, or about to be committed by his subordinates.296 It is not required, on the one hand, to prove that the commander possesses any volitional element with regard to the crimes committed by his subordinates. On the other hand, under this formulation of ‘full knowledge’ recklessness or negligence is not a sufficient fault element to trigger the criminal responsibility of a commander for the proscribed acts committed by his sub­ ordinates.297 It is worth stressing that in situations where there is sufficient evidence to sustain that a superior, in addition to possessing knowledge that crimes were committed or about to be committed by his subordinates, has substantially contributed to the commission of crimes by his subordinates, this may alter his responsibility to ‘complicity’ under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes. As one Trial Chamber of the Yugoslavia Tribunal noted: In cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by Article 7(1). Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1).298

The Čelebići Trial Chamber rightly emphasised that ‘in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence’.299 Types of circumstantial evidence include the number, type and scope of illegal acts, time during which illegal acts occurred, number and types of troops and logistics involved, geographical location, whether the occurrence of the acts is widespread, tactical tempo of operations, modus operandi of   Brđanin Decision on Interlocutory Appeal, para 7.   Kordić and Čerkez Trial Judgement, para 427. 296   Kirsten MF Keith, ‘The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence’ (2001) 14 Leiden Journal of International Law 617, 619. 297   Bagilishema Appeal Judgement, paras 34–35; Blaškić Appeal Judgement, para 63; Halilović Trial Judgement, para 71. 298   Kordić and Čerkez Trial Judgement, para 371. 299   Čelebići Trial Judgement, para 386; Halilović Trial Judgement, para 66. See also Aleksovski Trial Judgement, para 80; Blaškić Trial Judgement, para 308. The Aleksovski and Blaškić Trial Judgements indicated that the position of authority of the superior over the subordinate may in some circumstances of itself be an indicator that the superior must have known of the subordinate’s conduct. Kayishema and Ruzindana Trial Judgement, para 225. 294 295

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Responsibility under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes similar illegal acts, officers and staff involved, and location of the commander at the time.300

c  Imputed Knowledge – Had Reason to Know The concept ‘had reason to know’ which constitutes the alternative type of knowledge as set out in Articles 7(3) and 6(3) of the ICTY and ICTR Statutes is based on Articles 86 and 87 of the Additional Protocol I of the 1949 Geneva Conventions. The ‘had reason know’ standard does not require proof of ‘actual knowledge’ on the part of the superior.301 Thus, if the superior is in possession of sufficient information to put him on notice of the likelihood of illegal acts by his subordinates – if the information available is sufficient to justify further inquiry – he or she may be regarded as ‘having reason to know’.302 Mere expectation that offences were about to be committed is not sufficient to imply that the superior ‘had reason know’.303 According to the Blaškić Appeals Chamber, a superior can incur responsibility ‘for deliberately refraining from finding out but not for negligently failing to find out’.304 A superior’s knowledge of the criminal reputation of his subordinates may be sufficient to meet the ‘had reason to know’ standard, if it amounts to information which would put him on notice of the present and real risk of offences within the jurisdiction of the Tribunals.305 The findings of the Israeli Commission of Inquiry responsible for investigating the massacre perpetrated in the Sabra and Shatilla refugee camps in Beirut in 1982 is illustrative.306 In examining the responsibility of the Chief of Staff of the Israel Defence Forces, the Commission held that ‘his knowledge of the feelings of hatred of the particular forces involved towards the Palestinians did not justify the conclusion that the entry of those forces into the camps posed no danger’.307 The Commission went on to hold that: The absence of a warning from experts cannot serve as an explanation for ignoring the danger of a massacre. The Chief of Staff should have known and foreseen – by virtue of common knowledge, as well as the special information at his disposal – that there was a possibility of harm to the population in the camps at the hands of the Phalangists. Even if the experts did not fulfil their obligation, this does not absolve the Chief of Staff of Responsibility.308 300   Limaj Trial Judgement, para 524, citing Čelebići Trial Judgement, ibid; Kordić and Čerkez Trial Judgement, para 427; Blaškić Trial Judgement, para 307; Strugar Trial Judgement, para 368. 301   Bagilishema Appeal Judgement, para 28. 302   Halilović Trial Judgement, para 68. 303   Strugar Trial Judgement, para 416. 304   Blaškić Appeal Judgement, para 406 (emphasis in original). 305   Čelebići Appeal Judgement, paras 223 and 241; Brđanin Trial Judgement, para 278; Halilović Trial Judgement, para 68; Galić Trial Judgement, para 175. 306   Final Report of the Commission of Inquiry into the Events at the Refugee camps in Beirut, 7 February 1983 (Kahan Report), reproduced in (1983) 22 International Legal Materials 473–520, cited by Halilović Trial Judgement, fn 164 and Blaškić Trial Judgement, paras 330–31. 307   Blaškić Trial Judgement, para 331, citing the Kahan Report. 308  Kahan Report, above (n 306) quoted by Blaškić Trial Judgement, ibid, and Halilović Trial Judgement, fn 164.

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It is to be noted that a superior cannot be found responsible for failing to acquire information in the first place.309 In the words of the Čelebići Appeals Chamber: Neglect of a duty to acquire such knowledge, however, does not feature in the provision [Article 7(3)] as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish.310

However, in situations where the superior had the means to obtain the relevant information of a crime, and deliberately refrained from doing so, he may be held responsible under the doctrine of command responsibility.311 In the words of the Čelebići Trial Judgment: [A] superior is not permitted to remain wilfully blind to the acts of his subordinates. There can be no doubt that a superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility.312

Some Trial Chambers of the Yugoslavia and Rwanda Tribunals considered criminal negligence to be a sufficient fault element to hold a superior criminally responsible for crimes committed by his subordinates.313 The Appeals Chamber, however, overturned these findings assuring that ‘criminal negligence’ is not a basis of liability in the context of command responsibility,314 and that such references to negligence are ‘likely to lead to confusion of thought’.315 The Appeals Chamber, while rejecting criminal negligence as a sufficient fault element for superior responsibility, failed to identify which degree of knowledge is sufficient in cases of ‘had reason to know’. Recent judgment rendered by the ICTY provides further clarification as to the nature of the definition of ‘had reason to know’: By contenting itself with having had ‘reason to know’ instead of requiring actual knowledge, superior criminal responsibility under Article 7(3) of the Statute obviously does not presuppose intent of the superior with regard to crimes of his subordinates, let alone a malicious one. What is required though, beyond solely negligent ignorance, is the superior’s factual awareness of information which, due to his position, should have provided a reason to avail himself or herself of further knowledge. Without any such subjective requirement, the alternative basis of superior criminal responsibility by hav309   Čelebići Appeal Judgement, para 226; Blaškić Appeal Judgement, para 62; Halilović Trial Judgement, para 69. 310   Čelebići Appeal Judgement, ibid, endorsed by Blaškić Appeal Judgement, ibid. 311   Halilović Trial Judgement, para 69. 312   Čelebići Trial Judgement, para 387. See also Halilović Trial Judgement, ibid. 313   Bagilishema Trial Judgement, para 897, speaking in the context of Art 6(3) of the ICTR Statute of ‘grosss negligence’ as a ‘third basis of responsibility’; Blaškić Trial Judgement, para 562, holding the accused responsible ‘on the basis of his negligence, in other words for having ordered acts which he could only reasonably have anticipated could lead to crimes’. 314   Blaškić Appeal Judgement, para 63, citing Bagilishema Appeal Judgement, paras 34–35. 315   Bagilishema Appeal Judgement, para 35; Blaškić Appeal Judgement, ibid. See also Orić Trial Judgement, para 324; Halilović Trial Judgement, para 71.

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Responsibility under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes ing had ‘reason to know’ would be diminished into a purely objective one and, thus, run the risk of transgressing the borderline to ‘strict liability’. This is not the case, however, as soon as he or she has been put on notice by available information as described above.316

iv  Superior Responsibility vis-à-vis Specific Intent Crimes Where the underlying offence is such that its commission requires the perpetrator to possess a specific intent or purpose, the superior must know or have reason to know that the subordinate committed the crime with that requisite intent or purpose. In the context of the crime of persecution – a crime which requires proof that the perpetrators committed the underlying offences with a specific intent (discriminatory intent) – the Krnojelać Trial Chamber held: [T]he Prosecution must demonstrate that the accused knew of the commission of the underlying offence, that he knew that the offence was being committed on discriminatory grounds, or had information in his possession sufficient to put his on notice as to the commission of the underlying offence and its commission on discriminatory grounds, and that he failed to prevent or punish his subordinates for the commission of the underlying offence on discriminatory grounds.317

Regarding the crime of genocide, an offence which required a ‘specific intent’,318 unlike the Yugoslavia Tribunal, the Rwanda Tribunal found no difficulty in entering convictions for several defendants pursuant to Article 6(3) of the ICTR Statute.319 In the Cyangugu case,320 the majority of the ICTR Trial Chamber attributed criminal responsibility for genocide to Samuel Imanishimwe solely on the basis of Article 6(3) of the ICTR Statute because he failed to prevent the killing of members of the Tutsi ethnic group by soldiers under his authority and effective control; however, this finding was reversed by the Appeals Chamber.321 As far as the jurisprudence of the Yugoslavia is concerned, one Trial Chamber ruled that a superior need possess the specific intent in order to be held liable for genocide pursuant to Article 7(3) of the ICTY Statute.322 In Brđanin as well as in Blagojević the Trial Chambers of the Yugoslavia Tribunal reached a completely different conclusion, which was that the mens rea required for superiors to be held responsible for genocide pursuant to Article 7(3) is that the superiors knew or had reason to know that their subordinates (1)   Orić Trial Judgement, ibid.   Krnojelać Trial Judgement, para 493. 318   See Schabas, The UN International Criminal Tribunals, above (n 12) 164–72. 319  Samuel Imanishimwe (Ntagerura et al Trial Judgement); Nahimana et al Trial Judgement; Kajelijeli Trial Judgement; Musema Trial Judgement; Kayishema and Ruzindana Trial Judgement; Omar Serushago (Serushago Sentence); and Kambanda Trial Judgement. 320   Ntagerura et al Trial Judgement (Cyangugu case) paras 694–95. 321   Ntagerura et al Appeal Judgement, paras 164–65, 442. 322   Stakić Rule 98 Trial Decision, para 92: ‘It follows from Article 4 unique nature of genocide that dolus specialis is required for responsibility under Article 7(3) as well. The Trial Chamber notes the legal problems and the difficulty in proving genocide by way of an omission on the part of civilian leaders’. 316 317

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Mens Rea of Perpetration and Participation were about to commit or had committed genocide and (2) that the subordinate possessed the requisite specific intent.323

The Brđanin Trial Chamber based its conclusion on the statutory interpretation of the ICTY Statute together with a Decision taken by the ICTY Appeals Chamber in the Brđanin case:324 As a matter of statutory interpretation, there is in the Trial Chamber’s view no inherent reason why, having verified that it applies to genocide, Article 7(3) should apply differently to the crime of genocide than to any other crime in the Statute. The Appeals Chamber [Brđanin Decision on Interlocutory Appeal] has observed that superior criminal responsibility requires the Prosecution to establish that a superior knew or had reason to know of the criminality of subordinates. In the case of genocide, this implies that the superior must have known or had reason to know of his or her subordinate’s specific intent, with all the evidentiary difficulties that follow. The Appeals Chamber has held that ‘superior criminal responsibility’ is a form of criminal liability that does not require proof of intent to commit a crime on the part of a superior before criminal liability can attach.325

In light of the above-quoted judgment, a superior can incur criminal liability for the crime of genocide committed or about to being committed by his subordinates on proof that he was aware of the subordinates’ specific intent. One might suggest that in crimes which require proof of specific intent it must be demonstrated that the superior had actual knowledge (awareness of the circumstances) which might put him on notice that his subordinates are about to commit such heinous crimes. The doctrine of wilful blindness as applied by the House of Lords might be of assistance: [I]t is always open to the tribunal of fact, when knowledge on the part of a defendant is required to be proved, to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed.326

v  Failure to Prevent or Punish To establish criminal responsibility under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes, the prosecution must demonstrate – in addition to the superior’s actual or imputed knowledge of crimes which are about to be committed or have been committed by his subordinates – that he has failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrator thereof. Thus, as already stated by the ICTY Appeals Chamber, the neglect of duty to   Brđanin Trial Judgement, paras 720–21. See also Blagojević and Jokić Trial Judgement, para 686.   Brđanin Decision on Interlocutory Appeal, para 7. 325   Brđanin Trial Judgement, para 720. 326   Westminster City Council v Croyalgrange Ltd and Another [1986] 2 All ER 353, 359 (HL) (Lord Bridge). 323 324

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acquire such knowledge does not feature within Article 7(3) of the Statute as a separate offence on its own. Rather, it is merely an element within the superior criminal responsibility for failure to prevent or punish. This point was further clarified by the Appeals Chamber in the Aleksovski case: Article 7(3) provides the legal criteria for command responsibility, thus giving the word ‘commander’ a juridical meaning, in that the provision becomes applicable only where a superior with the required mental requirement failed to exercise his powers to prevent subordinates from committing offences or to punish them afterwards. This necessarily implies that a superior must have such powers prior to his failure to exercise them.327

In Boškoski and Tarčulovski, the prosecution argued that superior’s obligation to punish would be satisfied if the reports to the competent authorities were likely to trigger an investigation.328 In rejecting the prosecution’s argument the Boškoski Appeals Chamber emphasised ‘that under the correct legal standard, a report to the competent authorities may be sufficient to discharge the duty to punish’, depending on the circumstances of the case.329 The superior’s obligations to prevent and punish are consecutive, and do not provide the accused with two alternatives and equally satisfactory options.330 Thus, ‘where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards’.331 Schabas once noted that ‘the superior is being punished for failure to supervise rather than for the offence itself’.332 He continued, ‘to the extent that the superior can demonstrate that he or she actually fulfilled the duty to prevent such crimes, we are indeed in the presence of a strict liability offence, as this concept is generally understood in criminal law’.333

IV  General Remarks and Observations The systematic analysis of the jurisprudence of the Yugoslavia and Rwanda Tribunals reveals that the case law of these Tribunals does not state a consistent mens rea for accomplice liability. Sometimes they require a dolus directus of the first degree on the part of the accomplice to bring about the crime; sometimes dolus directus of the second degree; sometimes knowledge; sometimes they use a   Aleksovski Trial Judgement, para 76.   Boškoski and Tarčulovski Appeal Judgement, para 233. 329   ibid, para 234 (emphasis in original). 330   Orić Trial Judgement, para 326. 331   Blaškić Trial Judgement, para 336. 332  Schabas, The UN International Criminal Tribunals, above (n 12) 320. 333  ibid. 327 328

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language that embraces recklessness.334 Yet, one Trial Chamber of the Yugoslavia Tribunal has observed: With regard to the usual description of the instigator’s mens rea, further clarification is required. Whereas the Trial Chamber in the Kamuhanda case was satisfied with the ‘knowledge’ of the instigator that his acts assisted in the commission of the crime, the Trial Chamber in the Bagilishema case required that the instigator ‘intended’ that the crime be committed. Further, while according to the Trial Chamber in the Kordić case, the instigator must have ‘directly intended’ to provoke the commission of the crime, for the Trial Chamber in the Blaškić case it would not matter whether the instigator ‘directly or indirectly intended’ the crime in question be committed. Again different, whereas the Trial Chamber in the Semanza case required the participant to act both ‘intentionally and with the awareness’ that he is influencing the principal perpetrators to commit the crime, the Trial Chambers in the Kvočka, Naletilić, Brđanin and Limaj cases, found it sufficient that the instigator either ‘intended to provoke or induce the commission of the crime or was aware of the substantial likelihood that the commission of the crime would be a probable consequence of his acts’.335

Recent judgments delivered by the Appeals and Trial Chambers have required proof of some sort of volitional element on the part of the accused in addition to the cognitive element of knowledge.336 They also ruled out recklessness and gross negligence from being sufficient fault elements for accessorial liability. On this particular point, one might recall the Commentaries of the Model Penal Code: The culpability required to be shown of the principal actor, is normally higher than negligence . . . To say that the accomplice is liable if the offence committed is ‘reasonably foreseeable’ or the ‘probable consequence’ of another crime is to make him liable for negligence, even though more is required in order to convict the principal actor. This is both incongruous and unjust; if anything, the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent.337

In light of these developments it is evidenced that accomplice liability requires the existence of an intention element on the part of the accused. That is to say both a cognitive element of knowledge (awareness or contemplation) and a volitional element (acceptance of the result) must be incorporated in the legal standards.338 As far as the third category of joint criminal enterprise is concerned, it is submitted that the ‘reasonably foreseeable’ test applied by the two ad hoc Tribunals is fundamentally unjust. On that particular point, one might recall the strong dissenting judgment delivered by Kirby J in the High Court of Australia in a murder case: To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it counte ibid.   Orić Trial Judgement, para 277 (fns omitted). 336  See Blaškić Appeal Judgement, para 41; Orić Trial Judgement, para 279. 337   Model Penal Code and Commentaries, § 2.06 Comment, 312, fn 42. 338  See Blaskić Appeal Judgement, para 41. 334 335

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General Remarks and Observations nances what is ‘undoubtedly a lesser form of mens rea’. It is a form that an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.339

339   Clayton v R [2006] HCA 58. It is to be noted that the Canadian Criminal Code, s 21(2) reads that where ‘two or more persons form an intention to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each one of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence’. It should be noted that despite the fact that the section refers to an objective foreseeability requirement, this has been modified by the Supreme Court of Canada which held that ‘[i] n those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard’ (R v Logan [1990] 2 SCR 731, 735). Hence, a subjective standard is applied in the case of offences such as murder. See also R v Rodney [1990] 2 SCR 687, cited in Tadic´ Appeal Judgement of the 15 July 1999, fn 288. I am indebted to Professor Bohlander for this observation.

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11 Mens Rea in the Jurisprudence of the International Criminal Court I Introduction For the first time in the sphere of international criminal law, and unlike the Nuremberg and Tokyo Charters or the Statutes of the Yugoslavia and Rwanda Tribunals, Article 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. The first paragraph of Article 30 stresses that unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the ratione materiae of the International Criminal Court ‘only if the material elements are committed with intent and knowledge’. The second paragraph identifies the exact meaning of intent, whereas the third paragraph defines the meaning of knowledge. At first sight, it appears that the explicit words of Article 30 are sufficient to put an end to a long lasting debate regarding the mens rea enigma which has confronted the jurisprudence of the two ad hoc Tribunals for the last two decades, but this is not true. Scholars and practitioners disagree regarding the exact meaning of intent under Article 30. Some view Article 30 as encompassing the three categories of dolus, namely, dolus directus of the first and second degree and dolus eventualis. Others hold the opinion that the plain meaning of Article 30 is confined to dolus directus of the first degree (intent in stricto sensu) and dolus directus of the second degree (indirect or oblique intent). In January 2007, in the Lubanga case,1 Pre-Trial Chamber I (PTC I) of the International Criminal Court ruled that Article 30 of the ICC Statute encompasses the three degrees of dolus, namely, dolus directus of the first and second degrees and dolus eventualis. In September 2008, in the Katanga and Ngudjolo Chui case,2 the defence of the first accused contended that the Statute does not include the notion of dolus eventualis.3 The defence relied heavily on scholarly   Lubanga Decision on the Confirmation of Charges.   Katanga and Ngudjolo Chui Decision on the Confirmation of Charges. 3   Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/04-1/07, Defence Written Observations Addressing Matters that Were Discussed at the Confirmation Hearing, 28 July 2008, para 31. 1 2

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Introduction opinions in support of its submission. Faced with such a legal dilemma, PTC I, in the Katanga and Ngudjolo Chui case, refrained from relying on the elusive concept of dolus eventualis for the mental element in relation to the crimes charged. Accordingly, the decision lacks any discussion on whether the concept of dolus eventualis has a place within the framework of Article 30 of the ICC Statute.4 In June 2009, in the Bemba case, the ICC’s Pre-Trial Chamber II (PTC II) ruled that Article 30 encompasses two degrees of dolus, namely dolus directus of the first and second degree and that other forms of culpability such as dolus eventualis and recklessness have no place within the framework of Article 30.5 In holding this position, the Bemba Pre-Trial Chamber ensured that it is ‘not substituting the concept of de lege lata with the concept of de lege ferenda only for the sake of widening the scope of Article 30 of the Statute and capturing a broader range of perpetrators’.6 In March 2012, in the Lubanga case, Trial Chamber I endorsed the approach of PTC II in Bemba ruling that ‘[t]he plain language of the Statute, and most particularly the use of the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis’.7 Evidently, the Bemba decision as well as the Lubanga Judgment deviate from the approach and line of reasoning embraced by PTC I in the Lubanga Confirmation of Charges Decision.8 As for April 2012, the Lubanga, Katanga and Bemba decisions as well as the Lubanga Judgment are the only guidance given by the ICC as to the forms of culpability under Article 30 of the ICC Statute.9 This chapter examines in depth the elements of culpability as set out in Article 30 from a comparative criminal law perspective as well as the interrelationship between Article 30 and other provisions of the ICC Statute in light of the decisions and judgment rendered by the International Criminal Court. It also draws a firm distinction between dolus directus of the second degree and dolus eventualis and attempts to answer the question of whether the notion of ‘intent’ as provided for in Article 30 encompasses the triple forms of dolus, namely, dolus directus of the first and second degree and dolus eventualis. The comparative study undertaken in this chapter is significant since the codification of Article 30 – as with other provisions under the Statute – was conducted by several codifiers who brought their own legal cultural experience to the drafting of this provision.10 The chapter concludes with some suggestions regarding   Katanga and Ngudjolo Chui Decision on the Confirmation of Charges, para 531.   Bemba Decision on the Confirmation of Charges, para 369. 6  ibid. 7   Lubanga Trial Judgment, para 1011. 8   Lubanga Decision on the Confirmation of Charges. 9   Most notably in September 2008, in the Germain Katanga and Ngudjolo Chui case, PTC I refrained from relying on the elusive concept of dolus eventualis for the mental element in relation to the crimes charged and accordingly the decision lacks any discussion on whether the concept of dolus eventualis has a place within the framework of Art 30 of the ICC Statute. See Katanga and Ngudjolo Chui Decision on the Confirmation of Charges. 10   For the drafting history of Art 30 of the ICC Statute see Roger S Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Criminal Law Forum 291. 4 5

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the mens rea standards which are deemed appropriate to trigger the criminal responsibility of individuals for serious violations of international humanitarian law.

II  Anatomy of Article 30 of the ICC Statute A  Elements Analysis – Mental Elements and their Objects In order to hold a person criminally responsible and liable for a crime within the jurisdiction of the ICC, it must be established that the material elements of the offence were committed with intent and knowledge. This is expressly mentioned in paragraph 1 of Article 30 of the ICC Statute: 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.11

It is clear that the ICC Statute lacks a general provision regarding the definition of the actus reus or the material elements of the crime, and yet leaves the door open with respect to what should be understood by the phrase ‘material elements’ as it appears in Article 30(1). This deficiency, however, is remedied by paragraphs (2) and (3) of the same Article which set out the relationship between the mental elements and the material elements of an offence – expressly referred to as conduct, consequence and circumstance.12 In so doing, Article 30 sets itself aside from the broad notion of ‘material elements’ as presented in the Model Penal Code or German literature.13 The significance of this provision is that it assigns different 11   Rome Statute, Art 30. Contra see Thomas Weigend, ‘Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 Journal of International Criminal Justice 471, 482. 12   See Erkin Gadirov and Roger Clark, ‘Article 9 – Elements of Crimes’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Oxford: Hart Publishing, 2008) 505–29, 513. As a result of the omission of the earlier draft of then Art 28 on actus reus ‘causation’ can hardly be seen as a requisite material element in the Statute (ibid). For more details on the element of causation see ibid, 521–22. See also Otto Triffterer, ‘Causality, as a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?’ (2002) 15 Leiden Journal of International Law 179. See also Donald K Piragoff and Darryl Robinson, ‘Article 30 – Mental Element’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Oxford: Hart Publishing, 2008) 849, 851–52. 13   s 1.13(10), Model Penal Code. For more information on the Model Penal Code, see Herbert Wechsler, ‘Codification of the Criminal Law in the United States: The Model Penal Code’ (1968) 68 Columbia Law Review 1425; Herbert Wechsler, ‘The Challenge of A Model Penal Code’ (1952) 65 Harvard Law Review 1097. See also Jerome Hall, ‘The Proposal to Prepare a Model Penal Code’ Code’ (1951–52) 4 Journal of Legal Studies 91. For the recent work by the American Law Institute on the Model Penal Code, see the American Law Institute, Model Penal Code and Commentaries, vol 1 (Philadelphia: The American Law Institute, 1985). As for the definition of material elements in the German literature, particularly the so called the theory on negative legal elements of the offence or ‘Lehre von den nega-

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levels of mental element to each of the material elements of the crime in question. This is a remarkable shift from an ‘offence analysis’ approach to an ‘element analysis’ approach.14 Under ‘offence analysis’, crimes are defined in general terms; intentional crimes, reckless crimes and negligent crimes, whereas ‘element analysis’ in contrast, recognises that a single crime definition may require a different culpable state of mind for each objective element of the offence. This approach is similar to the one adopted by the Model Penal Code, in 1962, by the American Law Institute.15 The Model Penal Code’s approach is based on the view that, unless some element of mental culpability is proved with respect to each material element of the offence, no valid criminal conviction may be obtained.16 This is explicitly stated in § 2.02(4) of the Model Penal Code (MPC) which is entitled ‘prescribed culpability requirement applies to all material elements’. Section 2.02(4) of the MPC reads as follows: When the law defining an offence prescribes the kind of culpability that is sufficient for the commission of an offence, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offence, unless a contrary purpose plainly appears.17

Under the ICC Statute, ‘element analysis’, or the ‘rule of mens rea coverage’, has to be applied cautiously since culpability terms are (i) defined in Article 30; (b) stated in the definition of particular crimes (genocide ‘with intent to’, war crimes of ‘wilful killing’) or; (iii) stated in the Elements of Crimes.18

B  Different Culpability Terms Defined in relation to each Objective Element Article 30 of the ICC Statute – the default rule – assigns different levels of culpability to each of the material elements of the crimes under the subject matter jurisdiction of the Court. Unless otherwise provided, a person has intent in relation to conduct if ‘that person means to engage in the conduct’.19 According to the same provision, a person is said to have intended a consequence not only if ‘that person means to cause that consequence’, but if he ‘is aware that it will occur in the tiven Tatbestandsmerkmalen’, see Volker Krey, Deutsches Strafrecht: Allgemeiner Teil, Teil II (German Criminal Law: The General Part) (Stuttgart: Kohlhammer, 2003) 15, 17. 14   Kelt and von Hebel used the phrase ‘material elements and the principle of mens rea coverage’ instead of ‘element analysis’; see Maria Kelt and Herman von Hebel, ‘General Principles of Criminal Law and the Elements of Crimes’ in Roy Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001) 19–40. 15   See the American Law Institute, Model Penal Code and Commentaries, vol 1, above (n 13). It is worth pointing out that within the United States there are 53 American criminal codes, and it is often difficult to state ‘the American rule on any point of criminal law’. 16   Model Penal Code and Commentaries, § 2.02, above (n 13) 229, fn 1. 17   Model Penal Code, § 2.02(4). 18  ‘Elements of Crimes’, UN Doc ICC-ASP/1/3, 1st Session (adopted by the Assembly of States Parties on 9 September 2002). 19   Rome Statute, Art 30(2)(a).

