Mens Rea at the International Criminal Court [1 ed.] 9789004307889, 9789004307872

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Mens Rea at the International Criminal Court



International Criminal Law Series Series Editor M. Cherif Bassiouni (USA/Egypt)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; Honorary President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal

Kai Ambos (Germany), Judge, André Klip (The Netherlands), Ulrich Sieber (Germany), District Court, Göttingen; Professor of Law, Department of Professor of Criminal Law, Professor of Law and Head, Criminal Law and Criminology, Director, Max Plank Institute Department for Foreign and Faculty of Law, Maastricht University for Foreign and International International Criminal Law, Erkki Kourula (Finland), Former Criminal Law, University of Georg August Universität Judge and President of the Freiburg Mahnoush Arsanjani (Iran), Appeals Division, International Göran Sluiter (The Netherlands), Member, Institut de Droit Criminal Court Professor of Law, Department International; former Director, Motoo Noguchi (Japan), Legal of Criminal Law and Criminal Codification Division, United Adviser, Ministry of Justice of Japan; Procedure, Faculty of Law, Nations Office of Legal Affairs Visiting Professor of Law, University University of Amsterdam Mohamed Chande Othman of Tokyo; former International Otto Triffterer (Austria), (Tanzania), Chief Justice, Judge, Supreme Court Chamber, Professor of International Court of Appeal of Tanzania Extraordinary Chambers in the Criminal Law and Procedure, Eric David (Belgium), Professor Courts of Cambodia Faculty of Law, University of of Law, Faculty of Law, Free Diane Orentlicher (usa), Professor Salzburg University of Brussels of International Law, Co-Director, Françoise Tulkens (France), Mireille Delmas-Marty (France), Center for Human Rights and Former Vice-President, Professor of Comparative Legal Humanitarian Law, Washington European Court of Human Studies and Internationalisation College of Law, American Rights of Law, Collège de France; former University Xuimei Wang (China), Professor Professor of Criminal Law, Fausto Pocar (Italy), Judge and of International Criminal Law, University of Paris former President, International College for Criminal Law Adama Dieng (Senegal), Criminal Tribunal for the Science, Beijing Normal UN Secretary-General’s Special Former Yugoslavia; President, University; Executive Director, Adviser on the Prevention of International Institute of icc Project Office Genocide; former Registrar, Humanitarian Law; Professor of Christine van den Wyngaert International Criminal Tribunal International Law Emeritus, (Belgium), Judge, International for Rwanda; former Secretary University of Milan Criminal Court; former General, International Leila Nadya Sadat (France/usa), Judge, International Criminal Commission of Jurists Henry H. Oberschelp Professor Tribunal for the Former Mark Drumbl (Canada/usa), of Law, Director, Whitney R. Harris Yugoslavia; former Ad hoc Class of 1975 Alumni Professor World Law Institute, Washington Judge, International Court of Law, Director, Transnational University School of Law; Alexis of Justice Law Institute, Washington and de Tocqueville Distinguished Gert Vermeulen (Belgium), Lee University School of Law Fulbright Chair, University of Professor of Criminal Chile Eboe-Osuji (Nigeria), Judge, Cergy-Pontoise Law, Director, Research Trial Division, International William Schabas (Canada/Ireland), Group Drug Policy, Criminal Criminal Court; former Legal Professor of International Law, Policy and International Adviser to the High Commis­ Department of Law, Middlesex Crime, Ghent University; sioner for Human Rights, Office University; Professor of Extraordinary Professor of of the High Commissioner for International Criminal Law and Evidence Law, Maastricht Human Rights Human Rights, Leiden University; University Geoff Gilbert (uk), Professor of Honorary Chairman, Irish Centre Giuliana Ziccardi Capaldo Law and Head of the School of for Human Rights, National (Italy), Professor of Law, University of Essex University of Ireland Galway International Law, Faculty Philippe Kirsch (Belgium/ Michael Scharf (usa), Dean and John of Law, University of Canada), Ad hoc Judge, Inter­ Deaver ­Drinko-Baker & Hostetlier Salerno national Court of Justice; former Professor of Law, Director, Frederick President, International Criminal K. Cox International Law Center, Court; Ambassador (Ret.) and Case Western Reserve University former Legal Adviser, Ministry School of Law of Foreign Affairs of Canada

VOLUME 10

The titles published in this series are listed at brill.com/icls



Mens Rea at the International Criminal Court By

Geert-Jan Alexander Knoops

LEIDEN | BOSTON

 Library of Congress Cataloging-in-Publication Data Names: Knoops, Geert-Jan Alexander, 1960- author. Title: Mens rea at the international criminal court / by Geert-Jan Alexander Knoops. Description: Leiden ; Boston : Brill, 2017. | Series: International criminal law series ; volume 10 | Includes bibliographical references and index. Identifiers: lccn 2016041109 (print) | lccn 2016041444 (ebook) | isbn 9789004307872 (hardback : alk. paper) | isbn 9789004307889 (E-Book) Subjects: lcsh: Criminal liability (International law) | Criminal intent. | International Criminal Court. Classification: lcc kz7078 .k59 2017 (print) | lcc kz7078 (ebook) | ddc 345/.04--dc23 lc record available at https://lccn.loc.gov/2016041109

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2213-2724 isbn 978-90-04-30787-2 (hardback) isbn 978-90-04-30788-9 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.



Contents Foreword ix Preface x Acknowledgements xII 1 Introduction 1 1.1 Rationale of Mens Rea in International Criminal Law 1 1.2 Contemporary Mens Rea Controversies 3 1.3 Composition of Research 6 2 Definitional Elements of Mens Rea at the Ad Hoc Tribunals 7 2.1 Introduction 7 2.2 Levels of Mens Rea 7 2.3 Mens Rea within the Ad Hoc Tribunals 13 2.3.1 Principal Perpetration 14 2.3.2 Accessory Liability 24 2.4 Conclusion 34 3 Definitional Elements of Mens Rea at the International Criminal Court 35 3.1 Introduction 35 3.2 Intent and Knowledge 36 3.3  Mens Rea for the Different Liability Modes under Article 25 of the Rome Statute 39 3.3.1 Committing 40 3.3.2 Ordering, Soliciting or Inducing 45 3.3.3 Aiding, Abetting or Otherwise Assisting 48 3.3.4 In Any Other Way Contributing 52 3.3.5 Inciting to Commit Genocide 57 3.3.6 Attempting to Commit 59 3.3.7 Criminal Responsibility for the Crime of Aggression 61 3.3.8 Responsibility of Commanders and Other Superiors 62 3.4 Conclusion 64 4 Mens Rea and War Crimes 66 4.1 Introduction 66 4.2 Applicable Legal Framework 67 4.3 Mens Rea in Practice: Operation Allied Force 69

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4.4 The Rome Statute on War Crimes 74 4.5 icc Case Law on War Crimes 79 4.5.1 Conscripting Child Soldiers 79 4.5.2 Willful Killing 83 4.5.3 Attacking Civilians 85 4.6 War Crimes at the Ad Hoc Tribunals 88 4.7 Conclusion 92 5 Mens Rea and Genocide 93 5.1 Introduction 93 5.2 Acts of Genocide 94 5.3 Genocide at the International Court of Justice 97 5.4 Genocide at the Ad Hoc Tribunals 98 5.4.1 Intent to Destroy 99 5.4.2 Different Mens Rea Standards under Different Liability Modes 101 5.4.3 Inchoate Offense 106 5.5 icc Evidentiary Standards vis-à-vis Genocide 108 5.6 Conclusion 110 6 Mens Rea and Crimes against Humanity 111 6.1 Introduction 111 6.2 Contextual Elements of an “attack” 111 6.2.1 Widespread or Systematic 113 6.2.2 Directed against Any Civilian Population 115 6.2.3 Pursuant to or in Furtherance of a State or Organizational Policy 116 6.3 Mens Rea Requirements: Knowledge of the Attack 119 6.3.1 International Criminal Tribunal for the Former Yugoslavia 119 6.3.2 International Criminal Court 121 6.4 Mens Rea for the Underlying Crimes 123 6.4.1 Murder 123 6.4.2 Extermination 125 6.4.3 Enslavement 131 6.4.4 Deportation or Forcible Transfer of Population 132 6.4.5 Imprisonment or Other Severe Deprivation of Physical Liberty 133 6.4.6 Torture 134 6.4.7 Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, or Any Other Form of Sexual Slavery of Comparable Gravity 135

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6.4.8 Persecution 137 6.4.9 Enforced Disappearance of Persons 139 6.4.10 The Crime of Apartheid 141 6.4.11 Other Inhumane Acts 142 6.5 Crimes against Humanity at the icc 143 6.6 Concluding Remarks and Overview 147

7 Mens Rea and the Crime of Aggression 148 7.1 Introduction 148 7.2 Mens Rea for Crimes against Peace at the imt 148 7.3 General Constitutive Elements of the icc Crime of Aggression 151 7.4 Elements of Aggression within the Ambit of the Rome Statute 154 7.5 Mens Rea Defenses Concerning Aggression 157 7.6 Self-defense, Humanitarian Intervention, Protection of Nationals Abroad or Aggression 162 7.6.1 Al-Shifa: (Error in) Self-defense against Al-Qaeda or Act of Aggression? 162 7.6.2 Entebbe Incident: Defense of One’s Own Nationals Abroad or Act of Aggression? 164 7.6.3 The Invasion of Kuwait: An Act of Aggression? 166 7.7 Conclusion 167 8 Mens Rea for the Criminalization of Political Speeches 168 8.1 Introduction 168 8.2 The Potential Criminal Nature of Political Speeches Subjected to International Criminal Trials 168 8.3 Hate Speech, Incitement, or Freedom of Expression? 171 8.4 The Rudiments of the Criminalization of Hate Speeches 173 8.5 Criminalization of Hate Speeches at the ictr 177 8.6 Criminalization of Hate Speeches at the icty 184 8.7 Criminalization of Speeches at the icc 189 8.8 The Level of Mens Rea Required for the Criminalization of Political Speeches 193 9 Defenses against Mens Rea 194 9.1 Introduction 194 9.2 Mental Disease or Defect 195 9.2.1 General Analysis 195 9.2.2 Scientific Developments and Their Impact on the Insanity Defense 198

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9.3 Intoxication 201 9.4 Self-defense or Defense of Others 202 9.5 Duress and Necessity 205 9.5.1 Duress 206 9.5.2 Necessity 209 9.6 Military Necessity in a Situation vs. Necessity in a Case 212 9.6.1 Anticipating Defenses 215 9.7 Mistake of Fact or Mistake of Law 217 9.7.1 Mistake of Fact 218 9.7.2 Mistake of Law 221 9.8 Superior Orders 228 9.9 Conclusions 233 Bibliography 237 Table of Cases 248 Index 253



Foreword For the courts and tribunals operating in the field of international criminal law, the issue of mens rea in the context of assessing individual criminal responsibility is a real challenge and one of the most complex issues. This book offers a comprehensive and in-depth consideration of the issue from a theoretical and practical perspective, with particular emphasis on the definitional elements at the International Criminal Court regarding specific crimes and various modes of liability. Professor Knoops, being a widely-respected scholar in the field of international criminal law and one of the most impressive advocates who appeared before me, provides a valuable addition to the present body of literature and I commend him for his commitment to furthering the discussion on the intricacies of international criminal law. Judge O-Gon Kwon, icty The Hague, March 2016



Preface The concept of mens rea lies at the heart of all crimes. This book attests to this notion. One of the most challenging issues of modern International Criminal Law is whether the concept of mens rea plays an important role when determining culpability for international crimes and how the International Criminal Court is assessing mens rea. As Perkins and Boyce in their book “Criminal Law”1 underline: “one of the great contribution of the common law is het conception that there is no crime without a mind at fault.”2 A physical act alone – without the existence of intent – cannot constitute a crime, be it a national or international crime. For instance, the launch of an surface to air missile during an armed conflict which hits a civilian aircraft might constitute a war crime; however if the operator acted in good faith and reasonably believed that the aircraft was an military aircraft of the adversary, the requisite criminal intent – even dolus eventualis meaning when one consciously accepts a risk that a certain consequence will occur – might be absent. Indeed, there are “two general components of every crime; one is physical, the other is mental; one is the actus reus, the other is the mens rea.”3 One of the most challenging issues of modern International Criminal Law is the implementation of the concept of mens rea as a determination factor for the culpability for international crimes within the framework of the International Criminal Court. Under the Statute of the International Criminal Court, known as the Rome Statute, the concept of mens rea features in a distinct and general provision, article 30,which sets forth two elements for mens rea to be proven: intent and knowledge. Yet, as also noticed by Perkins and Boyce, “the type of mind needed for criminal guilt is not the same for all offenses”.4 The same is true for international crimes. This book will delve into these various types of mens rea. A rather underdeveloped subject matter remains the influx of neurosciences within International Criminal Law when it concerns the determination of the requisite mens rea. In 1982, Perkins already observed that: 1 Rollin M. Perkins and Ronald N. Boyce, Criminal Law (3rd ed. Mineola: The Foundation Press, 1982). 2 Ibid., 828. 3 Ibid., 831. 4 Ibid., 829.

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[a]s more is learned about human conduct in general, and about methods of regulating and controlling such conduct, many changes in the general administration of criminal justice may be expected.5 Within the icc system, defences which coalesce with the state of mind of the defendant are limited to for example mental disease and intoxication. In this respect the icc is yet to be confronted with the emerging area of neurosciences which development already emerges in criminal cases on a national level in various countries around the world. However, it is to be seen whether the emerging relevance of neurosciences to determine mens rea in domestic criminal cases, will feature within the icl arena. The magnitude of the core crimes of the icc might prevent this influx of neurosciences for legal-political reasons. Despite this expectation it is worthwhile to ascertain the potential implications of neurosciences for International Criminal Law. This is why this book also delves into this topic. The chapters dedicated in this book to this potential fusion of two different disciplines, may be seen as a first step.6 Amsterdam, February 2016 5 Ibid., 828. 6 On this topic, see also Chapter 8 part 7 in Geert-Jan Alexander Knoops, Defenses in Contemporary International Criminal Law 2nd ed. (Leiden: Martinus Nijhoff Publishers).



Acknowledgements I am indebted to my international criminal law mentors, M. Cherif B ­ assiouni and William A. Schabas. My colleagues at Knoops’ lawyers in Amsterdam deserve gratitude for their support and trust. Ms. Evelyn Bell, researcher at Knoops’ lawyers until late 2015, performed a masterly task in preparing the text at its various stages and Mr. Sylvain Clerc, researcher at our law firm as of late 2015, for finalizing this book. I am also indebted to my colleagues Ms. Eva ­Vogelvang, attorney-at-law at Knoops’ lawyers and Ms. Karien van den Doel, criminologist and researcher at our firm. Ms. Bell, Ms. Vogelvang, Ms. Van den Doel and Mr. Clerc were instrumental in collecting the relevant jurisprudence and academic sources that shaped this publication in its present form. Without their considerable support and input this book could not have been published. I would also like to show gratitude to the Brill Publishing Company that gave me the opportunity to write another book for which I thank the staff of Brill, especially Bea Timmer. I also thank my academic friends and colleagues from the University of Amsterdam (the Netherlands) at which I hold a chair as professor Politics of International Law by special appointment since April 2015. I would also like to pay tribute to Shandong University (Jinan, China), which I am affiliated with as a visiting professor of International Criminal Law since October 2013, for their inspiration and trust. This position at Shandong University could not have materialized without the academic support of my colleague and friend Tom Zwart, professor of Human Rights Law and director of the School of Human Rights research at Utrecht University. Finally, I owe gratitude to my legal partner and wife Carry, whose inspiration and support is of indispensable value to my work. Amsterdam, 20 June 2016

chapter 1

Introduction 1.1

Rationale of Mens Rea in International Criminal Law

Central to domestic criminal and international criminal law is the interpretation of the behavior of human beings. Even when keeping the distinction in international criminal law between principal and accessory criminal liability in mind, the criminality of all such individuals is contingent upon a certain mental stage, referred to as the mental element of mens rea. Absent such mental stage no criminal offence can be imputed to a human being. From this perspective, mens rea serves as a substantive protective mechanism to wrongful convictions. The mens rea requirement is reflected in the Latin maxim: actus non facit reum nisi mens sit rea, meaning that “an act does not make a person guilty of a crime, unless the person’s mind be also guilty”. In early law systems, mens rea was not always required to establish criminal responsibility. As noted by the us jurist Henry Wigmore: The doer of a 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; […] one who merely attempted an evil was not liable because there was no evil result to attribute to him; a mere counselor or instigator of a wrong was not liable, because the evil was sufficiently avenged by taking the prime actor.1 The causing of injury was central to determining whether one could be held criminally responsible, regardless the blameworthiness of the “doer”. The requirement of mens rea started to gain importance between the years 1200 and 1500, as the imposition of punishment and the compensation of victims became distinguished, or, as crime and tort became two distinguished concepts.2

1 Henry Wigmore, “Responsibility for Tortious Acts: Its History,” Harvard Law Review 7, 6 (1894), cited in Eugene J. Chesney, “Concept of Mens Rea in the Criminal Law,” Journal of Criminal Law and Criminology 29, 5 (1939): 628. 2 David J. Seipp, “The Distinction Between Crime and Tort in the Early Common Law,” Boston University Law Review 76 (1996): 59; Paul H. Robinson, “Mens Rea,” in Encyclopedia of Crime

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004307889_002

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Christian thoughts on mens rea influenced the development of this concept into common law systems. Firstly, the church conveyed the message that physical misconduct was the result of spiritual failure to a wide audience. Secondly, clerics were able to influence governmental policies, because they were among the few who could write and read and because of the church’s own political power.3 Thirdly, the church had its own courts for trying clergy, and, in the sixteenth and seventeenth century, started to apply the notions of mens rea in its courts.4 Examples of determining a person’s blameworthiness on the basis of his knowledge or mental state can be found in the Bible. For example, in Joshua 20 it can be read: Designate the cities of refuge, of which I spoke to you through Moses, that the manslayer who kills any person unintentionally, without premeditation, may flee there, and they shall become your refuge from the avenger of blood.5 Similar notions on mens rea are, however, also found in law systems without a history of Biblical dominance.6 Around the sixteenth and early seventeenth century, the term mens rea started to appear in criminal law treatises.7 At that time, mens rea was loosely defined. If a person intended to wound a person, but unintentionally killed his victim, he was deemed to have the requisite mens rea to hold him criminally responsible for murder.8 In modern criminal law systems, a distinction is made between perpetrators who intended to kill and those who did not intend this consequence. The notion of mens rea revolves around the distinction between a crime and an innocent mistake. International criminal law practice still faces several important questions; how is such a distinction made? How does one determine an accused’s mens rea ex post facto? What if the death of the victim was an unintended, yet reasonable

3 4 5 6 7 8

and Justice, ed. Joshua Dressler (University of Michigan, 2002), 995–1006. Available at ssrn: http://ssrn.com/abstract=661161. Robinson, “Mens rea,” 996. Ibid.; Finbarr McAuley and Paul McCutcheon, Criminal Liability: A Grammer (Round Hall Ltd., 2000), 18–19. Joshua 20: 2–3 (nasb). Robinson, “Mens rea,” 996. Gerry Johnstone and Tony Ward, Law and Crime. Key Approaches to Criminology (London: sage Publications Ltd., 2010), 41. Ibid.

Introduction

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foreseeable consequence of the perpetrator’s intention to wound the victim? This book will address all these questions, while paying particular attention to the development of mens rea before the International Criminal Court. 1.2 Contemporary Mens Rea Controversies Criminal intent – a term which is also interchangeably used with mental ­element – is one of the most controversial principles in international criminal law. In 2014, the controversial nature thereof was exemplified by the acquittal for both premeditated and non-premeditated murder of the South African para-athlete Oscar Pistorius who was charged with murdering his girlfriend Reeva Steenkamp. His defense pertained to having mistakenly shot his wife at night, assuming that an intruder had entered his premises.9 On 11 September 2014, the South African Judge Thokozile Masipa delivered her verdict and convicted Oscar Pistorius for culpable homicide. He was acquitted for the more serious murder charge, because, according to the judge, dolus eventualis could not be proven. According to this legal concept, a defendant may incur criminal responsibility on the basis of dolus for the foreseeable consequences of his actions and his or her willingness to accept these risks. Judge Masipa outlined the criteria related to criminal liability as outlined in the South African S v Mtshiza10 case: [N]owadays criminal liability is not regarded as attaching to an act or a consequence unless it was attended by mens rea. Accordingly if A assaults B and in consequence B dies, A is not criminally responsible for his death unless: a) He foresaw the possibility of resultant death, he had persisted in his deed, reckless, whether death ensued or not b) He ought to have foreseen the reasonable possibility of resultant death. In a) the mens rea is the type of intent known as dolus eventualis and the crime is murder. In b) the mens rea is culpa and the crime culpable homicide.11

9 10 11

The State v. Pistorius, Case No.: CC113-2013, Judgment, 12 September 2014, p. 3284. S v Mtshiza 1970 (3) sa 747A. Ibid., cited in Pistorius, Judgment, p. 3324.

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Judge Masipa concluded that the evidence failed to prove that Pistorius had the requisite intent to kill: In the present case the accused is the only person who can say what his state of mind was at the time he fired the shots that killed the deceased. The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the contrary, he stated that he had no intention to shoot and kill the deceased. The court is however entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.12 The judgment in this regard was heavily criticized by South African scholars as having no sound legal basis. Legal precedents in South Africa dictate that “[i]f you point a firearm at someone and shoot, then you intend to kill them”.13 As outlined by the legal scholar Pierre de Vos: In South African law it is not a valid defense to claim that you did not have the intention to kill X because you had in fact intended to kill Y and had killed X by mistake. Thus if Pistorius had intended to kill an intruder (and not Steenkamp), he would still be guilty of murder as long as the state had proven beyond reasonable doubt that he had intended to kill the person behind the door whom he might (or might not) have thought to be an intruder.14 Yet, this observation does negate the defense of mistake of fact, which ­erases the accused’s mens rea.15 The Pistorius case is but one of the many examples that illustrates the ambiguous nature of mens rea. The overturning of the Pistorius verdict by the South African Supreme Court of Appeal on the 3 ­December 2015 which was based largely on the interpretation of dolus

12 13

14

15

Pistorius, Judgment, p. 3326. “Pistorius verdict has scholars and critics thumbing Latin dictionary,” South Chinese Morning Post, 14 September 2014, accessed 21 October 2014, http://www.scmp.com/news/world/ article/1591849/pistorius-verdict-has-scholars-and-critics-thumbing-latin-dictionary. Pierre de Vos, “Pistorius and dolus eventualis: do the facts support the finding?,” Daily Maverick, 11 September 2014, accessed 21 October 2014, http://www.dailymaverick.co.za/ opinionista/2014-09-11-pistorius-and-dolus-eventualis-do-the-facts-support-the-finding/. See Chapter 9.

Introduction

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eventualis further illustrates the complexity of the concept of mens rea in present day criminal law. The bench ruled that: the accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent in the form of dolus eventualis. As a result of the errors of law referred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder.16 Consequently, Pistorius was convicted of murder and was sentenced to six years imprisonment. At the international criminal tribunals, the implications of the actus reus and mens rea – both legally and politically – can be considerable. An example is the acquittal of General Momčilo Perišić by the International Criminal Tribunal for the former Yugoslavia (icty) Appeals Chamber in 2013 for alleged war crimes and crimes against humanity.17 From about 26 August 1993 until 24 November 1998, Perišić was the chief of the General Staff of the Yugoslav Army (vj). The fact that the acquittal relied on a majority ruling by the icty Appeals Chamber is self-explanatory. Importantly, the majority held that the military assistance as such facilitated by General Perišić to the war in Bosnia to Bosnian-Serb forces, did not constitute a war crime or crimes against humanity.18 The Appeals Chamber held that the actus reus element of aiding and abetting was not proven beyond reasonable doubt.19 In this case, the acquittal thus pertained to the interpretation of the actus reus condition which required that the aider and abettor’s acts were “specifically directed” at committing the principal crimes, if the accused aider and abettor was remote from the actions of the principal perpetrators. The majority found that it could not be established beyond reasonable doubt that the acts carried out by Perišić were “specifically directed to assist, encourage or lend moral support to the perpetration of [the] certain specific crime[s]”.20 Just a few months later, the Special Court for Sierra Leone Appeals Chamber distanced itself from this interpretation, holding that “specific direction” was 16 17 18 19 20

Director of Public Prosecutions, Gauteng v. Pistorius, Case No. 96/2015, Appeals Judgment, 3 December 2015, para. 55. Prosecutor v. Perišić, Case No.: IT-04-81-A, Appeals Judgment, 28 February 2013. Ibid. Ibid., para. 73. Ibid.

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not a requirement of the actus reus of aiding and abetting.21 Almost a year after the icty Appeals Chamber ruling in the Perišić case, the icty Appeals Chamber explicitly rejected specific direction as part of the actus reus of aiding and abetting.22 This view was repeated in the appeal judgment of the Appeals Chamber of the icty in the Stanišić and Simatović case.23 Although the Perišić case revolved around the actus reus of aiding and abetting war crimes, the element of “specific direction” also has a connotation with the mental element. Specific direction inheres both an objective element (were the acts aimed at facilitating war crimes) and a subjective element; without a certain “will” it is hard to image to “specifically direct”. Apart from dogmatic, societal and political dimensions of the application of mens rea in law practice, one may conclude that this principle operates in order to prevent individuals from wrongful convictions. This could be perhaps one of the most notable rationales of mens rea. 1.3

Composition of Research

This book commences in Chapter 2 with outlining the definitional aspects of mens rea at the ad hoc tribunals, as well as general notions of mens rea as applied before national courts. The mens rea requirements for the specific liability modes applied at the ad hoc tribunals will be examined. Chapter 3 will discuss definitional aspects of mens rea at the icc, and in particular the mens rea requirements for the specific liability modes listed in article 25(3) ICCSt., as well as the general “intent” and “knowledge” requirements of article 30 ICCSt. Chapter 4, 5, 6 and 7 address the mens rea requirements for the crimes listed in the Rome Statute, respectively, genocide, war crimes, crimes against humanity and the crime of aggression. Since the case law of the icc vis-à-vis mens rea is still at its infancy, a review of customary international law or the standards promulgated by the ad hoc tribunals – which is often based on an analysis of customary international law – will follow. Chapter 8 will go into mens rea requirements for political speeches. In some cases, certain speeches are said to be catalysts of international crimes. Therefore, it is of relevance to examine how the accused’s intent could be construed. Finally, the book will end with a discussion of mens rea defenses in Chapter 9. 21 22 23

Prosecutor v. Taylor, Case No.: SCSL-03-01-A, Appeals Judgment, 26 September 2013. Prosecutor v. Šainović et al., Case No.: IT-05-87-A, Appeals Judgment, 23 January 2014. Prosecutor v. Stanišić and Simatović, Case No.: IT-03-69-A, Appeals Judgment, 9 December 2015.

chapter 2

Definitional Elements of Mens Rea at the Ad Hoc Tribunals 2.1 Introduction Until 1998, the contours of mens rea within international criminal law were lacking a uniform statutory basis, predominantly evolving from case law. ­Exceptions were the specific intent encapsulated in the 1948 Genocide Convention and the type of mens rea set forth by the 1988 un Convention against torture. It was not until 1998 that this altered. At the Rome Conference on the establishment of the icc, 120 States ultimately opted for a rather uniform definition of mens rea, encapsulated in Article 30 of the Rome Statute. Before addressing this intention to codify mens rea, this chapter first discerns the various levels of mens rea which feature within international criminal law. Thereafter, the jurisprudence of the international criminal tribunals on this field will be reviewed. A discussion of the case law of the ad hoc tribunals is pertinent, as the icc – albeit being independent from these tribunals – may rely upon the case law of the icty/ictr in two ways: “(i) when interpreting the primary sources of the icc, the icc Statute, the Elements of Crimes or the Rules of Procedure and Evidence and (ii) when the primary sources of the icc, even after interpretation, leave a lacuna that must be filled with subsidiary sources, such as customary international law or general principles of law”.1 A one on one application of the principles established by the icty/ictr is not the approach taken by the icc judiciary, as the icc applies its own Statute and Elements of Crimes as a primary source of law.2 Yet, when a clear definition on a certain subject is lacking within the Rome Statute, the case law of the ad hoc tribunals may provide guidance. 2.2

Levels of Mens Rea

Mens rea is probably more difficult to ascertain compared to the actus reus of an alleged crime. The following questions illustrate the complexity of establishing 1 Barbara Goy, “Individual Criminal Responsibility before the International Criminal Court. A Comparison with the Ad Hoc Tribunals,” International Criminal Law Review 12 (2012): 3. 2 Ibid. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004307889_003

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mens rea. What if a person intends to kill someone, but accidentally or due to a lack of skill kills someone else? What if a person intends to kill someone, but mistakenly kills another person, who he took for the person he wanted to kill? Can a person be held criminally responsible for an international marijuana transport, while he did not know he was carrying drugs in the trunk of his car? Can such a person be held criminally responsible for “knowingly” transporting marijuana over international borders? All these questions pertain to the accused’s mens rea or guilty mind. The accused’s subjective mindset must be assessed in order to determine his or her level of criminal responsibility. In the examples, the actus reus seems to have been fulfilled – a person was killed, an international marijuana transport took place; yet, in order to hold someone criminally responsible, a mens rea element has to be fulfilled as well. Inferring an accused’s mens rea after the fact is most often a hazardous judicial task. Compared to actus reus, one’s “guilty mind” is not easily to be established ex post facto. This is further complicated by the fact that the accused, faced with a possible conviction for his actions, might be reluctant to truly reveal what was going on in his mind at the time he committed the acts. Judges are thus confronted with the task of establishing an accused’s mens rea based on the circumstances of the case and based on “reasonable foreseeable consequences” of certain acts. Determining an accused’s mens rea essentially requires a reconstruction of human brain processes. Even though objective indications to establish an accused’s mens rea after the fact may exist in certain cases, research suggests that mindreading is a simulation-based process rather than a theory-based process, which relates to the mentioned objective indications.3 This means that when a judge or juror perceives a defendant to be similar to him or herself, he will mind-read by attributing a mental state to the defendant that is related to what he would have done in that same situation (i.e. “projection”).4 Another theory of mental state attributions has been qualified as the “functionalist account of mindreading”, which can be defined as: our mindreading capacity is implemented by an intuitive theory of mind, a body of knowledge or belief about the causal relations between mental states on the one hand and behavior, environment and other mental states on the other […]. In mindreading, we use these generalizations and

3 Kevin Jon Heller, “The Cognitive Psychology of Mens Rea,” Journal of Criminal Law and Criminology 99, 2 (2009): 321. 4 Ibid.

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our data about the target’s circumstances or behavior to infer some of the target’s mental states.5 These mind-reading strategies may interfere with one of the aims of (international) criminal trials, namely to achieve justice in a fair, objective and consistent manner, where the rules and application thereof are accessible and foreseeable. This book will provide an overview of the criteria applied by jurists to determine an accused’s mens rea, a task which may be impaired by the mentioned mind-reading strategies. Yet, awareness of such strategies, is a first step in achieving fair and consistent judgments when it concerns the examination of the requisite mens rea. Certain neurobiological developments may be instrumental thereto. For example, the question whether the accused could incur criminal responsibility for an illegal marijuana transport, as raised at the outset of this paragraph, while allegedly being unaware of the presence of this illegal substance in his car, arose before the us Court of Appeals for the ninth circuit in the Jewell case. Jewell was convicted for violating the Comprehensive Drug Abuse Prevention and Control Act of 1970, as he was found to have “knowingly” transported marijuana over the Mexican border. The marijuana was hidden in a secret compartment in the trunk of his car. Jewell claimed he did not know of the marijuana in the secret compartment. If knowledge could not be established, Jewell could not incur criminal responsibility for the crime. The judge issued the following instruction to the jury that was endowed with the task of determining whether Jewell possessed the requisite level of knowledge: [I]f the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid knowing the truth.6 Jewell complained that this instruction was not an accurate statement of the law, as the jury should have been instructed that in order to establish guilt, it must have found that the defendant knew the marijuana was in the car. The Court of Appeals dismissed his claim, arguing that: 5 Alvin Goldman and Kelby Mason, “Simulation,” in Handbook of the Philosophy of Science: Philosophy of Psychology and Cognitive Science, ed. Paul Thagard (Elsevier: 2006), 267, cited from Heller, “The Cognitive Psychology of Mens Rea,” 318. 6 us v. Jewell, us Court of Appeals, 532 F.2d. 697 (9th Circuit, 1976).

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[t]he substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one “knows” facts of which he is less than absolutely certain. To act “knowingly,” therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, “positive” knowledge is not required.7 Thus, “deliberate ignorance” may be subsumed under the “knowingly” criterion. In the Turner case, in which the accused was charged with “(1) knowingly receiving, concealing, and transporting heroin which (2) was illegally imported and which (3) he knew was illegally imported”, the us Supreme Court considered: ‘Common sense’ […] tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled.8 An accused’s intent can thus sometimes be inferred from his or her ignorance, which implies that proof of “full knowledge” is not always required in order to obtain a conviction, nor is it required that the accused desired to bring about a certain consequence with his act.9 When it concerns the smuggling of n ­ arcotics, it is likely that the accused, with his acts, intended to transport the narcotics; yet, he can be mistaken as to the nature of the substance he was smuggling, or the presence of the substance. When it concerns a situation where A intended to kill B, but accidentally kills C, A can be held criminally responsible under the doctrine of dolus eventualis if it can be established that C’s death was reasonably foreseeable to A. This should be distinguished from errors in objecto, e.g. A intends to kill B, but kills C whom he believes to be B at that moment. A can be held criminally responsible for murder, as he intended to kill an individual. The mistaken identity is not deemed relevant in the determination of the accused’s mens rea.10 The defense of mistake of fact, can erase

7 8 9

10

Ibid. Turner v. us, 396 u.s. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Johan Van der Vyver, “The International Criminal Court and the Concept of Mens Rea in International Criminal Law,” University of Miami International & Comparative Law Review, 12 (2004): 62. The State v. Pistorius, Case No. CC113-2013, Judgment, 12 September 2014.

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an accused’s mens rea if he was honestly mistaken.11 Yet, this defense can only be successful if killing B would have been legitimate at that moment and if he was reasonably mistaken about the identity of the targeted victim. An example can be found in war time situations, during which combatants are legitimate targets of attack, while civilians are illegitimate targets. If A mistakenly killed civilian C, while reasonably assuming it was soldier B, the defense of mistake of fact may have legal standing. The following levels of intent, related to the will to bring about the harmful consequences as a result of an act or omission, can be distinguished: 1. 2. 3. 4.

Dolus directus. The perpetrator foresaw that his act would bring about a harmful consequence, and had the full will to bring about the harmful consequence. Dolus indirectus. The perpetrator foresaw that certain (secondary) consequences in addition to those desired by his act would certainly set in, but nevertheless committed the act. Dolus eventualis. The perpetrator foresaw possible consequences, other than the ones desired by his act, but nevertheless committed or accepted the act. Negligence. The perpetrator did not foresee that possible (secondary) consequences would result from his act, while, under the same circumstances, a reasonable person would have foreseen these consequences.12

It should be noted that the burden of proof to demonstrate an accused’s mens rea lies with the prosecution. This burden of proof turned out to be essential in the Pistorius judgment, a landmark case before the High Court of Pretoria in South Africa. In this case, as mentioned before,13 it had to be determined whether Pistorius intended to kill his girlfriend and could thus be convicted for murder, or for the lower form of culpable homicide if such intention was lacking. The prosecution tried to prove that Pistorius and his girlfriend, Reeva Steenkamp, were in a fight, that Steenkamp fled into the bathroom, that Pistorius, in the heat of the fight, shot at the bathroom door, which resulted in her death. The defense, on the other hand, contested this story, stating that the two had a loving relationship. According to the defense, Pistorius woke up in the 11 12 13

Yoram Dinstein, The Defence of “Obedience to Superior Orders” in International Law (Oxford: Oxford University Press, 2012), 87; see also Chapter 9. Van der Vyver, “The International Criminal Court and the Concept of Mens Rea in International Criminal Law,” 63. See Chapter 1.

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middle of the night, thought there were intruders and shot at the bathroom door. When he came back to bed, it turned out that his girlfriend was not in the bed, and that she was, apparently, the one behind the closed bathroom door. The central question in this case was whether Pistorius had the requisite mens rea to convict him for murder. The presiding judge in this case, judge Masipa, considered: The accused clearly wanted to use the firearm and the only way he could have used it was to shoot at the perceived danger. The intention to shoot however does not necessarily include the intention to kill. Depending on the circumstances of each case an accused may be found guilty of dolus eventualis or culpable homicide. In this case there is only one essential point of dispute and it is this: Did the accused have the required mens rea to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.14 As regards to the onus of proof Judge Masipa considered: There is also the question of onus. No onus rest on the accused to convince this court of the truth of any explanation that he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict, unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false.15 However, the bench in the appeals case arrived at a different interpretation of mens rea holding that the defendant was culpable for murder. They found that: the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger. The defence of putative private or

14 15

Pistorius, Judgment. Ibid.

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self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.16 The levels of mens rea have found their way into most national criminal law systems, as the examples mentioned above have demonstrated. The following section will discuss how these notions have been imported into international criminal law. 2.3

Mens Rea within the Ad Hoc Tribunals

International criminal tribunals, as well as the icc, are endowed with the task of prosecuting the most serious crimes of concern to the international community. It is questionable whether applying a mere negligence standard justifies a conviction for such serious crimes. In the Lubanga Dyilo case, the icc Pre-Trial Chamber, adopting the approach taken by the ad hoc tribunals, found that dolus eventualis fell within the ambit of article 30, but that it could only be met under strict circumstances.17 Two years later, the Pre-Trial Chamber promulgated in the Bemba Gombo case that article 30 of the Rome Statute only encompasses dolus in the first and second degree.18 Chapter 3 will specifically go into mens rea within the ambit of the Rome Statute. This Chapter will focus on the case law of the ad hoc tribunals. The icty and ictr have – absent clear statutory law references in the instruments of these tribunals – adopted various liability forms, with specific mens rea standards. This chapter will examine the concept of mens rea for the different liability modes adopted by these tribunals. Article 7 ICTYSt. and article 6 ICTRSt. address the individual criminal responsibility of the accused, sub 1 promulgates: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime

16 17 18

Director of Public Prosecutions, Gauteng v. Pistorius, Case No. 96/2015, Appeals Judgment, 3 December 2015, para. 54. Prosecutor v. Lubanga Dyilo, Case No.: ICC-01/04-01/06-803tEN, Decision on the Confirmation of Charges, 29 January 2007, paras. 352–355. Prosecutor v. 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, 19 June 2009, para. 135.

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referred to […] in the present Statute, shall be individually responsible for the crime.19 The respective statutes do not further delineate these liability modes; this has been crystalized in the case law of the tribunals. 2.3.1 Principal Perpetration Principal perpetration may take the form of committing, either by commission or omission, a crime. Persons being held criminally responsible under the Joint Criminal Enterprise (jce) liability mode, are also considered as principal perpetrators, as well as superiors and co-perpetrators. It is uncommon that accused persons before international criminal tribunals directly and physically carried out the objective elements of the crimes themselves (actus reus). Yet, in the jurisprudence of the ad hoc tribunals, the term “direct commission” is applied broader in the sense that “direct participation” in the actus reus can suffice to impose criminal responsibility under the liability mode of committing.20 Furthermore, establishing the requisite actus reus and mens rea elements for commission is important, as the commission of a principle crime is a prerequisite for criminal liability of accessories to the crime (e.g. aiders and abettors).21 2.3.1.1 Commission Committing a crime within the meaning of the ad hoc tribunals means that a person physically or directly perpetrated a crime or culpably omitted to act in violation of criminal law.22 A superior may, for example, be held criminally responsible under the liability mode of committing by omission if he, at least, possessed an elevated degree of “concrete influence”.23 The requisite actus reus is that “the accused participated, physically or otherwise directly, alone or jointly with others, in the material elements of a crime provided for in the Statute”.24 Thus, an accused can be held criminally responsible for committing, 19 20 21 22 23

24

Article 7 ICTYSt. and article 6 ICTRSt. Goy, “Individual Criminal Responsibility before the International Criminal Court. A Comparison with the Ad Hoc Tribunals,” 13. Ibid. Prosecutor v. Lukić and Lukić, Case No.: IT-98-32/1-T, Trial Judgment, 20 July 2009, para. 897. Prosecutor v. Orić, Case No.: IT-03-68-A, Appeals Judgment, 3 July 2008, para. 41; see also Yasmin Naqvi, “Enforcement of Violations of ihl: The icty Statute – Crimes and Forms of Liability,” The University of Tasmania Law Review 33, 1 (2014): 14. Lukić and Lukić, Trial Judgment, para. 897.

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while not having physically perpetrated the crime, which has been established in the ictr genocide cases. In the Lukić case, the icty Trial Chamber applied the standard set by ictr Appeals Chamber in genocide cases to the crime of murder: [T]he legal standard for committing genocide is whether the actions were ‘as much an integral part of the genocide as were the killings which [they] enabled’ and whether the accused ‘approved and embraced as his own’ the decision to commit the crime.25 In the Seromba case, where the accused stood trial on charges of extermination as a crime against humanity, the ictr Appeals Chamber held that “for the actus reus of extermination, it is sufficient that the accused participated in measures indirectly causing death.”26 In order to hold an accused criminally responsible for “committing a crime”, the requisite level of mens rea that must be proven is that: the accused acted with the intent to commit the crime, or with an awareness of the probability, in the sense of the substantial likelihood, that the crime would occur as a consequence of his conduct.27 Thus, criminal responsibility for the commission of a crime requires that the accused intended to commit the crime while such intent may take the form of “awareness of the probability” (i.e. a substantial likelihood) that the crime would occur through his conduct. 2.3.1.2 Joint Criminal Enterprise (jce) The icty developed the theory of jce to hold individuals criminally responsible who might not have physically committed the crimes, but whose role was such that it contributed to the occurrence of the crimes or the existence of the “criminal enterprise”. International crimes, such as genocide, crimes against 25 See Ibid., para. 897, referring to, Prosecutor v. Seromba, Case No.: ICTR-2001-66-A, Appeals Judgment, 12 March 2008, para. 161; Gacumbitsi v. Prosecutor, Case No.: ICTR-2001-64-A, Appeals Judgment, 7 July 2006, para. 60. 26 Seromba, Appeals Judgment, paras. 189, 190 referring to Ndindabahizi v. the Prosecutor, Case No.: ICTR-01-71-A, Appeals Judgment, 16 January 2007, para. 123 fn. 268. 27 Lukić and Lukić, Trial Judgment, para. 900, referring to, inter alia, Prosecutor v. Limaj, Bala and Musliu., Case No.: IT-03-66-T, Trial Judgment, 30 November 2005, para. 509; Prosecutor v. Kordić and Čerkez, Case No.: IT-95-14/2-A, Appeals Judgment, 17 December 2004, paras. 29, 112.

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humanity and war crimes, are often committed over wide geographical distances and by multiple perpetrators operating at different levels. The crimes can occur, because there is a system in place that facilitates the commission of such crimes. A pre-established common plan or policy contributed to the existence of an environment where such crimes could be committed, while different individuals in different capacities could contribute to the achievement of the final goal.28 The icty distinguished three forms of jces that require different levels of mens rea on part of the accused. The icty had to deal with criminal liability on the basis of the accused’s alleged participation in a jce for the first time in the Tadić case. Duško Tadić was the first person tried by the icty. During the indictment period, from 23 May 1992 till 31 December 1992, Tadić, a politician of Bosnian-Serb descent, was President of the Serb Democratic Party (sds) in Kozarac. On 30 April 1992, the sds took over the town of Prijedor in a bloodless coup, aided by military and police forces. On 24 May 1992 Bosnian-Serb forces attacked the nearby town of Kozarac and tried to drive out the non-Serb population. During the occupation of this town, Tadić was said to have participated in the collection and forced transfer of civilians.29 After the take-over of Prijedor and the surrounding region, the Serb forces confined Muslim and Croat civilians into camps, in order to implement the “Greater Serbian Plan” meant to expel non-Serbs from said region.30 The question that had to be answered was whether Tadić could be held individually criminally responsible for the mistreatments that took place in the camps, while not having physically perpetrating the crimes himself. In order to answer that question, the icty Trial and Appeals Chamber created a framework of jce liability. The Appeals Chamber held the actus reus for jce liability to be as follows: (i) A plurality of persons. The group need not be organized in military or political structures; (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. The plan, design or purpose need not necessarily be pre-arranged or formulated 28

29 30

See Giulia Bigi, “Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajišnik Case,” Max Planck Yearbook of United Nations Law, 14 (2010): 53. icty Case Information Sheet Duško Tadić, accessed 10 August 2015, http://www.icty .org/x/cases/tadic/cis/en/cis_tadic_en.pdf. Ibid.

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and may be inferred from the group’s harmonized actions to put the jce into effect; (iii) The accused’s participation in the common design. The accused need not necessarily have committed the crimes provided for in the Statute himself, but his role may take the form of assistance in, or contribution to, the execution of the common plan or purpose.31 Secondly, the requisite mens rea was defined, but the state of mind differed for each “category of common design under consideration”.32 The icty distinguished three forms of jce, with a lowered requisite level of mens rea for each category. – In jce i, all co-perpetrators (i.e. members of the jce) must have shared the intent to commit a certain crime. – jce ii requires that the co-perpetrators had “personal knowledge of the system of ill-treatment […] as well as the intent to further this common concerted system of ill-treatment”.33 The accused’s knowledge and intent may be reasonably inferred from his position of authority or from express statements thereto. – An accused may incur criminal responsibility under jce iii if he had the “intention to participate in and further the criminal activity or the criminal purpose of a group and contribute to the joint criminal enterprise or in any event to the commission of a crime by the group”.34 This latter category is sometimes referred to as a form of guilt by association, as the accused may also incur criminal responsibility for crimes that were not agreed upon within the common plan. In such a case, it must be established that: (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.35 In the Tadić case, the Trial and Appeals Chambers found, on the basis of the evidence, that there existed a common criminal purpose to rid non-Serb 31 32 33 34 35

Prosecutor v. Tadić, Case No.: IT-94-1-A, Appeals Judgment, 15 July 1999, para. 227. Ibid., para. 228. Ibid. Ibid. Ibid.

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people from the Prijedor region. In order to achieve this purpose many nonSerbs in the Prijedor region were killed. It had been established beyond reasonable doubt that Tadić was aware of the killings and inhumane acts inflicted upon the non-Serb population.36 The common criminal purpose was central to Tadić conviction. The Appeals Chamber reiterated, for example, that the fact that nobody was killed during an attack on Sivci “does not represent a change of the common criminal purpose” and that “non-Serbs might be killed in the effecting of this common aim was, in the circumstances of the present case, foreseeable.”37 Furthermore, it noted that Tadić “was aware that the actions of the group of which he was a member were likely to lead to such killings, but he nevertheless willingly took that risk.”38 The Appeals Chamber adopted the following mens rea requirements in order to establish the existence of a “common purpose”: (i)

the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose.39 In the Tadić case, the Appeals Chamber transposed these requirements to the ill-treatment of prisoners, which was the alleged common purpose in this case: Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In order for responsibility of the deaths to be imputable to the others, however, everyone in the group must have been able to predict this result. It should be noted that more than negligence is required. What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called “advertent recklessness” in some national legal systems).40

36 37 38 39 40

Ibid., para. 231. Ibid., para. 232. Ibid. Ibid., para. 220. Ibid.

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Although the icty puports to have applied dolus eventualis standard, it seems to have applied a negligence standard by stating that the group members must have been able to predict the result. Negligence implies that a reasonable person, under the same circumstances (in the present case: the group members), would have foreseen the consequences of the act. This form of liability presupposes that the perpetrator acted reasonably. It encompasses an objective mens rea standard, instead of a subjective one. Schabas noted in this regard: The Tribunal can remain uncertain about what the offender actually believed, intended and knew, as long as it is satisfied with how a reasonable person in the same circumstances would have judged the situation and reacted.41 The objective criterion to determine if the accused acted with the requisite “intent and knowledge” to incur criminal responsibility for participating in a joint criminal enterprise, is whether the crimes were a “natural and foreseeable” consequence of his acts.42 The concept of jce – in its extended third form – has been subject to debate as it does not require the accused’s intent for the specific underlying crimes, but only for the “common plan”. In the Kordić case, where the additional mens rea requirement of discriminatory intent for the crime of persecution was discussed, the icty Trial Chamber underscored the danger of expanding the concept of mens rea: The expansion of mens rea is an easy but dangerous approach. The Trial Chamber must keep in mind that the jurisdiction of this International Tribunal extends only to ‘natural persons’ and only the crimes of those individuals may be prosecuted. 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.43 The defense in this case had argued that the Prosecution was under the obligation to prove “specific discriminatory intent” of each accused, and that it was

41 42 43

William A. Schabas, “Mens Rea and The International Criminal Tribunal for the Former Yugoslavia,” New England Law Review, 37, 4 (2003): 1033 (emphasis added). Ibid. Prosecutor v. Kordić and Čerkez, Trial Judgment, 26 February 2001, para. 219 (internal footnotes omitted).

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not allowed to impute criminal intent “solely by demonstrating his membership in, or association with, an alleged criminal enterprise”.44 In the Šainović et al. case, the question whether the accused participated in a jce was at issue before the Appeals Chamber. The accused Šainović and Lukić were confronted with charges of persecution as a crime against humanity. It had to be determined whether the sexual assaults that took place in Beleg, Ćirez and Priština, during the ethnic cleansing campaign against Kosovo Albanians in 1999, were foreseeable to them and that they willingly took the risk that the crimes would be perpetrated.45 For the accused Pavković, who was jointly prosecuted, it had to be determined whether the mens rea for jce iii was met in relation to the sexual assaults that took place in Priština.46 The Prosecution submitted that the Trial Chamber had incorrectly applied a “probability” standard in relation to the mens rea for jce iii, and thus erroneously required that “it be reasonably foreseeable that the relevant crime ‘would be committed’”.47 The Prosecution articulated that the correct standard for jce iii liability was awareness that the crime is a “possible” consequence of the implementation of the criminal enterprise, instead of a “probable” consequence.48 The Appeals Chamber found that the Trial Chamber had indeed erred in law by applying an incorrect standard, holding that [t]he correct legal standard for the jce iii mens rea requires that it was foreseeable to the accused that such a crime might be committed by a member of the jce or one or more of the persons used by the accused (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 that the accused willingly took the risk that such a crime might occur by joining or continuing to participate in the enterprise.49 The Appeals Chamber furthermore elaborated upon the difference between the “possibility” and “probability” standards. The Chamber recalled, with respect to the requisite mens rea for jce iii, that:

44 45 46 47 48 49

Ibid., para. 215. Prosecutor v. Šainović et al., Case No.: IT-05-87-A, Appeals Judgment, 23 January 2014, para. 1559–1560. Ibid., para. 1559. Ibid., para. 1553. Ibid. Ibid., para. 1557.

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‘criminal responsibility may be imposed upon an actor for a crime falling outside [the common purpose], even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur, and nevertheless participated in the [jce]’ because the accused already possesses the intent to participate and further the common criminal purpose of a group.50 The Appeals Chamber, by majority, concluded that Šainović and Lukić incurred criminal responsibility for persecution as a crime against humanity for the sexual assaults that had taken place in Beleg, Ćirez and Priština, through their participation in a jce. The Appeals Chamber considered that Šainović had knowledge of the forcible displacement of Kosovo Albanians. His participation in the jce was inferred from his role in the coordination of joint military operations, which demonstrated that he “acted in furtherance of the common purpose of the jce while being aware of the possibility that sexual assaults could be committed, thus showing that he willingly took that risk.”51 Lukić’s position as former head of the mup staff in Priština, demonstrated that he “acted in furtherance of the common plan of the jce while being aware of the possibility that sexual assaults could be committed, thus establishing that he willingly took that risk”.52 Pavković’s conviction for the sexual assaults committed in Beleg and Ćirez was upheld, as the evidence showed that he had awareness of the various crimes committed against the Kosovo Albanians by vj and mup forces, which led the Appeals Chamber to conclude that he was aware of the context in which the forcible displacement occurred. Furthermore, the evidence showed Pavković had learned about the sexual assaults on several occasions; his contention that he could not foresee the crimes committed by individuals from units that were not under his command bore no merit.53 The icc has not inserted in its cases jce liability as adopted by the icty, but rather opted for the “Control of the Crime” theory as developed by the German scholar Claus Roxin. Chapter 3 will discuss the actus reus and mens rea requirements for this specific mode of criminal participation.