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ordinary course of events’.20 Surprisingly, Article 30 assigns two different culpable states of mind for the consequence element, namely intent and knowledge. Either of these culpable mental states is sufficient to cover the consequence element. Yet, a person who intentionally engages in a proscribed conduct with awareness that a consequence will occur in the ordinary course of events may incur criminal liability for any of the crimes within the ratione materiae of the Court (unless otherwise provided). Yet, one might argue that dolus directus of second degree or oblique intent is sufficient mens rea to trigger the criminal responsibility of individuals for serious violations of international humanitarian law under the ICC Statute. As for the circumstance element – a material element which is related to the knowledge or awareness of a defendant and not to his intention – the ICC Statute required a culpable state of knowledge (knowing standards). This means the defendant’s awareness of the existence of a circumstance.21 Thus, the general rule under Article 30 is the full coverage of the material elements by the corresponding mental elements. Problems may arise regarding special types of material elements (I will name them quasi-material elements) which do not fall under the three categories of the material elements mentioned above and accordingly may not be covered by the default rule of Article 30 – intent and/ or knowledge. There are three different types of these quasi-material elements. The first type is the quasi-material element of a ‘legal character’. For instance, Article 8(2)(a) of the ICC Statute requires that a victim be a protected person under the Geneva Conventions of 1949. According to some commentators, the default rule of Article 30 does not apply to such factual elements since this provision ‘does not require proof that the accused knew the relevant law or that he or she correctly completed such a legal evaluation’.22 Yet, one might argue that Article 32(2) has no role to play in such situations. It is not clear, however, whether this is considered a mistake of law, or a mistake of fact or a combination of both – mistake of mixed fact and law.23 This issue will be examined later in detail in a discussion of the relationship between Articles 30 and 32 of the ICC Statute. The second type of quasi-material element involves a normative aspect or a value judgement.24 The requirement of ‘serious injury to body’ as provided for in Article 7(1)(k) – crimes against humanity or other inhuman acts – and Article 8(2)(a)(iii) – grave breaches of the Geneva Conventions of wilfully causing great suffering, or serious injury to body or health – is an example of a quasi-material element which involves a value judgement. In such a case, the prosecution is not entitled to demonstrate that the accused ‘correctly completed a normative   ibid, Art 30(2)(b).   ibid, Art 30(3). 22   Piragoff and Robinson, above (n 12) 852–53. 23   See the very recent and challenging discussion on the subject by Kevin Jon Heller, ‘Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute, A Critical Analysis’ (2008) 6 Journal of International Criminal Justice 419. 24   Piragoff and Robinson, above (n 12) 852–53. 20 21

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evaluation’.25 Otherwise, the accused’s subjective opinion would be the sole determinative factor in finding whether a crime had been committed.26 The third category includes circumstantial elements; the widespread or systematic attack for crimes against humanity and the existence of an armed conflict for war crimes. This type of element was referred to during the negotiations of the Elements of Crimes as ‘contextual elements’.27 If this element is to be considered a material element, it should as a rule – element analysis – be covered by a corresponding mental element. There is a consensus among scholars that such a contextual element is related to the broader context that renders the crime an international crime, and accordingly the default rule – intent and knowledge – does not apply to them.28

III  Different Degrees of Mental Elements under Article 30 Article 30 is in line with the Latin maxim actus non facit reum nisi mens sit rea. This provision, however, goes further, assuring that the mental element consists of two components: a volitional component of intent and a cognitive component of knowledge. In so doing, Article 30 confirms the evolutionary developments of the law of mens rea under the jurisprudence of the ad hoc Tribunals which demand that, for the imposition of criminal responsibility for serious violations of international humanitarian law, both a cognitive and volitional component must be incorporated into the legal standard.29

A  The Meaning of Intent Generally speaking, in criminal law the word ‘intent’ or the adjective ‘intentionally’ have traditionally not been limited to the narrow definition of purpose, aim   ibid, 853.  ibid. 27   ‘Elements of Crimes’, above (n 18). 28   Piragoff and Robinson, above (n 12) 853. Maria Kelt and Herman von Hebel, ‘What Are the Elements of Crimes?’ in Roy Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001) 13–18: ‘there was considerable debate [during the negotiations of the elements of crimes] as to whether they [the contextual elements] really were “material elements” – and if so whether they were (fully) covered by the mental element of article 30 – or whether they formed a separate type of element. Some participants thought, for example, that there might be a category of elements that are neither material nor mental, but which should be considered “jurisdictional” or “merely jurisdictional”. Ultimately, however, an explicit decision as to whether these elements were “material elements” became unnecessary, as for each contextual element some corresponding mental element [however, lower than that provided for under Article 30] was specified in most cases, which, as a result, [. . .] rendered the other question moot’. 29  See Blaškić Appeal Judgement, para 41. See also Orić Trial Judgement, para 279. 25 26

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or design. According to common law tradition, a person is considered to intend the consequence not only if (i) his conscious objective is to cause that consequence, but (ii) if he acts with knowledge that the consequence is virtually certain to occur as a result of his conduct.30 The term ‘intent’ as set out in Article 30 has two different meanings, depending on whether the material element related to conduct or consequence. A person has intent in relation to conduct, if he ‘means to engage in the conduct’,31 whereas in relation to consequence, a person is said to have intent if ‘that person means to cause that consequence’ or ‘is aware that it will occur in the ordinary course of events’.32

B  Intent in relation to Conduct Pursuant to Article 30(2)(a) of the ICC Statute, a person is said to have intent in relation to conduct if that person means to engage in the conduct. This definition has two aspects. First, the relationship between intent and conduct as set out in Article 30(2)(a), ‘seems closer to what common lawyers often think of the “volitional” part of an “act” (deliberately pulling a trigger as opposed to a reflex action, for example)’.33 Yet, ‘the conduct must be the result of a voluntary action on the part of the perpetrator’.34 Roger Clark, however, noted that knowledge is not defined in relation to conduct and this ‘may create some mischief later’.35 It is submitted that unless relevant circumstances are known that qualify the action as illegal it cannot be said that the person intends the conduct.36 Generally, the prosecution must prove that the defendant had knowledge of facts which would make the conduct illegal, but ordinarily is not required to prove the defendant’s awareness of the legal consequences of the conduct (for example, that the conduct was illegal).37 Secondly, with regard to conduct, the drafting history of the Rome Statute shows that there was a strong will to include within the Statute an article defining conduct as an act or omission.38 The draft Statute prepared by the Preparatory Committee in 1996 included a provision headed ‘Actus reus’ (act and/ or 30   See Joshua Dressler, Understanding Criminal Law, 3rd edn (United States: Mathew Bender & Company, 2001) 119. See also Glanville Williams, Criminal Law: The General Part, 2nd edn (London: Stevens & Sons) §§ 16, 18. 31   Rome Statute, Art 30(2)(a). 32   ibid, Art 30(2)(b). 33   Clark, ‘The Mental Element in International Criminal Law’, above (n 10) 303, fn 38. 34   As suggested by Piragoff and Robinson, above (n 12) 859; Gerhard Werle and Florian Jessberger, ‘Unless Otherwise Provided – Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law’ (2005) 3 Journal of International Criminal Justice 35, 41; Albin Eser, ‘Mental Elements – Mistake of Fact and Mistake of Law’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) 913. 35   Clark, ‘The Mental Element in International Criminal Law’, above (n 10) 303, fn 39. 36   Piragoff and Robinson, above (n 12) 859. 37   United States v Hilliard, 31 F 3d 1509 (10th Cir 1994). 38  See Michael Duttwiller, ‘Liability for Omission in International Criminal Law’ (2006) 6 International Criminal Law Review 56–58.

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omission)39 which was modified at the February 1997 session and submitted to the Rome Conference.40 The term ‘conduct’ was defined under then Article 28 to ‘constitute either an act or an omission, or a combination thereof’. The Rome Conference had difficulty reaching agreement on the circumstances in which a person can incur criminal responsibility for an omission. As a consequence, the entire provision was deleted from the Statute ‘with the understanding that the question of when and if omissions might constitute or be equivalent to conduct would have to be resolved in future by the Court’.41 Albin Eser holds the view that conduct, as laid down in paragraph 2(a) of Article 30, is only limited to positive action. According to Eser, cases of omissions within the Statute are not covered by the default rule of Article 30 (intent and knowledge), ‘but would rather need special regulation according to the opening words of paragraph 1 (unless otherwise provided)’.42 Other commentators noted that the very definitions of most of the crimes under the Rome Statute explicitly provide that they can be committed only by an act. Yet, there are some that can be said to provide room for such interpretation that encompasses omissions as well. Thus, such crime as wilful killing (article 8 para. 2(a)(i)) is capable of being interpreted in such way that includes faults of omission too. In that case it would cover, for instance, failure to feed prisoners of war or to provide medical care to wounded persons or to rescue shipwrecked persons belonging to hostile armed forces.43

The decision rendered by the ICC PTC I expressly referred to Article 30 as covering acts or omissions.44 In addition, the practice of the Yugoslavia and Rwanda Tribunals is consistent that ‘committing’, as set out in Articles 7(1) and 6(1) of the ICTY and ICTR Statutes, respectively, ‘covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law’.45 39   Report of the Preparatory Committee on the Establishment of an International Criminal Court, (Proceedings of the Preparatory Committee During March-April and August 1996) UN GAOR 51st Session, Supp No 22, UN Doc A/51/22 (1996) vol I, 45 and vol II, 90. 40   Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 53rd Session, UN Doc A/AC.249/1998/CRP.7 (1998) 64–65 (Art 28). 41   Piragoff and Robinson, above (n 12) 858–59. 42   Eser, ‘Mental Elements’, above (n 34) 912. See also Piragoff and Robinson, ibid, 859. 43   Gadirov and Clark, above (n 12) 515. 44   Lubanga Decision on the Confirmation of Charges, paras 351–55. In the present case, Pre-Trial Chamber I employed the phrase ‘omissions’ eight times while discussing Art 30 of the ICC Statute. 45   Limaj Trial Judgement, § 509 (emphasis added); Judgment, Krstić Appeal Judgement, § 188; Judgment, Kunarać et al Trial Judgement, § 390; Judgment, Gacumbitsi Trial Judgment, § 285 (‘  “Committing” refers generally to the direct and physical perpetration of the crime by the offender himself ’); Kayishema and Ruzindana Appeal Judgement, § 187; Vasiljević Trial Judgement, § 62 (‘The Accused will only incur individual criminal responsibility for committing a crime under Article 7(1) where is it is proved the he personally physically perpetrated the criminal acts in question or personally omitted to do something in violation of international humanitarian law’); Kamuhanda Trial Judgement, § 595 (‘To commit a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law’). See also Tadic´ Appeal Judgement, § 188; Kunarać et al Trial Judgement, § 390; Krstić Trial Judgement, § 601; Krnojelac Trial Judgement, § 73; Judgment, Simić et al Trial Judgement, § 137 (‘Any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that

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C  Intent in relation to Consequence – The First Alternative of Intent Pursuant to Article 30(2)(b) of the ICC Statute, a person has intent in relation to consequence if he (i) ‘means to cause that consequence’ or (ii) ‘is aware that it will occur in the ordinary course of events’. Thus, Article 30(2)(b) assigned two different degrees of intent in relation to the consequence element, namely direct intent or dolus directus of first degree and indirect intent or dolus directus of second degree. The issue whether dolus eventualis or subjective recklessness is sufficient to fall within the ambit of Article 30 is highly debatable and is subject to a detailed examination below. These culpable mental states have to be assessed subjectively and not objectively, meaning that the prosecution must demonstrate that the perpetrator himself – and not a reasonable person in the same situation – was aware of the occurrence of the consequence in question. From a comparative criminal law perspective, the first degree of intent (direct intent/dolus directus of first degree) denotes the state of mind of a person who not only foresees but also wills the occurrence of a consequence. This is the actual meaning of intent in common law jurisdictions. It is also equivalent to the Model Penal Code culpability term ‘purposely’. Section 2.02 of the Model Penal Code considers a person acts ‘purposely’ with regard to a result if it is his conscious object to cause such result.46 In United States v Bailey et al, the Supreme Court ruled that a ‘person who causes a particular result is said to act purposefully if he consciously desires that result, whatever the likelihood of that result happening from his conduct’.47 Absicht, or dolus directus of first degree, in German criminal law, is also identical to ‘direct intent’ as defined in Article 30(2)(b) of the ICC Statute. ‘Absicht’ is defined as a ‘purpose bound will’.48 In this type of intent, the actor’s will is directed finally towards the accomplishment of that result.49

the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with requisite knowledge’). 46   Model Penal Code, § 2.02(2)(a)(i). 47   United States v Bailey et al, 444 US 394; 100 S Ct 624; 62 L Ed 2d 575; US Lexis 69, 7 November 1979, Argued 21 January 1980, Decided, at 632; See also United States v United States Gypsum Co, 438 US 422, 445 (1978). 48   Krey, above (n 13) 109. 49   Peter Cramer, ‘Vorsätzliches und Fahrlässiges Handeln’ in Adolf Schönke and Horst Schröder (eds), Strafgesetzbuch: Kommentar (München: Beck’sche Verlagsbuchhandlung, 1997) 263 (Absicht . . . liegt nur dann vor, wenn der Handlungswille des Täters final gerade auf den vom Gesetz bezeichneten Handlungserfolg gerichtet war); Karl Lackner, Strafgesetzbuch (München: Beck’she, 1991) 95. For more details on Vorsatz in German criminal law in the English language see Mohamed Elewa Badar, ‘Mens Rea – Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 International Criminal Law Review 203.

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In the Lubanga case,50 the first test ever of Article 30, PTC I of the ICC asserted that the reference to ‘intention’ and ‘knowledge’ in a conjunctive way requires the existence of a ‘volitional element’ on the part of the suspect.51 This ‘volitional element’ refers first to situations in which the suspect (i) knows that his acts or omissions will materialise the material elements of the crime at issue; and (ii) he undertakes these acts or omissions with the concrete intention of bringing about the material elements of the crime. According to PTC I, the above-mentioned scenario requires that the suspect possesses a level of intent which it called dolus directus of the first degree.52 It is worth stressing that ‘direct intent’, as defined in Article 30(2)(b) of the ICC Statute, is not identical to the ‘special intent’ required for particular crimes which in their definitions include the following terms: ‘with intent to’,53 ‘with the intent of affecting’54 and ‘with the intention of’.55 The ‘special intent’ or dolus specialis required for these categories of crimes has no material element (consequence or result element) to cover, since the accomplishment of this consequence is not an ingredient element of the crime at issue.56

D  Intent in relation to Consequence – The Second Alternative of Intent Article 30(2)(b) of the ICC Statute assigns a second alternative of intent with regard to the consequence element, providing that even if the perpetrator does not intend the proscribed result to occur, he is considered to intend that result if he ‘is aware that [the consequence] will occur in the ordinary course of events’. In the Lubanga case PTC I asserted that Article 30 encompasses other aspects of dolus, namely dolus directus of the second degree.57 This type of dolus arises in situations in which the suspect, without having the actual intent to bring about the material elements of the crime at issue, is aware that such elements will be the necessary outcome of his actions or omissions.58 Yet, there are three important aspects of this second alternative of intent.   Lubanga Decision on the Confirmation of Charges.   ibid, para 351. 52  ibid. 53   Rome Statute, Chapeau element of Article 6: ‘genocide means any of the following acts committed with intent to destroy’. 54   Rome Statute, Art 7(2)(f): ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with intent of affecting the ethnic composition of any population’. 55   Rome Statute, Art 7(2)(h): ‘“Enforced disappearance of persons” means the arrest, detention or abduction . . . with the intention of removing them from the protection of the law for a prolonged period of time’. 56   See Mohamed Elewa Badar, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2006) 6 International Criminal Law Review 313, 317–28. 57   Lubanga Decision on the Confirmation of Charges, para 352. 58  ibid. 50 51

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First, this degree of mens rea is akin to ‘knowledge’ or ‘awareness’ rather than ‘intent stricto sensu’. This position is supported by the definition given to ‘knowledge’ in paragraph 3 of Article 30, ‘[f]or the purpose of this article, “knowledge” means awareness that . . . a consequence will occur in the ordinary course of events’. The essence of the narrow distinction between acting intentionally and knowingly with regard to the consequence element is the presence or absence of a positive desire or purpose to cause that consequence. The plain meaning of Article 30(2) makes it clear that once the prosecution demonstrates that an accused, in carrying out his conduct, was aware that the proscribed consequence will occur, unless extraordinary circumstances intervened, he is said to have intended that consequence. Thus, a soldier who aims to destroy a building, while not wishing to kill civilians whom he knows to be in the building, is said to intend the killing of the civilians (Article 8(2)(a)(i) of the ICC Statute) if the building is in fact destroyed and the civilians are killed.59 Secondly, the phrase ‘aware that it will occur in the ordinary course of events’ is subject to different interpretations. Does it require that the perpetrator foresees the occurrence of the consequence as certain? Or whether mere awareness of the probable occurrence of the consequence is sufficient? Triffterer has suggested that since Article 30(2)(b) explicitly states ‘will occur’ and not ‘might occur’, it would not be enough to prove that the perpetrator is aware of the probability of the consequence and nevertheless carries out the conduct which results in the proscribed consequence.60 Rather, the prosecution must demonstrate that the perpetrator foresees the consequence of his conduct as being certain unless extraordinary circumstances intervene.61 Interestingly, this second alternative of intent is identical to the Model Penal Code culpability term ‘knowingly’. Pursuant to § 2.02(2)(b) (ii) of the Model Penal Code, a person acts knowingly with respect to a result if it is not his conscious objective, yet he is practically certain that his conduct will cause that result.62 It is also equivalent to the common law concept of ‘oblique intent’, which extends the meaning of intention to encompass foresight of a certainty.63 Glanville Williams, who devoted special attention to the notion of ‘oblique intention,’ argued that the law should generally be the same where the defendant is aware that a consequence in the future is the certain result of what he does, though he does not intend or desire its occurrence.64 In cases of oblique intention, there are twin consequences of the conduct, x and y; the actor wants x and is prepared to   As suggested by Werle and Jessberger, above (n 34) fn 34.   See Otto Triffterer, ‘The New International Criminal Law – Its General Principles Establishing Individual Criminal Responsibility’ in Kalliopi Koufa (ed), The New International Criminal Law (Athens, Thessaloniki: Sakkoulas Publications, 2003) 639–727, 706. 61   Eser, ‘Mental Elements’, above (n 34) 915: ‘the perpetrators being aware that the action will result in the prohibited consequence . . . with certainty’. 62   Model Penal Code, § 2.02(2)(b)(ii). 63   For a thorough analysis of the notion of ‘oblique intent’ in the criminal law of England see Glanville Williams, ‘Oblique Intention’ (1987) 46 Cambridge Law Journal 417. 64   ibid, 420. 59 60

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accept its unwanted twin y.65 Oblique intent, in the words of Glanville Williams, is ‘a kind of knowledge or realization’.66 In Regina v Buzzanga and Durocher, a case concerned with promoting hatred against the French Canadian public in Essex County, the Ontario Court of Appeal adopted Williams’ notion of ‘foresight of certainty’ as a second alternative of intent: [A]s a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully) in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective.67

It also resembles the German concept of dolus directus of the second degree in which the cognitive element (knowledge or awareness) dominates, whereas the volitional element is too weak. As the German Federal Supreme Court of Justice (Bundesgerichtshof-BGH) put it more clearly, a perpetrator who foresees a consequence of his conduct as certain is considered to act wilfully with regard to this consequence, even if he regrets its occurrence.68 Eser’s thoughtful explanation as to the nature and meaning of the phrase ‘aware that it will occur in the ordinary course of events’ merits lengthy quotation: Whatever may be meant by ‘ordinary course of events’, with regard to the awareness thereof this clause is obviously meant to cover dolus directus in the second degree in which the volitional component of intention seems to be substituted by the cognitive component in terms of the perpetrators being aware that the action will result in the prohibited consequence (though not desired) with certainty, as in the case of bombing a building inhabited by members of a persecuted ethnical group where some of them will unavoidably be killed, with the further inevitable consequence of destroying parts of this group. If in this case the genocidal act is considered as ‘intentional’ although the bomb planter may not have desired to kill any people or does not personally support the ethnical cleansing intentions of his superiors, this conclusion can be supported by attributional as well as evidentiary arguments: with regard to attributing consequences to the causer, it does not matter whether he was directly aiming at them or whether he, in pursuing a different goal, was prepared to let the prohibited result occur, thus using it as means to another end, as in the case where it is the military commander’s first priority to destroy the building for strategic reasons while knowing with certainty that this  ibid.  ibid. 67   Buzzanga (1979) 49 CCC (2d) 369 (Ont CA) (Justice Martin) quoted in Don Stuart, Canadian Criminal Law: A Treatise, 4th edn (Toronto: Thomson Canada, 2001) 218–19. The relevant facts of the case as summarised by Stuart were as follows: The accused had been convicted . . . of wilfully promoting hatred against the French Canadian public in Essex County. They had circulated an inflammatory handbill entitled ‘Wake Up Canadians Your Future is At Stake’. The two accused, who identified with French Canadian aspirations and culture, denied intent to promote hatred. They were involved with a movement to establish a French language high school in Essex County. Their purpose was to dramatise how ridiculous the opposition had been and to prompt the government into quick intervention. 68   BGHSt 21, 283 (vol 21, 283). 65 66

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While some legal scholars view the second alternative of intent as excluding concepts of dolus eventualis or recklessness,70 others advocate the inclusion of recklessness and dolus eventualis in the legal standard of Article 30.71 This will be discussed in greater detail below. As far as the drafting history is concerned, Clark noted that dolus eventualis fell out of the written discourse before Rome. Recklessness, in the sense of subjectively taking a risk to which the actor’s mind has been directed, was ultimately to vanish also from the Statute at Rome, with again only an implicit decision as to whether it was appropriate for assessing responsibility.72

i  Dolus Eventualis, Recklessness and the Lubanga Decision on the Confirmation of Charges As already mentioned, in the Lubanga case, PTC I of the ICC asserted that the reference to ‘intention’ and ‘knowledge’ in a conjunctive way, as set out in Article 30, requires the existence of a ‘volitional element’ on the part of the suspect.73 Aware that the jurisprudence of the two ad hoc Tribunals has recognised other   Eser, ‘Mental Elements’, above (n 34) 914–15.   Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 158, 153: ‘While it is no doubt meritorious to have defined these two notions [intent and knowledge in Article 30], it appears questionable to have excluded recklessness as a culpable mens rea under the Statute’; Johan D Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 University of Miami International and Comparative Law Review 57–149, 64–65: ‘Antonio Cassese has criticised the ICC Statute for not recognising ‘recklessness’ as the basis of liability for war crimes. However, if one takes into account the resolve to confine the jurisdiction of the ICC to ‘the most serious crimes of concern to the international community as a whole’, it is reasonable to accept that crimes committed without the highest degree of dolus ought as a general rule not to be prosecuted in the ICC’; Werle and Jessberger, above (n 34) 41–42: ‘This interpretation of Article 30(2)(b) and 3 ICCSt, which appears to be shared by most commentators, results in the establishment of a standard of mens rea apparently stricter than that usually applied by both domestic and international courts’. 71   Piragoff and Robinson, above (n 12) 533–34; Hans-Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’ (2004) 2 Journal of International Criminal Justice 38–55, 45; Ferrando Mantovani, ‘The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer’ (2003) 1 Journal of International Criminal Justice 26–38, 32: ‘ the ICC Statute’s provision on the mental element (Article 30) appears to limit itself to intent (dolus) alone, thereby excluding negligence (culpa). Using ambiguous and psychologically imprecise wording . . . It . . . does include intent and recklessness (dolus eventualis)’; Werle and Jessberger, above (n 34) 53: ‘the requirements of the perpetrator’s being aware that the consequence will occur in the ordinary course of events or of the perpetrator’s meaning to cause that consequence (Article 30(2)(b) ICCSt.) excludes both forms of subjective accountability. It thus follows from the wording of Article 30(2)(b) that recklessness and dolus eventualis do not meet the requirement’. 72   Clark, ‘The Mental Element in International Criminal Law’, above (n 10) 301. 73   ibid, 351. 69 70

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degrees of culpable mental states than that of direct intent (dolus directus of the first degree) and indirect intent (dolus directus of the second degree),74 the ICC Pre-Trial Chamber went further, assuring that the volitional element mentioned above also encompasses other aspects of dolus, namely dolus eventualis.75 According to the Pre-Trial Chamber, dolus eventualis applies in situations in which the suspect ‘(a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it’.76 The Pre-Trial Chamber found it necessary to distinguish between two types of scenarios regarding the degree of probability of the occurrence of the consequence from which intent can be inferred. First, if the risk of bringing about the objective elements of the crime is substantial (that is, there is a likelihood that it ‘will occur in the ordinary course of events’), the fact that the suspect accepts the idea of bringing about the objective elements of the crime can be inferred from (i) the awareness by the suspect of the substantial likelihood that his actions or omissions would result in the realisation of the objective elements of the crime; and (ii) the decision by the suspect to carry out his actions or omissions despite such awareness. Secondly, if the risk of bringing about the objective elements of the crime is low, the suspect must have clearly or expressly accepted the idea that such objective elements may result from his actions or omissions.77 However, in situations where the suspect’s mental state ‘falls short of accepting that the objective elements of the crime may result from his or her actions or omissions, such a state of mind cannot qualify as a truly intentional realisation of the objective elements, and hence would not meet the “intent and knowledge” requirement embodied in article 30 of the Statute’.78 There are two important aspects of the PTC’s clarification regarding the mens rea contours as set out in Article 30 of the ICC Statute. First, it appears that the Chamber adhered to the Romano-Germanic concept of intent which consists of two components, namely, Wissen and Wollen (Germany), preveduto and voluto (Italy), or la conscience and la volonté (France).79 Secondly, by requiring the existence of a volitional element on the part of the accused – in the sense of accepting the consequence – the ICC Pre-Trial Chamber accepted the civil law concept of dolus eventualis and ruled out the common law recklessness, as the latter falls short of meeting the mens rea threshold as set out in Article 30.80 The Lubanga PTC I provided further clarification as to the reason of   Elewa Badar, ‘Drawing the Boundaries’ above (n 56) 313.   Lubanga Decision on the Confirmation of Charges, para 352. 76   ibid, para 352 (emphasis added, fns omitted). 77   ibid, paras 353–54. 78   ibid, para 355. 79   See discussion in ch 5 of this volume. 80   Lubanga Decision on the Confirmation of Charges, fn 438. For different opinions on the concept of dolus eventualis see George P Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) 445–46: (dolus eventualis entails ‘a particular subjective posture towards the result’). See also 74 75

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ruling out the notion of recklessness from the realm of Article 30 of the ICC Statute: The concept of recklessness requires only that the perpetrator be aware of the existence of a risk that the objective elements of the crime may result from his or her actions or omissions, but does not require that he or she reconcile himself or herself with the result. In so far as recklessness does not require the suspect to reconcile himself or herself with the causation of the objective elements of the crime as a result of his or her actions or omissions, it is not part of the concept of intention.81

It is significant in this regard to recall Antonio Cassese’s concerns, almost eight years before the Lubanga decision, regarding the exclusion of the notion of recklessness by the drafters of the Rome Statute: While it is no doubt meritorious to have defined these two notions [intent and knowledge in Article 30], it appears questionable to have excluded recklessness as a culpable mens rea under the Statute. One fails to see why, at least in the case of war crimes, this last mental element may not suffice for criminal responsibility to arise. Admittedly, in the case of genocide, crimes against humanity and aggression, the extreme gravity of the offence presuppose that it may only be perpetrated when intent and knowledge are present. However, for less serious crimes, such as war crimes, current international law must be taken to allow for recklessness: for example, it is admissible to convict a person who, when shelling a town, takes a high an unjustifiable risk that civilian will be killed – without, however, intending, that they be killed – with the result that the civilians are, in fact, thereby killed.82

Cassese continued his criticism regarding the exclusion of recklessness as a culpable mental element under the Rome Statute in the following words: Hence, on this score the Rome Statute marks a step backwards with respect to lex lata, and possibly creates a loophole: persons responsible for war crimes, when they acted recklessly, may be brought to trial and convicted before national courts, while they would be acquitted by the ICC. It would seem that the draughtsmen have unduly expanded the shield they intended to provide to the military.83

However, it would be a profound mistake to draw from Cassese’s hypothetical example that those persons will escape justice by claiming that their main aim was merely shelling a military objective and that they lacked any intention regarding the killing of civilians. In such situations, those actors can incur criminal responsibility under the concept of dolus eventualis if the prosecution succeeds in demonstrating that in shelling the towns, it was probable that those civilians would be Mihajlo M Aćimović, ‘Conceptions of Culpability in Contemporary American Law’ (1965) 26 Louisiana Law Review 28, 48 (describing a Romanist law test according to which the perpetrator acted intentionally if he could have said to himself: It may be either so or different, it may happen either so or differently; anyhow I shall act.) For a different opinion see Paul T Smith, ‘Recklessness in Dolus Eventualis’ (1979) 96 South African Law Journal 81: (criticising South African law to the extent that it interprets dolus eventualis as indifference rather than foresight). 81   Lubanga Decision on the Confirmation of Charges, fn 438. 82   Cassese, ‘The Statute of the International Criminal Court’, above (n 70) 153–54. 83   ibid, 154.

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killed and that the actors accept such a result. Triffterer, for instance, has argued that the concepts of recklessness and dolus eventualis can be read within the text of Article 30 since the phrase ‘will occur’ as provided for in Article 30 of the ICC Statute may be interpreted to encompass situations in which ‘the perpetrator is aware that a consequence might occur and nevertheless engages in taking action tending in that direction, thereby accepting its consequences’.84 Kai Ambos disagrees: Certainly, reckless conduct cannot be the basis of responsibility since a corresponding provision was deleted. The same applies for the higher threshold of dolus eventualis: this is a kind of ‘conditional intent’ by which a wide range of subjective attitudes towards the result are expressed and, thus, implies a higher threshold than recklessness. The perpetrator may be indifferent to the result or be ‘reconciled’ with the harm as a possible cost of attaining his or her goal. . . However, [in such situations of dolus eventualis] the perpetrator is not, as required by Article 30(2)(b), aware that a certain result or consequence will occur in the ordinary course of events. He or she only thinks that the result is possible. Thus, the wording of Article 30 hardly leaves room for an interpretation which includes dolus eventualis within the concept of intent as a kind of ‘indirect intent’.85

The exclusion of recklessness as a culpable mental element within the meaning of Article 30 runs in harmony with the basic principles of Islamic law (Shari’a) that no one shall be held criminally responsible for hudud crimes (offences with fixed mandatory punishments) or qisās crimes (retaliation) unless he has wilfully or intentionally (‘amdān) committed the crime at issue.86

ii  The Exclusion of Dolus Eventualis The Bemba Decision on the Confirmation of Charges which has been endorsed by the Lubanga Judgment of 14 March 2012 declared that the phrase ‘will occur in the ordinary course of events’ does not accommodate a lower standard than the one required by dolus directus in the second degree or the notion of oblique intent as known in common law jurisdictions. In determining the exclusion of dolus eventualis from the realm of Article 30, PTC I has reasoned as follows: • B  y way of a literal (textual) interpretation, the words ‘[a consequence] will occur’ serve as an expression for an event that is ‘inevitably’ expected.87 • The words ‘will occur’, read together with the phrase ‘in the ordinary course of events’, clearly indicate that the required standard of occurrence is close to certainty.88   Triffterer, ‘The New International Criminal Law’, above (n 60) 706.   Kai Ambos, ‘General Principles of Criminal Law in the Rome Statute’ (1999) 10 Criminal Law Forum 1–32, 21–22. 86   See ch 7 of this volume. 87   Bemba Decision on the Confirmation of Charges, para 362. 88  ibid. 84 85

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• T  his standard is higher than the one commonly agreed on for dolus eventualis, namely, foreseeing the occurrence of the undesired consequence as a mere likelihood or possibility.89 • Had the drafters of the ICC Statute intended to include the notion of dolus eventualis in the framework of Article 30, they could have used the words ‘may occur’ or ‘might occur’ in the ordinary course of events to convey mere eventuality or possibility, rather than near inevitability or virtual certainty.90 In his reflection on the Bemba decision and particularly on the exclusion of dolus eventualis from the realm of Article 30, Ambos left the door slightly open: [O]ne must not overlook the fact that the ‘commonly agreed’ standard invoked by the Chamber is by no means the only one. In fact, there are other, more cognitive concepts of dolus eventualis (requiring awareness or certainty as to the consequence) and these may indeed be included in Article 30.91

Clark and Werle are of the view that ‘Article 30 of the ICC Statute leaves no room for dolus eventualis or recklessness’ though the subject is still highly disputed.92 Vogel notes that the main reason for such confusion is that intent and knowledge are defined in Art 30(2) and (3) of the Statute of the ICC under clear influence of the common law principles, but in a manner that is a compromise and therefore not consistent and not without overlaps, and applies to dolus eventualis in the German understanding (awareness that a circumstance exists or a consequence will occur in the ordinary course of events).93

E  The Meaning of Knowledge Paragraph 3 of Article 30 provides two definitions of knowledge. The first applies to consequences, whereas the second pertains to attendant circumstances. Under the ICC Statute, the distinction between acting ‘intentionally’ and ‘knowingly’ is very narrow. Knowledge that a consequence ‘will occur in the ordinary course of events is a common element in both conceptions’.94 A result is ‘knowingly’ caused if the actor is aware that ‘a consequence will occur in the ordinary course of

  ibid, para 363.  ibid. 91   Kai Ambos, ‘Critical Issues in the Bemba Confirmation Decision’ (2009) 22 Leiden Journal of International Law 715, 718. 92   Gerhard Werle, Principles of International Criminal Law (The Hague: TMC Asser Press, 2005) 113–14; Roger Clark, ‘Elements of Crimes in Early Decisions of Pre-Trial Chambers of the International Criminal Court’ (2008) 6 New Zealand Yearbook of International Law 209, 220: ‘But dolus eventualis and its common law cousin, recklessness, suffered banishment by consensus. If it is to be read into the Statute, it is in the teeth of the language and history’. 93   Joachim Vogel, ‘Vor § 15’ in H W. Laufhütte et al (eds), Strafgesetzbuch Leipziger Kommentar 12th edn (Berlin: De Gruyter, 2007) margin 95. 94   Compare Rome Statute, Art 30(2)(b) and Art 30(3). 89 90

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events’.95 With ‘attendant circumstances’, one acts ‘knowingly’ being aware ‘that a circumstance exists’.96

i  Knowledge in relation to the Circumstance Element Logically speaking, there is no offence which requires the prosecution to prove that the accused, in the true sense, intends a particular circumstance to exist at the time he carries out his conduct. If the accused intends a circumstance to exist, it means that he hopes it exists or will exist. According to the ICC Statute, knowledge as to the circumstance element arises in various situations. It can relate to circumstances forming part of the definition of the crime, ie, the requirement of knowledge of the widespread or systematic attack directed against any civilian population as provided for in the chapeau element of Article 7.97 The same can be said regarding the crime of rape, punishable as a crime against humanity98 or as a war crime,99 where the non-consent of the victim and the perpetrator’s knowledge thereof is considered as a constitutive element of the offence.100 The wording of Article 30 makes it clear that ‘knowingly’ refers to the actor’s subjective state of mind and not the state of mind of a reasonable person. Additionally, in defining ‘knowledge’ to mean the perpetrator’s ‘awareness that a circumstance exists’, Article 30(3) limits the meaning of knowledge to ‘actual knowledge’ as opposed to ‘constructive knowledge’. Even knowledge of ‘high probability’ of the existence of a particular fact does not pass Article 30’s culpability test.101 There is reason to question whether the doctrine of ‘wilful blindness’ or ‘wilfully shutting one’s eyes to the obvious’ satisfies the mens rea threshold of Article 30(3). The answer can be in the affirmative if the doctrine is understood to apply only in situations where the perpetrator is virtually certain that the fact exists, or, as stated by Glanville Williams: A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone, is wilful blindness.102   Rome Statute, Art 30(3).  ibid.   Rome Statute, Art 7(1): ‘For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack’. 98   Rome Statute, Art 7(1)(g). 99   ibid, Art 8(2)(b)(xxii) and Art 8(2)(e)(vi). 100   Contra see Gacumbitsi Appeal Judgment in which the prosecution argued that non-consent of the victim and the perpetrator’s knowledge thereof should not be considered as constitutive elements of the offence that must be proved by the prosecution. 101   Contra see the Model Penal Code, § 2.02(7) which stretched the definition of knowledge with regard to the attendant circumstance to encompass ‘awareness of high probability of the existence of a particular fact’. 102  Williams, Criminal Law: The General Part, above (n 30) 159. 95 96 97

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Any attempts to stretch the wilful blindness doctrine by accepting some lesser degree of knowledge instead of actual knowledge would blur the distinction between wilful blindness and recklessness. There are, however, exceptions to the application of the ‘actual knowledge’ standard with regard to the factual elements of particular crime. The Elements of Crimes of the ‘war crime of using, conscripting or enlisting children’ under the age of 15 years into the national armed forces, or using them to participate actively in hostilities,103 allow for a lower level of knowledge than that of ‘actual knowledge’.104 According to paragraph 3 of the Elements of Article 8(2)(b)(xxvi) the perpetrator can incur criminal responsibility if he ‘knew’ or ‘should have known’ that the child concerned was under the age of 15. Thus, the Elements of Crimes made it clear that ‘constructive knowledge’ is a sufficient mens rea standard with regard to the circumstance element of this crime. As a consequence, this crime falls into the realm of ‘negligence crimes’ where conviction depends on proof that the perpetrator had ‘reasonable cause’ to believe or suspect some relevant fact, in the present case, that the child concerned was under the age of 15. The vital point is that constructive knowledge differs from the two other degrees of knowledge, namely, actual knowledge and wilful blindness, in requiring neither awareness nor purposive avoidance of the means of learning the truth. Another way of putting the point is to say that the perpetrator may incur criminal liability for being negligent with regard to a circumstance when, as reasonable person, he ought to know that such ‘circumstance exists or will exist and fails to do so, whether he has given thought to the question or not’.105 Another example of lowering the actual knowledge standard to reach the one of constructive knowledge appears at the third paragraph of the Elements of the ‘war crimes of improper use of a flag of truce’106 and the ‘war crime of improper use of a flag, insignia or uniform of the hostile party’.107 According to the third paragraph common to both provisions, it is sufficient to hold the perpetrator criminally liable if he ‘knew or should have known of the prohibited nature of such use’.108 The term ‘prohibited nature’ denotes the illegality of the conduct.

103   Rome Statute, Art 8(2)(b)(xxvi); Art 8(2)(e)(vii). It is to be noted that the latter Art incriminates the enlisting of children into ‘armed forces or groups’. The reason is that this Art applied to war crimes committed in armed conflicts not of an international character. 104  ‘Elements of Crimes’, above (n 18) reprinted in William A Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2004) 310. Art 8(2)(b) (xxvi) war crime of using, conscripting or enlisting children. See Kelt and von Hebel, ‘General Principles of Criminal Law and the Elements of Crimes’, above (n 14) 31. 105   John Smith and Brian Hogan, Criminal Law, 11th edn (Oxford: Oxford University Press, 2005) 109–10. 106   ‘Elements of Crimes’, Art 8(2)(b)(vii) – 1, reprinted in Schabas, An Introduction to the International Criminal Court, above (n 104) 299. 107   ‘Elements of Crimes’, Art 8(2)(b)(vii) – 2, reprinted, ibid, 299. 108  ‘Elements of Crimes’, Art 8(2)(b)(vii)(3) – 1 and Art 8(2)(b)(vii)(3) – 2, reprinted, ibid, 299 (emphasis added).

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IV  The Relationship between Article 30 and other Provisions of the ICC Statute A  Article 30 vis-à-vis the Culpability Requirements stated in an Offence Definition As noted by Schabas, several crimes within the subject matter jurisdiction of the ICC have their ‘own built-in mens rea requirement’.109 The crime of genocide, punishable under Article 6 of the ICC Statute, is defined as a proscribed act committed ‘with intent to destroy’ a protected group.110 The chapeau element of crimes against humanity requires a subjective element of knowledge that the attack was carried out in a widespread or systematic manner against a civilian population.111 Extermination, a crime against humanity, ‘includes the intentional infliction of conditions of life . . . calculated to bring about the destruction of part of a population’.112 Several war crimes punishable as grave breaches of the 1949 Geneva Conventions, or serious violations of the laws and customs of war under Article 8 of the ICC Statute, have their own built-in mens rea such as the adjectives ‘wilful’, ‘wilfully’, ‘wantonly’, ‘intentionally’ or ‘treacherously’.113 The first question which arises is whether the mens rea threshold of Article 30 would automatically apply to cover the material elements of such offences, even if the crime at issue contains in its language a mental element. The second question is an outcome of the first. If the crime at issue required a lower or a higher threshold than the one provided for in Article 30, which threshold should then prevail? In other words, does Article 30 allow a departure from the mens rea standard laid down in it? Another difficulty appears in applying the rule of ‘mens rea coverage’ on particular crimes which requires a proof of ‘special intent’ (for example, the intent to destroy a group in the crime of genocide). In such a type of offence, this ‘ulterior intent’ has no material element to cover, since the actual destruction of a group is not an ingredient element of the offence. ‘Unless otherwise provided’, a proviso which is set out in the very beginning of the first paragraph of Article 30, appears to come as the prince who redeems Cinderella from her poor circumstances. According to this proviso, ICC judges have to consider Article 30 as a default rule that is applied to all crimes and modes of participation in criminal conduct, as long as there are no specific rules on the

 Schabas, An Introduction to the International Criminal Court, above (n 104) 108.   Rome Statute, Art 6(1). 111   ibid, Art 7. 112   ibid, Art 7 (2)(b), (emphasis added). 113   ibid, Art 8. Other crimes provided for in the ICC Statute contains in their definition a subjective element, see Art 7(2)(e), (f) and (h); Art 8 (2)(b)(i), (ii), (iii), (iv), (ix), (xxiv) and (xxv), and Art 8(2) (e)(i), (ii), (iii) and (iv). 109 110

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mental element expressly stated in these provisions,114 and hence paving the road to the application of the lex specialis principle. Piragoff, who was the first to comment on Article 30, has a different opinion regarding the relationship between Article 30 and particular crimes which requires that the material elements be ‘intentional’ or be committed ‘intentionally’. He noted that given the general rule in Article 30, the inclusion of these adjectives in the definition of particular crimes ‘is likely unnecessary surplusage’.115 He pointed out that ‘[t]he specific presence of these terms is likely a product of the negotiations process whereby certain delegations wished to make clear the intentional nature of the crimes before they agreed to their inclusion in article 7 and 8’.116 It was said that the only significance of Article 30 to these provisions is that it imports the element of knowledge into those definitions of crimes.117 But the subjective elements included in the definition of the crime against humanity of extermination are not merely redundant. Article 7(2)(b) of the ICC Statute defines extermination to include ‘the intentional infliction of conditions of life . . . calculated to bring about the destruction of part of a population’. The term ‘calculated’ as it appears in Article 7(2)(b) can be interpreted as requiring a higher threshold of mens rea than that provided for in the default rule of Article 30. It can be interpreted as requiring an element of premeditation, a subjective mental state which requires that the accused, at a minimum, held a deliberate plan to exterminate prior to the act causing the destruction of part of a population, rather than forming the intention simultaneously with the act. By including the ‘unless otherwise provided’ in the provision of Article 30, the codifiers of the ICC Statute have achieved several goals. On the one hand, Article 30, for the first time in the sphere of international criminal law, sets a general requirement for international criminal liability which is based on intent and knowledge. On the other hand, ‘unless otherwise provided’ enables the Statute to absorb the corresponding rules of international humanitarian law (the definition of war crimes under Article 8) without having to modify the definitions of these crimes. It also enables the Statute to adopt verbatim the definition of the crime of genocide, as defined in the 1948 Genocide Convention, without having to change any of its subjective elements.

114   See in general Werle and Jessberger, above (n 34). Piragoff held the same opinion: ‘The major significance of Article 30, however, is its affect on definitions that do not expressly specify a mental element. Although a particular definition of a crime may be silent as to the requisite mental element, Article 30 would import the mental elements of “intent and knowledge” as being the mental elements require in order to render an accused criminally responsible and liable for punishment for that particular crime’. See Donald K Piragoff, ‘Article 30 – Mental Element’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (BadenBaden: Nomos Verlagsgesellschaft, 1999) 531. 115   ibid, 531. 116  ibid. 117  ibid.

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B  Article 30 vis-à-vis the Elements of Crimes Article 30 of the ICC Statute has to be read together with several provisions set out in the ICC Statute. Article 21, which constitutes the first codification of the sources of international criminal law, establishes a hierarchy of applicable law to be applied by judges of the International Criminal Court.118 According to Article 21(1)(a) of the ICC Statute, the Court shall apply in the first place (i) its Statute; (ii) Elements of Crimes; and (iii) its Rules of Procedure and Evidence.119 It is worth stressing that the general introduction to the Elements of Crimes120 which consists of ten paragraphs has a great significance on the interpretation and the application of Article 30. Paragraph 1 of the general introduction reiterates the provision laid down in Article 9(1) of the ICC Statute and reassures that the Elements of Crimes ‘shall assist the Court in the interpretation and application of articles 6, 7, and 8’. Paragraph 2 states that where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, ie, intent, knowledge, or both, set out in Article 30, applies. Exceptions to the Article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below.

According to paragraph 3, ‘existence of intent and knowledge can be inferred from relevant facts and circumstances’. Paragraph 4 provides that with respect to mental elements associated with elements involving value judgment, such as those using the terms ‘inhumane’ or ‘severe’, it is not necessary that the perpetrator personally completed a particular value judgment, unless otherwise indicated.

Paragraph 2 of the general introduction will come into play in situations where the Elements of Crimes for particular crimes, provide for a lower threshold of mens rea (negligence standard) than that of Article 30. For instance, while Article 30(3) of the ICC Statute assigns a knowledge standard with regard to the circumstance element of the crime of genocide by ‘forcibly transferring children of the group to another group’ (the age of the victim concerned),121 the Elements of Crimes introduce a negligence standard (should have known) with regard to the same circumstance element of this offence. Addressing this point Claus Kress had this to say: 118   Margaret McAuliffe DeGuzman, ‘Article 21 Applicable Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (BadenBaden: Nomos Verlagsgesellschaft, 1999) 435, 436–38. 119   Rome Statute, Art 21. 120   Adopted by the Preparatory Commission of the International Criminal Court in June 2000; see Report of the Preparatory Commission for the International Criminal Court. Finalised draft text of the Rules of Procedure and Evidence (PCNICC/2000/1/Add.1); and Finalised draft text of the Elements of Crimes (PCNICC/2000/1/Add.2). 121   Rome Statute, Art 6(e).

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Mens Rea in the Jurisprudence of the ICC It is impossible to reconcile this standard [negligence] with Article 30(1) [intent and knowledge] of the ICC Statute so that the question arises as to whether the deviation can be justified on the basis of the words ‘unless otherwise provided’ in Article 30(1) of the ICC Statute. As there is no ‘colourable support’ for the deviation in prior case law the answer would appear to depend on whether the ICC Elements of Crimes can by themselves ‘provide otherwise’. It is submitted that they cannot, though a sentence in the Elements’ ‘General introduction’ may be read to suggest the contrary.122

In Lubanga, PTC I affirmed that the ICC Elements of Crimes can by themselves ‘provide otherwise’.123 Lubanga was charged with conscripting and enlisting children under the age of 15 years into armed forces, and using them to participate actively in hostilities, a crime punishable under Articles 8(2)(b)(xxvi) and 8(2)(e) (vii) of the Statute. The third element of the Elements of Crimes assigns a negligent standard (should have known) with regard to the circumstance element (the age of the victim concerned) of these offences.124 Relying on the ‘unless otherwise provided’ clause, the Pre-Trial Chamber considered this element of negligence, as set out in the Elements of Crimes of the above-mentioned provisions, an exception to the ‘intent and knowledge’ standard provided in Article 30(1).125 As for the fifth element of the Elements of Crimes for the crime under consideration, the Pre-Trial Chamber noted that this ‘Element’ requires only that ‘the perpetrator was aware of the factual circumstances that established the existence of an armed conflict’, without going so far as to require that the accused conclude, on the basis of a legal assessment of the said circumstances, ‘that there was an armed conflict’.126 The same applies mutatis mutandis to the crime of genocide by forcibly transferring children. It would be sufficient to demonstrate that the perpetrator was negligent regarding the circumstance element, namely the fact that the victims forcibly transferred were under the age of 18 years.127 One might wonder whether such a lower standard of culpability (negligence) is sufficient for crimes that have a very specific object. ‘Forcibly transferring children of the group to another group’, ‘using, conscripting or enlisting children into armed forces’ and ‘compelling a prisoner of war to serve in the forces of a 122   Claus Kress, ‘The Crime of Genocide under International Law’ (2006) 6 International Law Review 461, 485 (emphasis in original, fns omitted). 123   Lubanga Decision on the Confirmation of Charges, para 356. 124   ibid, para 358. The Pre-Trial Chamber I observed that: ‘The “should have known” requirement set forth in the Elements of Crimes – which is to be distinguished from the “must have known” or constructive knowledge requirement – falls within the concept of negligence because it is met when the suspect: i. did not know that the victims were under the age of fifteen years at the time they were enlisted, conscripted or used to participate actively in hostilities; and ii. lacked such knowledge because he or she did not act with due diligence in the relevant circumstances one can only say that the suspect “should have known” if his or her lack of knowledge results from his or her failure to comply with his or her duty to act with due diligence’). 125   ibid, paras 356–59. 126   ibid, para 360. 127   See the sixth element of the Elements of Crimes of Art 6(e) Genocide by forcibly transferring children. For more information on this specific crime see Kurt Mundorff, Working Paper: ‘Other Peoples’ Children: A Textual and Contextual Interpretation of the Genocide Convention, Article 2(e)’: The Selected Works of Kurt Mundorf, available at: works.bepress.com/kurt_mundorff/3/.

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hostile power’ are crimes, the very definition of which explicitly state the object against which certain acts are directed (ie, children and prisoners of war).128 One might suggest that in such categories of crimes which have a very specific object, knowledge, as opposed to mere negligence, has to be assigned to the circumstance element. There is no provision in the Rome Statute which obliges the honourable judges of the ICC to apply the Elements of Crimes. The plain text of Article 9 states that these Elements of Crimes ‘shall assist the Court in the interpretation and application of articles 6, 7, and 8’. However, the application of these Elements might infringe one of the most fundamental rights of the accused, namely, the presumption of innocence. It is up to judges of the ICC to decide on that issue and not to adhere to the approach adopted by the Pre-Trial Chamber I in the Lubanga case. Furthermore, the Elements of Crimes includes the following ‘alien element’ as an element of the crime of genocide: ‘[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.129 If one considers this element as a ‘circumstance element’, it has to be covered by the default rule of Article 30 of the ICC Statute and, as consequence, the prosecution must prove that the perpetrator is aware that his proscribed conduct (ie, of killing members of the group) ‘took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.130

C  Article 30 vis-à-vis Individual Criminal Responsibility – Article 25 Article 25 of the ICC Statute which is entitled ‘individual criminal responsibility’ provides for various forms of perpetration and participation in a criminal conduct. Sub-paragraph (a) of paragraph 3 refers to three forms of perpetration. Yet, under the ICC Statute a person shall incur criminal responsibility if he commits any of the crimes within the jurisdiction of the ICC ‘whether as (i) an individual, (ii) jointly with another, or (iii) through another person, regardless of whether that other person is criminally responsible’.131 From a German criminal law perspective, element (i) speaks about unmittelbarer Täter (the direct perpetrator who physically carried out the material elements of the offence in person); element (ii) deals with Mittäterschaft (coperpetration); and the third form of perpetration is concerned with mittelbarer Täter or Hintermann (indirect perpetrator, a person who acts through the agency of another). This latter form of perpetration was defined by the 1996 Preparatory Committee in the following words: 128   Erkin Gadirov, ‘Article 9 – Elements of Crimes’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 301–02. 129   ‘Elements of Crimes’, above (n 18) 113–15. 130   ICC-ASP/1/3, Art 6(a) Genocide by killing. 131   Rome Statute, Art 25(3)(a) (letters added).