50 51 52 53

Ibid., para, 1558. referring to Prosecutor v. Blaškić, Case No.: IT-95-14-A, Appeals Judgment, 29 July 2004, para. 33. Ibid., para. 1582. Ibid., para. 1592. Ibid., para. 1602.

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2.3.1.3 Superior Responsibility As noted, a superior may be held criminally responsible for committing a crime (i.e. as a principal perpetrator), while he did not physically commit the crime him or herself. Article 7(3) ICTYSt. provides: The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior from criminal responsibility if he 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 punish the perpetrators thereof.54 Article 6(3) ICTRSt. and 6(3) SCSLSt. contain a similar provision. Thus, a superior can incur criminal responsibility if he failed to prevent or punish crimes committed by his subordinates, provided that he knew or had reason to know that such crimes were committed or about to be committed by the subordinates. The essence of superior responsibility is perfectly captured by the words of the 17th century jurist Hugo Grotius: “[W]e must accept the principle that he who knows of a crime, and is able and bound to prevent it but fails to do so, himself commits a crime.”55 As analyzed by Van Sliedregt, and in congruence with article 86 of Additional Protocol i to the 1949 Geneva Conventions, superior responsibility requires the fulfillment of three constitutive elements: (i) (ii)

a functional aspect: a superior’s position must entail a duty to act, a cognitive element: a superior must have known or should have known of crimes committed by subordinates, and (iii) an operational element: a superior must have failed to act.56 The duty to act can take two forms. Firstly, if the superior knew or had reason to know that his subordinates committed or were about to commit a crime, he has the duty to act in order to prevent the (further) commission of crimes. 54 55

56

Article 7(3) ICTYSt. Hugo Grotius, On te Laws of War and Peace (1625), trans. F.W. Kelsey (Wildy & Sons, 1964), 523, cited from Van Sliedregt, “Article 28 of the icc Statute: Mode of Liability and/or ­Separate Offense?,” New Criminal Law Review: An Interdisciplinary Journal 12, 3 (2009): 421. Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: t.m.c. Asser Press: 2003), 119–35 cited from Van Sliedregt, “Article 28 of the icc Statute: Mode of Liability and/or Separate Offense?,” 421.

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Secondly, if the superior while being informed that his subordinates had committed crimes – while being unaware thereof at the time of the commission – has the duty to punish the perpetrators and/or report the crimes to the proper authorities.57 The duty to punish revolves around the question whether the superior had effective control over the subordinates.58 As noted by the icty Appeals Chamber in the Popović case: [T]he obligation to take measures is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.59 Effective control has been defined as “the material ability to prevent offences or punish the offender”.60 The material ability is said to be lacking if the superior was unable “to perform the functions necessary to prevent or punish”, factors that possibly impede the superior’s ability to prevent or punish will be taken into consideration.61 The “knew or had reason to know” standard specifically pertains to the accused’s mens rea. The “had reason to know” standard is higher than the “should have known” standard adopted in the Rome Statute. “Should have known” entails a negligence standard.62 The question whether such a negligence standard could suffice to hold an accused criminally responsible as a superior was subject of controversy before the icty. The issue was resolved by the icty Appeals Chamber in the Delalić et al. case, holding that the “had reason to know” standard implies that a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.63 57 58 59 60 61 62

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Van Sliedregt, “Article 28 of the icc Statute: Mode of Liability and/or Separate Offense?,” 422. Prosecutor v. Popović et al., Case No.: IT-05-88-A, Appeals Judgment, 30 January 2015, para. 1928. Ibid. Ibid., para. 1857. Ibid. Alberto Gargani, “Issues, Institutions, and Personalities, N, Negligence,” in The Oxford Companion to International Criminal Justice, ed. Antonio Cassese (Oxford: Oxford University Press, 2009), 433. Prosecutor v. Delalić et al., Case No.: IT-96-21-A, Appeals Judgment, 20 February 2001, para. 241 (emphasis added).

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The Appeals Chamber furthermore considered that [n]eglect 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 therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or punish.64 The last element pertaining to superior responsibility is that the superior must have failed to prevent or punish the acts committed by his subordinates. The accused may incur criminal responsibility if he failed to prevent future crimes or if he failed to punish past crimes committed by his subordinates.65 The failure to punish can only arise after the superior – in a position of effective ­control – knew or had reason to know about the crimes (i.e. after the discovery of a violation).66 Yet, he should have been in charge at the time of the commission of the crimes. Within the icty system, superior responsibility is construed as a liability mode instead of as a separate crime of omission.67 The former requires a close link between the superior and the acts of the subordinates, of which he must have had “knowledge” and over whom he must have exercised “effective control”. In practice, this mode of liability turned out to be unsuitable to hold superiors “at the top end of the hierarchy” criminally responsible, which resulted in the construction of jce liability.68 2.3.2 Accessory Liability Accessories to a crime are deemed to have a lowered degree of criminal responsibility than principals. An accessory can only be held criminally responsible if the actus reus of a crime has been carried out by a principal perpetrator with the requisite mens rea.69 Accessory liability may take the form of aiding and abetting, ordering, planning and instigating. There is discussion as to whether 64 65 66 67 68 69

Ibid., para. 226. Blaškić, Appeals Judgment, para. 82. Ibid., para. 82. Van Sliedregt, “Article 28 of the icc Statute: Mode of Liability and/or Separate Offense?,” 429. Ibid., 426. Goy, “Individual Criminal Responsibility before the International Criminal Court. A Comparison with the Ad Hoc Tribunals,” 11; Héctor Olásolo, “Developments in the Distinction between Principal and Accessorial Liability in Light of the First case law of the International Criminal Court,” in The Emerging Practice of the lnternational Criminal Court, eds. Carsten Stahn and Göran Sluiter (Leiden: Martinus Nijhoff Publishers, 2009), 339–340.

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the latter three forms should be subsumed under the heading of principal perpetration as the impact on the potential commission of the principal crime may be considered as grave as actually committing the crime itself.70 2.3.2.1 Aiding and Abetting The actus reus and mens rea for aiding and abetting have, absent a definition in the icty and ictr Statutes, been developed in the case law. The actus reus has been defined as “rendering practical assistance, encouragement or moral support, which has a substantial effect on the perpetration of a crime provided for in the Statute”.71 Such practical assistance may take place before, during or after the commission of the principal crime.72 Furthermore, a causal relationship between the principal crime and the conduct of the aider and abettor need not be established.73 The mens rea for aiding and abetting has been defined as follows: The mens rea for aiding and abetting is knowledge that, by his or her ­conduct, the aider and abettor is assisting or facilitating the commission of the offence […]. The aider and abettor need not share the mens rea of the principal perpetrator but must be aware of the essential elements of the crime ultimately committed by the principal, including his state of mind.74 The icty Trial Chamber held that “aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present”.75 The requisite intent was specified as follows:

70 71

72

73 74

75

See Goy, “Individual Criminal Responsibility before the International Criminal Court. A Comparison with the Ad Hoc Tribunals,” 11. Lukić and Lukić, Trial Judgment, para. 901, referring to, inter alia, Prosecutor v. Blagojević and Jokić, Case No.: IT-02-60-A, Appeals Judgment, 9 May 2007, para. 127; Prosecutor v. Vasiljević, Case No.: IT-98-32-A, Appeals Judgment, 25 February 2004, para. 102. Lukić and Lukić, Trial Judgment, para. 901, referring to, inter alia, Blagojević and Jokić, Appeals Judgment, para. 127; Prosecutor v. Ntagerura, Bagambiki and Imanishimwe, Case No.: ICTR-99-46-A, Appeals Judgment, 7 July 2006, para. 372. Ibid. Lukić and Lukić, Trial Judgment, para. 901, referring to, inter alia, Vasiljević, Appeals Judgment, para. 102; Blaškić, Appeals Judgment, para. 45 and 49; Blagojević and Jokić, Appeals Judgment, para. 222. Tadić, Trial Judgment, 7 May 1997, para. 689.

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[T]he accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.76 When it concerns a specific intent crime, such as persecution as a crime against humanity, an additional mens rea requirement applies: [The aider and abettor must] be aware not only of the crime whose perpetration he is facilitating but also 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 or encouragement has a substantial effect on its perpetration.77 On 20 July 2009, the icty Trial Chamber convicted Sredoje Lukić for aiding and abetting crimes of murder, persecution and other inhumane acts as a crime against humanity, as well as murder and cruel treatment as a violation of the laws and customs of war.78 On appeal, Lukić submitted that the Trial Chamber had applied an incorrect mens rea standard, arguing that the aider and abettor’s “intention” to aid and abet the occurrence and completion of the principal crimes must be demonstrated, and that the requirements of “knowledge” of the crime were not correctly identified by the Trial Chamber.79 His argument was dismissed by the Appeals Chamber holding that aiding and abetting does not require proof of a shared intent between the aider and abettor and the principal perpetrator. Furthermore, the requisite mens rea for aiding and abetting was reiterated, namely awareness of the “essential elements” and knowledge that the acts would assist the principal perpetrator in the commission of the crime.80 An issue that has been heavily debated in the icty case 76 77 78 79 80

Ibid., para. 692; adopted by Prosecutor v. Taylor, Case No.: SCSL-03-01-A, Appeals Judgment, 26 September 2013, para. 432. Lukić and Lukić, Appeals Judgment, 4 December 2012, para. 458, referring to, inter alia, Prosecutor v. Simić, Case No.: IT-95-9-A, Appeals Judgment, 28 November 2006, para. 86. Lukić and Lukić, Trial Judgment. Lukić and Lukić, Appeals Judgment, para. 427. Ibid.

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law is whether the acts of the aider and abettor must have been “specifically directed” towards the acts of the principal perpetrator. This question arose in various cases where the alleged aider and abettor was remote from the crime scene. On 28 February 2013, the majority of the icty Appeals Chamber reversed the Trial Chamber’s conviction and acquitted Momčilo Perišić, the former Chief of Staff of the Yugoslav army, on all charges, which gave rise to a great deal of debate. The Trial Chamber had convicted Perišić for aiding and abetting war crimes and crimes against humanity by the deliverance of weapons and personnel to the Army of the Republika Srpska, while he was remote from the crime scene at the time of the principal crimes. The Appeals Chamber overturned his conviction, as it was not established that Perišić’s acts were specifically directed at the commission of the principal crimes. The Appeals Chamber found that specific direction was an essential ingredient of the actus reus of aiding and abetting in cases where the aider and abettor was remote from the crime scene. The Appeals Chamber considered that, in case of remoteness, there must be “evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes”.81 The accused’s mens rea was not affected, this still required knowledge on part of the accused that his assistance would be used in the perpetration of the crime, coupled with his awareness of the essential elements of the crimes.82 The Appeals Chamber noted, however, that: specific direction may involve considerations that are closely related to questions of mens rea […] evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards the charged crimes.83 The controversy of this consideration is already apparent from the dissenting opinions appended to the Perišić judgment. Judge Ramaroson outlined that the concept of specific direction as part of the actus reus of aiding and a­ betting actually revolves around an accused’s mens rea.84 If the accused was remote from the crime scene, it will be difficult to establish his mens rea. Consequently, specific direction as a requisite element of the actus reus of aiding and abetting 81 82 83 84

Prosecutor v. Perišić, Case No.: IT-04-81-A, Appeals Judgment, 28 February 2013, para. 44. Ibid., para. 48. Ibid. Perišić, Seperate opinion of Judge Ramaroson on the issue of specific direction relevant to aiding and abetting liability, 28 February 2013, para. 7.

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could not be seen separately from the accused’s mens rea.85 When the accused is at or near the crime scene, his mens rea can more easily be inferred from the acts he committed at the crime scene (actus reus and mens rea coincide). When the accused is remote from the crime scene, it is difficult to establish his mens rea at the principal crime, as he must have had knowledge that he – through his acts – assisted in the commission of the crime(s).86 Likewise, judge Meron and judge Agius considered in their Joint and Separate opinion to the Perišić judgment that [t]he mens rea standard of aiding and abetting – knowledge that aid provided assists in the commission of the relevant crime and awareness of the essential elements of the crime – would not preclude consideration of issues relevant to specific direction. Indeed, in our view, whether an individual specifically aimed to assist relevant crimes logically fits within our current mens rea requirement.87 Judges Meron and Agius furthermore noted that if they had to analyze the elements of aiding and abetting without taking into account the icty’s past jurisprudence they “would consider categorising specific direction as an element of mens rea”.88 Yet, it remained a mere statement, as they were “satisfied that specific direction can also, as the Appeal Judgement’s analysis demonstrates, be reasonably assessed in the context of actus reus”.89 It is difficult to construe a defendants state of mind ex post facto; yet, it can be inferred from the circumstances of the case. As held in the Tadić case, knowledge can be “implied from the circumstances”.90 Demonstrating an accused’s actus reus is – generally speaking – easier than demonstrating his mens rea as it pertains to someone’s deeds and not his mind. How does one, however, demonstrate the “specific direction” of actions? If the accused delivered weapons (actus reus) and if he knew that his assistance would be used in the perpetration of a crime (mens rea), what is exactly lacking? Evidence that the weapons delivered by the accused were in fact used for the crime? This would not even be required in cases of principal perpetration, e.g. to reach a 85 86 87 88 89 90

Ibid. Ibid., para. 9. Perišić, Joint Separate Opinion of Judges Theodor Meron and Carmel Agius, 28 February 2013, para. 3 (emphasis added; internal footnotes omitted). Ibid., para. 4. Ibid. Tadić, Trial Judgment, para. 657.

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conviction for murder it has to be established that the perpetrator committed a murder (actus reus) and that he did so intentionally (mens rea). A murder weapon that establishes a link between the deceased and the killer would be helpful in terms of (forensic) evidence, but proof of such a link is not required to reach a conviction. Thus, proving aiding and abetting, a form of accessory liability, seems to encompass a higher level of mens rea than proving the commission of a crime, while the latter is a form of principal perpetration. The issue of specific direction as part of the actus reus of aiding and abetting also surfaced in the case of Charles Taylor before the scsl whose judgment on appeal was delivered half a year after the Perišić Appeal Judgment. The scsl discussed the Perišic judgment and, albeit not being bound by icty case law, explicitly rejected the standard applied in the Perišić case. The scsl, after reviewing the post-Second World War jurisprudence, found that “specific direction” was not part of the actus reus of aiding and abetting liability.91 It held that a “substantial effect” on the commission of the crimes was the correct standard: [A]n accused’s acts and conduct of assistance, encouragement and/ or moral support had a substantial effect on the commission of each charged crime for which he is to be held responsible […] the actus reus of aiding and abetting liability is established by assistance that has a substantial effect on the crimes, not the particular manner in which such assistance is provided.92 Thus, the scsl did not concur with the icty Appeals Chamber’s view on the actus reus of aiding and abetting. Almost a year after the Perišić judgment, a different bench of the icty Appeals Chamber, explicitly departed from the Perišić judgment. On 23 January 2013, the majority of the Appeals Chamber in Šainović et al. “unequivocally” rejected the approach taken in Perišić as this latter decision was deemed to be “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard”.93 The defendant Lazarević, one of the defendants tried in the Šainović et al. case, submitted on appeal that his conviction for aiding and abetting was based on an incorrect legal standard, as specific direction had to be proven as 91 92 93

Taylor, Appeals Judgment, para. 474. Ibid., para. 475. Šainović et al., Appeals Judgment, para. 1650.

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part of the actus reus of aiding and abetting. After a 25-page analysis of both national and international case law and legislation, customary international law, post-Second World War judgments and other sources of international law, the Appeals Chamber rejected the specific direction requirement set in Perišić, holding that: the Trial Chamber was not required to determine whether Lazarević’s acts were specifically directed to assist, encourage or lend moral support to the commission of the crimes by the vj and thus dismisses Lazarević’s arguments to the contrary.94 It is argued that the Šainović appeals judgment can be considered to be more convincing due to its extensive reference to post-Second World War judgements and other international law sources.95 It was thus not a surprise that on 3 February 2014, the Prosecution filed a motion for reconsideration in the Perišić case based on an error of law, now that another bench of the Appeals Chamber had found that the legal standard applied in Perišić was “clearly erroneous”, which “misconstrued the prevailing law”.96 The motion was denied; yet, the outcome, in contravention with the principle of “finality of the proceedings”, demonstrates the sensitivity of the debate. It can be said that, the Šainović appeals judgment in connection with the Taylor appeals judgment seems to have settled this issue.97 The findings of the Šainović appeals j­udgment were subsequently upheld in the Stanišić and Simatović appeals judgment and clearly departed from the approach adopted by the Appeals Chamber in the Perišić case.98 The difference between the accessory form of aiding and abetting and the principal form of jce, while both liability modes require a similar actus reus (i.e. delivering a contribution to the commission of a crime), lies in the requisite levels of mens rea. Accused being held criminally responsible under the jce liability mode must have shared the intent of the principal perpetrators (in regard to the common plan), while this is not required for aiding and

94 95 96 97 98

Ibid., para. 1651. Dov Jacobs, “Is there a future for the “specific direction” requirement in aiding and abetting liability in International Criminal Law,” Strafblad 13, 6 (2015): 496. Motion for Reconsideration, 3 February 2014, para. 5. Jacobs, “Is there a future for the “specific direction” requirement”: 497. Prosecutor v. Stanišić and Simatović, Case No.: IT-03-69-A, Appeals Judgement, 9 December 2015, para. 104–106.

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abetting.99 If “specific direction” were to be a requisite element of aiding and abetting, it would resemble jce i and ii liability as this requires the accused’s intent to achieve the goals envisaged in the common plan.100 The specific direction requirement laid down in Perišić imposed stringent criteria on accessory liability, while this “lesser” form of liability ought to be aimed at holding individuals criminally responsible, who knowingly delivered a contribution to the crime, while not physically perpetrating it or sharing the intent of the principal perpetrator.101 In principle, and this falls within the logic of the ­distinction between principal perpetration and aiding and abetting, criminal responsibility of the participant within the jce (i.e. a principal perpetrator) seems more weighty than that of the aider and abettor to the crime.102 2.3.2.2 Planning, Instigating, Ordering In the Kordić and Čerkez case, the icty Appeals Chamber elaborated upon the actus reus and mens rea for planning, instigating and ordering. Whereas the actus reus differs for all three liability modes, the mens rea “is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering”.103 Planning a crime within the meaning of the icty Statute requires that one or more persons designed the criminal conduct, which constituted a violation of the Statute, and was later perpetrated.104 This actus reus requirement of planning is fulfilled if it can be demonstrated that the planning was a factor that contributed substantially to the commission of the crime.105 As noted, the mens rea for planning is the same as the mens rea for ordering and instigating. It requires awareness on part of the accused “of the substantial likelihood that a crime will be committed in the execution of that plan [or instigation]”.106 In the Dragomir Milošević case, the icty Appeals Chamber held with regard to the actus reus and mens rea of planning, that: 99 100

101 102 103 104 105 106

See also Goy, “Individual Criminal Responsibility before the International Criminal Court. A Comparison with the Ad Hoc Tribunals,” 11–12. See Antonio Coco and Tom Gal, “Losing Direction. The icty Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić,” Journal of International Criminal Justice 12,2 (2014): 363, doi: 10.1093/jicj/mqu010. Ibid., p. 365. Antonio Cassese, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise,” Journal of International Criminal Justice 5, 1 (2007): 109–110. Kordić and Čerkez, Appeals Judgment, para. 29. Ibid., para. 26. Ibid. Ibid., para. 31–32.

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the actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct. The mens rea for this mode of responsibility entails 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.107 Instigating means prompting another person to commit a crime. Proof that the accused – by its instigation – caused the crime is not required; it must be demonstrated, however, that the instigation had a “substantial effect” on the commission of the crime.108 The mens rea for instigating is the same as for planning and ordering, namely that the instigator acted “with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation”.109 The ictr adopted a similar standard as the icty. It noted, however, that in relation to genocide – which is a specific intent crime – it is required that “the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part”.110 If an accused orders a crime it requires – in the case law of the international criminal tribunals – that “a person in a position of authority instructs another person to commit an offence”.111 A formal superior-subordinate relationship between the person who allegedly ordered the crime and the principal perpetrator is not required.112 In the Nahimana case, the ictr Appeals Chamber held that the person in the position of authority who ordered the crime can incur criminal responsibility under this liability mode if the person who received the order actually proceeded to carry out the order.113 A person who orders an omission may be held criminally responsible under the liability mode of ordering. In the Blaškić case, the icty Appeals Chamber held that: 107 Prosecutor v. Dragomir Milošević, Case No.: IT-98-29-1-A, Appeals Judgment, 12 November 2009, para. 268. 108 Kordić and Čerkez, Appeals Judgment, para. 27. 109 Ibid., para. 32. 110 Nchamihigo v. Prosecutor, Case No.: ICTR-2001-63-A, Appeals Judgment, 18 March 2010, para. 61. 111 Kordić and Čerkez, Appeals Judgment, para. 28. 112 Ibid. 113 Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No.: ICTR-99-52-A, Appeals Judgment, 28 November 2007, para. 481.

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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.114 The mens rea for planning, instigating and ordering encompasses a lower standard than direct intent, as it requires the “awareness of the substantial likelihood that a crime will be committed” upon the planning, instigation or ordering. If the planning, instigation took place with such awareness (i.e. of the substantial likelihood) it is regarded as accepting that crime.115 Although “will be committed” may suggest that the principal crime need not be committed in order to impose criminal responsibility on an individual who planned, instigated or ordered a crime, this does not reflect the practice of the ad hoc tribunals. The ictr has specifically considered with regard to ordering: Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.116 Yet, as noted in regard to instigation, the instigation must have had a “substantial effect” on the commission of the crime. In conclusion the following requirements can be distinguished: – The accused must have planned, instigated, or ordered the principal crime (actus reus); – The principal crime took place; – The accused’s actions had a “substantial effect” on the commission of the crime; – The accused intended the crime, or was aware of the substantial likelihood that a crime would be committed upon his actions (i.e. plan, instigation or order).

114 Blaškić, Appeals Judgment, para. 42; see also Kordić and Čerkez, Appeals Judgment, para. 30. 115 Kordić and Čerkez, Appeals Judgment, para. 30. 116 Nahimana et al., Appeals Judgment, para. 481 (emphasis added).

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2.4 Conclusion This chapter has illustrated the mens rea requirements for the different liability modes at the ad hoc tribunals. It has demonstrated that these requirements have changed during the life span of these tribunals. This change has not been gradual from more stringent to, for example, less stringent criteria; rather, this shift can be characterized as a “back and forth process” in which requirements have been added, as well as removed, and the other way around. This demonstrates the fluid nature of international criminal law. It demonstrates that there is room for interpretation when it concerns the accused’s mens rea. This may be, on the one hand, beneficial to defense counsels and prosecutions trying to substantiate their case. Is the power of the argument the determinative criterion? On the other hand, this may impede legal certainty and this is why the acquittal of Perišić, for example, was met by worldwide criticism.

chapter 3

Definitional Elements of Mens Rea at the International Criminal Court 3.1 Introduction As noted, the Rome Statute of the icc adopted a seemingly uniform definition of mens rea in article 30. This provision comprises two key elements of mens rea: intent and knowledge. The drafters formulated the mental element as follows: 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.1 In paragraph 2 and 3 of Article 30, these two elements – intent and knowledge – are refined: For the purposes of this article, a person has intent where: a) In relation to the conduct, that person means to engage in the conduct; b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.2 For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.3 This chapter determines these constitutive parts of mens rea, as interpreted by the icc judges. In its case law, the icc uses the terminology “objective elements”, which corresponds with the actus reus of a crime, and “subjective

1 Article 30(1) ICCSt. 2 Article 30(2) ICCSt. 3 Article 30(3) ICCSt.

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elements”, which corresponds with the mens rea of a crime. Article 30(2) and (2) is constructed in such a way that the accused’s mens rea must be established for “each of the material elements of the specific crime under consideration”, which encompasses an element analysis approach, as opposed to a crime analysis approach.4 An element analysis approach has also been adopted in many icty judgments.5 3.2

Intent and Knowledge

Until 1996, the Draft Statute for an International Criminal Court did not contain provisions on mens rea.6 Within the Statute of the Nuremberg Tribunal and the Statutes of the ad hoc tribunals a definition of mens rea was absent. The Rome Statute’s definition did not provide the expected clarity as different legal systems have competing interpretations of the word “intent” under article 30 ICCSt.7 The accused must have had the intent to commit a crime, because if a “relevant circumstance is not known to a person, the person’s act is not intentional in the context of that circumstance”.8 The question remains, however, how such intent is to be construed. Article 30(2)(b) provides that the person must have had intent in relation to a consequence, which is defined as the awareness that the result “will occur in the ordinary course of 4 Prosecutor v. 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, para. 355, referring to, inter alia, Maria Kelt and Herman von Hebel, “General Principles of Criminal Law and the Elements of Crimes,” in The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, eds. Roy S. Lee and Hakan Friman (Transnational Publishers, 2001), 28; Mohamed Elewa Badar, “The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Law Perspective,” Criminal Law Forum 19 (2008): 475–476. 5 See Mohamed Elewa Badar, “Drawing the Boundaries of Mens rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia,” International Criminal Law Review 6 (2006): 315. 6 See Donald K. Piragoff, “Article 30 Mental element,” in Commentary on the Rome Statute of the International Criminal Court, ed. Otto Triffterer (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 527; Report of the International Law Commission on the Work of its Forty-Sixth Session, u.n. gaor, 49th Sess., Supp. No. 10, u.n. Doc. A/49/10 (1994). 7 Mohamed Elewa Badar and Sara Porro, “Article 30,” Case Matrix Network, accessed 23 April 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/ commentary-rome-statute/commentary-rome-statute-part-3/. 8 Piragoff, “Article 30 Mental element,” 530.

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events”. On the one hand, it has been argued that article 30 ICCSt., in terms of “practical” or “virtual” certainty, does not allow any mens rea threshold below the level of knowledge.9 In the Bemba Gombo case, the Pre-Trial Chamber held that the words “will occur” read together with “in the ordinary course of events” indicate a standard close to certainty, meaning that “the consequence will follow, barring an unforeseen or unexpected intervention that prevent its occurrence”.10 On the other hand, it has been argued that this provision also includes standards of dolus eventualis or recklessness when it concerns some forms of conscious risk-taking in relation to result.11 Moreover, the relation between the words “intent” and “knowledge” is unclear. Intent is dependent on a person’s knowledge, as a person can only have had intent if he was aware of the specific crimes. Knowledge, on the other hand, is not dependent on a person’s intent, as “one can know that a circumstance exists or that a consequence will occur even if one does not intend or wish that it exists or occurs”.12 Furthermore, instead of being two distinct mental elements, icc practice and commentators have interpreted it as “both [will and cognition] necessary components of the one mental element of intent”.13 The Rome Statute stipulates that the person must have meant “to engage in the conduct”, which implies voluntariness on part of the accused. It includes, as noted by Piragoff in his commentary to Article 30, “the basic consciousness or volition that is necessary to attribute an action as being the product of the voluntary will of a person”.14 The requirements of both “intent” and “knowledge” in article 30 ICCSt., call for the existence of a volitional element on part of the accused. This encompasses dolus directus of the first degree, but also other forms of dolus. The discussion as to the levels of dolus that are to be subsumed under article 30 ICCSt., was (partly) clarified in the Decision on the Confirmation of the Charges in the Lubanga Dyilo case. In this case, the judges adopted the approach taken by the ad hoc tribunals by holding that other forms of dolus fall under the ambit of article 30 ICCSt., such as

9 10 11 12 13 14

Badar and Porro, “Article 30”. Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 362. Badar and Porro, “Article 30”.; see also Prosecutor v. Lubanga Dyilo, Case No.: ICC-01/0401/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007, paras. 352–355. Piragoff, “Article 30 Mental element,” 530. Badar and Porro, “Article 30”. Piragoff, “Article 30 Mental element,” 533.

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(i) situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree); and (ii) 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 (also known as dolus eventualis).15 The “intent and knowledge” requirement of article 30 ICCSt. can, in the latter situation (i.e. dolus eventualis), only be met under strict circumstances. The evidence must show that the suspect accepted that the objective elements of the crime may occur as a result of his or her actions or omissions.16 This acceptance of bringing about the objective elements of the crime may be inferred from (i) the awareness by the suspect of the substantial likelihood that his or her actions or omissions would result in the realization of the objective elements of the crime; and (ii) the decision by the suspect to carry out his or her actions or omissions despite such awareness.17 Thus, there must be a substantial risk of bringing about the objective elements of the crime, which requires – to sustain a conviction – proof beyond reasonable doubt that there is a likelihood that it “will occur in the ordinary course of events”.18 If the risk is low, instead of substantial, a suspect can only incur criminal responsibility if it can be shown that he “clearly or expressly accepted the idea that such objective elements may result from his or her actions or omissions”.19 The icty Trial Chamber accepted this latter form of dolus eventualis in the Stakić case when it considered that [i]f the killing is committed with ‘manifest indifference to the value of human life’, even conduct of minimal risk can qualify as intentional homicide.20 15 16 17 18 19 20

Lubanga Dyilo, Decision on the Confirmation of Charges, para. 352. Ibid., para. 355. Ibid., para. 353. Ibid. Ibid., para. 354. Prosecutor v. Stakić, Case No.: IT-97-24-T, Trial Judgment, 31 July 2003, para. 587.

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The icc seems to have established that article 30 ICCSt. does not encompass dolus eventualis, recklessness or any lower form of culpability.21 In the Lubanga Dyilo judgment, the Trial Chamber departed from the standard adopted by the Pre-Trial Chamber in holding that a dolus eventualis standard cannot be read in article 30 ICCSt., which follows from the phrase “unless otherwise provided” and the words “will occur” in the ordinary course of events as opposed to “may occur”.22 This is in line with Article 22(2) which reads that “the definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted”.23 In the Bemba Gombo Confirmation of Charges Decision, the Pre-Trial Chamber opined that article 30 ICCSt. encompasses two forms of dolus, namely dolus directus in the first degree and dolus directus in the second degree.24 The Chamber furthermore referred to the elements of the crime to article 30, which stipulate that the “existence of intent and knowledge can be inferred from relevant facts and circumstances”.25 It can, however, not be inferred from past criminal conduct, as “past conduct is not a sufficient factor to rely upon in order to infer the suspect’s intent within the meaning of article 30 of the Statute”.26 The debate on mens rea is not resolved by discussing the requirements set in the general provision of article 30 ICCSt., as article 30(1) ICCSt. reads “unless otherwise provided”, which means that exceptions to this rule are possible if another provision in the Rome Statute sets a different mens rea requirement. 3.3

Mens Rea for the Different Liability Modes under Article 25 of the Rome Statute

Article 25(3) ICCSt. codifies the liability modes that may give rise to individual criminal responsibility for crimes committed within the jurisdiction of the

21

22 23 24 25 26

See, for example, Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 369; Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 1011. Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, para. 1011. Article 22(2) ICCSt. Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 135. Ibid., para. 137. Ibid., para. 384.

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Court. The various liability modes require different levels of knowledge on part of the accused. 3.3.1 Committing Article 25(3)(a) ICCSt. provides that an individual may incur criminal responsibility if he commits a crime within the Court’s jurisdiction, “whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”. Three forms of perpetration can be distinguished: – direct or immediate commission (“as an individual”); – co-perpetration (“jointly with another person”); – indirect perpetration or perpetration by means (“through another person”).27 The latter form, “indirect perpetration” may take the form of co-perpetration and consequently be defined as “indirect co-perpetration”. Joint commission is part of this provision. A central aspect of joint commission, also referred to as co-perpetration, is that a plurality of persons must have agreed to commit a crime, for example, in the form of a common plan or agreement.28 This common plan or agreement is “the basis of a reciprocal or mutual attribution of the different contributions holding every co-perpetrator responsible for the whole crime”.29 In relation to the mens rea requirement of Article 30(2) ICCSt. this may include “situations where the co-perpetrators share the intent to engage in certain conduct knowing that crimes will result from that conduct in the ordinary course of events”.30 The coordinated sum of the reciprocal attribution of the contributive acts – justified by the agreement – brings about the objective elements of a crime.31 Co-perpetration under Article 25(3) (a) ICCSt. does not require that:

27

28 29 30 31

Kai Ambos, “Article 25. Individual Criminal Responsibility,” in Commentary on the Rome Statute of the International Criminal Court, ed. Otto Triffterer (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 478. Prosecutor v. Blé Goudé, Case No.: ICC-01-11-01/11-186, Decision on the confirmation of the charges against Charles Blé Goudé, 11 December 2014, para. 134. Ambos, “Article 25. Individual Criminal Responsibility,” 479. Blé Goudé, Decision on the confirmation of the charges against Charles Blé Goudé, footnote 384. Lubanga Dyilo, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, para. 445; Blé Goude, Decision on the confirmation of the charges against Charles Blé Goudé, para. 134.

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each joint perpetrator personally participates in the execution of each material element of the crime, and there may be circumstances in which a particular joint perpetrator contributes to the commission of the crimes in ways other than by realizing a material element of the crimes, such as performing a crucial role at the planning or preparation stage, including when the common plan is conceived.32 To hold an accused criminally responsible as a co-perpetrator under Article 25(3)(a) ICCSt., his contribution, within the framework of the agreement, must have been of such a nature, that without it the crime would not have been committed, or would have been committed significantly differently.33 As noted, indirect co-perpetration is a way of commission that can be categorized under the liability mode of Article 25(3)(a) ICCSt. It differs from direct co-perpetration, as the accused need not have personally participated in the execution of the material elements of the crime. What is required, is that he had control over the organization and he was aware of the factual circumstances through which he could exercise joint control over the crime through another person.34 In its decision on the confirmation of the charges in the case of William Ruto, the Pre-Trial Chamber presented an eight element test for indirect co-perpetration under article 25(3)(a) ICCSt.: (i) the suspect must be part of a common plan or agreement with one or more persons; (ii) the suspect and the other co-perpetrator(s) must carry out essential contributions in a coordinated manner which result in the fulfillment of the material elements of the crime; (iii) the suspect must have control over the organization; (iv) the organization must consist of an organized and hierarchical apparatus of power; (v) the execution of the crimes must be secured by almost automatic compliance with the orders issued by the suspect; (vi) the suspect must satisfy the subjective elements of the crimes; (vii) the suspect and the other co-perpetrators must be mutually aware and accept that implementing the common plan will result in the fulfillment of the material elements of the crimes; and (viii) the suspect must be aware of the factual circumstances enabling

32 33 34

Blé Goudé, Decision on the confirmation of the charges against Charles Blé Goudé, para. 134. Ibid., para. 135. Prosecutor v. Ruto, Case No.: ICC-01/09-01/11-373, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 285.

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him to exercise joint control over the commission of the crime through another person(s).35 The requisite level of dolus (intent and knowledge) for indirect co-­perpetration was established in the Bemba Gombo decision on the confirmation of the charges. The Pre-Trial Chamber considered that the suspect cannot “be said to have intended to commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a virtually certain consequence of the implementation of the common plan”.36 The “control over the crime” theory, developed by the German scholar Claus Roxin, has been applied to hold an accused criminally responsible for the commission of a crime under article 25(3)(a) ICCSt. In the Lubanga Dyilo case, the Appeals Chamber, applied this theory, and outlined the distinction between commission under Article 25(3)(a) ICCSt. and accessory liability under article 25(3)(b)-(d) ICCSt. The Appeals Chamber considered: [I]n circumstances where a plurality of persons was involved in the commission of crimes under the Statute, the question of whether an accused ‘committed’ a crime – and therefore not only contributed to the crime committed by someone else – cannot only be answered by reference to how close the accused was to the actual crime and whether he or she directly carried out the incriminated conduct. Rather, what is required is a normative assessment of the role of the accused person in the specific circumstances of the case. The Appeals Chamber considers that the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime.37 In the Decision on the Confirmation of Charges in the Lubanga Dyilo case, the Pre-Trial Chamber considered that the theory of co-perpetration based 35 36

37

Ibid., para. 285. Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 369 (emphasis added). Lubanga Dyilo, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, para. 473.

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on joint control over the crime requires two additional subjective elements, namely that the suspect and co-perpetrators: (a) were all “mutually aware of the risk that implementing their common plan may result in the realization of the objective elements of the crime”, and (b) all mutually accepted “that they be held criminally responsible as principals to the whole crime”.38 The mutual awareness and acceptance makes that contributions made by others can be attributed to the accused, and that the accused may incur criminal responsibility as a principle to the whole crime.39 In the Katanga judgment, the Trial Chamber elaborated upon the notion of “indirect perpetration” under article 25(3)(a) ICCSt. In order for an accused to incur individual criminal responsibility on the basis of indirect (co-)perpetration, it has to be established that the accused: – exercised control over the crime of which the material elements were fulfilled by other person(s); – fulfilled the general mens rea requirements of article 30 ICCSt., as well as potential additional mens rea requirements of the specific crime in question; – was aware of the factual circumstances that enabled him to exercise control over the crime.40 The first element, of control over the crime, may take different forms, which do not necessarily exclude one another.41 One of the possible forms of control over the crime, relates to exercising control over the will of the principal perpetrators.42 An indirect perpetrator may exercise control over the will of the principal perpetrators, who act, for example, under duress, by mistake or suffer from a mental disease or defect. In such cases, the principal perpetrator will not have full criminal responsibility for his actions and the existence of grounds for excluding criminal responsibility should be examined.43 Other 38 39 40 41 42 43

Lubanga Dyilo, Decision on the Confirmation of Charges, para. 361. Ibid., para. 362. Prosecutor v. Katanga, Case No.: ICC-01/04-01/07-3436, Trial Judgment, 7 March 2014, para. 1399, 1416. Ibid., para. 1401. Ibid., para. 1402. Ibid.

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forms of control can be found in the existence of an organized power apparatus, so that the persons heading the organization ensure that the organization’s members fulfill the material elements of the crime.44 The control over the crime theory makes it possible to hold the “author behind the author” criminally responsible.45 The Trial Chamber held, in the Katanga judgment, that this theory is compatible with the constitutive elements of indirect commission as mentioned earlier, as exercising control over a power apparatus renders it possible to have control over the crimes committed by its members.46 When crimes are committed by members of an “organized and hierarchical power apparatus”, the high command of an organization does not simply order the commission of a crime, but, by virtue of their control exercised over the organization, basically decides whether and how the crime will be committed.47 As to the first criterion of control over the crime, the Trial Chamber in the Katanga case recalled that the organization must possess specific characteristics, before some of its leaders can be considered as perpetrators within the meaning of article 25(3)(a) ICCSt. The key element that allows the superior to have control over the crime, lies in the automatic functioning of the power apparatus.48 The superior does not need to control the will of each of the executants by using, for example, coercion or deception, because he knows, that if a member of the organization refuses to comply, another member will be available to take his place, and as such, he can ensure the execution of the orders that have been issued.49 The control over the crime follows from the nature of the organization and its structure; the existence of a personal and individualized relationship between the intellectual and the material perpetrator is ultimately of minor importance, even though it may be taken into account.50 In a way, the apparatus operates independently, and its existence and survival are not necessarily dependent on interpersonal relationships that may exist between the members.51 In order to hold an accused individually criminally responsible as an indirect co-perpetrator under article 25(3)(a) ICCSt., the general mens rea element of article 30 ICCSt. must be fulfilled, as well as any additional mens rea 44 45 46 47

48 49 50 51

Ibid., para. 1403. Ibid., para. 1404. Ibid., para. 1405. Prosecutor v. Katanga and Ngudjolo Chui, Case No.: ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, paras. 515, 518; Katanga, Trial Judgment, para. 1405. Ibid., para. 1408. Ibid. Ibid., para. 1409. Ibid.

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r­ equirements of the specific crime in question. Furthermore, the accused must have been aware of the factual circumstances that enabled him to exercise control over the crime.52 Control over the crime committed through one or more other persons can take many forms. Likewise, knowledge that the accused exercised control over the crime can take many forms as well. In its assessment on whether the indirect perpetrator committed the crimes by way of his control over an organization, the Chamber has to establish that the indirect perpetrator was aware, at the time he exercised his control, of the position he took within the organizations and that the basic characteristics of the organization ensured its automatic functioning.53 3.3.2 Ordering, Soliciting or Inducing Article 25(3)(b) ICCSt. prescribes that a person can be held criminally responsible for a crime within the jurisdiction of the Court if he “[o]rders, solicits or induces the commission of such a crime which in fact occurs or is attempted”.54 This provision is meant to hold superiors criminally responsible for crimes committed by their subordinates. In the Commentary to the 1996 Draft Code of Crimes against the Peace and Security of Mankind it can be read that [t]he superior who orders the commission of the crime is in some respects more culpable than the subordinate who merely carries out the order and thereby commits a crime that he would not have committed on his own initiative. The superior contributes significantly to the commission of the crime by using his position of authority to compel the subordinate to commit a crime.55 No final judgments have been rendered by the icc that cover liability under article 25(3)(b) ICCSt. In June 2014, the icc Pre-Trial Chamber confirmed charges against Laurent Gbagbo, the former President of Ivory Coast, under this liability mode.56 The Chamber found that the three forms (i.e. ordering, soliciting, or inducing) could be subsumed under the broader category of “instigating” or “prompting another person to commit a crime”, as it entails conduct “by 52 53 54 55

56

Ibid., para. 1413. Ibid., para. 1415. Article 25(3)(b) ICCSt. Draft Code of Crimes against the Peace and Security of Mankind with commentaries, article 2(3)(b) http://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996 .pdf, p. 20. Prosecutor v. Gbagbo, Case No.: ICC-02/11-01/11-656-Red, Decision on the confirmation of charges against Laurent Gbagbo, 12 June 2014.

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which a person is influenced by another to commit a crime”.57 The difference between ordering on the one hand, and soliciting and inducing on the other, is that ordering requires that the person who ordered the crime was in a position of authority, while this is not required for the latter two forms.58 In the Confirmation of the Charges Decision in the Ntaganda case, the PreTrial Chamber held that the following objective and subjective elements must be fulfilled before an accused can incur criminal liability for ordering: (a) the person is in a position of authority, (b) the person instructs another person in any form to either: (i) commit a crime which in fact occurs or is attempted or (ii) perform an act or omission in the execution of which a crime is carried out, (c) the order had a direct effect on the commission or attempted commission of the crime, and (d) the person is at least aware that the crime will be committed in the ordinary course of events as a consequence of the execution or implementation of the order.59 Criminal responsibility under the liability mode of inducing requires proof of the following objective and subjective elements: (a) the person exerts influence over another person to either commit a crime which in fact occurs or is attempted or to perform an act or omission as a result of which a crime is carried out; (b) the inducement has a direct effect on the commission or attempted commission of the crime; and (c) the person is at least aware that the crimes will be committed in the ordinary course of events as a consequence of the realisation of the act or omission.60 The Ntaganda decision did not address the liability mode of soliciting; yet five months later the Pre-Trial Chamber issued a decision in the case against

57 58 59

60

Ibid., para. 243. Ibid. Prosecutor v. Ntaganda, Case No.: ICC-01/04-02/06-309, Decision Pursuant to Article 61(7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014, para. 145. Ibid., para. 153.

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Bemba Gombo et al. in which it opined that “soliciting” and “inducing” “both characterize the situation whereby the perpetrator is prompted by another to commit the offence”.61 As said, these two forms can be distinguished from “ordering”, which requires that the person who ordered the crime held a position of authority vis-à-vis the perpetrators.62 In the confirmation of the charges decision in the case of Charles Blé Goudé, the icc Pre-Trial Chamber considered in this regard: [W]hile Charles Blé Goudé may not have been a superior of the Patriotic Galaxy in the formal sense, he had the capacity to define the mobilization activities of the youth, and through this, to compel their conduct. As such, he was in a position of authority vis-à-vis the youth who were among the direct perpetrators of the crimes. Also, in light of the evidence indicating Charles Blé Goudé’s involvement with militias, in particular in Yopougon, the Chamber finds that he had also the capacity to compel or otherwise influence the conduct of militias.63 The Pre-Trial Chamber also found that Blé Goudé fulfilled the mens rea requirements to assume that he could incur criminal liability under article 25(3) (b) ICCSt. as it was alleged that he: (i)  meant to instruct or instigate the pro-Gbagbo forces to carry out certain actions […]; (ii) was aware that crimes would be committed in the ordinary course of events as a consequence of his instructions or instigation, and in particular, was aware that the use of violence against civilians would lead to killings, rapes and acts causing serious injury to body and great suffering; (iii)  knew that the civilians targeted would be those considered to be ­supporters of Alasane Ouattara; (iv) was aware that crimes were committed as part of a widespread and ­systematic attack against a civilian population.64 The mens rea requirements in sub (i) and (ii) cover the liability mode of ordering, soliciting or inducing, whereas sub (iii) and (iv) cover more general mens rea requirements for crimes against humanity. When looking at the three 61 62 63 64

Prosecutor v. Bemba Gombo et al., Case No.: ICC-01/05-01/13-749, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute, 11 November 2014, para. 34. Blé Goudé, Decision on the confirmation of charges against Charles Blé Goudé, para. 159. Ibid., para. 160. Ibid., para. 164 (emphasis added).

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criteria set in the Ntaganda case for inducing – or the four criteria set for ordering as this requires a position of authority – the Pre-Trial Chamber in the Blé Goudé case seemingly failed to consider an important factor namely: whether the order or inducement had a direct effect on the commission or attempted commission of a crime. Although the Chamber considered that he “had the capacity to define the mobilization activities of the youth, and through this, to compel their conduct”, the criterion of direct effect on the alleged commission of the crimes remains vague. 3.3.3 Aiding, Abetting or Otherwise Assisting Pursuant to Article 25(3)(c) ICCSt. a person can be held criminally responsible if he or she facilitates “the commission of such a crime, aids abets or otherwise assists” in the commission or attempted commission of a crime within the Court’s jurisdiction. Article 25(3)(c) ICCSt. applies a stricter mens rea requirement than the mens rea requirement for aiding and abetting by the ad hoc tribunals. The icty Appeals Chamber has held that aiding and abetting liability requires “knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal”.65 Furthermore, before the icty, the acts constituting aiding and abetting must have had a substantial effect on the commission of the principal crime, it requires: “practical assistance, encouragement, or moral support which has a substantial effect on the commission of the crime”.66 The icc, instead, incorporates a purpose requirement, which means that the accused must have aided and abetted “for the purpose of facilitating the commission of the crime”.67 The term “purpose” is not defined in the Rome Statute. Even though the “purpose” requirement is deemed to be higher than the “knowledge” requirement applied by the ad hoc tribunals, the word “facilitating” has been said to imply that “a direct and substantial assistance is not necessary and that the act of assistance need not be a conditio sine qua non of the crime”.68 Therefore, it has been said 65 66 67

68

Prosecutor v. Vasiljević, Case No.: IT-98-32-A, Appeal Judgment, 25 February 2004, para. 102 (emphasis added). Prosecutor v. Furundžija, Case No.: IT-95-17-1-T, Trial Judgment, 10 December 1998, paras. 235–249; see also Ambos, “Article 25. Individual Criminal Responsibility,”482. Prosecutor v. Ngudjolo Chui, Case No.: ICC-01/01-02/12-4, Trial Judgment, Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, para. 25; Article 25(3)(c) ICCSt. Ambos, “Article 25. Individual Criminal Responsibility,” 483; Furundžija, Trial Judgment, para. 231.

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that aiding and abetting liability under article 25(3)(c) ICCSt. encompasses a relatively low actus reus requirement, but a relatively high mens rea requirement, in the sense that it is higher than the general mens rea requirement of article 30 ICCSt.69 Aiding and abetting liability has not yet been adjudicated by the icc, but the contours of this liability mode became visible in other icc cases where the judges intended to contrast this liability mode against other liability modes. In the Mbarushimana case, where the accused was held criminally responsible for “in any other way contributing” under article 25(3)(d) ICCSt., the Pre-Trial Chamber considered: [U]nlike the jurisprudence of the ad hoc tribunals, article 25(3)(c) of the Statute requires that the person act with the purpose to facilitate the crime; knowledge is not enough for responsibility under this article. Unless the requisite superior-subordinate relationship exists to charge responsibility under article 28 of the Statute, 25(3)(d) liability is the only other way a person can be held criminally responsible for acting merely with knowledge of the criminal intentions of others.70 The Lubanga Dyilo judgment shed some light on aiding and abetting liability when it elaborated upon the difference between principal commission versus aiding and abetting liability, holding that if accessories must have had “a substantial effect on the commission of the crime” then co-perpetrators must have had “more than a substantial effect”.71 The jurisprudence of the ad hoc tribunals with respect to the analogous liability modes cannot be applied one-onone to the liability modes set out in article 25(3) ICCSt., as there are important distinctions: [T]he jurisprudence of the ad hoc tribunals does not require the aider and abettor to share the intent of the perpetrator to commit the crime, whereas under article 25(3)(c) of the Statute the aider and abettor must act with the purpose of facilitating the commission of that crime. There is also scholarly disagreement as to whether the actus reus required

69 70 71

Ambos, “Article 25. Individual Criminal Responsibility,”483. Prosecutor v. Mbarushimana, Case No.: ICC-01/04-01/10-465-Red, Decision on the confirmation of charges, 16 December 2011, para. 274 Lubanga Dyilo, Trial Judgment, 14 March 2012, para. 997.

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should likewise differ from the ad hoc tribunals’ “substantial contribution” requirement.72 The Charles Taylor Appeals Judgment before the scsl discussed the Rome Statute’s “purpose” requirement. The defense submitted on appeal that the Trial Chamber had applied an incorrect mens rea standard for aiding and abetting. The Trial Chamber’s application of a “knowledge” standard for the ­accused’s mens rea regarding the consequence of his acts or conduct had, according to the defense, no basis in customary international law.73 According to the defense, knowledge of the consequence was an essential ingredient of ­aiding and abetting liability, but this alone could not suffice to uphold a conviction.74 The defense relied, inter alia, on the provision in article 25(3)(c) ICCSt., which ­incorporates a “purpose” standard, arguing that the adoption of the “purpose” standard set out in Article 25(3)(c) of the Rome Statute demonstrates the absence of state practice and opinio juris accepting the legal standard applied by the Trial Chamber, as does the standard proposed in the ilc’s Draft Articles on Responsibility for Internationally Wrongful Acts.75 This argument was rejected, because, as noted by the scsl Appeals Chamber, Article 6(1) SCSLSt. addressing aiding and abetting liability has no equivalent in the Rome Statute. The Appeals Chamber found that “[a]rticle 25(3) does not represent or purport to represent a complete statement of personal culpability under customary international law” and, consequently, that “the Rome Statute has no bearing on the mens rea elements of aiding and abetting liability under customary international law applicable during the Indictment Period”.76 The Chamber concluded that an accused’s knowledge of the consequence of his acts or conduct – that is, an accused’s “knowing participation” in the crimes – is a culpable mens rea standard for individual criminal liability.77 72 73 74 75 76 77

Mbarushimana, Decision on the confirmation of charges, para. 281. Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Judgment, 26 September 2013, para. 407. Ibid. Ibid. Ibid., para. 435. Ibid., para. 436.