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Mens Rea in the Jurisprudence of the ICC A person shall be deemed to be a principal where that person commits the crime through an innocent agent who is not aware of the criminal nature of the act committed, such as a minor, a person of defective mental capacity or person acting under mistake of fact or otherwise acting without mens rea.132

i  Co-perpetration based on Functional Control over the Crime The first test of the notion of co-perpetratorship as provided for in Article 25(3) (a) of the ICC Statute was made by Pre-Trial Chamber 1, in the Lubanga case.133 There the Chamber agreed with scholarly opinions that the concept of coperpetration is originally rooted in the idea that when the sum of the co-ordinated individual contributions of a plurality of persons results in the realisation of all the objective elements of a crime, any person making a contribution can be held vicariously responsible for the contributions of all the others and, as a result, can be considered as a principal to whole crime.134

The Chamber noted that ‘the definitional criterion of the concept of coperpetration is linked to the distinguishing between principles and accessories to a crime where a criminal offence is committed by a plurality of persons’.135 The Chamber realised that there are three different approaches to differentiate between principals and accessories to a crime, namely, (i) the objective approach (only those who physically carry out one or more of the objective elements of the offence can be considered principles to the crime);136 (ii) the subjective approach adopted by the two ad hoc Tribunals through the concept of joint criminal enterprise places the focus on the state of mind in which the contribution to the crime was made; 137 and (iii) the third approach – the one adopted by the Pre-Trial Chamber for distinguishing between principals and accessories – is the concept of ‘control over the crime’.138 According to the Pre-Trial Chamber ‘this approach involves an objective element, consisting of the appropriate factual circumstances for exercising control over the crime, and a subjective element, consisting of the awareness of such circumstances’.139 The Chamber asserted that the main feature of this concept is that principals to a crime are not limited to those who physically carry out the objective element of the offence, but also include those, who, in spite of being . . . [remote] from

132   M Cherif Bassiouni, The Legislative History of the International Criminal Court: An Article-byArticle Evolution of the Statute (New York: Transnational Publishers, 2005) 200. 133   Lubanga Decision on the Confirmation of Charges, paras 322–67. 134   ibid, para 326. 135  ibid. 136   ibid, para 328. 137   ibid, para 329. 138   ibid, para 330. 139   ibid, para 331.

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The Relationship between Article 30 and other Provisions of the ICC Statute the scene of the crime, control or mastermind its commission because they decide whether and how the offence will committed.140

They are principals and not accomplices because they have, along with others, control over the offence by reason of essential tasks assigned to them.141 From a German criminal law perspective, the ICC Pre-Trial Chamber adhered to the notion of Mittäterschaft (co-perpetration) based on funktionelle Tatherrschaft (functional control over the crime). The Chamber, however, deviated from Roxin’s theory which restricted the notion of co-perpetration based on functional control over the crime for those who contribute to the commission of the crime at its execution stage.142 According to the Chamber, those who contribute at the preparatory stage as well as at the execution stage fall within the ambit of co-perpetration as set out in Article 25(a) of the ICC Statute as long as the following objective and subjective elements are met: i. the existence of an agreement or common plan between two or more persons (objective element);143 ii. co-ordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime (objective element);144 iii. the fulfilment of the subjective element of the crime in question by the coperpetrators including any requisite dolus specialis or ulterior intent for the type of crime involved;145 iv. the co-perpetrators must all be mutually aware and mutually accept that implementing their common plan may result in the realisation of the objective elements of the crime; v. the co-perpetrator must be aware of the factual circumstances enabling him to jointly control the crime.146 In the Lubanga Judgment of 14 March 2012, the majority agreed that the two objective requirements as listed in elements (i) and (ii) must be assessed on the basis of all the evidence related to the alleged crime.147 As far as the subjective elements are concerned, element (iii) can be satisfied if the co-perpetrator acted with any of the following mental states dolus directus of the first degree or dolus directus of the second degree. Dolus eventualis will not be sufficient in this context. These mens rea standards – as already discussed above – satisfy the threshold of the mental element embodied in Article 30 of the ICC 140   ibid, para 330. This conclusion by the Pre-Trial Chamber was endorsed by the Trial Chamber in the Lubanga Judgment, para 1003. The Lubanga Trial Chamber also agrees with the prosecution that is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene. 141   ibid, para 332. In his Separate Opinion in the Lubanga Judgement, Judge Adrian Fulford contended that the control of the crime theory is unsupported by the text of the Statute. 142   Claus Roxin, Täterschaft und Tatherrschaft (Hamburg: Verlag de Gruyter, 2000) 294, 299. 143   Lubanga Decision on the Confirmation of Charges, paras 343–45. 144   ibid, paras 346–48. 145   ibid, paras 349–60. 146   ibid, paras 366–67. 147   Lubanga Judgment, para 1006.

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Statute. However, in situations where the definition of the crime requires a specific intent, such as the case of persecution as a crime against humanity or genocide, the prosecution has to demonstrate that each co-perpetrator possesses such a specific intent.148 Element (iv) requires proof of ‘double intent’ on the part of the coperpetrators, namely, a ‘cognitive component’ and a ‘volitional component’. As for the former, it must be proved that all co-perpetrators at the time they agreed to start the implementation of their common plan were mutually aware of the risk that such implementation may result in the realisation of the objective elements of the crime.149 As for the volitional component, it has to be proved that all coperpetrators ‘mutually accept[ed] such a result by reconciling themselves with it or consenting to it’.150 The requirement of such a subjective element for the notion of co-perpetration based on joint control over the crime will inevitably stand against the application of any lower threshold than that of dolus eventualis. That is to say the negligence standard (should have known) assigned to the circumstance element (the age of the victim concerned) of the war crime of enlisting or conscripting children will not be applicable in the instant case.151 Element (v) is the third and last subjective element required for the notion of co-perpetration based on joint control of the crime. According to the Pre-Trial Chamber this element requires the accused to be aware (i) that his role is essential to the implementation of the common plan, and hence in the commission of the crime; and (ii) that he can – by reason of the essential nature of his task – frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to perform the task assigned to him.152

ii  Aiding and Abetting Sub-paragraph (c) of Article 25(3) of the ICC Statute assigns a high threshold of mens rea for the aiders and abettors, ‘which goes beyond the ordinary mens rea requirement within the meaning of Article 30’.153 Accordingly, Article 25(3)(c) limits the accomplice liability to instances in which there exists the purpose of promoting or facilitating the commission of the offence. If that is the case, the prosecution must demonstrate that the aider and abettor’s conscious objective is to facilitate the commission of the crime.

  ibid, para 349.   ibid, para 361. 150  ibid. 151   ibid, para 365. 152   ibid, paras 366–67. 153   Kai Ambos, ‘Article 25 – Individual Criminal Responsibility’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Oxford: Hart Publishing, 2008) 757. 148 149

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It is worth pointing out that the phrase ‘for the purpose of facilitating’, as it appears in the very beginning of sub-paragraph (c), is borrowed from § 2.06(3)(a) of the Model Penal Code. The issue, whether a lower culpable mental state than that required for the principal perpetrator should be assigned to the aider and abettor, was heavily criticised by the commentators of the Model Penal Code as ‘incongruous and unjust’.154 They assured that ‘the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent’.155 Reading Article 25(3)(c) together with Article 30, it was questioned whether the conjunctive formulation (intent and knowledge) provided in the latter provision runs directly counter to international jurisprudence that an aider and abettor ‘need not share the same mens rea of the principal perpetrator (eg, intent to kill), and that a “knowing participation in the commission of an offence” or “awareness of the act of participation coupled with a conscious decision to participate” is sufficient’.156 The problem could be approached in two ways. The first approach is proposed by Piragoff in his commentary on Article 30 of the ICC Statute: It is submitted that the conjunctive formulation has not altered this jurisprudence, but merely reflects the fact that aiding and abetting by an accused requires both knowledge of the crime being committed by the principal and some intentional conduct by the accused that constitutes the participation. Even if a strict literal reading of the conjunctive in paragraph 1 were made such that an accomplice must intend the consequence committed by the principal, the same interpretative result would occur. Article 30 para. 2(b) makes it clear that ‘intent’ may be satisfied by an awareness that a consequence will occur in the ordinary course of events. This same type of awareness can also satisfy the mental element of ‘knowledge’, as defined in Article 30 para 3. Therefore, if both ‘intent’ and ‘knowledge’ are required on the part of an accomplice, these mental elements can be satisfied by such awareness. Therefore, article 30 confirms the existing international jurisprudence.157

The second approach relies on recent judgments delivered by the two ad hoc Tribunals in which the Appeals and Trial Chambers demand some sort of volitional element in addition to the knowledge requirement.158 Yet, in the Orić case, it was held that aiding and abetting must be intentional in the sense that ‘the aider and abettor must have double intent, namely both with regard to the furthering effect of his own contribution and the intentional completion of the crime by the principal perpetrator’.159 As far as the objective elements of aiding and abetting are concerned, Schabas noted that Article 25(3)(c) ‘does not provide any indication as to whether there is   Model Penal Code and Commentaries, above (n 13) § 2.06 Comment at 312, fn 42.  ibid.   Piragoff and Robinson, above (n 12) 855. 157  ibid. 158   Blaškić Appeal Judgement, para 41. 159   Orić Trial Judgement, para 288 (emphasis added, fns omitted). 154 155 156

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some quantitative degree of aiding and abetting required to constitute the actus reus of complicity’.160 In sum, while sub-paragraph (c) provides for relatively low objective requirements of aiding and abetting, it assigns a relatively high subjective threshold.161

iii  Common Purpose Unlike the Statutes of the two ad hoc Tribunals, the Rome Statute of the International Criminal Court makes explicit reference to the theory of ‘group criminality’ (common purpose). Sub-paragraph (d) of Article 25(3) of the ICC Statute introduces the concept of ‘common purpose’, as a punishable mode of criminal conduct in the following words: In any other way contributes to the commission or attempted commission of such crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.162

The first words of Article 25(3)(d) has been subject to different interpretations. The words ‘[i]n any other way contributes to the commission or attempted commission of such crime’ was viewed by Eser as well as the Lubanga PTC as providing for a ‘residual form of accessory liability’.163 Aware that Article 25(3)(d) of the ICC Statute provides for secondary participation as opposed to perpetration, the ICC prosecutor, in the Document Containing the Charges in the Lubanga case, submitted that ‘common purpose’ could properly be considered as a third applicable mode of criminal liability’.164 Yet if that is the case, ‘common purpose’ as provided for in Article 25(3)(d) will always be the last resort for the ICC prosecutor and will not be his ‘darling notion’ as the case of joint criminal enterprise under the jurisprudence of the Yugoslavia and Rwanda Tribunals. Whether the ICC will adhere to such interpretation by its PTC I, or whether it will interpret ‘common purpose’ in the same way as it is interpreted under the jurisprudence of the two ad hoc Tribunals, is yet to be ascertained.

160   William A Schabas, ‘General Principles of Criminal Law in the International Criminal Court Statute (Part III)’ (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 84, 95–98. 161   Ambos, ‘Individual Criminal Responsibility’, above (n 153) 757. Eser arrived at the same conclusion; see Albin Eser, ‘Individual Criminal Responsibility’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) 801. 162   Rome Statute, Art 25(3)(d). 163   Eser, ‘Individual Criminal Responsibility’, above (n 161) 802–04. 164   Prosecutor v Thomas Lubanga Dyilo, Case No ICC-01/04-01/06-356, Document Containing the Charges, Article 61(3)(a), 28 August 2006, para 20.

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It might be held that ‘common purpose’ as a mode of criminal participation under Article 25(3)(d) will be appropriate to apply in situations which Cassese named ‘liability for participation in an institutionalized common criminal plan’.165 He states: Plainly, in an internment camp where inmates are severely ill-treated and even tortured, not only the head of the camp, but also his senior aides and those who physically inflict torture and other inhumane treatment are responsible. Also those who discharge administrative duties indispensable for the achievement of the camp’s main gaols (for example, to register the incoming inmates, record their death, give them medical treatment or provide them with food) may incur criminal liability. They bear this responsibility so long as they are aware of the serious abuses being perpetrated (knowledge) and willingly take part in the functioning of the institution. That they should be held responsible is only logical and natural; by fulfilling their administrative or other operational tasks, they contribute to the commission of crimes. Without their willing support, crimes could not be perpetrated. Thus, however marginal their role, they constitute an indispensable cog in the murdering machinery.166

As noted above, Article 21 of the ICC Statute establishes a hierarchy of applicable law to be applied by judges of the ICC. According to Article 21(1)(a) of the ICC Statute, the Court shall apply in the first place its Statute,167 and secondly ‘applicable treaties and the principles and rules of international law, including the established principles of international law of armed conflict’.168 It is undeniable that the International Criminal Court will resort to the symmetric jurisprudence of the Yugoslavia and Rwanda Tribunals in order to shape this mode of ‘group criminality’ under Article 25(3)(d). However, the ICC will encounter a legal dilemma if it adopts literally the three categories of joint criminal enterprise as developed in the case law of two ad hoc Tribunals.169 This difficulty stems from the fact that the 165   Antonio Cassese, ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’ (2007) 5 Journal of International Criminal Justice 109, 112. 166  ibid. 167   Rome Statute, Art 21. 168  ibid. 169   The notion of joint criminal enterprise as adopted by the two ad hoc Tribunals has been a source of endless fascination for commentators, generating an enormous amount of literature: Allen O’Rourke, ‘Joint Criminal Enterprise and Brđanin: Misguided Over-Correction’ (2006) 47 Harvard International Law Journal 307; Cassese, ‘The Proper Limits of Individual Responsibility’ above (n 165); Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Law’ (2005) 93 California Law Review 75; Kai Ambos, ‘Joint Criminal Enterprise and Command Responsibility’ (2007) 5 Journal of International Criminal Justice 159; Mohamed Elewa Badar, ‘  “Just Convict Everyone!” Joint Perpetration: From Tadić to Stakić and Back Again’ (2006) 6 International Criminal Law Review 293; Kai Hamdorf, ‘The Concept of Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ (2007) 5(1) Journal of International Criminal Justice 208; Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 Journal of International Criminal Justice 69; Nicola Piacente, ‘Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy’ (2004) 2 Journal of International Criminal Justice 446; Katrina Gustafson, ‘The Requirement of an “Express Agreement” for Joint Criminal Enterprise Liability: A Critique of Brđanin’ (2007) 5 Journal of International Criminal Justice 134; Harmen G van der Wilt, ‘Joint Criminal Enterprise, Possibilities and Limitations’ (2007) 5 Journal of International Criminal Justice 91; Elies van Sliedregt, ‘Pathway to Convicting Individuals for Genocide’ (2007) 5 Journal of International Criminal Justice 184.

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subjective elements provided for in Article 25(3) sub-paragraphs (d)(i) (aim of furthering the criminal activity of the group) and (d)(ii) (knowledge of the intention of the group) will stand up against any application of the ‘extended form’ of joint criminal enterprise (JCE III).170

D  Article 30 vis-à-vis Superior Responsibility – Article 28 Article 28 of the ICC Statute sets forth two different levels of culpability regarding military and civilians commanders. As for the military commanders, or persons effectively acting as military commanders, Article 28(a)(i) of the ICC Statute assigns both actual knowledge (knew) or constructive knowledge (should have known). The term ‘should have known’ which is akin to negligence – a type of legal fault not necessarily involving a mental state – differs from the language employed in Articles 7(3) and 6(3) of the ICTY and ICTR Statutes. There, the term ‘had reason to know’ is set out as a second alternative of knowledge which has to be proved on the part of the commander. It appears that the drafters of the ICTY and ICTR Statutes unlike those of the ICC Statute have carefully read the travaux préparatoires of Article 86 (then Article 76 – Failure to Act) of Protocol 1 to the 1949 Geneva Conventions. During the preparatory work of the first Additional Protocol many delegations expressed their concerns regarding the inclusion of the phrase ‘should have known’ in then Article 76.171 Syria submitted an amendment suggesting the deletion of the phrase ‘should have known’.172 This was endorsed by the delegate from Argentina who drew the working group’s attention to the fact that ‘penal responsibility should be interpreted in a very clear sense’ and that the phrase ‘should have known’, as it appears in the ICRC draft, ‘introduced a lack of clarity with regard to the conduct of superiors’.173 He concluded by saying that the phrase ‘would be tantamount to reserving the responsibility for submitting proof, which would be incompatible with the presumption of innocence common to all Latin American legal systems’.174 At the Rome Conference, and as far as the requisite mens rea for command responsibility was concerned, the United States submitted a proposal in which it distinguished between the levels of culpability required for military commanders and civilian superiors: An important feature in military command responsibility and one that was unique in a criminal context was the existence of negligence as a criterion of knew or should have known that the forces under his control were going to commit a criminal act . . . The   For critical analysis of the third category of JCE see Badar, ‘  “Just Convict Everyone!”  ’, ibid.  The travaux préparatoires of the first Additional Protocol is reproduced in four volumes and one supplement in the work of Howard S Levie, Protection of War Victims: Protocol 1 to the 1949 Geneva Conventions, 4 vols (New York: Oceana Publications, 1981). The Supplement appears in 1985. 172   Proposed Amendment to Art 76 by the Syrian Arab Republic, CDDH/1/74, 20 March 1974, Official Records, Vol III, 328, in Levie, ibid, 302. 173   Mr Cerda (Argentina), CDDH/I/74 in Levie, ibid, 306. 174  ibid. 170 171

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The Relationship between Article 30 and other Provisions of the ICC Statute negligence standard was not appropriate in a civilian context and was basically contrary to the usual principles of criminal law responsibility.175

Israel supported the United States’ proposal in principle, but suggested the insertion of the words ‘or ought to have known’ after ‘knew’ in subparagraph (b)(i) of Article 25 as set out in the Preparatory Committee’s 1998 draft Statute.176 In the view of the Israeli delegate, this would establish ‘the principle that a superior not only had actual knowledge but also what he would term “constructive’ ” knowledge, in other words, being equally responsible for failing to appreciate facts which he or she was in a position to know’.177 Recent jurisprudence of the Yugoslavia and Rwanda Tribunals has stressed that ‘criminal negligence is not a basis of liability in the context of criminal responsibility’.178 These evolutionary developments in the law of command responsibility were endorsed by PTC I in Lubanga. In discussing the elements of war crime of using, conscripting or enlisting children, the Pre-Trial Chamber considered the jurisprudence of the two ad hoc Tribunals and concluded that the expression ‘had reason to know’ is stricter than the one of ‘should have known’ because the former ‘does not criminalize the military superior’s lack of due diligence to comply with their duty to be informed of their subordinates’ activities’.179 Rather the ‘had reason to know’ requirement ‘can be met only if military superiors have, at the very minimum, specific information available to them to the need to start an investigation’.180 Accordingly, ‘a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him in notice of offences committed by subordinates’.181 Thus, one might discern that neglect of a duty to acquire such knowledge, does not feature in the provision of Article 28(1) as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish.182 In light of the aforementioned, and reading Article 28(a) together with Article 30(3), it appears that while the first alternative of knowledge assigned to the military commander would meet the knowledge standard, the second alternative (should have known) would not. In such a situation the proviso ‘unless otherwise provided’ will come into play and the second alternative of Article 28(a) ‘should have known’ would prevail. 175   Proposal submitted by the United States (A/CONF.183/C.1/L.2) (emphasis added) reprinted in M Cherif Bassiouni, The Legislative History of the International Criminal Court: Summary Records of the 1998 Diplomatic Conference (New York: Transnational Publishers, 2005) paras 67–68. 176   UN Doc A/CONF 183/C.1/SR.1 (16 June 1998), Mr Nathan (Israel), reprinted in Bassiouni, Summary Records, ibid, 78, para 73. 177  ibid. 178   Halilović Trial Judgement, para 71; Blaškić Appeal Judgement, para 63; Bagilishema Appeal Judgment) paras 34–35. 179   Lubanga Decision on the Confirmation of Charges, fn 439. 180  ibid. 181  ibid. 182   Blaškić Appeal Judgement, para 62.

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Paragraph 2 of Article 28 assigns a recklessness standard (consciously disregard information) with regard to the civilian superiors. This language is akin to the Model Penal Code § 2.02(2)(c). It is observed that the requirement that the actor consciously disregard the risk is the most significant part of the definition of recklessness under the Model Penal Code. It is this concept which differentiates a reckless actor from a negligent one.183 The negligent actor is a person who fails to perceive a risk that he ought to perceive. The reckless actor is a person who perceives or is conscious of the risk but disregards it.184 Hence, in many offences where the law provides that recklessness is the minimum level of culpability, negligence will not suffice. Accordingly, ‘the distinction between “conscious disregard” and “failure to perceive” will often signify the difference between conviction and acquittal’.185

E  Article 30 vis-à-vis Mistake of Law and Mistake of Fact Article 32 of the Rome Statute is the first provision ever in the sphere of international criminal law which expressly recognises mistakes either of fact or law as grounds of excluding criminal responsibility. It is worth noting that the Nuremberg and Tokyo Charters, as well as the Statutes of the two ad hoc Tribunals, lack a general provision on the subject. Paragraph 1 of Article 32 recognises the well-established principle ignorantia facti excusat. It provides that ‘a mistake of fact shall be ground for excluding criminal responsibility only if it negates the mental element required by the crime’.186 While the first sentence of the second paragraph of Article 32 reiterates the Latin maxim ignorantia juris non excusta, the second sentence of the same paragraph assures ‘a mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element’.187 In his commentary on Article 32, Triffterer had this to say: The difference between mistake of fact and mistake of law is that in principle in the latter case the perpetrator is not mistaken about the existence of a (purely) material element of fact; therefore, mistakes about legal aspects of a crime in general do not touch the material elements or material prerequisites for justification or excuse.188

On closer inspection, one might consider Article 32(1) to be superfluous as long as the default rule of Article 30(1) of the ICC Statute stands as a safeguard for excluding the criminal responsibility in situations where the material elements of 183   David M Treiman, ‘Recklessness and the Model Penal Code’ (1981) 9 American Journal of Criminal Law 281, 351. 184  ibid. 185  ibid. 186   Rome Statute, Art 32(1). 187   ibid, Art 32(2). 188   Otto Triffterer, ‘Article 32 – Mistake of Fact or Mistake of Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Oxford: Hart Publishing, 2008) 902 (italics in the original).

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a particular crime are not committed with intent and knowledge. But in situations where the factual or circumstantial elements of a particular crime are satisfied by a lower threshold than that of intent and knowledge (ie, negligence) a defence of mistake of fact will not come into play. That is to say that all crimes within the subject matter jurisdiction of the International Criminal Court which in their elements contain the phrase ‘should have known’ (ie, Elements of Crimes of Article 8(2)(b)(xxvi) and 8(2)(e)(vii)) will stand against the defence of mistake of fact. This might be the reason why Lubanga refrained from claiming error regarding the age of the victim concerned, and instead raised the defence of mistake of law. The first test of Article 32(2) – mistake of law – was conducted by PTC I in the Lubanga case. There the defence argued that Lubanga was unaware that voluntarily or forcibly recruiting children under the age of 15 years entailed his criminal responsibility under the ICC Statute since the law was not ‘accessible’ or ‘foreseeable’ for Lubanga at that time.189 Schabas noted that ‘although the argument was framed as one of retroactivity, it looks more like a claim of ignorance of the law’.190 PTC I observed that ‘the scope of a mistake of law within the meaning of Article 32(2) is relatively limited’.191 The Chamber went further asserting that in the absence of a plea under Article 33 of the ICC Statute ‘the defence of mistake of law can succeed under Article 32 of the Statute only if Thomas Lubanga Dyilo was unaware of a normative objective element of the crime as a result of not realising its social significance (its everyday meaning)’.192 Weigend disagreed with PTC I. His fruitful explanation on the subject merits lengthy quotation: Normative terms, such as ‘conscripting or enlisting’, by definition have no ‘everyday meaning’ that some one could ‘realise’. To have the required intent, all the actor needs to understand is what the normative term in question signifies. In casu, if Lubanga knew that ‘conscripting or enlisting’, although referring to a body of military law that he may or may not have been aware of, covers all forms of accepting the military service of young persons, then he knew enough to commit the offence with intent.193

He continued: All that Article 32(2) ICC Statute does is to equate the misconception of a normative element (such as ‘conscripting or enlisting’) of an offence with the misconception of a factual element (such as ‘under the age of 15 years’).

In either case, Weigend continued, the defendant cannot be convicted if he was unaware that his conduct met the definition of the offence, either because he thought that the young recruits were 16 years old 189   Lubanga Decision on the Confirmation of Charges, para 304. See also Transcript, 26 November 2006. 190   William A Schabas, An Introduction to the International Criminal Court 3rd edn (Cambridge: Cambridge University Press, 2007) 230. 191   Lubanga Decision on the Confirmation of Charges, para 305. 192   ibid, paras 315–16 (fns omitted). 193   Weigend, above (n 11) 476.

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Mens Rea in the Jurisprudence of the ICC (factual mistake) or that he did not ‘conscript or enlist’ anyone because these technical terms, in his mind, only covered forcible recruitment (normative mistake).194

V Conclusion This study reveals the dominant character of the mental element – Article 30 – within the Statute of the International Criminal Court. Since its integration into the Rome Statute of the International Criminal Court, Article 30 has been subject to different interpretations by legal scholars and commentators. However, one of the major advantages of Article 30 is that it assigns different levels of culpability to each of the material elements of the crimes under the subject matter jurisdiction of the Court – element analysis as opposed to offence analysis. Thus, the general rule under this provision is the full coverage of the material elements by the corresponding mental elements. This examination also reveals that there are exceptions regarding the application of the default rule of intent and knowledge to the crimes within the ratione materiae of the International Criminal Court. The Lubanga Pre-Trial Chamber has affirmed that the ICC Elements of Crimes can by themselves ‘provide otherwise’. The Chamber considered that the fault element of negligence, as set out in the Elements of Crimes for particular offences, can be an exception to the intent and knowledge standard provided in Article 30(1) of the ICC Statute.195 In such situations, where conviction depends on proof that the perpetrator had ‘reasonable cause’ to believe or suspect some relevant fact, the prosecution has not much to do and the burden of proof, arguably, will lie on the defendant. Such practice will inevitably infringe one of the most fundamental rights of the accused, namely the presumption of innocence. One might recall paragraph 3 of Article 66 of the ICC Statute which stipulates: ‘In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt’.196 Denying such a fundamental principle which is well founded in Islamic law nearly 1400 years ago is considered one step backwards for the future of international criminal justice. The Prophet once said: [E]liminate the prescribed punishments whenever it is possible: and if you can manage a dismissal of a Muslim [the accused] do it. It is better for Imam [judge] to be mistaken in pardon than to be mistaken in penalty.197

 ibid.   Lubanga Decision on the Confirmation of Charges, paras 356–59. 196   According to para 2 of Art 66 ‘the onus is on the Prosecutor to prove the guilt of the accused’. 197   Sunan Al Tirmizi, vol 4, 25. 194 195

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Conclusion Islamic jurists (scholars) gave this rule great importance, as it is corresponding to the spirit of the Islamic Shari’a regarding protection of a person from harm and observation of his interest.198 At present, mens rea or the mental element – the most significant factor in determining criminal responsibility – is still one of the most complex areas of international criminal law, in most part because so many imprecise and vague terms have been used to define this fault element. Suffice to say that in many cases the conviction or acquittal of an accused appearing before the ICC will depend on the interpretation of Article 30 and its relationship with other provisions in the ICC Statute. At present, numerous judgments rendered by national and international courts have paved the way for a better understanding of the complex notion of mens rea in the sphere of international criminal law. It is now up to the International Criminal Court to illuminate it.

198   Abd El-Khaleq Ebn Al Mofaddal Ahmaddon, ‘Qa’edat dar’e al hedood bel-Shobehat wa atharoha fi al fiqh al gena’ei al islami’ (‘The Rule of Eliminating Penalty on Suspicion Criterion and its Role in Islamic Penal Jurisdiction’) (1995) 7 Contemporary Jurisprudence Research Journal 7–75, 9.

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12 General Conclusions and Recommendations The comparative part of this study reveals that despite the fact that the mental element of a crime in common law and continental law jurisdictions as well as Islamic legal tradition is described in different conceptual terms, it is possible to deduce certain similarities. There are certain commonalities towards the concept of a crime and great unanimity that a person shall be guilty in order to attract criminal responsibility.1 The understanding of guilt is complex: it is expressed in a variety of forms in all legal systems. ‘Attempting to equate notions originated from various legal jurisdictions is simply counterintuitive and leads to even greater confusion of terms in criminal law theory. As an illustration, the notion of recklessness is an intermediary concept in common law positioned in between intention and negligence. The continental law jurisdictions do not operate with such a term which means that there is no transition notion between intention and negligence (French legal theory is the only exception to a rule).’2 The interpretation of intention in selected continental law jurisdictions is more lenient and involves the unique notion of dolus eventualis which is sufficient to trigger criminal responsibility for serious violations of international humanitarian law. The following definition is illustrative in this regard: [Dolus eventualis] is the same as the direct criminal intent as they share the same nature and essence. Both are based on the same elements, namely will and knowledge. Knowledge in the dolus eventualis is mixed with suspicion and hence it takes the form of inconclusive expectation of the criminal consequence. Will, on the other hand, appears in its weakest form represented in the perpetrator’s acceptance of the consequence or his indifference towards it. In fact, indifference towards the criminal consequence means in reality – as we see it – accepting this consequence and reconciling oneself with it. The expectation on which the dolus eventualis is based on is the actual expectation that can not be substituted by its probability or necessity or both; otherwise it would be subsumed under unintentional errors. In addition, the criterion governing the dolus eventualis is a subjective criterion; in other words, the expected consequence is the one anticipated by the perpetrator according to his own perspective upon attempting to commit the crime even if his perspective was counter to the reality.3 1   See Mohamed Elewa Badar and Iryna Marchuk: ‘A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World’ (2013) 24 Criminal Law Forum (forthcoming). 2  Ibid. 3   Abou el Magd Aly Eisa, al Qasd al Gena’ī al-Ehtemaly: Derasah Tā’sileyah Tahlileya Muqaranah

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The concept of negligence is always objective in common law jurisdictions, whereas this is remarkably opposite in continental law jurisdictions which seem to compensate for the lack of an intermediary notion of recklessness by introducing the concept of conscious negligence. The second part of the study reveals that the jurisprudence of international courts and tribunals have been mostly limited to the legal analysis of substantive laws of common law and continental law jurisdictions. Having said that, court and tribunals have been criticised for their heavy dependence on practices of a limited number of legal jurisdictions and neglect of the employment of comparative method.4 This survey convincingly demonstrates that the family of Islamic criminal law has much to contribute to the dynamic development of comparative criminal law. Despite the traditional religious roots of Islamic criminal law, the culpability principle – similar to common and continental law – rests on the voluntary conduct and a state of guilty mind. While the discussions on the psyche of a perpetrator are downplayed due to the religious concerns, the test of determining criminal responsibility is certainly leaning towards the subjective one. The ‘beauty’ of comparative analysis of substantive laws of world major jurisdictions reveals that there are more similarities in the foundation of criminal law across borders, which is exactly the same conclusion that was reached by George Fletcher in his celebrated classics on comparative criminal law. The present study shows the evolutionary developments of the law of mens rea in the sphere of international criminal law. The systematic analysis of the postSecond World War trials illustrates that the ‘knowing standard of mens rea’ was the decisive factor in determining the guilt or innocence of the defendants. Judges sitting at these tribunals devoted special attention to various issues relating to the mens rea concept, namely: how guilty knowledge may be inferred; the test to be applied (subjective or objective); and the nature of mens rea required to be proved on the part of the accused. Yet the US Military Tribunal which conducted the Krupp case asserted that: The requisite knowledge . . . can be shown either by direct or circumstantial evidence but in any case it must be knowledge of the facts and circumstances which would enable the particular individual to determine not only that there was a concrete plan to initiate and wage war, but that the contemplated conflict would be war of aggression and hence criminal. Such knowledge being shown, it must be further established that the accused participated in the plan with the felonious intent to aid in the accomplishment of the criminal objective.5

(Conditional Intent: Analytical and Comparative Study) (Cairo: Dar al-Nahda al-Arabia, 1988) 667. See also the discussion in ch 5 of this volume. 4   See ch 1 of this volume. 5   US v Alfred Krupp and Eleven Others, United States Military Tribunal, Nuremberg, 17 November 1947–30 June 1948, UNWCC, Law Reports of Trials of War Criminals, vol X (London: His Majesty’s Stationary Office, 1949) 69–73, 122.

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In cases where the defendant holds military rank (commanders) the mens rea threshold varies between actual knowledge and mere negligence on the part of the accused. Several judgments conducted under Control Council Law No 10 showed that criminal liability was not attributed solely on the grounds that the accused holds a high military rank. In the Hostage case, for instance, the US Military Tribunal found that the prosecution had failed to make a case against the accused Förtsch. The Tribunal gave the following reasons: That he had knowledge of the doing of acts which we have herein held to be unlawful under international law cannot be doubted. It is not enough to say that he must have been a guilty participant. It must be shown by some responsible act that he was.. . . The evidence fails to show the commission of an unlawful act which was the result of any action, affirmative or passive, on the part of this defendant. His mere knowledge of the happening of unlawful acts does not meet the requirements of criminal law. He must be one who orders, abets, or takes a consenting part in the crime. We cannot say that the defendant met the foregoing requirements as to participation.6

However, it would be a profound mistake to conclude that by the time the Second World War trials were conducted the mens rea concept had reached the same developed stage as it stands today. In charges relating to ‘membership in criminal organisation’ the presumption of guilt was explicitly adopted by trials conducted under Control Council Law No 10. As one commentator contended ‘such a generous use of presumptions on the subjective level’ by the post-Second World War trials ‘does not only affect the guilt principle, but also implies substantial limitations regarding the possibility of an error . . . as a valid defence’.7 The work of the International Law Commission – since its creation in 1947 – has played a significant role in the developing law of the mens rea concept in the sphere of international criminal law. The fact that members of the Commission have represented different legal systems of the world has contributed greatly towards a pluralist understanding of the mens rea concept. The negotiations which took place, particularly during the preparation of the 1991 and 1996 Codes, provide us with a variety of opinions regarding the distinction between intent and motive, and whether or not motive could be considered an essential element of international crimes. While it is obvious that there was, on many occasions, a breakdown in communications between the members of the Commission, there are still several statements pronounced by the members of the Commission which assist in reshaping the meaning of intent in international criminal law. According to one member of the Commission:

6   US v Wilhelm List et al and Others (Hostage case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, case 7, XI (US: Government Printing Office, Washington DC, 1951) 759–1322, 1286. 7   Kai Ambos, ‘Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis – From Nuremberg to the Hague’ in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, vol 1 (The Hague: Kluwer Law International, 2001) 5–31, 14–15.

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A subjective test should be followed in ascertaining the guilt of the accused To determine the intent was in fact to determine the purpose of which the act was committed, to determine whether its author consciously wished to achieve a criminal result or whether that result had occurred against his will. Motive, on the other hand, concerned the reasons and considerations which had led the author of the act to commit it. It was true that the concepts of intent, premeditation, motive and purpose partly overlapped and could easily be confused. Nevertheless, they produced well-defined legal consequences, so that it was important to determine the place of intent and motive in the whole group of offences against the peace and security of mankind.8

Other debates that took place in 1991 showed that the concept of mens rea had reached a well-developed stage. It was suggested that intent has two alternative standards, either of which may entail criminal liability for international crimes. The first alternative is intent stricto sensu, whereas the second alternative of intent extends the meaning of intention to encompass foresight of a certainty. These two levels of intent became known in the sphere of international criminal law as dolus directus of the first degree and dolus directus of the second degree. The evolutionary development on the law of mens rea has been further accelerated by the establishment of the two ad hoc Tribunals. Through their jurisprudence, the Yugoslavia and Rwanda Tribunals have made enormous efforts to assign various types of mens rea for different crimes under their Statutes. In so doing, they relied on the general principles laid down in the major criminal justice systems of the world. Recent decisions and judgments rendered by the International Criminal Court emphasised that criminal liability for serious violations of international criminal law requires proof of both a volitional and a cognitive element on the part of the accused. In light of the present discussion on the law of mens rea in national and international criminal law, and for the sake of international criminal justice, this author would suggest the following recommendations:

I  A subjective test should be followed in ascertaining the guilt of the accused It is recommended that a subjective test should be adopted by international criminal tribunals in ascertaining the guilt or innocence of the accused. However, it matters what the accused in fact contemplated as the probable result of his conduct. It is significant in this regard to recall that the objective test was the dominant test until the early years of the 1960s in English jurisprudence. Yet in ascertaining the guilt of the accused in a murder case – Smith [1961] – the House of Lords rejected any subjective test as to intention. Their Lordships were of the view that 8   Yearbook of the Int’l Law Commission (1987) vol I, 46 para 16, Summary records of the meetings of the thirty-ninth session, 4 May–17 July 1987 (UN Doc. A/CN.4/SER.A/1987).

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General Conclusions and Recommendations it matters not what the accused in fact contemplated as the probable result, or whether he ever contemplated at all . . . On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary responsible man would, in all the circumstances of the case, have contemplated as the natural and probable result. 9

This decision provoked a storm of criticism, and by section 8 of the Criminal Justice Act 1967, Parliament reversed the effect of Smith. Since then, it is clear that the mental element of murder is concerned with the subjective question of what was in the mind of the person accused of murder. The following case law supports this recommendation. The US Military Tribunal which conducted the Krupp case (1947–48)10 adopted a subjective approach in ascertaining the guilt of the defendants: The requisite knowledge . . . can be shown either by direct or circumstantial evidence but in any case it must be knowledge of the facts and circumstances which would enable the particular individual to determine not only that there was a concrete plan to initiate and wage war, but that the contemplated conflict would be war of aggression and hence criminal. 11

The Ontario Court of Appeal, in the Finta case (1994), stressed the requirement that in order to constitute a crime against humanity or war crime, there must be an element of subjective knowledge (awareness of the facts and circumstances) on the part of the accused which render the actions a crime against humanity.12 The subjective test was frequently adopted by the two ad hoc Tribunals in order establish the guilt of the accused (whether principal perpetrator or member of joint criminal enterprise). The Tribunals held that in order to hold a person criminally liable for the crime of torture (a crime against humanity or war crime) it has to be established that ‘the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental to his victim’.13 The test is subjective; it has to be established that the actor (and not a reasonable person), in carrying out the proscribed conduct, was aware that it would almost certainly cause severe pain or suffering to his victim. As for members of joint criminal enterprise, the Appeals Chamber of the Yugoslavia Tribunal expressly assured that the test has to be subjective: What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the 9   DPP v Smith [1961] AC 290, 327 (Lord Viscount Kilmuir) (emphasis added). See ch 3, III.A of this volume. 10   US v Alfred Krupp and Eleven Others, above (n 1). See ch 8, II of this volume. 11   ibid (emphasis added). 12   R v Finta [1994] 1 RCS (on Appeal from the Court of Appeal for Ontario) 701–877, 706. 13   Limaj Trial Judgement, para 238; Kunarac Appeal Judgement, para 153. See, in general, ch 9 of this volume.

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Culpability terms should be confined to three culpable mental states common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise.14

As far as the extended form of joint criminal enterprise (JCE III) is concerned this study has made it clear that it is unjust that the liability of the actual perpetrator (the one who carried out the crime outside the common plan) is tested subjectively whereas that of the participant is tested objectively.15 In light of the foregoing, it is recommended that the test of what a reasonable man would contemplate as the probable result of his acts (or the acts of somebody else) and therefore would intend, is not to be followed in establishing the criminal reasonability of individuals for serious crimes of international humanitarian law.

II  Culpability terms should be confined to three culpable mental states The systematic analysis of the jurisprudence of the two ad hoc Tribunals showed that a variety of mens rea terms were employed by the judges, such as, ‘general intent’, ‘specific intent’, ‘special intent’, ‘surplus of intent’, ‘direct intent’, ‘indirect intent’, ‘oblique intent’, ‘advertant recklessness’, ‘recklessness’, ‘dolus coloratus’, ‘dolus specialis’, ‘dolus directus’, ‘dolus indirectus’ and ‘dolus eventualis’. Such a venerable use of culpability terms by the two ad hoc Tribunals has been the source of a great deal of confusion.16 It is suggested that in the sphere of international criminal law culpability terms have to be confined to three culpable mental states, namely, dolus directus of the first degree, dolus directus of the second degree and dolus eventualis.17

A  Dolus directus of the first degree As discussed in this study, this form of mens rea (dolus directus of the first degree) is the gravest aspect of culpability in which the volition part dominates.18 It is generally assumed that an offender acts with dolus directus of the first degree if he

  Kvoćka Appeal Judgement, para 86 (emphasis in original).  See ch 10 of this volume. See also Mohamed Elewa Badar, ‘  “Just Convict Everyone!” Joint Perpetration: From Tadić to Stakić and Back Again’ (2006) 6 International Criminal Law Review 293 16   See the discussion in chs 9 & 10 of this volume. See also Mohamed Elewa Badar, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2006) 6 International Criminal Law Review 313. 17   See the discussion in chs 5, 9, 11 of this volume. See also Mohamed Elewa Badar, ‘Dolus Eventualis and the Rome Statute Without It?’ (2009) 12 New Criminal Law Review 433. 18   Otto Triffterer, ‘Genocide. Its Particular Intent to Destroy in Whole or in Part the Group as Such’ (2001) 14 Leiden Journal of International Law 399, 404. See George P Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000) 444. 14 15

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General Conclusions and Recommendations

desires to bring about the result. In this type of intent, the actor’s ‘will’ is directed finally towards the accomplishment of that result.19 Dolus directus of the first degree is also defined as a ‘purpose-bound will’.20 It is irrelevant in this type of intent whether the intended result is the defendant’s final goal or just a necessary interim goal in order to achieve the final one.21 The Model Penal Code definition of the first culpability term (purposely), which is akin to dolus directus of the first degree, is significant in this regard.22 According to § 2.02 of the Model Penal Code A person acts purposely with respect to a material element of an offence when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

B  Dolus directus of the second degree In this form of intent, the perpetrator foresees the consequence of his conduct as being certain or highly probable. This secondary consequence is not the perpetrator’s primary purpose. It may be an undesired lateral consequence of the envisaged behaviour, but because the perpetrator acts indifferently with regard to the second consequence, he is deemed to have desired this later result.23 Yet in cases of dolus directus of the second degree, the cognitive element (knowledge) dominates, whereas the volitional element is weak.24 It is not required that the perpetrator desires to bring about the side effect in question; knowledge is sufficient.25 In such cases, the perpetrator may be indifferent or may even regret the result. Thus, the distinction between first and second degree dolus directus depends on the absence or presence of desire to achieve the objective elements of the crime at issue.

19   Peter Cramer and Detlev Sternberg-Lieben, ‘Vorsätzliches und Fahrlässiges Handeln’ in Adolf Schönke and Horst Schröder (eds), Strafgesetzbuch: Kommentar 28th edn (München: Beck’sche Verlagsbuchhandlung, 2010) 260 (Absicht . . . liegt nur dann vor, wenn der Handlungswille des Täters final gerade auf den vom Gesetz bezeichneten Handlungserfolg gerichtet war.) See also Karl Lackner, Strafgesetzbuch (München: Beck’sche, 1991) 95; Claus Roxin, Strafrecht: Allgemeiner Teil (München: Beck’sche Verlagsbuchhandlung, 1997) 366. 20   Volker Krey, Deutsches Strafrecht: Allgemeiner Teil, Teil II (German Criminal Law: The General Part) (Stuttgart: Kohlhammer, 2003) 109. 21   ibid. See also Mohamed Elewa Badar, ‘Mens Rea – Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 International Criminal Law Review 203. 22   See ch 4 of this volume. 23   Hans-Heinrich Jescheck and Thomas Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (Berlin: Duncker & Humblot 1996) 298 et seq. 24   Krey, above (n 20) 113; Jescheck and Weigend, ibid, 299. 25   BGHSt 18, 264.

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Culpability terms should be confined to three culpable mental states

C  Dolus eventualis Dolus eventualis as a form of culpable mental state has been expressly endorsed by the jurisprudence of the two ad hoc Tribunals.26 The case law of these Tribunals made it clear that dolus eventualis is sufficient to trigger the criminal responsibility for serious crimes such as extermination as a crime against humanity.27 A recent decision by the ICC provides further clarification of the nature of this mental state which entails criminal liability for most of the crimes under the subject matter jurisdiction of the International Criminal Court. According to the Lubanga PreTrial Chamber, dolus eventualis encompasses, situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it.28

Dolus eventualis must be distinguished from the common law notion of recklessness. The former requires not only that the perpetrator is aware of a risk, but that he accepts the possibility of its occurrence (volitive element). Unlike dolus eventualis, recklessness requires an affirmative aversion to the harmful side effect.29 This position is supported by a recent judgment of the Yugoslavia Tribunal in which the Orić Trial Chamber agreed with the defence submission that intent does not include recklessness.30 Dolus eventualis, as perceived by Fletcher, is defined as ‘a particular subjective posture toward the result. The tests . . . vary; the possibilities include everything from being indifferent to the result, to “being reconciled” with the result as a possible cost of attaining one’s goal’.31 However, the present author is of the opinion that in the sphere of international criminal law dolus eventualis must be interpreted as a foresight of the likelihood of the occurrence of the consequences and not mere indifference towards its occurrence. This element of acceptance bring dolus eventualis within the contour of intention in its broader sense and ruled out the common law recklessness as a culpable mental state under Article 30 of the ICC Statute.

  See chs 9 and 10 of this volume.   See ch 9 of this volume. 28   Lubanga Decision on the Confirmation of Charges, para 352 (ii). 29   Fletcher, above (n 14) 446. This concept of recklessness seems similar to the Model Penal Code’s, which requires conscious awareness of a substantial risk. 30   Orić Trial Judgement, fn 1020. See the discussion in ch 9 of this volume. 31   Fletcher, above (n 14) 445, 445–46; See also Mihajlo M Aćimović, ‘Conceptions of Culpability in Contemporary American Law’ (1965) 26 Louisiana Law Review 28, 48 (describing a Romanist law test according to which the perpetrator acted intentionally if he could have said to himself: It may be either so or different, it may happen either so or differently; anyhow I shall act). For a different opinion see Paul T Smith, ‘Recklessness in Dolus Eventualis’ (1979) 96 South African Law Journal 81 (criticising South African law to the extent that it interprets dolus eventualis as indifference rather than foresight). 26 27

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III  ‘Special intent’, ‘dolus specialis’, ‘ulterior intent’ or ‘primary purpose’ crimes require proof of dolus directus of the first degree on the part of the accused The systematic analysis of the jurisprudence of the Yugoslavia and Rwanda Tribunals evidenced that various crimes within the subject matter jurisdiction of these Tribunals require proof of dolus directus of the first degree on the part of the accused. Any lower threshold of mens rea, such as dolus directus of the second degree or dolus eventualis, would not suffice to trigger the criminal responsibility of individuals for such crimes. The ‘crime of acts or threats of violence, the primary purpose of which is to spread terror among civilian population’ falls within the realm of ‘specific intent crimes’. According to the Yugoslavia Tribunal, in order to sustain a conviction for this offence, the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that was the result which he specifically intended. The crime of terror is a specific-intent crime.32

The same applies mutatis mutandis to the crime of genocide. In the Akayesu case, the Rwanda Tribunal stated: The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. [H]ence the Chamber is of the opinion that genocide constitutes the crime of crimes.33

Both genocide and the crime of terror against the civilian population do not require the actual destruction of the group or the actual infliction of terror among the civilian population, respectively. Thus, the alleged perpetrator can incur criminal responsibility for such heinous crimes even if the result element (the destruction of the group in the case of genocide) did not materialise. Accordingly, it is recommended setting the bar high regarding the mens rea threshold for such categories of crime by requiring a proof of dolus directus of the first degree on the part of the accused.

  Galić Appeal Judgement, para 136.   Kambanda Trial Judgement, para 16. Since then various ICTR and ICTY Trial Chambers have referred to the intent required for genocide as ‘special intent’, a ‘specific intent’, ‘specific genocidal intent’ and they unanimously recognise that genocide is characterised by a dolus specialis. 32 33

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Actual knowledge and wilful blindness are blameworthy

IV  Negligence or gross negligence does not satisfy the mens rea requirement for international crimes ‘Negligence’ is failure to conform to the standard of care to which it is the defendant’s duty to conform.34 In other words, negligence ‘is failure to behave like a reasonable man, in circumstances where the law requires such a reasonable behaviour’.35 Unlike intention and recklessness, negligence does not require a state of mind or mens rea to be proved.36 The systematic analysis of the case law of the Rwanda Tribunal evidenced that negligence has been considered a sufficient fault element for heinous crimes within the subject matter jurisdiction of this Tribunal (for example, extermination as a crime against humanity). This is considered a backwards step regarding the developing law of mens rea which requires proof of a cognitive element of knowledge and a volitional element of intent. Even gross negligence is not sufficient to trigger the criminal responsibility of international crimes. It was observed that there can be no degrees of inadvertence (negligence) ‘when that word is used to denote a state of mind, since it means that in the man’s mind there has been a complete absence of a particular thought, a nullity; and of nullity there can be no degrees’.37 Recent case law of the Yugoslavia Tribunal expressly stated that negligence and gross negligence do not satisfy the mens rea requirement for international crimes, simply because individual criminal responsibility for serious crimes over which the ICTY has jurisdiction requires intention.38

V  Actual knowledge and wilful blindness are blameworthy – constructive knowledge has no place in criminal law and should be abandoned To date, there is no clearer judgment – national or international – regarding the distinction between the three degrees of knowledge than the one held by Devlin J, in Taylor’s Central Garages (1951):39   Glanville Williams, Text Book of Criminal Law 2nd edn (London: Stevens & Sons, 1983) 88.  ibid. 36   See the very thoughtful explanation by Andrew Ashworth, Principles of Criminal Law, 4th edn (Oxford: Oxford University Press, 2003) 193–96. 37   JW Cecil Turner (ed), Kenny’s Outline of Criminal Law, 19th edn (London: Cambridge University Press, 1966) 39. 38   Orić Trial Judgement, paras 279, 348. See the discussion in chs 9 and 10 of this volume. 39   Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284 (KBD). 34 35

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General Conclusions and Recommendations The first is actual knowledge, which the justice may find because they infer it from the nature of the act done, for no man can prove the state of another man’s mind; and they may find even if the defendant gives evidence to the contrary. They may say, ‘We don’t believe him; we think that that was his state of mind’. They may feel that the evidence falls short of that, and if they do they have then to consider what might be described as knowledge of the second degree; whether the defendant was, as it has been called, shutting his eyes to an obvious means of knowledge [wilful blindness] . . . The third kind of knowledge is what is generally known in the law as constructive knowledge: it is what is encompassed by the words ‘ought to have known’ in the phrase ‘knew or ought to have known’. It does not mean actual knowledge at all; it means that the defendant had in effect the means of knowledge . . . The case of merely neglecting to make inquiries is not knowledge at all – it comes within the legal conception of constructive knowledge, a conception which, generally speaking, has no place in the criminal law.40

Speaking in rather a similar vein, the Ontario Court of Appeal in FW Woolworth Co (1974) has adopted the same approach with regard to the place of constructive knowledge in the criminal law of Canada: [T]he doctrine of constructive knowledge has no application in criminal law. The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness. 41

Article 30 of the ICC Statute defines knowledge to mean ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’.42 To know that a fact exists is not the same as taking the chance on whether it exists or not. It is recommended that this type of constructive knowledge (sometimes referred to as imputed knowledge) should be abandoned so long as it does not require either awareness or purposive avoidance of the means of learning the truth.