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Knowledge of the consequence may take the form of awareness on part of the accused of the substantial likelihood that his acts would assist in the commission of a crime.78 Furthermore, the scsl Appeals Chamber held that it was not required that the accused’s acts had a “substantial” effect on the commission of the crimes.79 The Chamber held: Whether an accused’s acts and conduct have a “substantial” effect on the commission of the crime is an ultimate issue to be decided by the trier of fact in light of the law and the facts established. It is not a requisite element of the accused’s mens rea because as a general principle of criminal law, it is the task of judges, not an accused, to determine the correct legal characterization of an accused’s conduct (iura novit curia).80 As regards to Article 25(3)(c) ICCSt., the scsl Appeals Chamber noted that until the icc Appeals Chamber has made its views known regarding the liability scheme of Article 25(3) ICCSt., more weight must be attached to “established customary international law, as consistently articulated and applied in the jurisprudence of international criminal tribunals from the Second World War to today […] than suppositions as to what Article 25(3)(c) does or does not mean”.81 Judge Van den Wyngaert noted in her concurring opinion to the acquittal of Mathieu Ngudjolo Chui that aiding and abetting, as well as inducing and ordering, is often “at least as morally comprehensible as committing the act oneself”.82 Whereas the aider and abettor before the ad hoc tribunals generally can expect a lower sentence, she found that no such expectation is warranted before the icc.83 She considered: I do not believe that the foot soldier who participated in a mass killing (Article 25(3)(a)) is necessarily more blameworthy than the army general who aided and abetted the same killing (Article 25(3)(c)).84

78 79 80 81 82 83 84

Ibid., para. 414. Ibid., para. 439. Ibid. Ibid., para. 451. Ngudjolo Chui, Trial Judgment, Concurring Opinion of Judge Christine Van den Wyngaert, para. 23–24. Ibid., para. 25. Ibid., para. 24.

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Yet, in a Commentary to the Rome Statute, aiding and abetting is characterized as “the weakest form of complicity”, covering “any act which contributes to the commission or attempted commission of a crime”.85 Future icc practice should enlighten whether this form of liability indeed warrants a lower sentence. 3.3.4 In Any Other Way Contributing An accused may be held criminally responsible under article 25(3)(d) ICCSt. if he or she: [i]n any other way contributes to the commission or attempted commission of such a 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.86 The requisite mental element for “in any other way contributing” is “knowledge of the consequence”, which seems to correspond with the knowledge requirement set by the ad hoc tribunals for aiding and abetting. Article 25(3)(d)(i) and (ii) ICCSt. encompasses a different mens rea standard than the general mens rea requirement lied down in article 30 ICCSt. Article 25(3)(d) ICCSt. requires that the accused’s contribution was “intentional”. Furthermore, it must include one of the mental elements specified in paragraphs (i) and (ii) of this article.87 Subparagraphs (i) and (ii) aim at the activity, purpose or criminal intention of the group, whereas the “intentionality” of article 25(3)(d) ICCSt. pertains to the “conduct which constitutes the contribution”.88 This is in line with the criterion prescribed in article 30(2)(a) ICCSt., “the accused must intend to engage in the conduct”, which, in other words, implies that “his or her actions must have been deliberate and made with awareness”.89 It is not necessary that the accused shared the group’s intention to commit

85 86 87 88 89

Ambos, “Article 25. Individual Criminal Responsibility,” 481. Article 25(3)(d) ICCSt. Katanga, Trial Judgment, para. 1638. Ibid. Ibid.

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the crime.90 Thus, it must be demonstrated that the accused intended the behavior that constituted a contribution, and, that he knew – in the form of awareness – that the behavior would contribute to the actions of the group acting with a common purpose.91 Only the crimes that the group intended to commit (i.e. that fall within the common purpose), including the crimes committed in the ordinary course of the events, can be attributed to the group and ultimately lead to responsibility of the accused under article 25(3)(d) ICCSt.92 In the Mbarushimana case, the Pre-Trial Chamber held that the contribution of the accused to “the commission of a crime by a group acting with a common purpose must at least be significant”.93 The requirement under article 25(3)(d)(ii) ICCSt. encompasses a dolus specialis requirement, as it is the “specific intention to promote the practical acts and ideological objectives of the group”.94 In the Katanga case, the Trial Chamber held that article 25(3)(d)(ii) ICCSt. requires that (i) a crime within the jurisdiction of the Court has been committed; (ii) the commission or attempted commission of such a crime was carried out by a group of persons acting with a common purpose; (iii) the accused has delivered a significant contribution to the commission of the crime; (iv) that his contribution was intentional; (v) that the contribution of the accused was made in knowledge of the intention of the group to commit a crime.95 All five elements must be established beyond reasonable doubt, before an accused can be held criminally responsible under article 25(3)(d)(ii) ICCSt.96 The first three requirements are the objective elements of aiding and abetting liability and the second two requirements are the subjective requirements of aiding and abetting liability. In the Decision on the Confirmation of Charges in the Mbarushimana case the third, objective criterion, was defined differently than in the Katanga Trial Judgment. In the Katanga judgment, which 90 91 92 93 94 95 96

Ibid. Ibid., para. 1639. Ibid., para. 1630. Mbarushimanai, Decision on the confirmation of charges, para. 283. Ambos, “Article 25 Individual Criminal Responsibility,” 486. Katanga, Trial Judgment, para. 1620. Ibid., para. 1621.

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was issued more than three years after the Mbarushimana confirmation decision, sub (iii) required a significant contribution on part of the accused, while in the Mbarushimana case it was required that “the individual contributed in any way other than those set out in Article 25(3)(a) to (c) of the Statute”. As to the subjective requirement of an intentional contribution (sub iv), Mbarushimana required that this shall either “(a) be made with the aim of furthering the criminal activity or criminal purpose of the group; or (b) in the knowledge of the intention of the group to commit the crime”,97 while in Katanga only this latter requirement was reiterated. In interpreting the wordings “common purpose” (see sub ii supra) the icc sought guidance in the jurisprudence of the ad hoc tribunals, as the tribunals had based their definition on an analysis of customary international law.98 Defining a group’s criminal objective implies that the criminal purpose pursued by the group is identified, as well as its reach (indicating in particular its geographical and temporal scope), the type and origin of the group, the victims targeted by the group, as well as the identity of the group members. It is not necessary, however, that each single group member is identified.99 Proof that the common purpose was elaborated upon or formulated beforehand is not required.100 It is also not required that the group pursued a solely criminal objective. Likewise, the final objective need not be criminal.101 Thus, a group pursuing a political-strategic objective, which also involves acts of a criminal nature, or includes the execution of a crime, can constitute a group of persons acting with a common purpose within the meaning of article 25(3)(d) ICCSt.102 The icc Trial Chamber, in Katanga, held that the participants in the “common purpose” must share the same intention: they must, in relation to the consequence (i.e. the alleged crime), have intended to cause the consequence, or had knowledge that the crime would occur in the ordinary course of the events.103 Article 25(3)(a) ICCSt. and article 25(3)(d) ICCSt. both use the concept of “a group of persons acting with a common purpose” to accrue criminal responsibility to the accused. In the Katanga and Ngudjolo case, the Trial Chamber amended Katanga’s liability mode from (co)-perpetration under article 25(3) 97 98 99 100 101 102 103

Mbarushimana, Decision on the confirmation of charges, para. 269 fn. 640. Katanga, Trial Judgment, para. 1625. Ibid., para. 1626. Ibid. Ibid., para. 1627. Ibid. Ibid.

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(a) ICCSt. to “in any other way contributing” under article 25(3)(d) ICCSt. in the course of the proceedings.104 Article 25(3)(d) ICCSt. encompasses a residual category to hold persons criminally responsible who contributed to the crime in “any other way”.105 The majority of the Trial Chamber could justify itself for amending the liability mode from article 25(3)(a) ICCSt. to 25(3)(d) ICCSt., partly because both liability modes use the concept of a “group of persons acting with a common purpose”. The Chamber considered that [t]he actus reus of participation in a crime within the meaning of article 25(3)(d) (in particular the requirement of a significant and important contribution) are in this case an integral part of the material elements characterising the commission of a crime within the meaning of article 25(3)(a) (the requirement of an essential contribution resulting in the realisation of the objective elements of the crimes).106 The Chamber also found no obstacles in amending the liability mode with respect to the subjective elements, as [t]he facts underlying Germain Katanga’s knowledge of the alleged criminal intent of the group pursuant to article (25(3)(d)(ii)) are, in the Majority’s view, necessarily included in the Pre-Trial Chamber’s description, of the Accused’s intent and the knowledge of the fact that the realization of the crimes “would result in the implementation of the common plans” (25(3)(a)).107 Amending the liability mode is, according to the Majority in the Katanga and Ngudjolo case, justified, as long as the legal re-characterization does not exceed the facts contained in the decision on the confirmation of charges.108 This legal re-characterization led to the severance of the Katanga and Ngudjolo case, who were both initially charged as principal perpetrators under article 25(3)(a)

104 Katanga and Ngudjolo Chui, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, 21 November 2012, para. 7. 105 Katanga, Trial Judgment, paras. 1597, 1618. 106 Katanga and Ngudjolo Chui, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, para. 33. 107 Ibid., para. 30. 108 Ibid., para. 31.

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ICCSt. The liability mode was not amended for Ngudjolo, who was acquitted shortly after the severance of the cases.109 The different legal characterization had consequences for the accused’s mens rea that had to be proven, as became evident from Judge Van den ­Wyngaert’s dissenting opinion to the Katanga Judgment. Article 25(3)(d)(ii) ICCSt. requires that the accused’s contribution was “made in the knowledge of the intention of the group to commit the crime”. Judge Van den Wyngaert held in her dissenting opinion to the Katanga judgment that “this can only mean that the common purpose of the group must exist prior to the accused’s contribution”.110 She went on to state that [t]here is nothing that would permit one to infer from the alleged mens rea of the physical perpetrators that there already existed a criminal common purpose at the time when Germain Katanga made his alleged contribution to the group, much less that he knew about it.111 As noted by Judge Van den Wyngaert, Article 25(3)(a) ICCSt. makes no mention of “the mental state of the physical perpetrators, let alone of the accused’s knowledge thereof”.112 She refers to the Confirmation of the Charges Decision, in which the charges were confirmed under the liability mode of Article 25(3) (a), holding that even in relation to the charges of pillaging, rape and sexual slavery, which the Pre-Trial Chamber found to have been foreseeable consequences (dolus directus 2nd degree) of the execution of the common plan under article 25(3)(a), the Confirmation Decision makes no mention whatsoever of an alleged common purpose of the physical perpetrators.113 In the Mbarushimana case, the ptc found that the “concept of a ‘common plan’” for co-perpetration liability under article 25(3)(a) ICCSt. “is functionally identical to the statutory requirement of article 25(3)(d) of the Statute”, which requires the existence of a “group of persons acting with a common

109 Ngudjolo Chui, Judgment pursuant to article 74 of the Statute, 18 December 2012. 110 Katanga, Trial Judgment, Minority Opinion of Judge Christine Van den Wyngaert, 7 March 2014, para. 24. 111 Ibid. 112 Ibid., para. 25. 113 Ibid.

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purpose”.114 Different from Article 25(3)(a) ICCSt., under which the accused can be held criminally responsible “regardless of whether that other person [i.e. through or with whom the accused committed the crime] is criminally responsible”, Article 25(3)(d) ICCSt. requires that the accused significantly contributed to the commission of a crime by a group of persons “acting with a common purpose”. Furthermore, Article 25(3)(d)(ii) ICCSt. requires that the accused’s contribution was “made in knowledge of the intention of the group to commit a crime”.115 Article 25(3)(d) liability resembles jce liability; yet, again some relevant differences are to be detected, which pertain to (i) whether a defendant who is found guilty is convicted as a principal or accessory, (ii) whether a defendant must be in the group acting with the common purpose or not, (iii) whether the contribution is to the common purpose or to the crimes committed, and (iv) whether some form of intent or mere knowledge is sufficient for responsibility.116 The two forms have in common that they: emphasize group criminality and actions performed in accordance with a common plan, which, when coupled with the fact that jce requires a lower threshold of contribution than aiding and abetting at the ad hoc tribunals, makes the modern formulation of jce’s concept a “significant contribution” relevant to the present discussion.117 The analysis of icc case law on the liability mode of in “any other way contributing”, illustrates that the icc judiciary operates independently from other international criminal tribunals. Although the icc relies to a certain extent (e.g. for an analysis of customary international law) on case law of the ad hoc tribunals, it follows its own path and way of interpreting this liability mode. 3.3.5 Inciting to Commit Genocide A person can incur criminal responsibility for incitement to commit genocide under article 25(3)(e) ICCSt. if that person “directly and publicly incites others to commit genocide”. The provision is similar to the provision in the 1948 114 115 116 117

Mbarushimana, Decision on the confirmation of charges, para. 271. Emphasis added. Mbarushimana, Decision on the confirmation of charges, para. 282. Ibid.

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Genocide Convention, as well as to the Statutes of the ad hoc tribunals. Yet, a difference is that the icc lists incitement to commit genocide as a mode of criminal responsibility under article 25(3)(e) ICCSt. The icty and ictr, on the other hand, incorporated incitement as a separate crime in the provision on genocide, namely in article 4 and 2 of the icty Statute and ictr Statute respectively. There have been no prosecutions for incitement to commit genocide before the icc so far.118 The only accused who is charged on counts of genocide is Omar al Bashir in the Sudan (Darfur) situation. Yet, he allegedly participated in the crimes charged as an indirect (co) perpetrator under article 25(3)(a). As follows from the Rome Statute, incitement must be “directly” and “publicly”. The case law of the ad hoc tribunals can provide guidance as to how to assess these two criteria. It has been held that “the actus reus of direct and public incitement to commit genocide requires that the accused directly and publicly incited the commission of genocide. The crime is completed as soon as the disclosure in question is uttered.”119 The mens rea of incitement is fulfilled if the accused had the intent to directly and publicly commit genocide.120 In determining whether the incitement was direct, the culture, language and specific context may be taken into account: The principal consideration is thus the meaning of the words used in the specific context: it does not matter that the message may appear ambiguous to another audience in another context.121 In determining whether the incitement was public “factors such as the place where the incitement occurred and whether the audience was selected or limited can be taken into account”.122 The medium through which the message was conveyed may be relevant in the determination whether the audience was selected or limited. Furthermore, it has been determined that inciting individuals who were manning a roadblock did not constitute incitement to commit

118 The icc became operative on 1 July 2002, the case law in this book is updated till 30 June 2015. 119 Ngirabatware v. the Prosecutor, Case No.: MICT-12-29-A, Appeals Judgment, 18 December 2014, para. 52. 120 Bikindi v. the Prosecutor, Case No.: ICTR-2001-72-A, Appeals Judgment, 18 March 2010, para. 135. 121 Nahimana, Barayagwiza and Ngeze v. the Prosecutor, Case No.: ICTR-99-52-A, Appeals Judgment, 28 November 2007, para. 701. 122 Ngirabatware,Appeals Judgment, para. 52.

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genocide, as this could not be considered as a message conveyed to the general public.123 Incitement closely resembles the liability mode of instigation under article 25(3)(b) ICCSt. The difference is, however, that incitement to commit genocide is an inchoate crime, which means that the consequence does not have to take place in order for the crime to be punishable. Thus, incitement to genocide is always punishable regardless of the result, provided that it was direct and public. Yet, there have been no international criminal prosecutions for incitement to commit genocide, while the genocide did not take place. It is therefore more accurate to say that the prosecution does not have to demonstrate that the incitement substantially contributed to the commission of the genocide. Ordering, soliciting, or inducing under article 25(3)(b) ICCSt. require the commission or attempted commission of a crime. Furthermore, instigation can be specifically directed towards a certain individual or group, whereas incitement to commit genocide requires the message to be conveyed “publicly”. For example, the persons manning a roadblock could be “instigated” to commit a crime, but as they could not be considered as the “general public” the requisite elements for “incitement” could not be fulfilled. 3.3.6 Attempting to Commit The attempt to commit a crime within the jurisdiction of the Court is penalized under article 25(3)(f) ICCSt., which reads that a person shall incur individual criminal responsibility if that person [a]ttempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.124 In the Decision on the Confirmation of the Charges in the Katanga and Ngudjolo Chui case, the majority of the Pre-Trial Chamber elaborated on the mens rea element for this mode of criminal responsibility

123 Ibid., referring to, inter alia, Nahimana et al., Appeals Judgment, para. 862. 124 Article 25(3)(f) ICCSt.

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the intent to perpetrate a specific act necessarily precedes the decision to further the act […] the subjective elements, or the mens rea, is to be inferred from the moment in which the perpetrator takes the action that commences its execution by means of a substantial step.125 Establishing an accused’s mens rea is of particular relevance, as an attempt to commit a crime is only to be criminalized once the subjective elements of the crime are fulfilled, while the objective elements are not.126 Thus, the dolus for attempt is identical to the dolus for a consummated act, while the actus reus differs. Therefore, in order to hold an accused criminally responsible for the attempt to commit a crime under the Rome Statute, it is necessary to infer the intent to further an action that would cause the result intended by the perpetrator, and the commencement of the execution of the act.127 The Trial Chamber determined that the same act cannot be charged under the crime against humanity of murder under article 7(1)(a) ICCSt. in its attempted form under article 25(3)(f) ICCSt., as well as under the crime against humanity of other inhumane acts under article 7(1)(k) ICCSt.128 The majority found that there were substantial grounds to believe that the accused had the intention to kill the Hema civilian population. It considered that the clear intent to kill persons cannot be transferred into intent to severely injure persons by means of inhumane acts solely on the basis that the result of the conduct was different from that which was intended and pursued by the perpetrators.129 In sum, three elements must be proven before an accused can incur criminal responsibility for an attempt to commit a crime within the jurisdiction of the Court: (i) the accused’s intent to commit a crime; (ii) actions that demonstrate that the crime would be – or was intended to be – committed; (iii) the crime was not completed due to factors independent from the accused’s will.130 125 126 127 128 129 130

Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 459. Ibid., para. 460. Ibid. Ibid., para. 461. Ibid., para. 463. See Mark Klamberg, Commentary to Article 25(3)(f), Case Matrix Network, accessed 10 August 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary -clicc/commentary-rome-statute/commentary-rome-statute-part-3/.

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3.3.7 Criminal Responsibility for the Crime of Aggression In 2010, during the Review Conference in Kampala, Uganda, the representatives of the State Parties to the Rome Statute agreed to adopt a definition on the crime of aggression. The icc can prosecute individuals for this crime once 30 States Parties have ratified the amendments and once a 2/3 majority of State Parties have agreed to activate the Court’s jurisdiction, which they will do no sooner than 1 January 2017.131 During the Review Conference, agreement was reached on a new provision to be incorporated in article 25 ICCSt., namely article 25(3)bis ICCSt., which specifically covers criminal responsibility for the crime of aggression. The provision reads: In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.132 The provision reflects what is already provided for in article 8bis (1) ICCSt., which contains the definition of the crime of aggression and reads that a “perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression”.133 The Court will have to determine, if a case of aggression is to be prosecuted before the Court, how this provision is to be applied and what the corresponding requisite mental elements will be. It is to be expected that the case law on commission under article 25(3)(a) ICCSt., ordering, soliciting, or inducing under article 25(3)(b) ICCSt., and superior or command responsibility under article 28 ICCSt. will be instructive in this regard. It is not inconceivable that the icc judges ultimately accept dolus eventualis as requisite level of mens rea. An act of aggression is defined in article 8 bis (2) ICCSt. as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations134

131 “Conditions for action by the icc”, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, accessed 24 April 2015. http://crimeofaggression.info/role-of-the-icc/conditions-for-action-by-the-icc/. 132 Article 25(3)bis ICCSt. 133 Article 8bis (1) ICCSt. 134 Article 8 bis (2) ICCSt.

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It is tenable that a military operation in defiance of international law might be foreseen by the particular State (authorities) in terms of its consequences, which – although not specifically desired – were accepted by that State. Article 25(3)bis ICCSt. requires, in order for an individual to be liable for this act, that such a person was in a position “effectively to exercise control over or to direct the political or military action of a State.” The exact meaning of “effectively to exercise control” will have to be crystalized in the icc’s case law. Guidance may be sought in the case law of the ad hoc tribunals where effective control – a requisite element of superior responsibility – has been defined as “the material ability to prevent offences or punish the offender.”135 3.3.8 Responsibility of Commanders and Other Superiors In addition to the liability modes listed in article 25(3) ICCSt., article 28 ICCSt. provides for another ground of criminal responsibility within the jurisdiction of the icc, namely criminal responsibility for military commanders or persons acting as such, and other superiors. In relation to military commanders, the provision reads that: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.136 In relation to other superiors, the provision reads that:

135 Prosecutor v. Popović et al., Case No.: IT-05-88-A, Appeals Judgment, 30 January 2015, para. 1857; see also Chapter 2. 136 Article 28(a) ICCSt.

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With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.137 One can question why this additional liability mode is incorporated in the Statute, while, for example article 25(3)(a) of the Statute also allows for criminal responsibility if it can be demonstrated that the accused exerted “control over the crime” (see paragraph 3.3.1. supra) or if he ordered the crime (see paragraph 3.3.2. supra). Yet, there are some differences that are ought to be addressed. In the Bemba Gombo case, the Prosecutor decided to charge the accused with criminal responsibility under article 25(3)(a) ICCSt., or, in the alternative, as a military commander or person effectively acting as such or a superior under article 28(a) or (b) ICCSt. The Pre-Trial Chamber outlined in the decision on the confirmation of charges, that article 28 ICCSt. would only be applicable if it turned out that there were “no substantial grounds to believe that the suspect was […] criminally responsible as a ‘co-perpetrator’ within the meaning of article 25(3)(a) of the Statute”.138 This sentence may imply that a lower threshold exists for criminal responsibility under article 28 ICCSt., as article 28 ICCSt. is invoked here as an alternative when the accused cannot be held criminally responsible under article 25(3)(a) ICCSt. Article 28 ICCSt. imposes a lower mens rea threshold than the general mens rea threshold of article 30 ICCSt., as it introduces a “should have known”

137 Article 28(b) ICCSt. 138 Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 342.

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standard for military commanders. Furthermore, it encompasses a lower standard than article 25(3)(a) as an accused can incur criminal responsibility for omissions if there was a legal obligation to act.139 In the Bemba Gombo case, where the Pre-Trial Chamber decided to consider Bemba Gombo’s alleged criminal responsibility under article 28(a) ICCSt., the following elements were to be fulfilled: (a) The person must have been a military commander or effectively acting as such; (b) the person must have had effective command and control over the acts of his subordinates who committed crimes within the jurisdiction of the Court; (c) the crimes committed by the subordinates must have been the result of the person’s failure to properly exercise control over them; (d) the person knew or – based on the circumstances of the case – should have known that crimes were committed or about to be committed by his subordinates; (e) the person failed to take measures to prevent or punish the crimes committed by his subordinates.140 The liability mode of ordering, which requires that a person in a position of authority instructs another person to commit a crime, bears resemblance to the liability mode of superior responsibility under article 28 ICCSt. Under this provision, superiors can incur criminal responsibility for crimes committed by their subordinates. The difference is, that an individual can incur criminal liability for ordering if the material elements of the crime have not been fulfilled; it is required that the order had a direct effect on the “commission or attempted commission” of the crime. Furthermore, a superior can be held criminally responsible for his inaction, i.e. if he failed to exercise control over his subordinates in cases where he should have. 3.4 Conclusion This chapter has discerned the requisite levels of mens rea for the different liability modes within the Rome Statute system. The icc judiciary pursues its 139 Ibid., para. 405. 140 Ibid., para. 407.

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own policy, thereby using the case law of ad hoc tribunals as mere guidelines, to delineate possible differences and setting its own standards. The contours of the liability mode of commission under article 25(3)(a) ICCSt. and the liability mode of “in any other way contributing” under article 25(3)(d) have been established in final judgments. What follows, is that group activity is important, the former requires a common plan, the latter a group of persons acting with a common purpose, which is basically the same. Yet, whereas an accused can incur criminal responsibility under article 25(3)(a) regardless of the other person (through whom he commits the crime) is criminally responsible, article 25(3)(d) requires that the accused contributed to the commission of a crime by a group of persons, in knowledge of the group’s intention to commit a crime. Importantly, under article 25(3)(a) ICCSt. the intellectual perpetrator (i.e. the alleged mastermind behind the crime) can be held criminally responsible for “committing” the crime, regardless of whether he or she physically committed the crime and regardless of the criminal responsibility of the “physical” perpetrators. This seems to be an important mechanism that is in line with the goal of the Statute, to bring to justice the most responsible persons for the most serious crimes of concern to the international community. Persons who use other persons to commit a crime can be classified as such.141 The mens rea requirements for the other liability modes is yet to be firmly established, although the contours became visible through confirmation decisions rendered by Pre-Trial Chambers, while the case law of other international criminal tribunals have turned out to be of limited guidance. 141 See also Jens David Ohlin, Elies van Sliedregt and Thomas Weigend, “Assessing the Control Theory,” Leiden Journal of International Law 26, 3 (2013), doi:10.2139/ssrn.2276677.

chapter 4

Mens Rea and War Crimes 4.1 Introduction A frequent misperception within the public domain is that a violation of the laws of armed conflict is automatically equivalent to a war crime. Such a reasoning is void since it negates the mens rea element. A violation of the laws of armed conflict without the requisite mens rea does not per se constitute a war crime. Suppose a soldier accidentally fires a rocket at a civilian house, this will constitute a violation of the laws of armed conflict. It will only constitute a war crime once the particular soldier possessed the requisite mens rea for firing a rocket at the house, for example if the soldier had reasons to believe that the target was indeed a civilian house and did not take any precautionary measures. The Rome Statute defines war crimes as “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”.1 The Statutes of the ad hoc tribunals also included the adjective “serious” to refer to violations of international humanitarian law.2 The Rome Statute has included the grave breaches provisions as defined in the Geneva Conventions of 12 August 1949 in article 8(2)(a) ICCSt.; they embrace crimes such as willful killing; torture or inhuman treatment; willfully causing great suffering; the extensive destruction and appropriation of property which is not justified by military necessity and carried out unlawfully and wantonly; willfully depriving a prisoner of war or other protected person to serve in the forces of a hostile power.3 Whereas article 8(2)(a) and (b) cover war crimes committed during an international armed conflict, article 8(2)(c) covers violations of the laws and customs of war committed during an internal armed conflict. Many of the war crimes listed in the Rome Statute, embrace a more specific component of mens rea than the level required by Article 30. Examples of such specific intent codified mens rea level are: “‘willfully’ causing great suffering, or serious injury to body or health”, “‘intentionally’ directing 1 Article 8(2)(b) and (c) ICCSt. 2 Article 1 ICTYSt., Article 1 ICTRSt.; see also “Rule 156. Definition of War Crimes,” International Committee of the Red Cross, Customary ihl, accessed 29 April 2015. https://www.icrc.org/ customary-ihl/eng/docs/v1_cha_chapter44_rule156#Fn_21_2. 3 Article 8(2)(a) ICCSt.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004307889_005

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attacks against buildings”, “‘intentionally’ using starvation of civilians as a method of warfare”. These requirements underline that “not only the actual conduct (e.g. the dropping of a bomb), but also the consequences (e.g. hitting a civilian object) must be covered by the intent”.4 This chapter will first assess what a lawful entails, as lawful attacks committed during an armed conflict will not be considered a war crime and therefore one does not arrive at the element of mens rea. The determination of what constitutes a lawful attack is not a straightforward exercise and will depend on various factors. The same counts for the assessment of mens rea within the context of war crimes. Based upon the case law of the icc, this chapter will examine what level of mens rea is required for war crimes. 4.2

Applicable Legal Framework

A crime can only qualify as a war crime if it has been committed during an armed conflict. The Rome Statute and the Elements of Crimes do not provide for a definition of an armed conflict. In the Lubanga Dyilo judgment, the icc adopted the definition used by the icty in the Tadić case: [A]n armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State.5 Once the existence of an armed conflict can be assumed, the laws of armed conflict (loac, also referred to as international humanitarian law) apply.6 Core principles within international humanitarian law are military necessity, proportionality and the principle of distinction. All three principles are closely related. Military necessity requires that an attack was conducted with the aim to accomplish a legitimate military purpose. The only legitimate military purpose during an armed conflict is to “weaken the military capacity of the other

4 Michael Bothe, “War Crimes,” in The Rome Statute of the International Criminal Court, eds. Antonio Cassese, Paola Gaeta and R.W.D. Jones (Oxford: Oxford University Press, 2002), 389. 5 Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-2842, Trial Judgment, 14 March 2012, para. 533; citing Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. 6 The laws of international armed conflict (loiac) also fall within the framework of international humanitarian law.