VI  Element analysis versus offence analysis The Model Penal Code’s innovation of ‘element analysis’ – a single crime can employ different mens rea standards for different material elements – reinforces the principal of legality by providing a precise statement of all separate elements of an offence definition. Yet in the Kokkinakis case, the European Court of Human Rights emphasised that  ibid.   FW Woolworth Co (1974) 18 CCC (2d) 30 (Ont CA) cited in Don Stuart, Canadian Criminal Law: A Treatise, 4th edn (Toronto: Thomson Canada, 2001) 229. The same view was adopted by the Ontario Court of Appeal in Currie v The Queen (1976) 24 CCC (2d) 292, 295–96 (Ont CA). 42   See the discussion in ch 11 of this volume. 40 41

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The mens rea of accomplice liability an offence must be clearly defined by law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be with assistance of the court’s interpretation of it, what acts and omission will make him liable.43

The element analysis approach is based on the view that, unless some element of mental culpability is proved with respect to each material element of the offence, no valid criminal conviction may be obtained.44 Few judgments delivered by the Yugoslavia Tribunal were influenced by this approach.45 In defining the objective and subjective elements of the ‘crime of terror against civilian population’ the Galić Trial Chamber has assigned different degrees of mens rea with regard to each of the materials element of the crime.46 Thus, while the Tribunal has assigned the mens rea of ‘wilfulness’ to both the ‘conduct element’ (acts of violence) and the ‘result element’ (causing death or serious injury to body or health), it found that dolus eventualis or mere negligence is a sufficient mental state for the ‘circumstance element’ (the civilian status of the victim).47 Under the Statute of the International Criminal Court, ‘element analysis’ or the ‘rule of mens rea coverage’ is expressly provided for in Article 30. That is to say that ‘unless otherwise provided’ different standards of mens rea – dolus directus of the first degree, dolus directus of the second degree and dolus eventualis – has to be assigned to each of the material elements – conduct, result and circumstances – of the crime at issue.48 This approach has been thoroughly endorsed by the ‘Elements of Crimes’ of the Statute of the International Criminal Court,49 and was expressly adopted by Pre-Trial Chamber 1 of the ICC which conducted the confirmation of charges decision against Lubanga.50

VII The mens rea of accomplice liability requires proof of cognitive and volitional components The required mens rea for accomplice liability ‘is a form of two-dimensional fault’ because ‘it concerns not merely the defendant’s awareness of the nature and effect  See Kokkinakis v Greece, 260-A ECtHR (ser A) (1993).  The American Law Institute, Model Penal Code and Commentaries, vol 1 (Philadelphia: The American Law Institute, 1985) § 2.02, 229, fn 1. 45   Galić Trial Judgement; Stakić Trial Judgement. 46   Galić Trial Judgement. 47   ibid, para 133. See ch 9, II.A of this volume, ‘The Crime of Terror against the Civilian Population’. 48   Paul H Robinson and Jane A Grall, ‘Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond’ (1983) 35 Stanford Law Review 681, 687. See also Herbert Wechsler, ‘Codification of the Criminal Law in the United States: The Model Penal Code’ (1968) 68 Columbia Law Review 1425, 1436–37. 49   See the second para of the General Introduction of the ‘Elements of Crimes’ UN Doc ICCASP/1/3, 1st Session, Official Record (adopted by the Assembly of States Parties on 9 September 2002). See also the discussion in ch 11 of this volume. 50   See the discussion in ch 11 of this volume. 43 44

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General Conclusions and Recommendations

of his own acts, but also his awareness of the intentions of the principal’. 51 Aware of such complexities the drafters of the Model Penal Code adopted a full mens rea approach regarding accomplice liability.52 The systematic analysis of the jurisprudence of the Yugoslavia and Rwanda Tribunals reveals that the case law of these Tribunals do not state a consistent mens rea for accomplice liability.53 Sometimes they require a dolus directus of the first degree on the part of the accomplice to bring about the crime; sometimes dolus directus of the second degree; sometimes knowledge; sometimes they use a language that embraces recklessness.54 Yet, one Trial Chamber of the Yugoslavia Tribunal has observed: With regard to the usual description of the instigator’s mens rea, further clarification is required. Whereas the Trial Chamber in the Kamuhanda case was satisfied with the ‘knowledge’ of the instigator that his acts assisted in the commission of the crime, the Trial Chamber in the Bagilishema case required that the instigator ‘intended’ that the crime be committed. Further, while according to the Trial Chamber in the Kordić case, the instigator must have ‘directly intended’ to provoke the commission of the crime, for the Trial Chamber in the Blaškić case it would not matter whether the instigator ‘directly or indirectly intended’ the crime in question be committed. Again different, whereas the Trial Chamber in the Semanza case required the participant to act both ‘intentionally and with the awareness’ that he is influencing the principal perpetrators to commit the crime, the Trial Chambers in the Kvočka, Naletilić, Brđanin and Limaj cases, found it sufficient that the instigator either ‘intended to provoke or induce the commission of the crime or was aware of the substantial likelihood that the commission of the crime would be a probable consequence of his acts’.55

Recent judgments delivered by the Appeals and Trial Chambers required proof of some sort of volitional element on the part of the accused in addition to the cognitive element of knowledge.56 They also ruled out recklessness and gross negligence from being sufficient fault elements for accessorial liability. On this particular point, one might recall the Commentaries of the Model Penal Code: The culpability required to be shown of the principal actor, is normally higher than negligence. . . . To say that the accomplice is liable if the offence committed is ‘reasonably foreseeable’ or the ‘probable consequence’ of another crime is to make him liable for negligence, even though more is required in order to convict the principal actor. This is both incongruous and unjust; if anything, the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent.57

  Ashworth, above (n 32) 424.   See the discussion in ch 4 of this volume. 53   See the discussion in ch 10 of this volume. 54  ibid. 55   Orić Trial Judgement, para 277 (fns omitted). 56  See Blaškić Appeal Judgement, para 41; Orić Trial Judgement, para 279. 57   Model Penal Code and Commentaries, § 2.06 Comment at 312, fn 42. 51 52

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The ‘reasonably forseeable’ test of the extended form of joint criminal enterprise In light of these developments it is evidenced that accomplice liability requires the existence of an intention element on the part of the accused. That is to say both a cognitive element of knowledge (awareness or contemplation) and a volitional element (acceptance of the result) must be incorporated in the legal standards.58

VIII  The ‘reasonably foreseeable’ test of the extended form of joint criminal enterprise is fundamentally unjust In the words of the Tadic´ Appeals Judgment, liability attaches for the extended form of joint criminal enterprise (sometimes referred to as ‘just convict everyone’)59 ‘if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk’.60 The Brđanin Appeals Chamber made it worse by adopting a ‘reasonably foreseeable’ test regarding this form of joint criminal enterprise. By so doing, the Brđanin Appeals Chamber has lowered the threshold of the mens rea requisite for this category of JCE to reach the one of negligence.61 This author recommended that consideration should be given to reforming the ‘reasonably foreseeable’ standard of JCE III by requiring that the accused should have foreseen the commission of the crime which went beyond the common plan as not merely a possibility but as a probability or a high probability and he accepts it occurrence (dolus eventualis).62

 See Blaskić Appeal Judgement, para 41.   See the Dissenting Opinion of Judge Schomburg in Simić Appeal Judgement, citing the present author. 60   Tadic´ Appeal Judgement, para 228 (emphasis in original). 61   Contra see Antonio Cassese, ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’ (2007) 5 Journal of International Criminal Justice 109, 123: ‘[A]t the international level what is required is not the secondary offender actually foresaw the criminal conduct likely to be taken by the primary offender; the test is rather whether a man of reasonable prudence would have foreseen that conduct under circumstances prevailing at the time’. 62   See the discussion in ch 10 of this volume. 58 59

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EPILOGUE Dear Reader: You have just finished reading a prodigious piece of comparative legal scholarship. I have taught Criminal Law in New Zealand and the United States for nearly five decades and have read an enormous amount of literature and case-law on the subject. Yet this is the most comprehensive effort I have encountered pulling together across legal systems the ‘general part’ themes, especially about the ‘mental element’, found in confusing array in the common law, the civil law and Islamic law. The material is, of course, interesting in itself. It is always fun to know how other legal systems conceptualise the great issues of guilt and attribution of responsibility. But this study has a much more significant import than that. It comes into print at a time when the various Chambers of the International Criminal Court are struggling with their first decisions which involve, in particular, what to make of the mens rea provisions of the Rome Statute. I refer notably to Article 30 (headed ‘Mental element’) and Article 25 (‘Individual criminal responsibility’). Dr Badar leads us skillfully into these by examining early and tentative decisions rendered by the International Criminal Court in chapter eleven. There is, I fear, and as he opines, much more to come from the permanent criminal court before we have all the details straight. I wish, though, that I had known then what I know now, having read this book. ‘Then’ refers to the time when I was engaged as a representative of the Government of Samoa in the negotiations to create the International Criminal Court up to the adoption of the Rome Statute in 1998, and subsequently over the following couple of years in drafting the ICC ‘Elements of Crimes’. In the decade since then, I have remarked to anyone who will listen how difficult it was to conduct a negotiation in six languages involving about 160 States and hundreds of NGOs. I was reminded over and over again in reading this book of the subtle differences in legal culture – even within a particular family of legal systems – that bedevil the achievement of consensus, let alone understanding, in a drafting exercise such as that involved in the general part of the Rome Statute. I refer to ‘families of legal systems’ because I now see much more clearly how it was too much to expect that the common lawyers could communicate completely with the other common lawyers or that the civil lawyers could communicate adequately with the other civil lawyers. We all seem to have our quirky little differences. (The Islamic lawyers I spoke to in the negotiations had mostly studied at the Sorbonne and, to my taste, explained civil law systems better than the French themselves could, and seemed quite comfortable with them.) And, a fortiori, it is difficult to

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Epilogue communicate across different systems. Actually, I think we did pretty well in agreeing, in Article 30, to a conceptual structure for crimes, composed of the ‘material’ elements (conduct, consequences and circumstances) and the ‘mental’ ones (intent and knowledge). This provided a serviceable framework for a decent set of Elements, even if the structure came up a bit short on matters such as causation and the quantum of contribution required for an actor to be regarded as a party to a crime. At all events, I now understand a bit better why the civilians insisted on that ‘and’ (intent and knowledge), the combination of cognition and volition, as Dr Badar explains. I think I understand a little better what a ‘circumstance’ element (or ‘attendant circumstance’) is. On that front, as I read Dr Badar’s analysis of where they fit into the structure of offences, I kept reminding myself of perhaps the greatest failure of my eagle eye in the whole negotiation: the statement in Article 30 that there is criminal responsibility ‘only if the material elements are committed with intent and knowledge’. That ‘committed’ should generate a collective sigh of ‘ouch’ among the drafters. I missed it, and I was obviously not alone. It is easy enough to ‘commit’ an act (or even an omission – a matter we should have spelled out more clearly) or even a ‘consequence’. But a circumstance is most emphatically not something that the actor commits. It is out there as part of the passive scenery for the most part, a fundamental element in most Rome offences, but desperately in need of another verb. ‘Accompanied by’, perhaps. On the culpability front, I was sure that we had banished dolus eventualis and recklessness, aside from Article 28, but there they were again in the Lubanga Pre-Trial Chamber (to be dispatched again at the trial). Sooner or later it may be necessary to decide whether the handful of definitions in The Elements (like those involving child soldiers) that have negligence as a culpability element are compatible with the Statute. I think not – and the prosecution evidently decided not to press the point at trial in Lubanga. Then there is Article 25 (3) on the liability of various parties to a crime. It never occurred to me for a moment that it would ultimately be important to ponder whether the items listed (a) through (d) were in some sort of hierarchical order. I assumed that as long as someone fitted one or other of the categories, guilt was proved and any difference in punishment would turn on sentencing considerations rather than categories. It didn’t matter whether someone was a principal or an accessory. That seemed the effect of the United Kingdom’s Accessories and Abettors Act 1861 (discussed by Dr Badar) and its many other common law equivalents. I thus did not anticipate that thousands of trees would be sacrificed in an endeavour to fit people into the category of ‘principals’ lest somehow they may be thought of as ‘getting away with it’. And I thought that sub-paragraph (d) contained all there was to say on ‘common purpose’ or ‘JCE’ (Joint Criminal Enterprise) or whatever. But there is some sort of JCE finding its way back into sub-paragraph (a). Whatever happened to expressio unius est exclusio alterius? Does it mean ‘put it up front in one provision, but smuggle it into another’?

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Epilogue Sadder and wiser, I write the following words. For better or worse, the Rome Statute is in the language that mortals, with all their limitations, negotiated. It is sui generis. It is not New Zealand law; it is not Samoan law; it is not German law; it is not Argentinian law, though players from all those jurisdictions and many more had a hand in the drafting. For the most part, I hope that those other mortals we call judges will do their best to apply the plain words of the Statute. Alas, the plain words are not always as plain as I thought; and there will be a need to look comparatively at what others have done at the national level. It will not be a matter of blindly trying to apply ‘our’ solution because it is the best; it will be a question of looking at several possible solutions to see which best comports with the spirit of compromise that gave us the Statute. In this endeavour, Dr Badar’s researches have much to offer us. Roger S Clark Board of Governors Professor Rutgers School of Law, Camden, USA

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469

INDEX Accessories    Australia, 75–7     see also Australian criminal law   Canada, 77–9     see also Canadian criminal law    derivative liability, 68    fault requirement, 68–9   joint enterprise     see Joint enterprise   liability, 336     see also Aiding and abetting    mistake of law, 286    principal offender     accessories distinguished, 68     actual perpetrators, 69      aiding, abetting, counselling, procuring, 68      awareness of principal’s intentions, 68–9, 72     definition, 69     innocent agents, 69–70    secondary liability, 68   secondary participation     see Secondary participation Aiding and abetting   see also ICTY/ICTR jurisprudence   actus reus     accessory liability, 336     act or omission, 337     approving spectators, 337     causal link, 337     different approaches, 336     encouragement, 336–7     ICTR Statute, 336     ICTY Statute, 336     meaning, 336     mere presence, 337     moral support, 336–7     no prior agreement, 337     objective elements, 336     practical assistance, 336     secondary participation, 336    circumstantial evidence, 340   complicity, 410   genocide     complicity, 342–3     ICTY Statute, 343      specific intent, 340–3, 345, 354    individual criminal responsibility, 408 –10

   joint criminal enterprise (JCE), 358     see also Joint criminal enterprise (JCE)   mens rea     acceptance element, 338     awareness element, 337–40     cognitive element, 338     different approaches, 337     double intent, 338     forceable consequences, 339     knowledge element, 337–9     specific intent crimes, 340–2     volitional element, 338    Rome Statute (Article 25), 408–10    specific intent crimes     acceptance element, 342     awareness element, 341–2     criminal responsibility, 341–2     double intent, 342     genocide, 340–3, 345, 354     ICTR Statute, 340     intent to destroy, 340–2     knowledge element, 341–2 American Law Institute   establishment, 99    Model Penal Code     see Model Penal Code   role, 99 Appropriation of property   see Destruction and appropriation of property Article 30 (Rome Statute of International Criminal Court (1998))   see also Rome Statute of International Criminal Court (1998)   codification, 383    criminal responsibility, 382, 384   culpability requirements     crimes against humanity, 401–2     criminal intention, 401     extermination, 401–2     generally, 382–3     genocide, 401–2     intent element, 402     knowledge element, 402     levels of culpability, 416     premeditation, 402     ulterior intent, 401     war crimes, 401–2

471

Index Article 30 (Rome Statute of International Criminal Court (cont.):   culpability terms     awareness element, 386     circumstance element, 386–7     consequence element, 386     contextual element, 387     direct intent, 386     intended consequence, 385     intention, 386–7      intention relating to conduct, 385, 388–9     knowing standards, 386     knowledge, 386–7     legal character, 386     material elements, 385–6     mental elements, 386–7     quasi-material elements, 386      value judgment, 386   de lege ferenda, 383   de lege lata, 383    default rule, 385–7, 401–2, 414    degrees of mental elements     cognitive element, 387     intention, 387     knowledge, 387     volitional element, 387    element analysis     actus reus, 384     cautious approach, 385     circumstance element, 384, 429     conduct, 384     consequence, 384     material elements, 384–5     mental elements, 384–5    Elements of Crimes     see Elements of Crimes   intention     acts or omissions, 388–9      awareness of consequences, 388, 390–2     cognitive element, 393     consequence, 388     culpability, 401–2      direct intent, 382–3, 390–1, 395      foresight as to certain consequences, 392–3      indirect intent, 390, 395      intention relating to conduct, 385, 388–9      intention relating to consequence, 390–8     knowledge of facts, 388     meaning, 382, 387–8     oblique intent, 392–3, 397     positive action, 389     probability of consequence, 392     recklessness, 383, 390, 394–7     requirement, 382, 384     risk element, 395     special intent crimes, 401     standard, 416     volitional element, 391, 393–5

  interpretation, 416–7   knowledge     actual knowledge, 399–400     attendant circumstances, 398–9      awareness of circumstances, 399, 428      awareness of consequence, 386, 388, 390–2, 398, 428     circumstance element, 399–400      constructive knowledge, 399–400, 428     meaning, 392, 398–400, 428     negligence crimes, 400     recklessness, 400     standard, 416     wilful blindness, 399–400    presumption of innocence, 416   rule of mens rea coverage, 385, 401 Athenians    Aristotle, 16–17    criminal responsibility, 17    culpable ignorance, 16   duress, 17   homicide, 16    involuntary wrongs, 16   Plato, 16    voluntary wrongs, 16 Australian criminal law   accessories     aiding, abetting, counselling, procuring, 76     assistance or encouragement, 75–6      knowledge of principal offence, 76–7     recklessness, 76     wilful blindness, 76    collateral offences, 88    common purpose doctrine      actual state of mind, 89      crime committed as consequence of common purpose, 90–1      extended common purpose liability, 89      foresight of virtual certainty, 89      possibility of serious harm, 89–90      proof of actual common intention, 89     reckless accessories, 90     requisite intention, 90   intention     degree of probability, 46     foresight of possibility, 45     foresight of probability, 45      likelihood of causing death, 46     oblique intent, 45     probable consequence, 45–6     recklessness, 45    joint enterprises, 88    Model Criminal Code, 45–6   murder     fault element, 96      reckless indifference to human life, 95    sources of law, 32–3

472

Index Awareness as to circumstances   see Knowledge Babylonians    criminal intention, 15 Bracton    criminal intention, 25    ulterior motive, 25 Cambodia    joint criminal enterprise (JCE), 358–9     see also Joint criminal enterprise (JCE) Canadian criminal law   accessories     acts of omission, 78     aiding, abetting, counselling, procuring, 77–8     assistance or encouragement, 78     criminal liability, 77     duty to intervene, 78     knowledge threshold, 78–9     recklessness, 78    collateral offences, 88    common purpose doctrine     common unlawful purpose, 91      offence as probable consequence, 91     subjective fault requirement, 91   intention     actual subjective foresight, 47     Canadian Criminal Code, 46     foresight of certainty, 47–8      likelihood of causing death, 46–7     oblique intent 47–8     recklessness, 47, 51, 57–9     subjective fault, 47    joint enterprises, 88   knowledge     constructive knowledge, 428      knowledge as to circumstance, 61–4    mistake of fact, 92–3   murder     likelihood of death, 96      subjective foresight, 96    sources of law, 32    wilful blindness, 62–3, 96 Chinese criminal law   Criminal Codes      acts harmful to society, 176      classification of crimes, 175, 177     criminal responsibility, 177      equality before the law, 174     General Provisions, 173     intention, 183–5     joint crimes, 193     negligence, 186     nullum crimen nulla poena sine lege, 173     punishment, 174–5     revision, 172

    source of law, 172     specific crimes, 177, 179     Specific Provisions, 173     violations, 176    criminal responsibility, 177, 196   criminal subject     corporate liability, 182     legal persons, 181–2     natural persons, 181    elements of crime      acts harmful to society, 176, 196     causation, 176     foreseeability, 176     guilt, 196     intention, 176, 182–5     knowledge, 176      negligence, 176, 182, 184, 186     recklessness, 176    individual rights, 175   intention     direct intent, 184–5     harmful consequences, 183     inchoate crimes, 185     indirect intent, 184–5     knowledge, 183     will, 183–4   joint crimes     conspiracy, 193     co-perpetration, 195     elements, 193      intention of aiding and abetting, 193, 195     intention of enforcement, 193–4     intention of instigation, 193–5      intention of organisation, 193–4     joint criminal intention, 193     knowledge requirements, 193     will requirements, 193    mistake of fact     cognition error, 188, 190     criminal object, 190      mistake of causal links, 191–2      mistake of means and method, 191     mistake of target, 190–2    mistake of law      criminal act for lawful conduct, 189     defence, 189     degree of punishment, 189      lawful act for criminal act, 188     type of crime, 189     wrong cognition/judgement, 188   negligence     carelessness, 186–8     Chinese Codes, 186     foreseeable harmful consequences, 184     inadvertent negligence, 186–8     negligent crimes, 184     over-confidence, 186

473

Index Chinese criminal law (cont.):    object of the crime     class object, 178–9     direct object, 178–9     general object, 178     interest harmed, 177     interest protected, 177    objective aspects of the crime     causal links, 179–80     criminal conduct, 179–80     harmful consequences, 179–81      time/place/method, 180–1    sources of law     Criminal Codes, 172     legislative/judicial interpretations, 172–3    Soviet influences, 172, 175, 177–8    subjective aspect of the crime     aiding and abetting, 182     innocent agency, 182     intention, 182–5     negligence, 182 Code of Hammurabi    criminal intention, 15 Committing   see also Participation; Perpetration   actus reus     commission liability, 345–6     direct perpetration, 346     physical participation, 345–6      positive acts or omissions, 345     principal perpetration, 346   co-perpetration, 362–6     see also Co-perpetration    culpable omission, 389    definition of ‘committed’, 344, 362, 367   direct participation     accessories, 344     culpable omission, 344     objective approach, 344     physical perpetration, 344     principal, 344     subjective approach, 344   genocide, 345–6    joint criminal enterprise (JCE), 344     see also Joint criminal enterprise (JCE)   mens rea     criminal responsibility, 346     different approaches, 346     ICTR Statute, 346, 389     ICTY Statute, 346, 389     knowledge element, 346     recklessness, 346     specific intent, 346 Common law   see English common law Common purpose   Australia      actual state of mind, 89

     crime committed as consequence of common purpose, 90–1      extended common purpose liability, 89      foresight of virtual certainty, 89      possibility of serious harm, 89–90      proof of actual common intention, 89     reckless accessories, 90     requisite intention, 90   Canada     common unlawful purpose, 91      offence as probable consequence, 91     subjective fault requirement, 91    conspiracy, 241, 245    guilty knowledge, 233–5, 237    joint criminal enterprise (JCE), 349–51, 353–61    Rome Statute (Article 25)     accessory liability, 410     attempted commission, 410     commission of crime, 410     criminal liability, 410     group criminality, 410–11     individual criminal responsibility, 410–2     institutionalised common criminal plan, 411     intentional contribution, 410     interpretation, 410      joint criminal enterprise (JCE), 411–2 Comparative criminal law    comparative analysis, 4   importance, 12    pluralist conception, 3 Complicity    accessories, 248, 250   accomplices, 248–50    actual knowledge, 252    aiding and abetting, 410    common crimes, 249    common plan, 248   conspiracy, 248    constructive knowledge, 252    criminal participation, 248, 250    criminal responsibility, 249–50, 252    fundamental difference rule, 86   genocide, 342–3    imputed knowledge, 252    joint enterprises, 86, 97     see also Joint enterprises    lack of knowledge, 251    Nuremberg Charter, 268     see also Nuremberg Charter   ordering, 249–50    reckless indifference, 252   responsibility, 374    war crimes, 249–51 Conspiracy    actual knowledge, 242    aggressive war, 242

474

Index   causation, 245    Chinese criminal law, 193    commission of crimes, 232–3    common plan, 241–4    common purpose, 241, 245    crimes against humanity, 242–3    criminal responsibility, 241–3    Islamic criminal law, 225    joint criminal enterprise, 244    membership of criminal organisations, 246    significant participation, 242    war crimes, 242–3 Co-perpetration   see also Committing; Perpetration    acceptance of consequences, 363    awareness element, 363    common goal, 362    co-ordinated co-operation, 362    customary international law, 363–5    essential contribution to crime, 362    explicit agreement, 362    indirect perpetration, 364, 405, 406    individual criminal responsibility, 405–8    joint criminal enterprise (JCE), 365–6     see also Joint criminal enterprise (JCE)    joint control over conduct, 362    Rome Statute (Article 25), 405–8    silent consent, 362 Crimes against humanity   conspiracy, 242–3   co-perpetration, 408    guilty knowledge, 235, 237, 422    intention, 275, 425    international jurisdiction, 232–3, 235, 237, 242    military commanders, 252–3   motive, 276–7    murder, 322–3    Nuremberg Charter, 269     see also Nuremberg Charter   persecution, 295–7     see also Persecution   rape, 302–4     see also Rape   Rome Statute     Article 25, 408      Article 30, 401–2 Crimes against peace    guilty knowledge, 238    international jurisdiction, 232–3, 238, 242    military commanders, 252    Nuremberg Charter, 269     see also Nuremberg Charter Criminal intention   see Intention Criminal law   guilt, 14     see also Guilt

   penal liability, 13–14    strict liability, 14–15   vengeance, 14    violations of rights, 13   wrong-doing, 14 Criminal organisations   see Membership of criminal organisations Criminal responsibility   see also Responsibility    absolute liability, 22    foreseeability of harm, 1–2    international humanitarian law, 2   negligence, 2    strict liability, 14–15    unintentional wrongs, 23 Customary international law   co-perpetration, 363–5    criminal responsibility, 6    joint criminal enterprise (JCE), 347 Destruction and appropriation of property    appropriation of property, 320–2    criminal responsibility, 321    destruction of cities, towns or villages     ICTY Statute, 321     intent to destroy, 322      laws and customs of war, 321    destruction of property, 320, 322   extensiveness, 320    fraudulent appropriation, 321    Geneva Conventions, 320    ICTY Statute, 320    intent to destroy, 320    international humanitarian law, 320    knowledge and will of proscribed result, 320    likelihood of destruction, 320   looting, 320    military necessity, 320   plunder, 320–1    reckless disregard, 320    unlawful and wanton activity, 320    wilful acquisition, 321 Dolus directus   co-perpetration, 407    criminal responsibility, 288, 292    extermination, 307, 309   first degree     accomplice liability, 430     accomplishment of result, 424     co-perpetration, 407     genocide, 301–2      German criminal law, 169, 171      international criminal law, 284, 421     participation, 379     proof requirement, 426     purpose-bound will, 424      Rome Statute (Article 25), 407      Rome Statute (Article 30), 390–1, 395, 429

475

Index Dolus directus (cont.):    first degree (cont.):    volition element, 423    genocide, 263, 301–2   meaning, 2   participation, 379   Rome Statute      Article 25, 407      Article 30, 382–3, 386, 390–1, 393, 395, 397   second degree     accomplice liability, 430     co-perpetration, 407     culpability terms, 386      desire to achieve objective elements, 424     foresight of consequences, 424     genocide, 301–2      German criminal law, 169, 171     indifference, 424      international criminal law, 284, 421     participation, 379      Rome Statute (Article 25), 407      Rome Statute (Article 30), 382–3, 386, 390–1, 393, 395, 397, 429    wilful damage to institutions dedicated to religion or education, 318    wilful killing, 313, 315 Dolus eventualis    acceptance element, 425    aiding and abetting, 342    awareness of risk, 425   committing, 346   co-perpetration, 407–8    crimes against humanity, 425    criminal responsibility, 288, 292, 418, 425–6    degrees of fault, 302    extermination, 306–8, 425    Eygptian criminal law, 164–6    German criminal law     conscious negligence distinguished, 139      consent and approval theory, 141–2, 313     culpability level, 139     definition, 139–41     dolus directus distinguished, 139     indifference theory, 142–3     intent, 136, 139     knowledge, 139     meaning, 313     negligent conduct, 140     possibility theory, 143     probability theory, 143–5     reckless distinguished, 136    ICTY/ICTR jurisprudence, 296, 306–8, 313, 315–6, 325, 329, 332–3, 425     see also ICTY/ICTR jurisprudence    instigation of crime, 332–3    international criminal law, 425   interpretation, 418    Italian criminal law, 166

   joint criminal enterprise (JCE), 354   knowledge, 418    likelihood of consequences occurring, 425    meaning, 2, 425   persecution, 296    planning commission of crime, 329    recklessness distinguished, 425   Rome Statute     Article 25, 407–8     Article 30, 394–8    subjective posture toward result, 425    wilful killing, 313, 315    wilfully causing great suffering or serious injury, 316   will, 418 Dolus specialis   co-perpetration, 407    criminal responsibility, 288    genocide, 262, 267, 300–1, 426    ICTY/ICTR jurisprudence, 324     see also ICTY/ICTR jurisprudence   meaning, 2   persecution, 296    Rome Statute (Article 25), 407    terror against civilian populations, 426 Draft Code of Crimes against the Peace and Security of Mankind (1991)   intention     actual knowledge, 272     apartheid regime, 273–4     breach of international obligation, 273     conscious will, 276     constructive knowledge, 272     contributory negligence, 272     crimes against humanity, 275     criminal responsibility, 272–4, 284     dolus directus of the first degree, 284     dolus directus of the second degree, 284     express aim, 275     genocide, 273–4     intentional harm, 273     motive, 276–7, 420–1     negligence, 272, 274     presumed intent, 274     requirement, 272, 284      seriousness measured by intention, 271     specific intention, 275     unintentional conduct, 272     wilful actions, 272, 275   motive      intention, 276–7, 420–1     crimes against humanity, 276–7     criminal responsibility, 276–7      political, racial or religious grounds, 276–7      seriousness measured by motive, 271

476

Index    serious international offences, 270–1    Special Rapporteurs Reports, 270–1 Draft Code of Crimes against the Peace and Security of Mankind (1996)   background, 277–8    elements of crimes     intention, 278–81     knowledge, 278, 281–2     objective description, 283     subjective elements, 278, 283    environmental damage, 278–9, 281–3   genocide      acts aimed at destruction, 281      intention to destroy, 281   intention     acceptance of risk, 279     criminal responsibility, 278–80     culpability, 280     degree of accountability, 280     genocide, 281     guilty intent, 279     knowledge of illegality, 278     negligence, 279–80     presumed intent, 279–81     proof of intent, 279–80     requirement, 280–1     strict liability, 279–80     superior orders, 278     wilfulness, 278, 280    intention versus knowledge      intention to cause damage, 282–3      knowledge that damage would be caused, 282   motive     aggravating circumstances, 284     defence, 283–4     extenuating circumstances, 284     genocide, 284      racial, political or religious, 284    Special Rapporteurs Reports, 277 Draft Code of Offences against the Peace and Security of Mankind (1954)   context, 269    criminal responsibility, 270   criticisms, 270    extenuating circumstances, 270    justified acts, 270   submission, 269    superior orders, 270 Duress    criminal responsibility, 14, 17, 160   defence, 11    times of war, 14 Dutch criminal statutes   criminal responsibility     mental element, 23     moral element, 23     motive, 23

Economic and Social Council (ECOSOC)   genocide, 259 Element analysis   culpability     circumstance element, 429     material elements, 429     mental culpability, 429     mere negligence, 429      Rome Statute (Article 30), 429     wilfulness, 429   extermination, 310    Model Penal Code     accomplice liability, 430     culpability, 101, 119–20     element of offence, 120     material elements, 119–20, 129      principle of legality, 129, 428    terror against civilian populations, 292 Elements of Crimes    applicable law, 403    circumstance element, 403, 405    constructive knowledge, 400   genocide, 403–5    inferred intent, 403    inferred knowledge, 403    interpretation, 403, 405    knowledge element, 400, 416   mens rea threshold, 403    negligence standard, 403–5, 416    value judgment, 403    war crimes, 400 English common law    criminal intention, 27–9   criminal responsibility     absence of mind, 28     ancient law, 29     conduct, 31, 33     criminality, 27     intentional conduct, 30     involuntary wrongs, 30     mental element, 27     mistaken conviction, 31     morality, 27     proof, 31     state of mind, 31     strict liability, 30     unintentional conduct, 30     voluntary wrongs, 30   development, 32   fault     fault element, 31     intention, 33     negligence, 33     recklessness, 33, 43, 418     standard of knowledge, 33    high probability test (R v Hancock and Shankland)     degree of probability, 40

477

Index English common law (cont.):    high probability test (cont.):     foreseeable consequence, 40     foresight of consequences, 39–40     probability of consequences, 39–40      specific intent crimes, 40   influence, 31–2   intention     consequences, 34     culpability, 33     high probability test, 39–40      Law Commission Report (2006), 43     meaning, 34     natural consequence test, 37–9     objective test, 35–6     probability test, 36–7      recklessness, 43, 418      specific intent crimes, 38, 40     subjective test, 43      virtual certainty test, 40–3, 48    malice aforethought, 27–8, 35–7    manslaughter, 27    natural consequence test (R v Moloney)     certain act/certain consequence, 38      consequences of voluntary act, 37     foresight of consequences, 38–9      natural and probable consequences, 38     necessary intent, 38     overwhelming probability, 38     specific intent crimes, 38    objective test (R v Smith)     foresight of consequences, 35–6     guilt, 421–2     malice aforethought, 35–6     probability, 35–6     reasonable man, 35    probability test (Hyam v DPP)     actual intent, 37     degree of probability, 36–7     foreseeable consequence, 37     malice aforethought, 37     probable consequence, 37     proof of foresight, 37      serious risk, 37    source of law, 32    virtual certainty test     acceptance of consequence, 41      death or serious bodily harm, 41, 43     foresight, 41–2     indirect intention, 42     inferred intention, 41–2     knowledge and will, 41     recklessness, 42–3     R v Nedrick, 40–2, 48     R v Woollin, 41–3      risk of serious injury, 41–2 Extermination   see also ICTY/ICTR jurisprudence

   Article 30 (Rome Statute), 401–2    collective act, 306, 310    conditions leading to death, 308    core elements, 306    direct intent, 307, 309–10    element analysis, 310    gross negligence, 307, 309–10   ICTR     actus reus, 307     circumstance element, 310     collective murder, 308, 310      conditions leading to death, 308     crime against humanity, 325      gross negligence, 307, 309–10, 325, 380     intention to kill, 309      killing on large scale, 308     recklessness, 309     subjective element, 309–10   ICTY     collective murder, 308     foreseeability, 307     intention to kill, 307     knowledge element, 307–8     number of victims, 308     recklessness, 307    intention to kill, 306–7, 309    joint criminal enterprise (JCE), 360     see also Joint criminal enterprise (JCE)    killing on large scale, 306–8    knowledge of likely consequences, 306    recklessness, 307, 309    threshold number of victims, 308 Eygptian criminal law    accomplices, 164, 229   dolus eventualis, 164–6   ordering     commission of crime, 229     criminal responsibility, 229     homicide, 229 Fault   common law     fault element, 31     intention, 33     negligence, 33     recklessness, 33, 43     standard of knowledge, 33    degrees of fault     direct intent crimes, 302      gross negligence crimes, 302, 307, 309–10, 325, 380 French criminal law    classification of offences     contraventions, 160     felonies, 160     misdemeanours, 160   complicity     accomplices, 167

478

Index     act of complicity, 168      conscious aid or assistance, 167     facilitating crime, 167     incitement, 167     material element, 168     moral element, 168–9      offence differs from foreseen offence, 169     principle offence requirement, 167–8     wilful participation, 168    elements of offence     intention, 161     material element, 161     mental element, 161     negligence standard, 161   intention     classic doctrine, 161     deliberate willingness, 161–2     dol aggravé, 163, 166     dol determiné, 163     dol énventual, 164, 171     dol général, 162–3, 171     dol indeterminé, 163     dol simple, 163     dol special, 162–3, 171      knowledge of certain conduct, 161–2     la conscience, 395     la volonté, 395     meaning, 161     positivist doctrine, 161     premeditation, 163, 166   negligence     direct harm, 166     due diligence, 166      exposure to serious risk, 166     indirect involvement, 166 Fundamental difference rule   complicity, 86    criminal liability, 85    foreseeable serious harm, 84, 87    fundamentally different acts, 84, 86    intention to cause serious harm, 84–5, 87    intention to kill, 84–5   restriction, 86 Genocide    circumstance element, 403   co-perpetration, 408    criminal responsibility, 267   definition, 258–66   ICTY/ICTR jurisprudence     actus reus, 299, 302     committing, 345–6     complicity, 342–3     conduct, 300–1     constitutive elements, 299     criminal intent, 299     criminal responsibility, 301     degree of intent, 301

    direct intent, 301–2     Genocide Convention, 299, 342     ICTY Statute, 299, 301     indirect intent, 302     instigation of crime, 333      intent to destroy, 341–2 , 426     level of intent, 300     national/ethical/racial/religious groups, 300     oblique intent, 302     special intent, 300      specific intent, 299–300, 302, 333, 340–3, 345, 354      superior responsibility, 377–8     surplus of intent, 301     ulterior intent, 302    intention, 258–9, 273–4    joint criminal enterprise (JCE), 360     see also Joint criminal enterprise (JCE)   meaning, 401    motive, 262–3, 266–7, 284    premeditation, 263, 264–5, 267    preparatory acts, 260   punishment, 258–60   Rome Statute     Article 25, 408      Article 30, 401–2 Genocide Convention (1948)    Ad Hoc Committee Draft     definition of genocide, 261–3     deliberate intention, 261      destruction for certain reasons, 267      destruction of human beings, 262     dolus directus, 263     dolus specialis, 262, 267      intention to destroy, 261–3, 265     motive, 262–3, 267     premeditation, 263     punishment, 260–1      adoption, 258    ECOSOC initiative, 259    General Assembly Sixth Committee     aimed at destruction, 265     criminal intention, 263–4     definition of genocide, 264–6     degree of intent, 266     intention to destroy, 265–6     motive, 266–7     premeditation, 264–5, 267      special intent, 265–6    intentionality clause, 258    UN Secretary-General’s Draft, 259–60 German criminal law   culpability/ guilt     blameworthiness, 132–3     immoral conduct, 133–4     individual acts, 132     intention, 132–3     prerequisite of punishment, 132–3

479

Index German criminal law (cont.):   culpability/ guilt     conscious negligence distinguished, 139      consent and approval theory, 141–2, 313     culpability level, 139     definition, 139–41     dolus directus distinguished, 139     indifference theory, 142–3     intent, 136, 139     knowledge, 139     meaning, 313     negligent conduct, 140     possibility theory, 143     probability theory, 143–5     reckless distinguished, 136    elements of offence     criminal wrong, 132     intention, 131     objective elements, 131     subjective elements, 131   error in persona, 295    fault element, 130   intention     absicht, 135–8, 390     culpability, 132–3     dolus directus of the first degree, 169, 171, 390     dolus directus of the second degree, 135–6, 138–9, 169     dolus eventualis, 136, 139–45, 169–70     dolus indirectus, 135, 138     element of offence, 131      knowledge, 130, 135, 169, 395     meaning, 135     negligence distinguished, 130, 169     required element, 135      wilfulness, 130, 135, 169, 395    mistake of fact     aberratio ictus, 150–1     descriptive legal elements, 148     element of offence, 146     error in objecto, 149     error in persona, 149–51      exclusion of intent, 146, 149, 170     knowledge of circumstance, 148      knowledge of legal element, 148–9      material elements of offence, 148, 151      mistake of law distinguished, 147     negligent acts, 149     normative legal elements, 148    mistake of law     avoidability, 151–4     direct error, 152      error as to prohibition, 151–2      exclusion of culpability, 146, 151–4, 170     incorrect legal advice, 153     indirect error, 152     international criminal law, 153–4

     mistake of fact distinguished, 147     mitigation, 152     unavoidability threshold, 151     unlawfulness of act, 146   negligence     conscious negligence, 145–6     criminal negligence, 145, 169     criminal responsibility, 145, 171     intention distinguished, 130     standard of care, 145     unconscious negligence, 145   perpetration     control over crime, 407      co-perpetration, 156–7, 171, 405, 407      crime committed through another, 154      direct perpetrators, 154, 171, 405     indirect perpetration, 155–6, 405     indirect perpetrators, 155     organised crime, 156     punishment provisions, 154     state induced criminality, 156     terrorist offences, 156   secondary participation     aiding, 157–8     criminal responsibility, 157     deliberate/substantial support, 159     double intent, 158–9     duress, 160     incitement, 157     indirect perpetration, 158     instigation, 158     mere accomplices, 159     principal participation distinguished, 159–60     subjective perception, 159    structure of offences     culpability, 130, 132–4     legal elements, 130–1     unlawfulness, 130–2     wrongfulness, 130–2   unlawfulness/wrongfulness/ illegality     criminal wrong, 132     legal justification, 131     potential illegality, 132     unlawfulness of act, 132 Guilt    Chinese criminal law, 196    German criminal law     blameworthiness, 132–3     immoral conduct, 133–4     individual acts, 132     intention, 132–3     prerequisite of punishment, 132–3    guilt by association, 350    guilty knowledge, 233–5, 237–8    guilty intent, 279    inferred guilty knowledge, 419    objective test, 421–2

480

Index    personal guilt, 246–7    presumption of guilt, 246–7, 420   subjective test     adoption, 421–3      contemplation of probable result, 421–3     crimes against humanity, 422      joint criminal enterprise (JCE), 422     requisite knowledge, 422     war crimes, 422 Hebrew law    criminal responsibility, 15–16    Deuteronomic Codes, 15    harmful acts, 15 Hostage taking   see also ICTY/ICTR jurisprudence    arbitrary nature, 298    civilian hostages, 297   concessions, 298–9    deliberate detention, 298–9    deprivation of liberty, 298    Geneva Conventions, 297    ICTY, 288, 297    International Committee of the Red Cross, 297–8    non-international armed conflicts, 297    status of victims, 288    threat of death, 298–9    unlawful detention, 298 Human dignity   see Outrages upon personal dignity ICTY/ICTR jurisprudence    accomplice liability, 379–80, 430–1    aiding and abetting, 336–43     see also Aiding and abetting   committing, 344–6     see also Committing   co-perpetration, 362–6     see also Co-perpetration   criminal responsibility     acceptance element, 287     civil law terms, 288     common law terms, 288     degree of intent, 324     degree of knowledge, 288      direct intent, 288, 292, 324, 423     foreseeability of harm, 287–8     indirect intent, 288, 423     knowledge element, 287, 430–1     objective test, 288     oblique intent, 292, 423     premeditation, 288      recklessness, 288, 292, 325, 423     requisite intention, 287      special intent, 288, 324, 423     specific intent, 288, 324     subjective test, 288

     surplus of intent, 288, 423    culpability, 324–5, 423    extermination, 306–10     see also Extermination   fault     degrees of fault, 302     direct intent crimes, 302      gross negligence crimes, 302, 307, 309–10, 325, 380, 427   influence, 421    instigation of crime, 330–3     see also Instigation of crime    international humanitarian law, 287, 324    joint criminal enterprise (JCE)     see Joint criminal enterprise (JCE)   knowledge     cognitive element, 430–1     volitional element, 430–1   murder, 322–3   ordering, 333–5     see also Ordering    outrages upon personal dignity, 304–6, 324–5     see also Outrages upon personal dignity    participation, 326–8, 379–80     see also Participation   perpetration, 326–7     see also Perpetration    planning commission of crime, 328–30     see also Planning (commission of crime)    premeditated crimes, 322–3   rape, 302–4     see also Rape   responsibility, 366–79     see also Responsibility    specific intent crimes     culpability, 292, 324     direct intent, 292, 324     genocide, 289, 299–302     hostage taking, 297–9      oblique intent, 292, 423     persecution, 289, 295–7     proof requirement, 292     recklessness, 292, 423     terror against civilian populations, 289–92     torture 289, 293–4    wanton crimes, 319–23     see also Wanton crimes   wilful crimes     meaning of wilful, 311     meaning of wilfully, 311–2    wilful damage to institutions dedicated to religion or education, 317–9     see also Wilful damage to institutions dedicated to religion or education    wilful killing, 311–5     see also Wilful killing

481

Index ICTY/ICTR jurisprudence (cont.):    wilfully causing great suffering or serious injury, 316     see also Wilfully causing great suffering or serious injury Innocent agency    awareness of principal, 70    individual criminal responsibility, 406   meaning, 69    Rome Statute (Article 25), 406 Instigation of crime   actus reus      actual commission of crime, 331      direct and substantial effect, 331     direct effect, 331     express, 330     implied, 330     incitement, 330     ICTR Statute, 332     ICTY Statute, 331–2     influence, 331     intermediaries, 331     moral support, 331     multiple perpetrators, 332     omissions, 330     original idea/plan, 330     persuasion/encouragement, 330–1      prompting another to commit offence, 330     substantial contribution, 331   mens rea     acceptance, 332      awareness of substantial likelihood, 332     cognitive element, 332     criminal responsibility, 332–3     direct intent, 332     double intent, 333     foreseeability, 332     genocide, 333     indirect inducement, 332     intent to incite, 333     intention to provoke, 332     knowledge element, 332     recklessness, 332–3     special intent, 333     specific intent, 333     volitional element, 332 Intention   ambiguous meanings      general intent, 98, 102, 127      specific intent, 98, 102, 127   Australia     see Australian criminal law   Canada     see Canadian criminal law    cognitive element, 1   common law     intention     consequences, 34

    culpability, 33     high probability test, 39–40      Law Commission Report (2006), 43     meaning, 34     natural consequence test, 37–9     objective test, 35–6     probability test, 36–7      recklessness, 43      specific intent crimes, 38, 40     subjective test, 43      virtual certainty test, 40–3, 48    common law jurisdictions     judicial disagreement, 94     standards of intention, 94    common law terms     direct intent, 2     oblique intent, 2     recklessness, 2   commonalities, 418    consequence element, 94    continental law terms     dolus directus, 2     dolus eventualis, 2     dolus specialis, 2    criminal responsibility, 418   culpability, 94    definition , 1–2, 94–5   desire, 48   determination, 13    different conceptual terms, 418    direct intent, 48–9    early law, 13–14    excluded situations, 95    foreseeability of harm, 1–2    foresight of consequences     degree of foreseeability, 95     inferred intention, 95     oblique intent, 95     probable consequences, 94     virtual certainty, 94–5    importance, 13    international dimension, 1   Ireland     see Ireland    medieval period, 22    murder cases, 94    schematic review, 49–50    specific intent, 64–5     see also Specific intent    subjective test, 2    ulterior intent, 65     see also Ulterior intent    volitional element, 1 International Criminal Court (ICC)   see also Rome Statute of the International Criminal Court (1998)   criminal responsibility     cognitive element, 421

482

Index     volitional element, 421    Elements of Crimes     see Elements of Crimes    international humanitarian law, 382 International criminal law    common denominators, 4    comparative analysis, 4    culpability terms, 423   development, 419    general principles, 4   intention, 420–1   motive, 420    pluralist conception, 3    transposition of legal terms, 4    Western experience, 3 International Criminal Tribunal for Rwanda (ICTR)   see also ICTY/ICTR jurisprudence    crimes against humanity, 325   extermination, 325    genocide, 299–302     see also Genocide    gross negligence, 307, 309–10, 325    judicial process, 3   murder, 322–3 International Criminal Tribunal for the Former Yugoslavia (ICTY)   see also ICTY/ICTR jurisprudence    crimes against humanity, 323   criminal responsibility     degree of foresight, 325     disregard for outcome, 325     recklessness, 325    general principles of law, 5, 9   genocide, 299–302     see also Genocide    judicial process, 3   murder, 323–4   risk     acceptance of risk, 325     probability of risk, 325 International humanitarian law    criminal responsibility, 2    destruction and appropriation of property, 320    ICTY/ICTR jurisprudence, 287, 324     see also ICTY/ICTR jurisprudence    International Criminal Court (ICC), 382 International law   duress, 11   general principles     application, 6, 12     common core, 4     determination, 6–8, 12     function, 5     importance, 3–4     interpretative function, 11     recognition, 6, 8–10

    verification, 8–9    legal context, 10    legal reasoning, 11   lex lata, 12    national laws, 4–9    Nuremberg Charter, 268–9     see also Nuremberg Charter   role, 11–12    source of law, 5–6    transposition to international sphere, 10–11    underlying common principle, 8, 10 International Law Commission   see also Draft Code of Crimes against the Peace and Security of Mankind (1991); Draft Code of Crimes against the Peace and Security of Mankind (1996); Draft Code of Offences against the Peace and Security of Mankind (1954)   establishment, 234    influence, 284, 420    Nuremberg Charter, 268–9     see also Nuremberg Charter    pluralist understanding, 420   premeditation, 421   purpose, 234 International Military Tribunal at Nuremberg (IMT)   complicity     accessories, 248, 250     accomplices, 248–50     actual knowledge, 252     common crimes, 249     common plan, 248     conspiracy, 248     constructive knowledge, 252     criminal participation, 248, 250     criminal responsibility, 249–50, 252     imputed knowledge, 252     lack of knowledge, 251     ordering, 249–50     reckless indifference, 252      war crimes, 249–51   conspiracy     actual knowledge, 242     aggressive war, 242     causation, 245     commission of crimes, 232–3     common plan, 241–4     common purpose, 241, 245     crimes against humanity, 242–3     criminal responsibility, 241–3      joint criminal enterprise (JCE), 244      membership of criminal organisations, 246     significant participation, 242      war crimes, 242–3   creation, 231    criminal intention, 1 International Military Tribunal at Nuremberg

483

Index (IMT) (cont.):    criminal responsibility, 232, 234–9    felonious intent, 238   guilty knowledge     acquittals, 236     assumption of knowledge, 240–1      common purpose theory, 233–5, 237      crimes against humanity, 235, 237     crimes against peace, 238     evidence, 240–1      experiments on human beings, 239     inferred knowledge, 238, 240      joint criminal enterprise (JCE), 237      knowledge of common plan, 234–7     objective approach, 238     persecution, 237–8, 240     proof, 239–40      requisite knowledge, 238     subjective approach, 238     wilful blindness, 235   judges, 233    judicial process, 3   jurisdiction      crimes against humanity, 232–3, 235, 237, 242      crimes against peace, 232–3, 238, 242      war crimes, 232–3, 242    membership of criminal organisations     conspiracy, 246     criminal responsibility, 246      knowledge of criminal purpose, 285     personal guilt, 246–7     presumed knowledge, 247, 285–6      presumption of guilt, 246–7, 420    Nuremberg Charter, 231, 241–2, 246, 248    persons concerned in killings     actual presence, 248     criminal responsibility, 247–8 International Military Tribunal for the Far East (IMTFE)   conspiracy     aggressive war, 243     crimes against humanity, 243     war crimes, 243    criminal intention, 1    criminal responsibility, 236, 285   jurisdiction, 232    knowledge of common plan, 236    Tokyo Charter, 232 Ireland   attempt, 21    Brehon Law, 21    collateral offences, 88   eric-fine, 20–1   intention     direct intent, 44      foresight of probable consequence, 43–4     intentional crimes, 19–20

    Law Reform Commission, 43     murder, 20, 43     oblique intent, 44     recklessness, 43      willing of probable consequence, 44    joint enterprises, 88    unintentional crimes, 19–20 Islamic law   see also Islamic criminal law; Qura-n; Shari’a    analogical deduction by individual reasoning, 203–4    consensus by collective reasoning, 203   custom, 204   equity, 204    leading schools of law     doctrinal schools, 206     interpretative rules, 207     lack of consensus, 207     legal certainty, 207     personal schools, 206     Shari’a compliance, 207     Shi’a Schools, 207     Sunni Schools, 206–7    presumption of continuity, 204    presumption of innocence, 416–7    public interest considerations, 204 Islamic criminal law   see also Qura-n; Shari’a    application, 199–200, 203   codifications, 199   complicity     causal complicity, 228–9     direct complicity, 225–8     general doctrine, 224     indirect complicity, 224     indirect homicide, 228   criminal responsibility     blood money, 209     degrees of responsibility, 209      equality in punishment, 209, 223     expiation, 209     generally, 22     intention, 208–11, 397     material element, 209–10     mistake, 208–9     motive, 210     perpetration, 419     presumption of innocence, 416–7     purpose of perpetrator, 208     Qura-n, 208, 223     retaliation, 209, 215     Sunnah, 208    culpability principle, 419    differing legal opinions, 198   direct complicity     agreement, 225, 227     conspiracy, 225

484

Index      crime committed in concurrence, 225–6     homicide, 225–7     indispensable help, 227–8     meaning, 225     premeditated agreement, 225–6      presence at crime scene, 227   diyya crimes, 205   evidence, 198   Fiqh     derivation, 201     meaning, 203    guiding principles, 198   homicide     actual intention, 219     degrees of homicide, 211     determining intention, 215–8      homicide by mistake, 214–5, 230     indirect homicide, 214      intentional homicide, 211–2, 216–8, 230     jurists’ opinions, 216–8      lack of specific intent, 219     lethal action, 219     quasi-deliberate homicide, 212–4, 216–9, 230      specific intent, 218–9      use of lethal weapon, 218   hudu-d crimes     adultery, 205     apostacy, 205     drinking of alcohol, 205     fixed penalties, 205     highway robbery, 205     illicit sexual relations, 205      penalised by the community, 205     responsibility, 397     slander, 205     theft, 205     transgression, 205     waiver, 220    influence, 199, 419   intention     actual intention, 219     determining intention, 215–8     hadiths, 215–6      lack of specific intent, 219     specific intent, 218–9    legal maxims, 198   mistake      cases similar to mistake, 222     degree of criminality, 220     lack of intention, 220      mistake in criminal intent, 220      mistake in the act, 220     mistake of fact, 220     mistake of law, 221–2     negligence, 220, 222–3     pure mistake, 222     Qura-n, 220–1

    unintended consequences, 220   participation     accomplices, 224–7, 229     complicity, 224–9     homicide, 223–4     Qura-n, 223     Shari’a, 224    proofs of law, 203   qisas crimes, 205, 397    religious roots, 419    sacred law, 199    sources of law     application, 203–4     Fiqh, 200–3     generally, 198–9     hierarchy, 203     interaction, 203     interpretation, 203     Shari’a, 200–2     Sunnah, 201–2, 208   Ta’azir crimes, 205–6    underlying objectives, 198 Italian criminal law   intention     dolus eventualis, 166     preveduto, 395     volute, 395 Joint criminal enterprise (JCE)    basic form (JCE I)     actus reus, 353     aiding and abetting, 354     circumstantial evidence, 354     common purpose, 353–4, 423     criminal intention, 354–5     direct intent, 354     direct perpetration, 353     identical criminal intent, 353     liability, 348, 353     voluntary participation, 353–4   categories, 349   commission, 347–8    constructive liability, 380   co-perpetration, 365–6     see also Co-perpetration    criminal responsibility, 347–8, 362, 431    customary international law, 347    extended form (JCE III)     acceptance of risk, 359–61     awareness element, 359–61     common purpose, 359–61, 423     extermination, 360     fault element, 359–61     foreseeable consequences, 359–61, 423     genocide, 360     knowledge element, 361     liability, 348, 351, 359–61      reasonably foreseeable test, 361, 431