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parties to the conflict”.7 The principle of proportionality requires that the number of expected civilian casualties may not outweigh the concrete and direct military advantage expected by the attack. The principle of distinction implies that parties to the conflict must, at all times, distinguish between combatants and civilians and between military and civilian objects. Additional Protocol i to the Geneva Conventions defines military objectives as: [T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.8 The International Committee of the Red Cross (icrc) has held in its commentary on the Additional Protocols to the Geneva Conventions that an attack is not legitimate if the expected military advantage is only “potential or indeterminate”.9 If the attack is directed at objects that are not exclusively military, such as television stations, railways, bridges or power plants, the attacking party must take precautionary measures (e.g., if possible, a warning preceding the attack). This also counts for civilian objects, such as hospitals, which are potentially used as military installations or which are used by the adversary to facilitate military operations. Such a hospital might lose its protected status as civilian object, but the military commander who decides to attack this facility for this reason, must apply two standards: 1) 2)

The principle of proportionality.10 Precaution in attack.11

This discussion arose again at the end of April 2016 when the report of Doctors Without Borders was released on the attack by the us gunship in October 2015 on a hospital of Doctors Without Borders in Kunduz, Afghanistan. 7 8 9

10 11

“Military necessity,” icrc Glossary, 5 June 2012, accessed 30 April 2015. https://www.icrc .org/casebook/doc/glossary/military-necessity-glossary.htm. Article 52 of Additional Protocol i to the Geneva Conventions of 12 August 1949. International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva: International Committee of the Red Cross, 1987), para. 2209; see also Amnesty International, nato/Federal Republic of Yugoslavia “collateral damage” or unlawful killings? Violations of the Laws of War by nato during Operation Allied Force, June 2000, 46. Article 51 of Additional Protocol i to the Geneva Conventions of 12 August 1949. Article 57 of Additional Protocol i to the Geneva Conventions of 12 August 1949.

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Since objects such as railways and bridges do not have a military purpose in peacetime, the attack must be limited to neutralizing the military potential of the object and not aimed at the “all-out destruction”. It should be noted, however, that the military commander on the battlefield has a wide margin of appreciation when deciding upon a target.12 This becomes apparent in the assessment of alleged unlawful attacks, such as, for example, the investigation by the icty into alleged war crimes committed by nato forces in Kosovo. The seemingly broad discretion may have to do with the requisite level of mens rea the attacker must have possessed before a prosecution is warranted, as the following section will demonstrate. 4.3

Mens Rea in Practice: Operation Allied Force

The complexity of assessing mens rea within the laws of war become visible in the so-called “Operation Allied Force”. From 24 March to 9 June 1999, during the Kosovo war, nato conducted a bombing campaign against the Federal Republic of Yugoslavia (fry), with the aim to stop human rights violations and ethnic cleansing in Kosovo.13 It was for the first time that nato conducted attacks without the un Security Council’s approval, under the name Operation Allied Force, which was based on the novel concept of “forcible humanitarian intervention”. During and after the campaign, the Prosecutor of the icty received numerous requests to investigate the nato bombings on allegations of serious violations of international humanitarian law committed by senior political and military figures within the nato.14 The nato campaign was criticized because (a) the resort to force was said to be illegal, and thus all nato actions were illegal; (b) the civilian population and civilian targets were attacked deliberately or recklessly, which caused excessive civilian casualties in violation of the rule of proportionality.15 It was 12

13 14 15

International Criminal Tribunal for the Former Yugoslavia (icty), Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, 8 June 2000. http://www.icty.org/x/file/Press/nato061300. pdf; Geert-Jan Alexander Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” International Criminal Law Review 9 (2009): 501–529, doi: 10. 1163/157181209X457965. “Serb atrocities in Kosovo reported as Nato resumes air strikes,” The Guardian, 27 March 1999, http://www.theguardian.com/world/1999/mar/27/balkans17. icty, Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, para. 1. Ibid., para. 2.

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alleged that nato tried to fight a “zero casualty” war for their own side. To conduct such a war, nato airplanes operated at heights that enabled them to avoid attacks by Yugoslav defenses. On the other hand this, resulted in the situation that the pilots were unable to make a proper distinction between military and civilian objects on the ground.16 Specific incidents that were reviewed by the committee, were inter alia the attack on Korisa village on 13 May 1999, which killed between 48–87 civilians, the attack on the Belgrade tv and Radio Station (rts) on 23 April 1999, which killed between 10–17 civilians,17 and the attack on Belgrade Hospital on 20 May 1999, which killed 3 civilians and left many others injured.18 If an attack is directed against a non-military objective or if the attack causes disproportionate damage to the civilian population or civilian objects as opposed to the military advantage anticipated, this may constitute the actus reus for an unlawful attack. The proportionality principle does not require “symmetric” warfare. For example, the condemnation of Israel by politicians and human rights organizations for the disproportionate use of military force in the Gaza conflict in 2008–2009 tends to overlook the specific traits of this principle.19 The application of the proportionality principle has some implications that may serve as legal indicia to ascertain possible war crimes charges: – The criterion of “excessive” primarily inheres “a mental process of pondering dissimilar considerations … and is not an exact science.”20 It thus cannot be solely based on the commanders analysis of the situation, but this should be used as a starting point; – As a principle, it should be assumed that the commander acted in good faith;21

16 Ibid., para. 2. 17 The otp report is inconsistent in this regard, in paragraph 9 it is stated that 16 civilians were killed in the attack on the Belgrade tv and Radio Station, in paragraph 71, discussing the same attack, it can be read that “between 10 and 17 people are estimated to have been killed”. 18 icty, Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, para. 9. 19 Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 512. 20 Ibid., 513, referring to Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 122. 21 Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 513.

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– The alleged excessiveness of the military operation should not be assessed solely on the ultimate result of the action. Alleged excessiveness should be examined on the basis of all (military and situational) information available, including the anticipated military advantage.22 This principle is also reflected in the Rome Statute, article 8(2)(b)(iv) ICCSt. explicitly refers to the “direct overall military advantage anticipated”. The term “overall” embraces the discretionary powers of the military superior and the legal and human factors underlying a military operation.23 The mens rea for an unlawful attack is intention or recklessness; mere negligence will not suffice.24 This relatively high mens rea standard implies that even if the attack is deemed to be unlawful, a prosecution may not be warranted if the attack was committed out of mere negligence. The nato report into the Kosovo bombings elaborates upon the requisite mens rea for military commanders for war crimes under Article 3 ICTYSt. To determine a military commander’s mens rea, it must be examined whether he fulfilled his duties at the time of deciding to launch the attack. Relevant factors to discern the requisite mens rea relate to whether the military commander: a) b) c)

did “everything practicable to verify that the objectives to be attacked are military objectives,” took “all practicable precautions in the choice of methods and means of warfare with a view to avoiding or, in any event to minimizing incidental civilian casualties or civilian property damage, and” refrained “from launching attacks which may be expected to cause disproportionate civilian casualties or civilian property damage.”25

The principle of distinction in international humanitarian law requires military commanders to distinguish between military objectives and civilians or civilian objects. This principle is reflected in Article 57 of Additional Protocol i to the Geneva Conventions, which requires people who plan or decide upon an attack to “do everything feasible to verify that the objectives to be attacked are 22 23 24 25

Ibid., referring to Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 123. Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 513. icty, Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, para. 28. Ibid., para. 28.

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neither civilians nor civilian objects”.26 The obligation in sub (a) “to do everything practicable” is not absolute. It can be fulfilled if the military commander had an “effective intelligence gathering system” in place “to collect and evaluate information concerning potential targets.”27 Furthermore, he must have directed “his forces to use available technical means to properly identify targets during operations.”28 It is also noted that both the military commander, as well as his subordinates engaged in the operation, have some discretion in how to choose and apply the available resources. The mens rea requirement is not necessarily fulfilled, once it has been determined that inadequate efforts were made to distinguish between military objectives and civilians or civilian objects, because: If precautionary measures have worked adequately in a very high percentage of cases then the fact they have not worked well in a small number of cases does not necessarily mean they are generally inadequate.29 After the investigation into the nato bombings, the committee concluded that approximately 495 civilians were killed and that approximately 820 civilians were wounded during the nato campaign, and that there was no basis to warrant an investigation on charges of genocide or crimes against humanity.30 As to war crimes, the committee concluded that the information reviewed did not justify an investigation into the specific incidents or an in-depth investigation into the bombing campaign as a whole. Reasons thereto were found in the fact that nato had admitted that mistakes had been made, and that errors of judgments may have occurred. The committee furthermore considered that the selection of targets may be subject to debate, that the law was not sufficiently clear, or that investigations were unlikely to result in the acquisition of sufficient evidence against nato officials.31 Yet, the committee ultimately concluded with respect to the killing of innocent civilians:

26

27 28 29 30 31

Article 57(2)(i) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977. icty, Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, para. 29. Ibid. Ibid. Ibid., para. 90. Ibid.

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It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the ‘reasonable military commander’. Although there will be room for argument in close cases, there will be many cases where reasonable military commanders will agree that the injury to non-combatants or the damage to civilians objects was clearly disproportionate to the military advantage gained.32 This view has also been adopted by the Israeli Supreme Court, sitting as the High Court of Justice. In Physicians for Human Rights v. the Commander of the idf Forces in the Gaza strip (the Rafah case) Chief Justice Aharon Barak considered that: We do not review the wisdom of the decision to take military action. We review the legality of military operations. As such, we presume that the operations in Rafah are necessary from a military standpoint. The question before us is only whether these military operations adhere to domestic and international law. The fact that operations are necessary from a military standpoint does not automatically mean that they fulfil legal requirements. Of course, with regard to issues of military concern, we do not stand in the stead of the military commander, and we do not substantiate our discretion for his own. That is his expertise. We examine the legal import of his decisions. That is our expertise.33 The reason of Chief Justice Barak exemplifies the antagonistic role of the Judiciary in this field; on the one hand it is obliged to legally scrutinize a commander’s actions. On the other hand, the bench is not always in the best position to overview a military operation. The nato report provides some guidance as to the requisite level of mens rea for war crimes (at least for military commanders), which seems to go beyond a mere negligence standard. The report also demonstrated that greater weight 32 33

Ibid., para. 50. High Court of Justice 4764/04, at 9, cited from Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 511.

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is to be attached to the military advantage pertaining to the overall military operation (i.e. the bombing campaign) rather than to the specific incidents. In conclusion, the mens rea element for war crimes is to be interpreted within the military commander’s discretionary power. On the basis of the principles of proportionality and distinction, while taking into account the commander’s discretionary power, the following military-operational decisions should be avoided as they can potentially incur command responsibility: – firing blindly, without any prior investigation of the target; – dropping bombs at random; – executing air raids when the visibility is seriously hampered, while the target has not been clearly identified beforehand; – the use of imprecise missiles or bombs in the vicinity of civilians or civilian objects.34 Finally, ascertaining whether a certain use of military force amounts to war crimes, undeniably inheres one’s own moral judgment.35 4.4

The Rome Statute on War Crimes

The Rome Statute embraces in article 8 a catalogue on various types of war crimes. As a preliminary threshold, it provides that: The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. This provision could be somewhat misleading as it refers to “a plan or policy” or “large-scale commission”; yet, contrary to crimes against humanity the elements of, plan, policy and scale do not form a constitutive element of war crimes, as follows from the wordings “in particular”. The gravity threshold of Article 17(1)(d) ICCSt. requires, however, that the icc only investigates cases of sufficient gravity. War crimes that have been committed outside of the context

34 35

Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 528–9. Ibid.

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of a plan or policy or as part of a large scale commission, thus as isolated incidents, are less likely to meet the gravity threshold.36 The interplay between the existence of a “plan or policy” and the gravity of a situation (and the potential cases arising from it), became apparent in the situation of the registered vessels of the Union of the Comoros, Greece and ­Cambodia before the icc. On 31 May 2010, the Israeli Defence Forces (idf) boarded several vessels in a “humanitarian aid flotilla” bound for Gaza strip. The humanitarian aid flotilla, also referred to as the “Freedom Flotilla”, consisted of a group of activists who wanted to challenge Israel’s naval blockade. When the Freedom Flotilla ignored several warnings from the idf not to breach the blockade, the idf boarded six of the – originally eight – vessels. One of the vessels had returned because of mechanical difficulties. Another vessel, the Rachel Corrie sailing under the flag of Cambodia, was delayed in its departure and only arrived at the blockade on 5 June 2010.37 When the idf boarded the Mavi Marmara it was confronted with resistance from the activists on board of the vessel. This resulted in a violent situation and, in the end, the death of ten activists.38 The Union of the Comoros, a State Party to the icc, referred the situation to the icc. On 6 November 2014, the otp decided, after conducting a preliminary examination, not to commence an investigation into the situation.39 The otp found that the potential cases likely to arise from an investigation into the situation would be of insufficient gravity to warrant further action by the icc.40 The otp furthermore considered that the jurisdictional guidelines of Article 8(1) ICCSt., proscribing that the icc shall have jurisdiction over war crimes “in particular when committed as part of a plan or policy”, could not be met with respect to the potential cases arising from an investigation.41 The words “in particular” indicate that the requirement of a “plan or policy” may be interpreted leniently. Yet, by adopting the words “plan or policy” the drafters apparently intended to limit the jurisdictional threshold by imposing a specific gravity threshold.42 The Union of the Comoros could not agree with this decision and submitted 36

37 38 39 40 41 42

Mark Klamberg, Article 8(1), Case Matrix Network, accessed 6 May 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/ commentary-rome-statute-part-2-articles-5-10/#c1886. Office of the Prosecutor of the International Criminal Court, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, para. 11–12. Ibid., para. 12. Ibid. Ibid., para. 150. Ibid., para. 137. Ibid.

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application for review of the otp’s decision to the Pre-Trial Chamber.43 The Union of the Comoros found that the otp had ignored physical evidence of “excessive force” by the idf.44 In its response to the application of the Union of the Comoros, the otp noted: [T]he Prosecution determined that there was a reasonable basis to believe that offences under article 8(2)(a)(i) and (iii) had been committed aboard the Mavi Marmara, physical evidence of “excessive force” shows no inconsistency in its reasoning. Such evidence does not, however, necessarily speak to the alleged systematic or planned nature of the Identified Crimes.45 The volatile atmosphere encountered by the idf soldiers on board of the Mavi Marmara seems to contravenes the assumption that “there was a reasonable basis to consider that the Identified Crimes were committed systematically or according to a plan.”46 In the same vein, the otp found that there was “no reasonable basis to believe that the Identified Crimes were part and parcel of the enforcement of the blockade; rather, they appeared incidental to it.”47 On 16 July 2015, the Pre-Trial Chamber requested the prosecutor the reconsider its decision not to initiate an investigation into the situation of the registered vessels.48 The Pre-Trial Chamber found that: the Prosecutor unreasonably failed to recognise the fact that the unnecessarily cruel treatment of passengers on the Mavi Marmara, the attempts of the perpetrators of the identified crimes to conceal the crimes, and the fact that the events did not unfold on other vessels in the flotilla in the

43

44 45

46 47 48

Situation on registered vessels of the union of the Comoros, the Hellenic Republic of Greece and the Kingdom of Cambodia, Case No.: ICC-01/13-3-Red, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015. Ibid., paras. 115–117. Public Redacted Version of Prosecution Response to the Application for Review of its Determination under article 53(1)(b) of the Rome Statute, Case No.: ICC-01/13-14-Red, 30 March 2015, para. 81 fn. 182. Ibid., para. 87. Ibid., para. 98. Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015.

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same was [sic] as they did on the Mavi Marmara, are not incompatible with the hypothesis that the identified crimes were planned.49 The Prosecutor had considered the question whether the identified crimes were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians” as an indicator of insufficient gravity of the case(s) likely to arise from an investigation.50 The Chamber held that the Prosecutor’s conclusion as to the manner of the commission, in particular with respect to said question, was unsustainable.51 Yet, albeit not being an element of the crime, plan or policy are factors that the Prosecutor may take into consideration when deciding on whether or not to initiate an investigation. It seems that the Chamber confuses the manner of commission with the existence of a plan or policy, while these concepts are not necessarily related to each other.52 Crimes may be committed in a cruel and inhumane manner (e.g. which may occur when confronted with an unexpected situation) while not being part of a plan or policy. Article 8(1) ICCSt. incorporates the “large scale commission” of alleged war crimes as a factor that may be taken into consideration as a jurisdictional prerequisite. Again, the requirement of “large scale commission” is preceded by the words “in particular”, which implies that it is not a strict requirement. By including the words, the drafters nevertheless envisaged to impose an additional gravity threshold with respect to potential war crimes. Thus, even though plan, policy and scale are not constitutive elements of war crimes or jurisdictional prerequisites, alleged war crimes that meet these criteria are more likely to fall within the ambit of the Rome Statute. The factors are to be taken into account by the prosecutor when deciding whether to initiate an investigation into alleged war crimes.53 The war crimes provision of the Rome Statute furthermore requires that the crimes were committed as part of an international or internal armed conflict. In the Mavi Marmara case, the war crimes provision of the Rome Statute was triggered based on the assumption that an armed conflict underlaid the 49 50 51 52

53

Ibid., para. 44. Ibid., para. 45. Ibid. Geert-Jan Alexander Knoops and Tom Zwart, “The Flotilla Case before the icc: The Need to Do Justice While Keeping Heaven Intact”, International Criminal Law Review 15, 6 (2015): 1088–1089. William J. Fenrick, “Article 8. War Crimes,” in Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article, ed. Otto Triffterer (BadenBaden: Nomos Verlagsgesellschaft, 1999), 181.

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incident. It was the Türkel Commission, a commission of inquiry set up by the Israeli government to investigate the Mavi Marmara incident that concluded that the naval blockade was established in the context of an ongoing armed conflict between Israel and Hamas.54 The exact meaning of “part of an armed conflict” and the accused’s requisite level of knowledge that his attacks were committed as part of such a conflict, has been firmly established in the case law of the ad hoc tribunals. The icty and ictr have held that a causal link between the conflict and the crimes was not required, but only that there existed a “nexus with an armed conflict”. As stipulated by the ictr Appeals Chamber in the Setako case: [T]he required nexus need not be a causal link, but […] the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed, or the purpose for which it was committed […]. To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by parties to the conflict.55 In the Lubanga Dyilo case, the icc Trial Chamber examined whether the accused had awareness of “the factual circumstances that established the existence of the armed conflict” and the nexus between the factual circumstances and his own conduct.56 Yet, the Trial Chamber dedicated only two paragraphs on ascertaining how Mr. Lubanga Dyilo possessed such awareness. Firstly, according to the Chamber, the evidence implemented in the judgment established beyond reasonable doubt that Lubanga Dyilo was aware of the factual circumstances that established the existence of an armed conflict during the indictment period.57 Secondly, the Chamber found that Lubanga Dyilo was aware of the “undoubted link between the crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities and the armed conflict or the factual circumstances that established the existence of the armed conflict.”58 Therefore, the “nexus” required a level of 54 55 56 57 58

Jacob Türkel et al., The Public Commission to Examine the Maritime Incident of 31 May 2010, January 2011, para. 238. Setako v. the Prosecutor, Case No. ICTR-04-81-A, Appeals Judgment, 28 September 2011, para. 249; internal footnotes omitted. Lubanga Dyilo, Trial Judgment, para. 1357. Ibid., para. 1349. Ibid., para. 1350.

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mens rea in terms of “awareness”, which seems to encompass dolus in the first and second degree. 4.5

icc Case Law on War Crimes

4.5.1 Conscripting Child Soldiers In March 2012, the icc arrived at its first judgment since it became operative in 2002, and also its first ruling on war crimes. Thomas Lubanga Dyilo was found guilty of conscripting and enlisting children under the age of fifteen into the Force Patriotique pour la Libération du Congo (fplc), a war crime under Article 8(2)(b)(xxvi) ICCSt. Article 8(2)(b)(xxvi) ICCSt. does not include an additional mens rea requirement, which means that Article 30 ICCSt. is applicable. It is thus required that the crimes of conscription and enlistment of child soldiers to participate actively in hostilities, were committed with intent and knowledge. Yet, Element 3 of the Elements of Crimes requires that the “perpetrator knew or should have known that such person or persons were under the age of 15 years.”59 This requirement falls – different from the constructive knowledge requirement of article 30 ICCSt. – within the concept of negligence,60 and is met when it can be demonstrated that the accused: (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).61 Thus, the determination of the age of the victims in relation to the war crime of using, conscripting and enlisting children under the age of 15 years to actively participate in the hostilities, encompasses a different mens rea standard (namely: “should have known”) compared to the general “intent and knowledge” requirement of article 30 ICCSt. This different standard, provided for in the Elements of Crimes, only applies in relation to the age of the victims. The 59 60 61

Elements of Crimes, article 8(2)(b)(xxvi), element 3. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007, para. 358. Ibid.

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general “intent and knowledge” standard of article 30 ICCSt., will apply in determining whether there existed an armed conflict and whether there was a nexus between the armed conflict and the crimes charged.62 Pursuant to the Elements of Crimes, the existence of an armed conflict will be assumed if it can be established that “[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict”.63 On 29 January 2007, the icc Pre-Trial Chamber confirmed the charges against Thomas Lubanga Dyilo, in which it found, inter alia, that there were substantial grounds to believe that: although the agreement or common plan did not specifically target children under the age of fifteen years – it did target young recruits in general – in the normal course of events, its implementation entailed the objective risk that it would involve children under the age of fifteen years.64 It furthermore found that there were substantial grounds to believe that Lubanga Dyilo “was, at the very least, aware that, in the ordinary course of events, the implementation of the common plan would involve: the […] recruitment of children under the age of fifteen years into the fplc.”65 According to the PreTrial Chamber, he accepted the result by “reconciling himself with it or by condoning it.”66 Not only is it required that the accused “should have known” that the age of the victims was under the age of fifteen years, but this should also apply to the co-perpetrators once the prosecutor would rely on the theory of co-perpetration based on joint control over the crime. As noted in the Confirmation Decision in the Lubanga Dyilo case: although, in principle, the war crime of enlisting or conscripting children under the age of fifteen years or using them to participate actively in hostilities requires only a showing that the suspect “should have known” that the victims were under the age of fifteen years, the Chamber considers that this subjective element is not applicable in the instant case. Indeed, the theory of co-perpetration based on joint control over the crime requires that all the co-perpetrators, including the suspect, be mutually 62 63 64 65 66

Ibid., para. 359. Ibid., para. 360; referring to the Elements of Crimes. Ibid., para. 377. Ibid., para. 404 (emphasis added). Ibid.

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aware of, and mutually accept, the likelihood that implementing the common plan would result in the realization of the objective elements of the crime.67 The Pre-Trial Chamber thus required a link between the liability mode with which the accused is charged and the war crime of conscripting and enlisting children under the age of 15 years, and therefore rejected the “should have known” standard as regards to the age of the child soldiers when the accused is charged under the liability mode of co-perpetration. In the Judgment, the Trial Chamber accepted the Pre-Trial Chamber’s approach as endorsed by the confirmation of the charges decision.68 It held, in relation to the mental element, that in order to determine whether the accused made an essential contribution to the common plan resulting in the enlistment and conscription of child soldiers, it must be established that: (i) t he accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence ‘will occur in the ordinary course of events’; and (ii) the accused was aware that he provided an essential contribution to the implementation of the common plan.69 In paragraph 1274 of the Judgment, the Trial Chamber summed up the necessary elements that must be established by the prosecution: – The accused’s intention to participate in implementing the common plan; – The accused’s awareness that the conscription, enlistment or use of child soldiers “will occur in the ordinary course of events” as a result of the implementation of the common plan. – The accused’s awareness of the “existence and factual circumstances” that formed the armed conflict.70 The Chamber must subsequently be satisfied of: – The accused’s knowledge that the children were under the age of 15 years; 67 68 69 70

Ibid., para. 365. Lubanga Dyilo, Trial Judgment, para. 1011. Ibid., para. 1013. Ibid., para. 1274.