485

Index Joint criminal enterprise (JCE) (cont.):    extended form (JCE III) (cont.):     specific intent crimes, 360–1     specific purpose crimes, 360   general requirements     actus reus, 348–9, 351     additional agreement, 352     awareness element, 351–2     common plan, 349–50, 431     common purpose, 349–51, 423     connection to crime, 350     knowledge of offence, 350     plurality of persons, 349     principal perpetrators, 350–1    guilt by association, 350    large scale enterprises, 350, 352–3   negligence, 431   participants, 347–50    reasonably foreseeable test, 380–1    shared intent, 347    systemic form (JCE II)     actus reus, 355–7     additional requirements, 358     aiding and abetting, 358     common denominator, 357     common plan, 355     common purpose, 355–8     criminal intention, 357–9     criminal responsibility, 345     different interpretations, 358–9     foreseeable consequences, 357–8, 423     imputed liability, 357     inhumane treatment, 345     internment camps, 355–6, 359      knowledge element, 357, 359     liability, 348     motive, 358     opportunistic visitors, 356     participation, 355–6     plurality of persons, 355     proof of agreement, 356–7     shared intent, 357     special intent, 358 Joint enterprises   see also Joint criminal enterprise (JCE)   collateral offences     contemplation, 83     criminal liability, 81–2     culpability, 83–4     foresight, 81, 83     fundamental difference rule, 84–7      lesser degree of harm, 87–9      unauthorised acts, 82–3    common purpose, 80, 97     see also Common purpose    complicity, 86, 97    fundamental difference rule     complicity, 86

    criminal liability, 85      foreseeable serious harm, 84, 87      fundamentally different acts, 84, 86      intention to cause serious harm, 84–5, 87      intention to kill, 84–5     restriction, 86    lesser degree of harm     collateral offences, 87–9     criminal liability, 87–8     indirect party’s contemplation, 87     inherently dangerous acts, 88   liability, 79–81   murder, 81    secondary liability distinguished, 79–80   secondary parties     contemplation of crime, 82     culpability, 81     intention, 81–2     public policy, 82 Jus cogens   status, 5 Knowledge    actual knowledge, 96, 428    circumstance element, 96    cognitive element, 430–1    common law jurisdictions, 59, 63–4    consequence element, 96    constructive knowledge, 60–1, 96, 428   definition, 60    fault element, 97    first degree knowledge, 60    knowledge as to circumstance      actual knowledge, 60–2, 64, 428,     defendant’s suspicions, 62     express requirement, 59–61     ‘knowingly’, 59     means of knowledge, 60      ‘ought to have known’, 60, 96, 428      reasonable cause to believe, 61      wilful blindness, 60–3, 96, 428    volitional element, 430–1 Leges Henrici Primi    absolute liability, 24    criminal intention, 23–4 Looting    destruction and appropriation of property, 320 Membership of criminal organisations   conspiracy, 246    criminal responsibility, 246    knowledge of criminal purpose, 285    personal guilt, 246–7    presumed knowledge, 247, 285–6    presumption of guilt, 246–7, 420

486

Index Mens rea   see Intention Military commanders   accessories, 253    actual knowledge, 252–3, 420    aggressive war, 252    common plan, 252   conspiracy, 252    crimes against humanity, 252–3    crimes against peace, 252    inferred criminal intent, 254    influencing policy, 253    mere negligence, 252–3, 420    racial persecution, 253–4    war crimes, 252–3    wilful blindness, 254 Mistake of fact    exclusion of criminal responsibility, 91    honest belief, 92–3    mistaken belief, 92    Model Penal Code      commission of different crime, 122–3     culpability, 121–2, 129     defence, 120–1, 129     grading of offences, 123     legality of conduct, 123–4      liability for more serious crime, 122–3     rape cases, 121–2     recklessness, 121    negligence, 67, 92    reasonable mistake, 91–3    Rome Statute (Article 32)     criminal responsibility, 414–5     intention, 415     knowledge, 415     negating mental element, 414    sexual offences, 92–3    wilful blindness, 93 Mistake of law   accessories, 286   accomplices, 286    actual knowledge, 286    constructive knowledge, 286   ignorance, 93–4    international law, 286   mitigation, 93    Model Penal Code     culpability, 121–2     defence, 120–1     rape cases, 121–2     recklessness, 121    Rome Statute (Article 32)     criminal responsibility, 414–5     defence, 414–5     factual mistake, 416     limited scope, 415     negating mental element, 414     normative mistake, 415–6

Model Penal Code   accomplice liability     assistance or encouragement, 124      awareness of principal’s mental state, 124, 429     conscious objective, 125     culpability, 129     element analysis, 430     equivalent mental state, 126     facilitating offence, 125–6     fault requirements, 124     knowing aid, 124     meaning, 124     negligence, 126     principal perpetrator, 127     probabilities, 125     recklessness, 126–7     required mental state, 126   assessment, 128   background, 99–100   culpability provisions     culpability levels, 101     definition of liability, 100–1     degree of culpability, 129     element analysis, 101     eliminating general intent, 102     eliminating specific intent, 102     General Requirements of Culpability, 100–3     guidelines, 102     prescribed requirement, 385      proof of mental culpability, 101–2    culpable states of mind     hierarchy, 99, 101     knowledge, 99, 101–2, 108     negligence, 99, 101–2, 128      purpose, 99, 101–2, 106, 128      recklessness, 99, 101–2, 128, 414     subjective determination, 102   element analysis     accomplice liability, 430     culpability, 119–20     element of offence, 120     material elements, 119–20, 129      principle of legality, 129, 428    General Requirements of Culpability     conditional purpose, 104     degrees of culpability, 100–3     illegal conduct, 104     ‘knowingly’, 103–4      knowledge of high probability, 104     minimum requirements, 103     ‘negligently’, 103     prescribed requirement, 103     ‘purposely’, 103–4     ‘recklessly’, 103     ‘wilfulness’, 104   influence, 100

487

Index Model Penal Code (cont.):   ‘knowingly’     acceptance of consequence, 108     actual knowledge, 109     attendant circumstances, 109–10     avoidance of knowledge, 109–10     awareness of circumstances, 108      awareness of particular fact, 109–10     determining factor, 107     meaning, 128      practically certain result, 108, 128, 392     ‘purposely’ distinguished, 107–8     required element, 107, 109     subjective approach, 128     volitional element, 108    mistake of fact      commission of different crime, 122–3     culpability, 121–2, 129     defence, 120–1, 129     grading of offences, 123     legality of conduct, 123–4      liability for more serious crime, 122–3     rape cases, 121–2     recklessness, 121    mistake of law     culpability, 121–2     defence, 120–1     rape cases, 121–2     recklessness, 121   ‘negligently’     criminal negligence, 116     culpability, 116     degree of risk, 117     meaning, 116–8     objective approach, 128     recklessness distinguished, 117–8     risk of harm, 117–8     substantial risk, 128     unjustifiable risk, 128      unreasonable risk, 117–8   ‘purposely’     actual intent, 105     attendant circumstances, 106–7, 424      conduct or result, 105, 424      conscious object or purpose, 106, 128, 390, 424     culpability threshold, 107     heightened culpability, 105     inchoate offences, 105     intention, 104, 106     ‘knowingly’ distinguished, 107–8     knowledge, 104–5     material element, 424     meaning, 105–6, 390     murder, 106     result or circumstance, 106     specific purpose, 105     subjective approach, 128

  ‘recklessly’     conscious disregard, 113–4, 128     conscious risk, 112     criminal liability, 112     degree of culpability, 112      indifference to human life, 115–6     knowledge and recklessness, 114–5     material element, 113     meaning, 414     mistake of fact, 121     mistake of law, 121     objective aspect, 113, 128     reckless homicide, 115–6, 128     state of awareness, 112     subjective aspect, 113, 128     substantial risk, 113–4, 128      unjustified risk, 112–4, 128   ‘wilfulness’     bad purpose, 112     meaning, 110–11, 128     unlawful conduct, 112 Murder   see also ICTY/ICTR jurisprudence   assassinat, 322–323    crime against humanity, 322–3    criminal responsibility, 323    ICTR Statute, 322–3, 325   premeditation, 322–5 Negligence    cognitive element, 427    common law jurisdictions, 419    continental law jurisdictions, 419    criminal responsibility, 96, 427   culpability, 97   definition, 96    degrees of negligence, 68    gross negligence, 66–7, 96, 302, 307, 309–10, 325, 380, 427    inadvertent unjustifiable risk, 96    manslaughter, 66–7, 96    mistake of fact, 67    reasonable cause to believe, 66    recklessness distinguished, 58, 66–7, 96    standard of care, 66–7, 96, 427    unjustifiable risk, 66    volitional element, 427 Nuremberg Charter   codification, 268    complicity, 248, 268    crimes against humanity, 269    crimes against peace, 269    criminal intention, 268    criminal responsibility, 231, 241–2, 268    degree of intent, 268    formulation of principles, 268    international law crimes, 268–9    membership of criminal organisations, 246

488

Index    war crimes, 269 Nuremberg Tribunal   see International Military Tribunal at Nuremberg (IMT) Ordering   actus reus     causal link, 334     chain of command, 333     de facto authority, 334     de jure authority, 334     differing approaches, 334     form of order, 334     ICTR Statute, 334     ICTY Statute, 334     objective element, 333     superior/subordinate relationship, 333   complicity, 249–50   mens rea     commanders, 335      crime differs from one originally ordered, 335     criminal responsibility, 335–6     degree of risk, 335     ICTR Statute, 335     ICTY Statute, 334     indirect perpetrators, 335     knowledge of risk, 335      likelihood of crime being committed, 335      offence ordered to be committed, 335 Organization of the Islamic Conference (OIC), 199–200 Outrages upon personal dignity   see also ICTY/ICTR jurisprudence    attacks on human dignity, 305   degradation, 305    direct intent, 305    Geneva Conventions, 304   humiliation, 305    ICTY Statute, 304, 324–5    inhuman treatment, 305    knowledge of actual consequences, 305    knowledge of possible consequences, 305–6    law or customs of war, 305    legal basis, 305    nature of conduct, 305–6    objective threshold of offence, 305–6    proscribed result, 305    required knowledge, 305    result element, 325 Pakistan    homicide, 212–5    innocent agency, 230    Pakistan Penal Code, 212–3, 215    Shari’a, 200, 207

Participation   see also Committing; Joint criminal enterprise (JCE)   ICTY/ICTR jurisprudence     accessories, 344     accomplices, 379–80, 430–1     cognitive element, 380     criminal responsibility, 326–7     culpable omission, 344     direct participation, 344     gross negligence, 380     knowledge element, 379–80     level of participation, 328     objective approach, 344     physical participation, 345–6     principal, 34     recklessness, 380     subjective approach, 344     volitional element, 380    individual criminal responsibility, 405    joint criminal enterprise (JCE)     see Joint criminal enterprise (JCE)    Rome Statute (Article 25), 405   secondary participation     see Secondary participation Perpetration   see also ICTY/ICTR jurisprudence    co-perpetration, 362–6, 405–8     see also Co-perpetration   criminal responsibility     acts or omissions, 327     elements of crime, 326     crimes of subordinates, 327      facts to be proved, 326     ICTR Statute, 326–7     ICTY Statute, 326–7     individual responsibility, 327     legal entities, 326     natural persons, 326    direct perpetration, 346, 405    indirect perpetration, 405–6    individual criminal responsibility, 405    joint criminal enterprise     see Joint criminal enterprise (JCE)   natural persons     ICTR Statute, 326     ICTY Statute, 326    physical perpetration, 344    principal perpetration, 346    Rome Statute (Article 25), 405 Persecution   see also ICTY/ICTR jurisprudence    act or omission, 295   actus reus, 295   co-perpetrators, 296–7    criminal intention, 295    criminal responsibility, 295    deliberate act, 295

489

Index Persecution (cont.):    direct perpetrators, 296    discriminatory consequences, 295    discriminatory intent, 295–7    fundamental rights, 295    general intent, 296    ICTY Statute, 295    indirect perpetrators, 296    political persecution, 295    racial persecution, 295   rape, 302     see also Rape   recklessness, 296    religious persecution, 295    specific intent, 296    superior responsibility, 377 Planning (commission of crime)   actus reus     commission of crime, 328     endorsement of plan, 328     execution phase, 328     formulation of plan, 328     legal elements, 328     level of participation, 328     preparatory phase, 328     presence of accused, 328   ICTR     accomplice liability, 329     awareness element, 329     ICTR Statute, 329–30     knowledge element, 329   mens rea      awareness of substantial likelihood, 329     cognitive element, 330     criminal responsibility, 329–30     degree of intent, 329     direct intent, 329     ICTY Statute, 329–30     indirect intent, 329–30     individual responsibility, 330     recklessness, 329     unjustifiable element, 329     unreasonable element, 329      volitional element, 330 Plunder    destruction and appropriation of property, 320–1 Post-World War II Trials   see also International Military Tribunal at Nuremberg (IMT); International Military Tribunal    for the Far East (IMTFE)    common plan, 285    common purpose, 285     see also Common purpose   conspiracy, 285    Control Council Law No 10, 233–4, 236, 243–4, 285, 420

   criminal responsibility, 285    Declaration of Legal Principles, 231    guilt principle, 420   intention     accessories, 286     accomplices, 286     circumstantial evidence, 419     decisive factor, 285     degree of knowledge, 285     felonious intent, 419     inferred guilty knowledge, 419     knowing standard, 285, 419     presumed knowledge, 285–6    London Conference (1945), 231   military commanders     see Military commanders    mistake of fact     defence, 255     lawful commands, 257     war crimes, 257    mistake of law     actual knowledge, 286     constructive knowledge, 286     defence, 255     international law, 255–6, 286     unlawful orders, 255–6     war crimes, 255    Moscow Declaration (1943), 233    war criminals, 231, 233 Property   see Destruction and appropriation of property Qurān   see also Islamic criminal law   acceptance, 202    criminal responsibility, 208, 223    divine revelation, 202   guidance, 201–2   indivisibility, 202    law of mistake, 220–1    legal verses, 201    participation in crime, 223   primacy, 203    source of law, 201 Rape   see also ICTY/ICTR jurisprudence   actus reus, 303    coercive environment, 303   consent     absence of consent, 303–4     voluntary consent, 303    criminal intention, 303    direct intent, 304   ICTR     absence of consent, 303–4     crime against humanity, 303

490

Index     criminal intention, 303     elements of crime, 303   ICTY      crime against humanity, 302, 304     elements of crime, 302     jurisdictional requirements, 302     persecution, 302     war crime, 302    international law, 303    sexual penetration, 303    surrounding circumstances, 303 Recklessness    common law jurisdictions, 58–9   consequences, 51–2    criminal liability, 50, 96    fault element, 33, 43    inadvertent recklessness, 96    knowledge distinguished, 51   legal meaning      objective form, 51–2, 54–8, 96     subjective form, 51–2, 96    nature of recklessness, 51    negligence distinguished, 58, 66–7   objective recklessness     advertent recklessness, 55–6      awareness of risk, 54–6, 66     Metropolitan Police Commissioner v Caldwell, 54–5, 57–8     obvious risk, 54–5     R v G and another, 56–7     R v Lawrence, 55     subjectivism, 57–8     unreasonable risk, 57    proof, 50–1, 54    relationship with intention, 51–2   risk     generally, 51     unjustifiable risk, 58, 96     unreasonable risk, 96   subjective recklessness      awareness of risk, 54, 66     defendant’s knowledge, 53     primacy of subjectivism, 57–8     R v Cunningham, 52–3     relevant malice, 53     unreasonable risk, 53–4    wilful blindness distinguished, 62–3 Responsibility   commanders/subordinates     command responsibility, 366      prevention of crime, 366, 378–9      punishment of crime, 366, 373, 378–9   crime committed     commission by omission, 368     aiding and abetting, 367     requirement, 367     superior criminal responsibility, 367   effective control

    burden of proof, 370–1     co-operation, 371      crimes committed prior to control, 371–2     de jure authority, 370–1     material ability, 369–70     military benefits, 371    failure to prevent or punish     command responsibility, 379     consecutive obligations, 379     criminal responsibility, 378     failure to supervise, 379     ICTY Statute, 379     strict liability, 379   ICTY/ICTR jurisprudence     crime committed, 367–8      criminal intention, 367, 372–7      failure to punish, 367, 378–9     nature of responsibility, 366     superior authority, 367–72      superior responsibility, 367, 377–8, 412–3    individual responsibility, 36   mens rea     actual knowledge, 373–5, 378     circumstantial evidence, 374      command responsibility, 372–3, 376, 379     common knowledge, 375     complicity, 374     constructive knowledge, 373      contributing to commission of crime, 374     criminal negligence, 376     degree of knowledge, 376      failure to acquire information, 376      failure to punish crimes, 366, 373, 378–9     ICTR Statute, 373–5     ICTY Statute, 373–5     imputed knowledge, 373, 375–8      knew or had reason to know, 372–3, 375–7      knowledge of criminal reputation, 375     presumed knowledge, 374      proof of intent, 373–4   superior authority     commander’s liability, 368     customary rules, 372     de facto authority, 370     de jure authority, 370     effective control, 369–72     identification of subordinates, 368–9     superior/subordinate relationship, 368–9, 371   superior responsibility     actual knowledge, 378     genocide, 377–8      had reason to know, 412–3     ICTR Statute, 377     ICTY Statute, 377–9     persecution, 377     specific intent crimes, 377     wilful blindness, 378

491

Index Responsibility (cont.):    superior responsibility (Rome Statute)     actual knowledge, 412–3     command responsibility, 412     conscious disregard, 414     constructive knowledge, 412–3     culpability levels, 412, 414     due diligence, 413     failure to perceive, 414      failure to prevent or punish, 413      knowledge standard, 412–3     negligence standard, 412–3     reckless standard, 414 Roman law    criminal intention (dolus), 19, 26, 30    criminal responsibility, 19, 26, 30   culpa, 26   homicide, 19    intentional harm, 18    involuntary harm, 17    killing by negligence, 19   Lex Cornelia, 19    Twelve Tables, 17–18    unintentional harm, 18    voluntary harm, 17 Rome Statute of International Criminal Court (1998)    aiding and abetting (Article 25)     accomplice liability, 408–9     complicity, 410     conscious objective, 408     culpable mental state, 409     double intent, 409     facilitating crime, 408–9     intention requirement, 409     knowledge requirement, 409     mens rea threshold, 408     objective elements, 409–10     subjective threshold, 410     volitional element, 409    applicable law (Article 21), 403, 411    Article 30     see Article 30 (Rome Statute of International Criminal Court (1998))    common purpose (Article 25)     accessory liability, 410     attempted commission, 410     commission of crime, 410     criminal liability, 410     group criminality, 410–11     institutionalised common criminal plan, 411     intentional contribution, 410     interpretation, 410      joint criminal enterprise (JCE), 411–2    co-perpetration (Article 25)     accessories, 406     awareness of circumstances, 406–7

    awareness of risk, 408     cognitive element, 408     common plan, 407–8     control over crime, 406–8     co-ordinated essential contribution, 407     crimes against humanity, 408     double intent, 408     existence of agreement, 407     genocide, 408     mutual awareness, 407     objective approach, 406–7     mens rea standards, 407     negligence standard, 408     principals, 406–7     specific intent, 408     subjective approach, 406–8     ulterior intent, 407     volitional element, 408    criminal intention, 2   genocide, 401    individual criminal responsibility (Article 25)     aiding and abetting, 408–10     common purpose, 410–2     co-perpetration, 405–8     direct perpetrators, 405     indirect perpetrators, 405–6     innocent agency, 406     participation, 405     perpetration, 405    mistake of fact (Article 32)     criminal responsibility, 414–5     intention, 415     knowledge, 415     negating mental element, 414    mistake of law (Article 32)     criminal responsibility, 414–5     defence, 414–5     factual mistake, 416     limited scope, 415     negating mental element, 414     normative mistake, 415–6    superior responsibility (Article 28)     actual knowledge, 412–3     command responsibility, 412     conscious disregard, 414     constructive knowledge, 412–3     culpability levels, 412, 414     due diligence, 413     failure to perceive, 414      failure to prevent or punish, 413      knowledge standard, 412–3     negligence standard, 412–3     reckless standard, 414 Russian criminal law   accomplices, 196   complicity, 195    Criminal Code of the Russian Federation (CCRF)

492

Index Shari’a   see also Islamic criminal law   abolition, 200   compliance, 207   derivation     Qura-n, 201     Sunnah, 201–2    divine revelation, 201   meaning, 200–1    participation in crime, 224   revival, 200 Specific intent   ambiguity, 65    required element, 64–5    special state of mind, 64    specific intent crimes (ICTY/ICTR jurisprudence)     culpability, 292, 324     direct intent, 292, 324     genocide, 289, 299–302     hostage taking, 297–9     oblique intent, 292     persecution, 289, 295–7     proof requirement, 292     recklessness, 292      terror against civilian populations, 289–92     torture 289, 293–4

     crimes against the person, 175      equality before the law, 174     guilt, 183     principle of legality, 174     punishment, 174–5     source of law, 173    criminal responsibility, 182    definition of crime, 176    elements of crime     guilt, 192–3, 197      object of the crime, 178–9     objective aspect, 178     punishment element, 197     social harm, 197      subject of the crime, 178     subjective aspect, 178, 183     unlawfulness, 197   guilt     consequence types, 193     elements of crime, 197      infliction of grave injury, 193     intention, 192     recklessness, 192     safety rules, 193   intention     direct intent, 184     guilt, 192     inchoate crimes, 185     indirect intent, 184–5    judicial practice, 173    mistakes of fact, 192    mistakes of law, 188–9   negligence     carelessness, 186     light-mindedness, 187–8     specific offences, 185    protection of the State, 175   retribution, 175    socially dangerous acts, 176, 197 Secondary participation   see also Aiding and abetting    aiding, abetting, counselling, procuring, 70–1, 75, 336    aiding by omission, 71–2    assistance or encouragement, 72, 74–5, 336–7    criminal intention, 72    criminal liability, 72    fault element, 97   knowledge      degree of knowledge required, 73–4, 97      knowledge as contemplation, 72–3      knowledge of principal’s intention, 72–3    mere presence, 70–1, 337    moral support, 336–7    motive or desire, 75    practical assistance, 336    subjective elements, 72

Terror against civilian populations   see also ICTY/ICTR jurisprudence    actual knowledge, 292   actus reus, 290–1    atmosphere of terror, 290    circumstance element, 292, 429    civilian targets, 291    criminal intention, 291–2, 426    criminal responsibility, 426, 429    direct intent, 292    element analysis, 292    fault element, 292    Geneva Conventions, 289   ICTY, 289    infliction of terror, 290    lack of awareness, 292    level of awareness, 292    material elements, 291   meaning, 289    mere negligence, 292, 429    objective elements, 289–90    oblique intent, 292    proof requirement, 291–2    psychological damage, 290   recklessness, 292    special intent, 292    specific intent, 290–2    subjective elements, 289–90    victims, 291, 429   wilfulness, 429

493

Index Torture   see also ICTY/ICTR jurisprudence    conduct element, 293   intention     achievement of intention, 294     degree required, 294     direct intent, 293     ICTY, 293–4     special intent, 294     specific purpose, 293–4     subjective test, 293–4    intentional act or omission, 293   meaning, 293–4   prohibition, 293    result element, 293    specific purpose, 293–4 Ulterior intent   meaning, 65    offences of further intention, 65    recklessness not sufficient, 65    required element, 65 United Nations General Assembly    genocide, 258–9, 261, 263–7 Vengeance    desire for vengeance, 14 Wanton crimes   see also ICTY/ICTR jurisprudence    destruction and appropriation of property     appropriation of property, 320–2     criminal responsibility, 321      destruction of property, 320, 322     extensiveness, 320     fraudulent appropriation, 321     Geneva Conventions, 320     ICTY Statute, 320     intent to destroy, 320     international humanitarian law, 320      knowledge and will of proscribed result, 320     likelihood of destruction, 320     looting, 320     military necessity, 320     plunder, 320–1     reckless disregard, 320      unlawful and wanton activity, 320     wilful acquisition, 321    destruction of cities, towns or villages     ICTY Statute, 321     intent to destroy, 322      laws and customs of war, 321    devastation not justified by military necessity     acceptance of results, 322     constituent elements, 321     direct intent, 322

    foreseeable consequence, 322     foresight, 322     ICTY Statute, 321     indirect intent, 322      knowledge of proscribed result, 322      laws and customs of war, 321     reckless disregard, 322    Geneva Conventions, 319–20    ICTY Statute, 319   meanings     wanton, 319, 322     wantonly, 319 War crimes    Article 30 (Rome Statute), 400–2   complicity, 249–52   conspiracy, 242–3    Elements of Crimes, 400    guilty knowledge, 422    international jurisdiction, 232–3, 242    military commanders, 252–3, 420    mistake of fact, 257    mistake of law, 255    Nuremberg Charter, 269     see also Nuremberg Charter   rape, 302     see also Rape Wilful blindness    actual knowledge, 61–2, 428   definition, 61–2    military commanders, 254    mistake of fact, 93    objective negligence, 63    recklessness distinguished, 62–3    second degree knowledge, 60–1    superior responsibility, 378 Wilful damage to institutions dedicated to religion or education   see also ICTY/ICTR jurisprudence    actual damage, 317–8    criminal responsibility, 318    cultural property, 318    direct intent, 318–9    Hague Convention, 317    Hague Regulations, 317    ICTY Statute, 317–9    international humanitarian law, 317    knowledge of proscribed result, 318    likelihood of destruction, 318   negligence, 319    proof beyond reasonable doubt, 319    protection of property, 317    reckless disregard, 318–9    wilful damage, 318    wrongful intent, 319 Wilful killing   see also ICTY/ICTR jurisprudence    acceptance of result, 311–2    circumstance element, 314–5

494

Index    consequence of conduct, 314    criminal responsibility, 313–5    disregard for human life, 311    excessive risk, 312   foreseeability, 311–2    Geneva Conventions, 311    gross negligence, 314    ICTY Statute, 311, 313, 315    indirect intent, 314    inferred intent, 312    intention to kill, 311, 314    knowledge and acceptance, 313–4    knowledge and intent, 312, 314    lack of foresight, 312    likelihood of risk, 312    necessary intent, 311    negligence, 312, 314

   probable consequence, 313–4   recklessness, 311–3    victim as protected person, 315    volitional element, 312, 314    wrongful intent, 311 Wilfully causing great suffering or serious injury   see also ICTY/ICTR jurisprudence    deliberate acts, 316    direct intent, 316    ICTY Statute, 316    indirect intent, 316    intentional act or omission, 316   meaning, 316    mental or physical suffering, 316    specific intent, 316    torture distinguished, 316

495