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– The accused’s awareness that “he was providing an essential contribution to the implementation of the common plan”.71 The Chamber concluded, on the basis of the evidence, that Lubanga Dyilo was aware that the fplc was recruiting child soldiers, and that he, together with his co-perpetrators condoned, and took steps to implement, this policy. Establishing whether or not there was a policy to verify the age of the recruits was not a condition in this regard.72 On appeal, the Lubanga Dyilo defense alleged that the Trial Chamber had erred in relation to its findings on Lubanga Dyilo’s mental element, inter alia with regard to his conviction for enlistment, conscription and use to participate actively in hostilities of individuals under the age of fifteen.73 The defense contended that Lubanga Dyilo (a) was not (personally) aware that children under the age of fifteen were enlisted, and (b) had the genuine intent to prohibit the enlistment of child soldiers and arrange for their demobilization.74 As noted, Lubanga Dyilo had been convicted for this crime as it was deemed to be a consequence – likely to “occur in the ordinary course of the events” – of the implementation of the common plan. On appeal, he contended that evidence of the requisite mens rea was lacking, as the Trial Chamber “did not rely on any evidence establishing the existence of specific circumstances known to [him] as a result of which, ‘in the ordinary course of events’, the military recruitment operations carried out would necessarily lead to the enlistment of children under the age of 15 years.”75 This argument was rejected by the Appeals Chamber as the Trial Chamber’s findings with regard to Lubanga Dyilo’s knowledge that the common plan would lead to the situation that child soldiers would be enlisted “in the ordinary course of the events”, was based on a combination of findings set out in the Trial Judgment.76 Furthermore, Lubanga Dyilo failed to substantiate his argument as to why the Trial Chamber’s findings were erroneous.77 Thus, the accused’s awareness that implementing the common plan will lead “in the ordinary course of the events” to the enlistment of child soldiers was deemed 71 72 73 74 75 76 77

Ibid. Ibid., para. 1278. Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-3121-Red, Appeals Judgment, 1 December 2014, para. 500–502. Ibid., para. 502. Ibid., para. 506. Ibid., paras. 1277 and 1278. Ibid., para. 507.

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decisive, while the determination that the accused “personally encouraged” the enlistment of child soldiers would not be relevant thereto.78 4.5.2 Willful Killing In the Katanga and Ngudjolo Chui case, the accused were charged with the war crime of willful killing under article 8(2)(a)(i) ICCSt. This provision includes a stricter mens rea standard, namely that of dolus directus of the first degree, which already follows from the word “willful” in the definition of the crime. The elements of this crime are fulfilled once it can be established that: – There was a nexus with an international armed conflict; – The perpetrator was aware of the factual circumstances establishing the existence of such an international armed conflict; – The perpetrator killed one or more persons; – The killed person(s) had a protected status under one or more of the Geneva Conventions; and – The “perpetrator was aware of the factual circumstances that established the protected status”.79 In the Confirmation of the Charges Decision in the Katanga and Ngudjolo Chui case, the icc Pre-Trial Chamber adopted the conclusion of the icty that “the conduct of the accused must be a substantial cause of the death of the victim”.80 In addition to the subjective elements encapsulated in article 30 ICCSt., the perpetrator must have had awareness of the factual circumstances establishing the existence of an armed conflict, as well as the factual circumstances establishing the protected status of the killed person(s). It is “not necessary for the perpetrator to have evaluated and concluded that the victim was in fact a protected person under any of the Geneva Conventions.”81 An example of the complexity to ascertain that a killing was “willful” is the mentioned Mavi Marmara case. The strict mens rea requirement for willful killing under article 8(2)(a)(i) ICCSt. indirectly have been a reason for the otp not to initiate an investigation into the Mavi Marmara case, as discussed in paragraph 4.4. of this chapter. Before the idf boarded the Mavi Marmara it tried to prevent the vessel from breaching the naval blockade by giving several 78 79 80 81

Ibid., para. 508. Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07-717, Decision on the confirmation of charges, 30 September 2008, para. 286. Ibid., para. 296. Ibid., para. 297.

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warnings. A vessel that is attempting to breach a blockade may be seized under the law applicable to armed conflicts at sea, even if it is non-resistant and ­non-violent.82 Judge Kovács noted in his dissenting opinion to the decision of the Pre-Trial Chamber of 16 July 2015: It is clear that not only was it the Mavi Marmara’s intention to breach the blockade, but this was its main purpose, as an act of protest. With this in mind, Israeli forces had a right to capture the vessel in protection of their blockade. Furthermore, irrespective of this right, it was a logical reaction. Faced with a potential breach of the blockade, the idf acted out of necessity.83 The fact that no or limited violence ensued on the other vessels boarded by the idf indicates that the idf was – most likely – not instructed to use violence, except for self-defense. The idf was confronted with resistance when it boarded the Mavi Marmara, while it did not face such resistance at the other vessels. The Türkel Commission concluded that the idf soldiers had to make “difficult, split-second decisions regarding the use of force, under conditions of uncertainty, surprise, pressure, and in darkness, with the perception of a real danger to their lives and with only partial information available to them.”84 At its face, the idf’s aim was to prevent the vessel from breaching the blockade and not to attack civilians on board of the vessel.85 Judge Kovács noted in his dissenting opinion: [T]he use of force by the idf, in the chaos of its execution, potentially crossed the line of proportionality. Although the un commissions in 82

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Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Partly Dissenting Opinion of Judge Peter Kovács, 16 July 2015, para. 30, referring to the San Remo Manual and the Rome Statute. Ibid., para. 32. Ibid., para. 37; Jacob Türkel et al., The Public Commission to Examine the Maritime Incident of 31 May 2010, January 2011, para. 238; Geoffrey Palmer, Alvaro Uribe, Joseph C. Itzhar and Süleyman Ö. Sanberk, Report of the Secretary-General’s Panel of Inquiry on 31 May 2010 Flotilla Incident (United Nations, September 2011), paras. 104–109; see also Situation on Registered Vessels of the Union of the Comoros, Partly Dissenting Opinion of Judge Peter Kovács, para. 35 fn. 33; these investigations also raise the question whether the icc would have jurisdiction in view of its complementarity. Situation on Registered Vessels of the Union of the Comoros,, Partly Dissenting Opinion of Judge Peter Kovács, para. 37; Although the otp did not take a clear stance on the legality of the naval blockade, the Palmer-Uribe report concluded in paragraph 81 that Israel’s naval blockade was legal.

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their ex post facto evaluations argued that the idf use of force was disproportionate, the relevant legal test under article 8(2)(b)(iv) of the Statute is not what one could have predicted in hindsight. The issue at stake is whether idf forces could have reasonably foreseen that their actions would result in disproportionate harm, at the time the operation was launched, and in those particular circumstances.86 The element “of what one could have predicted beforehand” being a decisive criterion was also stressed by the Pre-Trial Chamber in the Ntaganda case, when it dictated a definition of an attack: [T]he definition of “attack” does not exhaustively list which underlying acts of violence can be considered […] In characterizing a certain conduct as an “attack”, what matters are the consequences of the act, and particularly whether injury, death, damage, or destruction are intended or foreseeable consequences thereof. Accordingly, the Chamber considers that, in principle, any conduct […] may constitute an act of violence for the purpose of the war crime of attacking civilians, provided that the perpetrator resorts to this conduct as a method of warfare and, thus, that there exists a sufficiently close link to the conduct of hostilities.87 Thus, even when one would accept that an attack is deemed to be disproportionate in its outcome, the prosecution still has to prove that the actions in question were reasonably foreseeable. In the Mavi Marmara case this burden might not be met once one would accept that the idf soldiers acted out of necessity when confronted with an unexpected situation. 4.5.3 Attacking Civilians Mens rea under article 8 may raise several levels of intent and knowledge. The war crime of “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in the hostilities” under article 8(2)(b)(i) ICCSt., encompasses an additional mens rea requirement. In addition to the elements of intent and knowledge under Article 30 ICCSt., “the perpetrator must intend to make individual civilians not taking direct part in the hostilities or the civilian population object of the attack.”88 The offence 86 87

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Ibid., para. 38 (emphasis added). Prosecutor v. Ntaganda, Case No.: ICC-01/04-02/06-309, Decision Pursuant to Article 61(7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014, para. 46. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, para. 271.

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thus encompasses dolus directus of the first degree.89 When the civilian population is the sole target of the attack, it can easily be established that the perpetrator had the requisite mens rea for this offence. Other situations may also lead to the completion of the offence, namely if the attack was launched with two distinct specific aims: (i)

to target a military objective within the meaning of articles 51 and 52 ap i; and simultaneously, (ii) to target the civilian population or individual civilians not taking direct part in the hostilities who reside in the vicinity.90 A village with significant military value because of its strategic location cannot be the object of an attack when, for example, it contains the following distinct targets: (i)

t he defending forces of the adverse or hostile party in control of the village (that is, when only the defeat of these forces would permit the attacking party to seize control of the village); and (ii) the civilian population of the village, if its allegiance is with the adverse or hostile party in control of the village thus leading the attacking forces to consider the “destruction” of that civilian population as the best method for securing control of the village that has been seized.91 The above must be distinguished from situations where a military target is the sole purpose of the attack, despite that this might result in civilian casualties.92 When attacking a military target, the attacking forces still have to abide by the principle of proportionality, which means that, for an attack to be legitimate, the number of civilian casualties may not outweigh the anticipated military advantage. In order to establish an accused’s mens rea for the war crime of intentionally directing an attack against the civilian population, it must thus be established whether the civilian population was the purpose of the attack, whether it be the sole purpose or an indirect purpose next to a military objective. In the Katanga and Ngudjolo Chui Confirmation of the Charges Decision, the Pre-Trial Chamber found that there were substantial grounds to believe that 89 90 91 92

Ibid. Ibid., para. 273. Ibid. Ibid., para. 274.

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the attack on the village of Bogoro constituted a war crime under article 8(2) (b)(i) ICCSt., because the evidence demonstrated that “the attack was not planned, executed, and directed solely against this [a upc military camp in the center of Bogoro] military target but directed principally against the entire civilian population of the village.”93 That the attack was aimed at the destruction of the village and killing of the Hema population, was derived inter alia from the fact that there was no military camp in the village in 2001 at the time the first attack was launched.94 Furthermore, the evidence showed that, prior to the attack, the frpi and fni militias sang songs in which they called for the destruction of the Hema population.95 The roadblocks at the entrance and exits of the village, also indicated that civilians were the primary target of the attack, as civilians attempting to flee were killed at these roadblocks.96 In the Lubanga case, the Pre-Trial Chamber held that an accused’s mens rea can be assumed if the accused “is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and […] accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).”97 On 9 June 2014, Pre-Trial Chamber ii unanimously confirmed the charges against Bosco Ntaganda in the situation of the Democratic Republic of the Congo (drc), which included the confirmation of 13 counts of war crimes. The case revolved around Ntaganda’s alleged involvement in two attacks. The first attack concerned the attacking of a number of villages in Banyali-Kilo collectivité between or about 20 November 2002 and 6 December 2002 by the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (upc/fplc).98 The second attack concerned the attack on a number of villages in Walendu-Djatsi collectivité between or about 12 and 27 February 2003 by the upc/fplc. The upc/fplc faced armed resistance from the Front des Nationalistes Intégrationnistes (fni), the Force de Résistance Patriotique en Ituri (frpi) and the Armée du Peuple Congolais (apc). Ntaganda was alleged to be in charge of the operations as the Deputy Chief of Staff of the fplc, the upc’s military wing.99 The Pre-Trial Chamber considered that Ntaganda had dolus directus in the first degree with respect to the first attack. The Chamber inferred his mental state from evidence indicating that he issued instructions 93 94 95 96 97 98 99

Ibid., para. 277. Ibid., para. 279. Ibid., para. 280. Ibid., para. 281. Lubanga Dyilo, Decision on the Confirmation of Charges, para. 352. Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 29. Ibid., para. 15.

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for acts of murder, displacement, and rape, that he ordered his subordinates to eliminate the Lendu population, that he stated that the upc/fplc could appropriate any goods encountered, and, in regard with the Mongbwalu church, that he said this church could be destroyed.100 It was assumed that Ntaganda had dolus directus in the second degree with respect to the crime of destroying an adversary’s property in the first attack. The Pre-Trial Chamber assumed that Ntaganda had dolus directus in the second degree in relation to most counts included in the second attack. As can be inferred from the Chamber’s considerations, dolus directus in the second degree requires the accused’s awareness that the commission of the crimes “would be the almost inevitable outcome of the implementation of the common plan”.101 This can be inferred, for example, from the instructions or orders given by the accused, the use of heavy weapons by forces under the accused’s command, the accused’s participation in the planning and controlling of operations.102 4.6

War Crimes at the Ad Hoc Tribunals

The icc has yet only been confronted with a limited number of war crimes cases. For this reason, the case law of the icty, ictr, and scsl can be instructive to the icc. Also, the icc’s jurisprudence to date covers three final judgments on war crimes, namely in the case of Lubanga Dyilo and Katanga, as well as Ngudjolo Chui, who has been acquitted on all charges. A crime that has not yet been adjudicated by the icc is the crime of terror, which was considered a war crime under article 3 of the icty Statute. The Rome Statute, as the icty Statute, has not adopted a specific provision on the crime of terror, and it is likely that this crime will fall within the scope of article 8(2)(b)(i) that criminalizes “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”.103 In the Dragomir Milošević case, the icty Appeals Chamber held that the mens rea for the crime of terror, a war crime under Article 3 ICTYSt., consists of:

100 101 102 103

Ibid., para. 128. Ibid., para. 128–9. Ibid. See also Noëlle Quénivet, Commentary to Article 8, Case Matrix Network, accessed 6 May 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/ commentary-rome-statute/commentary-rome-statute-part-2-articles-5-10/#c1886.

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the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.104 Spreading terror among the civilian population must be the primary goal of the acts or threats of violence, yet it need not be the only goal.105 The Appeals Chamber cited the Galić Appeals Judgment, in which it was held that the specific intent to spread terror may be inferred from the “nature, manner, timing and duration” of the acts or threats.106 The actus reus of the offence, may be a contributing factor to determine the accused’s mens rea: both the actual infliction of terror and the indiscriminate nature of the attack were reasonable factors for the Trial Chamber to consider in determining the specific intent of the accused in this case.107 The icty outlined the contours for a more strict mens rea standard for certain war crimes. Stanislav Galić, who held the rank of Major General in the Bosnian Serb Army (vrs) and had command over the Sarajevo Romanija Corps (srk) from 1992–1994, was charged in relation to the military siege of Sarajevo in 1992.108 He stood trial for inter alia the war crime of spreading terror among the civilian population, which definition is adopted in Additional Protocol i to the Geneva Conventions.109 For this crime to be completed, it is not necessary to prove that the acts or threats actually spread fear among the civilian population.110 The rationale behind this rule lies in “the unconditional obligation not to target civilians for any reason, even military necessity.”111 The traveaux préparatoires to Additional Protocol i addresses the definition of the crime of terror and rejected the option to replace the original wording (“intent to spread 104 Prosecutor v. Dragomir Milošević, Case No. IT-98-29-1-A, Appeals Judgment, 12 November 2009, para. 37 (emphasis added). 105 Ibid. 106 Ibid., para. 102. 107 Ibid., para. 37. 108 Prosecutor v. Galić, Case No. IT-98-29-T, Trial Judgment, 5 December 2003. 109 Article 51(2) of Additional Protocol i to the Geneva Conventions of 1949 reads: “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.” 110 Galić, Appeals Judgment, 30 November 2006, para. 103. 111 Ibid.

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terror”) by “actual infliction of terror” among the civilian population.112 Furthermore, in the report of the second session of the traveaux préparatoires, it is stated that: The prohibition of ‘acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.113 Thus, the requisite mens rea for the crime of terror is the specific intent to spread terror among the civilian population; actual terrorization is not an element of the crime.114 As said, spreading terror must be the primary purpose of the acts or threats of violence and should go beyond a mere side-effect of war. “[T]error which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful”115 is not to be seen as spreading terror. As noted, the crime of terror may be subsumed under the broad description article 8(2)(b)(i) of the Statute, which criminalizes intentionally directed attacks against the civilian population. In its jurisprudence, the icty has defined the mens rea for attacks on civilians, holding that: [T]he perpetrator of the crime of attack on civilians must undertake the attack “willfully” and [this] incorporates “wrongful intent, or recklessness, [but] not ‘mere negligence’”. In other words, the mens rea requirement is met if it has been shown that the acts of violence which constitute this crime were willfully directed against civilians, that is, either deliberately against them or through recklessness. […] this definition encompasses both the notions of “direct intent” and “indirect intent” […] as the mens rea element of an attack against civilians.116 The icty also referred to the mens rea recognized by Additional Protocol i, which will be of relevance to the icc too, as article 8(2)(b) includes the 112 113 114 115 116

Ibid. Ibid. (emphasis added). Ibid., para. 104. Ibid., para. 105; Galić, Trial Judgment, para. 101. Prosecutor v. Strugar, Case No. IT-01-42-A, Appeals Judgment, 17 July 2009, para. 270 (internal footnotes omitted).

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sentence “within the established framework of international law”, which likely covers the requirements set forth in this protocol. The Trial Chamber’s consideration in the Galić case, which was adopted by the Appeals Chamber in the Strugar case, is instructive in this regard: 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.117 Thus, if the icc were to apply this reasonable person test, it would seem to encompass a negligence standard. What the accused really thought seems not decisive, as long as a reasonable person would have judged the situation differently under the same circumstances.118 In determining whether civilians were targeted, factors such as, the means and methods used to carry out the attack, the distance between the victims and source of fire, time and location of the incident, the presence of military activities or facilities near the incident, the status of victims and their appearance, and the nature of the crimes committed in the course of the attack, may be taken into consideration.119 Another war crime that encompasses a clear mens rea standard that has been adjudicated by the icty is the crime of torture, which has been defined as: (i)

The infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) The act or omission must be intentional. (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.120 117 Ibid., para. 271. 118 See also Chapter 2, e.g. Johan Van der Vyver, “The International Criminal Court and the Concept of Mens Rea in International Criminal Law,” University of Miami International & Comparative Law Review 12 (2004): 63; William A. Schabas, “Mens Rea and The International Criminal Tribunal for the Former Yugoslavia,” New England Law Review 37, 4 (2003): 1033. 119 Strugar, Appeals Judgment, para. 271. 120 Prosecutor v. Kunarac, Kovač and Vukovič, Case No.: IT-96-23-T & IT-96-23/1-T, Judgment, 22 February 2001, para. 497, (emphasis added); referring to several judgements from both the ictr and icty.

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The same counts for the crime of the “willful” destruction of property, which embraces a more strict mens rea requirement. In the Strugar case, the icty Appeals Chamber considered that: The crime of destruction or willful damage of cultural property […] is lex specialis with respect to the offence of unlawful attacks on civilian objects. The mens rea requirement of this crime is therefore also met if the acts of destruction or damage were willfully (i.e. either deliberately or through recklessness) directed against “such cultural property”.121 It is to be expected that the icc will adopt a similar mens rea standard thereto. 4.7 Conclusion Before an individual accused can be held criminally responsible for having committed certain war crimes, it must first be determined that a violation of the laws of international or internal armed conflict took place. Importantly, war crimes require the existence of an armed conflict. Once it cannot be established that such a conflict existed, a person cannot be held accountable for one of the war crimes listed in the Rome Statute. The attacking party has a wide margin of appreciation when deciding upon a target, as long as the principles of proportionality, necessity, distinction are respected and precautionary measures taken. Furthermore, when holding an accused criminally responsible for war crimes, his mens rea with respect to the illegality of the attack must be established. Determining military commander’s mens rea will involve an examination on the fulfilment of his duties at the time of his decision to launch the attack, bearing in mind the commander’s discretion and applying the standards of a “reasonable military commander”. The war crimes provision in the Rome Statute requires a nexus with an international armed conflict and the perpetrator’s awareness of the factual circumstances establishing the existence of such an international armed conflict. Certain war crimes, such as “willful killing” or “intentionally launching an attack” require a heightened level of mens rea on part of the accused. Since the case law of the icc is still rudimentary, the icty case law may be instructive in assessing the accused’s mens rea for the various aspects involved in a war crimes case. 121 Strugar, Appeals Judgment, para. 277.

chapter 5

Mens Rea and Genocide 5.1 Introduction The first definition of genocide was introduced in 1944 by Raphael Lemkin, a Jewish-Polish scholar in the field of international criminal law, who had fled Poland in 1939. The term was derived from the Greek word “genos”, meaning race, nation or tribe, and the Latin word “caedere”, meaning to kill.1 On 11 December 1946, just after the termination of the Second World War, the un General Assembly adopted Resolution 96 (i) in which it declared that genocide is a crime under international law, which goes against the spirit and aims of the United Nations and is condemned by the civilized world.2 It resulted in the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and entered into force on 12 January 1951. The Convention, which is now part of customary international law, provides a definition of genocide in article 2: [G]enocide 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 births within the group; (e) Forcibly transferring children of the group to another group.3 The Rome Statute has adopted this definition in article 6. As follows from this definition, it incorporates an additional mens rea requirement, namely the “intent to destroy in whole or in part”, which is higher than the general “intent and knowledge” requirement of article 30 ICCSt. The intent is thus geared toward 1 See for the history of the legal prohibition on genocide: William A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), 25. 2 See Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948. 3 Ibid., Article 2.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004307889_006

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the destruction “of a national, ethnical, racial or religious group”. It does not require, as noted by the ilc in its comment to the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, the intent “to achieve the complete annihilation of a group from every corner of the globe.”4 Yet, intent is distinct from mere knowledge, in the sense that knowledge requires that a particular consequence “will occur in the ordinary course of events”. This standard will not suffice for cases of genocide. An actor will not incur criminal responsibility for genocide if he “only” had knowledge that his or her acts would destroy a protected group; this destruction must have been the ultimate goal of the act.5 5.2

Acts of Genocide

Article 6(a)-(e) ICCSt., as well as article 2(a)-(e) of the Genocide Convention, enumerate the different acts that may constitute genocide.6 Although the acts are different, there are three common elements to all acts that must be fulfilled: (i) The persons against whom the act was perpetrated belonged to a particular national, ethnical, racial or religious group; (ii) The perpetrator’s intent to destroy, in whole or in part, that national, ethnical, racial or religious group as such; (iii) The 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.7 The introduction to article 6 in the Elements of Crimes furthermore provides with respect to the latter element (sub iii) that “in the context of” is meant to include “initial acts in an emerging pattern” and that the “term ‘manifest’ is an

4 Draft Code of Crimes Against the Peace and Security of Mankind (International Law Commission), Report of the International Law Commission on the Work of Its 48th session, u.n. Doc. A/51/10 (1996), see also Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992), u.n. Doc. S/1994/674 (1994). 5 Paul Mysliwiec, “Accomplice to Genocide Liability: The Case for a Purpose Mens Rea Standard,” Chicago Journal of International Law 10,1 (2009): 394. 6 The acts are: (a) genocide by killing; (b) genocide by causing serious bodily or mental harm; (c) genocide by deliberately inflicting conditions of life calculated to bring about physical destruction; (d) genocide by imposing measures intended to prevent births; (e) genocide by forcibly transferring children. 7 See Elements of Crimes of Article 6 ICCSt.

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objective qualification”.8 The introduction to article 6, furthermore specifically goes into the accused’s mens rea: Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.9 Genocide can be characterized as a crime with a “double mental element”. Firstly, the accused must have had the “intent to destroy” a group, which inheres a special or specific intent (dolus specialis) requirement that sees at the ulterior aim of the act.10 Secondly, the accused must have had general intent in relation to the underlying acts under article 30 ICCSt., unless otherwise provided. A specific intent crime, such as genocide, necessitates “performance of the actus reus but in association with an intent or purpose that goes beyond the mere performance of the act.”11 The dolus specialis of genocide (i.e. the intent to destroy a protected group in whole or in part) distinguishes it from other related crimes such as crimes against humanity. The International Court of Justice (icj) has considered in this regard: Since it is the group, in whole or in part, which is the object of the genocidal intent, the Court is of the view that it is difficult to establish such intent on the basis of isolated acts. It considers that, in the absence of direct proof, there must be evidence of acts on a scale that establishes an intent not only to target certain individuals because of their membership of a particular group, but also to destroy the group itself in whole or in part.12 The Elements of Crimes enumerate, if applicable, the additional mental elements required by the act. The first act of genocide under article 6(a) is genocide by killing, which does not encompass an additional mental element. It 8 9 10

Elements of Crimes, Introduction to Article 6 ICCSt., sub a and b. Ibid., sub c. Kai Ambos, “What does intent to destroy mean?” International Review of the Red Cross 91 (2009): 833–858. 11 Schabas, Genocide in International Law, 214. 12 Croatia v. Serbia, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, icj, 3 February 2015, para. 139.

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requires, next to the three requirements listed in (i)-(iii) above, that the perpetrator killed or caused death of one or more persons.13 The second act, genocide by causing serious bodily or mental harm, must also be directed against one or more persons, and may include acts of torture, rape, sexual violence or inhuman and degrading treatment.14 For this crime to be completed, it is required that “[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”.15 Under article 6(c) ICCSt. genocide by deliberately inflicting conditions of life calculated to bring about the physical destruction can be found. It requires the conditions of life to have been “calculated to bring about the physical destruction of that group, in whole or in part”.16 In the footnote to Element 4 of article 6(c) the meaning of “conditions of life” is clarified by some examples, such as the deliberate deprivation of food or medical services (i.e. resources indispensable for survival), or systematic expulsion from homes.17 Genocide can also be committed by imposing measures intended to prevent birth, which measures must be intended to prevent births within a national, ethnical, racial or religious group.18 Lastly, genocide by forcibly transferring children, under article 6(e), requires that the transfer took place from one group to another group.19 It furthermore requires that the person(s) transferred were under the age of 18 years and that this was known by the perpetrator, or at least that he should have known.20 What counts to hold an accused criminally responsible for genocide is that he possessed the “intent to destroy a group in whole or in part”. The latter act of genocide (i.e. the forcible transfer of children) can entail the intent to destroy the group “since it can have consequences for the group’s capacity to renew itself, and hence to ensure its longterm survival”.21 The same can be said, of course, of other acts of genocide such as the prevention of births. To date, only one case pertaining to a genocide charge is pending before the icc, namely the case against the Sudanese President Omar al Bashir, who 13 14 15 16 17 18 19 20 21

Elements of Crimes, Article 6(a), Element 1. Elements of Crimes, Article 6(b), Element 1. Ibid., Element 4. Elements of Crimes, Article 6(c), Element 4. Ibid., Element 4, footnote 4. Elements of Crimes, Article 6(d), Element 4. Elements of Crimes, Article 6(e), Element 4. Ibid., Element 5–6. Croatia v. Serbia, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, i.c.j., 3 February 2015, para. 136.

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faces charges of genocide by murder, by causing serious bodily or mental arm, and by inflicting conditions of life (article 6(a), 6(b) and 6(c) respectively). Before discussing the case of Omar al Bashir in paragraph 5.4, the view of the icj with respect to the mens rea for genocide, will be examined. Even though the icj settles disputes between countries, it has issued pertinent judgments and opinions on the requisite level of mens rea for genocide, which may bear relevance for the icc’s future work. 5.3

Genocide at the International Court of Justice

The principal judicial body of the United Nations, the icj, is aimed at settling legal disputes between States. It may also give advisory opinions on legal issues upon request of official un organs or specialized agencies.22 The icj has delivered several judgments and opinions on genocide cases submitted to it since its inception in 1946. In 2015, the icj delivered a landmark judgment on a claim of genocide against Serbia submitted by Croatia.23 The icj Judgment of 3 February 2015 followed from a claim filed by Croatia against Serbia on 2 July 1999, contending that Serbia had committed genocide on its territory between 1991 and 1995. Serbia filed a counter-claim, arguing that Croatia was responsible for genocide committed in 1995 in the “Republika Srpska Krajina”. The judgment is relevant, in that it, for both claims, found that the actus reus of genocide had been fulfilled. Yet, the icj did not arrive at the conclusion that the Genocide Convention had been violated absent to proof of the mens rea element. Thus, the material acts were perpetrated, but the intentional element was lacking. Evidence of dolus specialis was lacking in the Croatia v. Serbia case. The parties agreed that evidence of intent is seldom explicitly to be found, but may be inferred from indirect evidence, such as certain types of conduct.24 In a 2007-judgment, the icj has considered that, in absence of a State plan in which the intent to commit genocide is expressly endorsed, the indirect evidence must be such that the existence of special intent is the only possible inference. In the words of the icj:

22 23 24

See, “The Court,” International Court of Justice, accessed 8 May 2015. http://www.icj-cij.org/ court/index.php?p1=1. Croatia v. Serbia, Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Ibid., para. 143.

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[t]he dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point at the existence of such intent.25 In its 2015 Judgment, the icj considered that the criterion of the “only possible inference” on the basis of the evidence could be interpreted as the equivalent of the “only reasonable inference”.26 It is to be noted that the fact that genocide must have been the only possible or reasonable inference on the basis of the evidence is also part and parcel of the evidentiary findings of the ad hoc tribunals.27 5.4

Genocide at the Ad Hoc Tribunals

The crime of genocide was first adjudicated by the ad hoc tribunals in the 1990s. Even though there is general acceptance that the holocaust constituted genocide, it was not until 1948 – after the conclusion of the Nuremberg and Tokyo trials – that an official definition of genocide was adopted. Shortly after the conclusion of the Nuremberg and Tokyo trials, the un General Assembly adopted Resolution 96(I) of 11 December 1946 condemning genocide, which led to a definition in the 1948 Genocide Convention. The definition of genocide includes an increased mens rea standard, namely the “intent to destroy”. The ad hoc tribunals, particularly the ictr, have created an abundance of case law pertaining to intent to destroy, while setting forth parameters on how to infer such intent on part of the accused. Other particular features of the crime of genocide relate to the heightened mens rea standard in the definition of genocide, whereas particular liability modes may dictate a lower mens rea standard. 25

Bosnia and Herzegovina v. Serbia and Montenegro, Case concerning application of the convention on the prevention and punishment of the crime of genocide, Reports of judgments, advisory opinions and orders, Judgment, 26 February 2007, i.c.j. Reports 2007 (i), pp. 196–7, para. 373. 26 Croatia v. Serbia, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, para. 148. 27 The icj, in its judgment, has also referred to case law of the ad hoc tribunals (thus, it can be said that the ad hoc tribunals have influenced the icj in its position).

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5.4.1 Intent to Destroy An accused’s intent to destroy – or special intent to commit genocide – is sometimes difficult to prove, although it need not be clearly expressed.28 It is not necessary that the intent to destroy was formed prior to the commission of the genocide. It must be established, however, that the perpetrators had this intent at the time of the commission of the crime.29 In the Karadžić and Mladić case, the icty Trial Chamber listed several factors that can be used to demonstrate special intent on part of the accused, such as: the general political doctrine which gave rise to the acts […] or the repetition of destructive and discriminatory acts […] the preparation of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group – acts which are not covered by the list in […] [the definition of genocide] but which are committed as part of the same pattern of conduct.30 Other indicators that may reveal an increased level of intent akin to “special intent” pertain to methods used for implementing the project of “ethnic cleansing”, such as “the massive scale of the effect of the destruction”,31 the number of victims selected only because they belonged to a particular group, or the means used to effectuate the destruction of a group.32 Examples of means that may support a finding of special intent are cases of systematic rape, sometimes intended to transmit a new identity to the child; destruction of churches, mosques or other symbols that symbolize the centuries-long presence of a group; or spreading fear and terror to dismember the group.33 The intent to destroy must be aimed at a national, ethnical, racial or religious group “in whole or in part”. “In part” requires the targeting of a “substantial” part of a protected group.34 In line with the rationale behind the 28

29 30 31 32 33 34

Prosecutor v. Karadžić and Mladić, Case Nos.: IT-95-5-R61 and IT-95-18-R6I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 94. Simba v. the Prosecutor, Case No.: ICTR-01-76-A, Appeals Judgment, 27 November 2007, para. 26. Karadžić and Mladić, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, para. 94. Ibid. Ibid. Ibid. Prosecutor v. Karadžić, Case No.: IT-95-5/18-T, Judgment, 24 March 2016, para. 555, referring to, Prosecutor v. Krstić, Case No.: IT-98-33-A, Appeals Judgment, 19 April 2004, para. 8 and 12.

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Genocide Convention, which is aimed at preventing the annihilation of entire groups, the part must be “significant enough to have an impact on the group as a whole.”35 What exactly constitutes a “substantial part” can be determined – in absolute terms – on the basis of the numeric size of the targeted part of the group, but also in relative terms by determining the size of the targeted group in relation to the entire group.36 The prominence of the targeted group within the group as a whole may be a relevant consideration in determining whether the “substantial part” requirement has been met. This is particularly important if the targeted group was essential to the survival of the group as a whole or was emblematic of the overall group.37 It is furthermore relevant to bear in mind that the perpetrator will always be limited by the opportunities presented to him.38 If the accused intended to exterminate an entire group, but failed to achieve this goal, he may still have possessed the requisite intent for genocide. As noted by the icty Appeals Chamber in relation to the genocide at Srebrenica: [T]he offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part. Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent. The international attention focused on Srebrenica, combined with the presence of un troops in the area, prevented those members of the vrs Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way. Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.39 In this case, the icty Trial Chamber had held that some members of the vrs main staff had the requisite intent to destroy the Bosnian Muslims in Srebrenica, which it inferred from evidence that women, children and elderly people were forcibly transferred from the Srebrenica-enclave to other areas of Muslim-controlled Bosnia. Even though the transfer in and of itself did not constitute genocide, it was used as evidence of the vrs Main Staff’s genocidal 35 36 37 38 39

Krstić, Appeals Judgment, para. 8. Ibid., para. 12. Ibid. Ibid., para. 13. Ibid., para. 32.

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intent.40 The fact that intent had not been attributed to one single staff member did not subvert the conclusion that the Bosnian-Serb forces committed genocide against the Bosnian-Muslims. As noted by the Appeals Chamber in the Krstić case: [T]he scale of the killing, combined with the vrs Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.41 Thus, genocide requires proof of the accused’s special intent vis-à-vis the destruction of a group. The accused’s special intent need not be explicitly expressed, but may be inferred from, for example, the general political doctrine, the massiveness of the destruction, the means used to carry out the destruction, the repetition of the acts. Also, intent need not be attributed to one single staff member (i.e. in the case of the vrs), but the scale of the killing coupled with “awareness of the detrimental consequences” will suffice. Furthermore, the accused must have intended to destroy a group “in whole or in part”, which is met if a “substantial” part of a protected group has been targeted. This may be inferred from the absolute and relative size of the group, but also from the prominence of the targeted group within the group as a whole. The different liability modes sometimes include additional mens rea criteria, which will be discussed in the following section. 5.4.2 Different Mens Rea Standards under Different Liability Modes Different liability modes require various levels of mens rea on part of the accused. This may become complicated in genocide cases, because of special intent requirement in the definition of genocide itself. The mens rea for aiding and abetting, for example, requires the accused’s “knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal perpetrator.”42 The perpetrator must have had awareness of the essential elements of the principle’s crimes. As held by the icty Appeals Chamber in the Lukić and Lukić case:

40 41 42

Ibid. Ibid., para. 35. Ntawukulilyayo v. the Prosecutor, Case No.: ICTR-05-82-A, Appeals Judgment, 14 December 2011, para. 222.

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It is well-established that the mens rea of aiding and abetting requires that an aider and abettor know that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the “essential elements” of the crime.43 It is thus not required that the accused (the “aider” or “abettor”) intended to destroy a group himself, but he must have had knowledge of the principal perpetrator’s intention, which encompasses a lower mens rea standard. Likewise, an accused may be held criminally responsible as a superior if he “knew or had reason to know that the subordinate was about to commit such act or had done so”.44 Different Appeals Chambers have adopted the “lower” mens rea standard in cases of accomplice liability or superior responsibility for genocide. In the Ntawukulilyayo case, the ictr Appeals Chamber considered that: Specific intent crimes such as genocide do not require that the aider and abettor share the mens rea of the principal perpetrator, it suffices to prove that he knew of the principal perpetrator’s specific intent.45 Similarly, with regard to superior responsibility, the ictr Appeals Chamber has held that “it is not necessary for the accused to have had the same intent as the perpetrator of the criminal act”.46 The mens rea for superior responsibility for genocide does require, however, that “the superiors knew or had reason to now that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent.”47 Conspiracy to commit genocide requires the same level of mens rea as “genocide”; both require the “intent to destroy” on part of the accused.48 If the Prosecutor wants to press charges for conspiracy to commit genocide, he must plead, in the indictment, the existence of the following two elements:

43

44 45 46 47 48

Prosecutor v. Lukić and Lukić, Case No.: IT-98-32/1-A, Appeals Judgment, 4 December 2012, para. 428, referring to, inter alia, Prosecutor v. Blagojević and Jokić, Case No.: IT-02-60-A, Appeals Judgment, 9 May 2007, para. 221; Prosecutor v. Aleksovski, Case No.: IT-95-14/1-A, Appeals Judgment, 24 March 2000, para. 162. Nahimana, Barayagwiza and Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Appeals Judgment, 28 November 2007, para. 865; see also article 6(3) ictr Statute. Ntawukulilyayo, Appeals Judgment, para. 222. Nahimana et al., Appeals Judgment, para. 865. Blagojevic and Jokić, Trial Judgment, 17 January 2005, para. 686. Prosecutor v. Popović et al., Case No.: IT-05-88-A, Appeals Judgment, 30 January 2015, para. 529.

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(i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.49 The first prong constitutes the actus reus of genocide, and requires a “concerted agreement to commit genocide”.50 A concerted agreement can be inferred from the conduct of the other conspirators and the evidence thereto may be circumstantial.51 Examples of such evidence are inferences from conduct of the conspirators or evidence of meetings to plan genocide.52 It is important to note that, if the prosecutor intends to rely on such circumstantial evidence to prove a particular fact upon which the accused’s guilt depends, the existence of a conspiracy must be “the only reasonable inference based on the totality of evidence”.53 Again, the question may arise whether each individual participating in the conspiracy should possess the intent to destroy a protected group or whether the intent of the individual participants may be inferred from the other individuals involved in the conspiracy. The accused’s intent can be inferred – in part – from the actus reus, which requires an agreement between individuals.54 The agreement need not be explicit in order to prove a conspiracy to commit genocide. The evidence must, however, “establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct.”55 This must be the only reasonable inference on the basis of the evidence, as becomes apparent from the ictr Appeals Chamber Judgment in the Nahimana et al. case: [E]ven if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find […] that the Appellants had collaborated and entered into an agreement with a view 49 50 51 52 53 54

55

Nahimana et al., Appeals Judgment, para. 344 (internal footnotes omitted). Ibid., para. 894. Popović et al., Appeals Judgment, para. 544. Ibid., para. 553. Nahimana et al., Appeals Judgment, para. 896. For example, in the Popović case, the icty Trial Chamber “relied on the ‘significant coordination’ for the purpose of finding genocidal intent”, see Popović et al., Appeals Judgment, para. 545, referring to Popović Trial Judgment, para. 544. Nahimana et al., Appeals Judgment, para. 898.

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to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part.56 A defense against a charge of conspiracy to commit genocide might thus be successful when it can be demonstrated that committing genocide was not the “only reasonable inference” based on the evidence presented to the Chamber.57 The liability mode of conspiracy, as discussed above with respect to genocide, resembles jce liability in that they both aim at holding individuals criminally responsible for concerted action. The accused’s intent is inferred from their participation in a criminal agreement. The difference is, however, that conspiracy is an “inchoate crime”,58 which means that it is punishable even if the crime envisaged in the agreement is never perpetrated, whereas jce liability is a mode of participation.59 Three forms of jce have been developed within the icty’s case law, which require different levels of mens rea on part of the accused.60 Under jce iii – the most extended form of jce liability – an accused may incur criminal responsibility if he had the “intention to participate in and further the criminal activity or the criminal purpose of a group and contribute to the joint criminal enterprise or in any event to the commission of a crime by the group.”61 That crimes would be perpetrated by the other participants in the jce must have been a natural and foreseeable consequence of joining the enterprise.62 The accused’s intention only has to be demonstrated with respect to his participation in the enterprise.63 jce iii liability seems incompatible with the crime of genocide, which requires – by definition – specific intent on part of the accused to destroy a protected group in whole or in part. The specific intent requirement has been nuanced with respect to aiding and abetting and superior responsibility and, likewise, international tribunals have left open the possibility of entering a conviction for genocide under jce iii. Yet, no convictions have been entered at an international level for genocide under jce iii liability. In the Brđanin case, the icty Trial Chamber held that the specific 56 57 58 59 60 61 62 63

Ibid., para. 906. See, for example, Popović et al., Appeals Judgment, para. 540, 553. See 5.4.3. Elies van Sliedregt and Elinor Fry, Conspiracy/Joint Criminal Enterprise, Oxford Bibliographies, last modified 25 June 2013. doi: 10.1093/obo/9780199796953-0096. See Chapter 2. Prosecutor v. Tadić, Case No.: IT-94-1-A, Appeals Judgment, 15 July 1999, para. 228. Ibid., para. 204. Ibid., para. 220; see Chapter 2.

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intent required for genocide “cannot be reconciled with the mens rea required for a conviction pursuant to the third category of jce.”64 jce iii requires that the accused was aware of “the risk that genocide would be committed by other members of the jce”, which is, according to the Trial Chamber, a different mens rea that “falls short of the threshold needed to satisfy the specific intent required for a conviction for genocide”.65 This decision was, however, reversed by the Appeals Chamber, which held that the Trial Chamber had erred by mixing up the requisite level of mens rea for the offense with the requisite level of mens rea for the mode of liability.66 The majority of the Appeals Chamber outlined that: The third category of joint criminal enterprise liability is […] not an element of a particular crime. It is a mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence. An accused convicted of a crime under the third category of joint criminal enterprise 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. Rather, it is sufficient that that 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.67 Thus, the liability mode is to be differentiated from the offense. The mens rea for the offense that has been committed must be proven, as well as mens rea for the specific liability mode with which the accused has been charged. Only the former must be fulfilled by the principal perpetrator (e.g. other persons in the enterprise, subordinates, etc.). Even though the icc Statute did not incorporate the notion of jce liability, the distinction between the requisite mens rea for the crime and the requisite mens rea for the liability mode bears relevance, as also within the icc system, the specific crime may require a mens rea standard that is different from the liability mode with which the accused has been charged. 64 65 66 67

Prosecutor v. Brđanin, Case No.: IT-99-36-T, Decision on motion for acquittal pursuant to Rule 98 bis, 28 November 2003, para. 57. Ibid. Brđanin, Decision on interlocutory appeal, 19 March 2004, para. 10. Ibid., para. 5.

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5.4.3 Inchoate Offense Inchoate offenses are offenses that are punishable in and of themselves, regardless of the consequence and irrespective of the crime having realized. Incitement to commit genocide and conspiracy to commit genocide are such crimes where the “method alone is punishable”.68 Punishment for these crimes – irrespective of the result – has been historically justified because of the particularly reprehensible nature of genocide.69 The crime of genocide is the only crime within the Rome Statute for which incitement is punishable. Article 25(3)(e) of the Statute provides that a person shall be individually criminally responsible if he “directly and publicly incites others to commit genocide”. Conspiracy to commit genocide has not been included in the Rome Statute. Article 25(3) of the Statute, which covers “general principles of individual criminal responsibility” does not list conspiracy to commit genocide as a mode of criminal responsibility, nor are the acts listed in the Genocide Convention adopted by the Rome Statute. The icty and ictr did include specific genocidal acts in their Statute, which are the same as the acts listed in the Genocide Convention.70 Under article 25(3)(d) of the Statute an accused may incur criminal responsibility for “in any other way assisting” in the commission of a crime (e.g. genocide), which requires that a crime was carried out by a group acting with a common purpose. This may have some similarities with conspiracy; yet, conspiracy to commit genocide is an inchoate offense, whereas article 25(3)(d) of the Statute establishes a mode of criminal responsibility.71 Furthermore, the latter presupposes that a crime in fact has been committed. The accused’s mens rea is particularly relevant to inchoate offenses, as with his preparatory acts he already possessed the culpable mental state, while it is irrelevant whether he participated in the physical act of genocide.72 Even though incitement and conspiracy to commit genocide are punishable irrespective of the result, prosecutions for these crimes only took place in cases where it had been established that genocide in fact occurred. The icty and ictr conducted their work in the aftermath of the genocide in the former 68 69 70

71 72

Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 562. Jens David Ohlin, “Incitement and Conspiracy to Commit Genocide,” in The un Genocide Convention: A Commentary, ed. Paola Gaeta (Oxford: Oxford University Press, 2009), 207. Article 4 icty and 2 ictr Statute; the acts punishable are (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Ohlin, “Incitement and Conspiracy to Commit Genocide,” 221. Ibid., 208.

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Yugoslavia and Rwanda. It is therefore better to say that these crimes assisted the prosecution in not having to proof the existence of a causal relationship between the incitement or conspiracy and the genocide itself. This is different, for example, from the liability mode of instigating, where the prosecutor must demonstrate that the accused was aware of the “substantial likelihood” that a crime would be committed upon his instigation. As held by the ictr Appeals Chamber in the Nahimana, Barayagwiza and Ngeze case, the mens rea for instigating is “the intent to instigate another person to commit a crime or at a minimum the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.”73 Furthermore, whereas incitement is a crime in and of itself, instigation is a liability mode and requires that the accused “substantially contributed” to a crime as provided for in the Statute.74 The “awareness of the substantial likelihood” is also the decisive consideration for the liability modes of planning and ordering. In the media case the ictr Appeals Chamber held that “planning” requires proof of an accused’s “intent to plan the commission of a crime or, at a minimum, the awareness of substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.”75 To proof “ordering” it must be demonstrated that the accused was in a “position of authority” and that the person who was ordered to commit a crime actually proceeded “to commit the offence” after he received the order.76 This liability mode requires that: (a) the accused was in a position of authority; (b) that crimes were committed upon the accused’s orders; (c) that the accused was aware of “the substantial likelihood that a crime will be committed”.77 The distinction between proof of mens rea for the crime itself and proof of mens rea for the specific liability mode is important, as they may encompass different mens rea standards. With respect to incitement, for example, the liability mode and the crime coincide. If the accused is charged as an accomplice to the crime, it must be established that the crime has been committed and the principal perpetrators thus possessed the requisite mens rea, while the accused himself must have possessed the mens rea corresponding with the liability mode with which he has been charged.

73 74 75 76 77

Nahimana et al., Appeals Judgment, para. 480. See, similarly, Ibid., para. 678. Ibid., para. 479. Ibid., para. 481. Ibid.

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icc Evidentiary Standards vis-à-vis Genocide

On 4 March 2009, the icc Pre-Trial Chamber issued an arrest warrant against Omar al Bashir in the Darfur (Sudan) situation on charges of war crimes and crimes against humanity. Initially it rejected the Prosecution’s application to include counts of genocide by killing, by causing serious bodily or mental harm, and by deliberately inflicting conditions of life.78 On 3 February 2010, the Appeals Chamber found that the Pre-Trial Chambers decision not to issue an arrest warrant with respect to the crime of genocide was based on an “erroneous standard of proof”, and ordered the Pre-Trial Chamber to review this decision, using the correct standard of proof.79 On 12 March 2010, the Pre-Trial Chamber issued a Second Warrant of Arrest, in which it found that there were reasonable grounds to believe that “Omar Al Bashir acted with dolus specialis/ specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups”, and decided to issue an arrest warrant on charges of genocide.80 At the time of writing, he is the only icc suspect faced with counts of genocide; he still remains at large.81 The Appeal Chamber’s finding that the Pre-Trial Chamber erred in the correct standard of proof vis-à-vis genocidal intent, should be placed within the framework of the different stages of the proceedings at the icc. For issuing an arrest warrant, the Pre-Trial Chamber must find “reasonable grounds to believe” that the accused committed the crimes charged.82 At the stage of the confirmation of the charges, the Chamber must reach the level of “substantial grounds to believe” that the accused committed the crimes charged, while, for attaining a conviction, the Chamber must be convinced “beyond reasonable doubt”.83 In its decision to reject the issuance of an arrest warrant against Omar al Bashir for acts of genocide, the majority of the Pre-Trial Chamber considered the following standard of proof: In applying the law on the proof by inference to the article 58 evidentiary standard [i.e. reasonable grounds to believe] in relation to the existence 78 79

80 81 82 83

Prosecutor v. Al Bashir, Case No.: ICC-02/05-01/09-1, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009. Al Bashir, Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 3 February 2010, para. 42. Al Bashir, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 12 July 2010. As of 1 May 2015. Article 58(1)(a) ICCSt. Article 61(7) ICCSt.; Article 66(3) ICCSt.

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of a GoS’s [Government of Sudan] genocidal intent, the Majority agrees with the Prosecution that such a standard would be met only if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence of a GoS’s dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups. […] As a result, the Majority considers that, if the existence of a GoS’s genocidal intent is the only one of several reasonable conclusions ­available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.84 The Appeals Chamber held this finding to be erroneous as the Pre-Trial Chamber did not apply the standard of proof under article 58(1) ICCSt., which requires reasonable grounds to believe, but the higher standard of substantial grounds to believe or even beyond reasonable doubt, which would only be required at the stage of the confirmation of charges or in order to arrive at a conviction.85 In her partly dissenting opinion to the Pre-Trial Chamber’s decision, Judge Ušacka clearly outlined why the Pre-Trial Chamber’s determination was incorrect. The Statute provides for an increasingly demanding evidentiary threshold as the proceedings continue, and the Pre-Trial Chamber adopted, at this stage of the issuance of an arrest warrant, a test that was “tantamount to requiring the Prosecution to present sufficient evidence to allow the Chamber to be convinced of genocidal intent beyond a reasonable doubt.”86 The ictr Appeals Chamber has held the evidentiary threshold for a conclusion of guilt – which is thus at the final stage of the proceedings – to be as follows: It is well established that a conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available from the evidence. Whether a Trial Chamber infers the existence of 84 85

86

Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 158–159. Al Bashir, Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 3 February 2010, para. 30. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, 4 March 2009, pp. 96–146, para. 31.

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a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond a reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond a reasonable doubt cannot be drawn.87 Judge Ušacka concluded that the Prosecution is not required at the arrest warrant stage to demonstrate that “such an inference [of genocidal intent] is the only reasonable one at the arrest warrant stage.”88 In her view, it was sufficient if an inference of genocidal intent could reasonably be made on the basis of the available evidence.89 5.6 Conclusion The crime of genocide encompasses an increased mens rea standard, as compared to most of the other crimes within the icc’s jurisdiction. It requires the “intent to destroy” a protected group in whole or in part. The intent to destroy need not be explicit, but may be inferred from the circumstances of the case. This intensified mens rea standard may be nuanced when considering the specific liability modes with which the accused has been charged. It is therefore relevant to make a distinction between the mens rea required by the crime and the mens rea required by the liability mode. 87

88

89

Prosecutor v. Karera, Case No.: ICTR-01-74-A, Appeals Judgment, 2 February 2009, para. 34, cited in: Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, pp. 96–146, para. 31 (emphasis added by Judge Ušacka). Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, 4 March 2009, pp. 96–146, para. 32. Ibid., para. 34.

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Mens Rea and Crimes against Humanity 6.1 Introduction The different acts that could qualify as a crime against humanity within the ambit of the Rome Statute are listed in article 7. Acts such as murder, enslavement and extermination, must have been committed as “part of a widespread or systematic attack directed against any civilian population” in order to qualify as a crime against humanity.1 Article 30 ICCSt. encompasses a general mens rea requirement; it proscribes that crimes are committed with “intent” and “knowledge”, “unless otherwise provided”. An accused can incur criminal responsibility for crimes against humanity if he intended to commit the specific acts listed in article 7(1)(a)-(k) and if he committed the acts “with knowledge” of a widespread or systematic attack directed against any civilian population. Some crimes against humanity include an additional mens rea requirement, besides the general intent and knowledge requirement of article 30 ICCSt. In order to prove the crime of apartheid, for example, it must be demonstrated that the crime was committed “with the intention of maintaining” a racist regime and the crime of enforced disappearance requires proof of the accused’s “intention of removing them [the victims] from the protection of the law for a prolonged period of time.”2 This chapter will first discuss how an accused’s mens rea of a widespread or systematic attack against any civilian population is construed before the ad hoc tribunals and the icc, before delving into the additional mens rea requirements for the specific acts listed in article (7)(1) (a)-(k) ICCSt. 6.2

Contextual Elements of an “attack”

Under the Rome Statute, the acts listed in article 7(1) can only qualify as a crime against humanity if they were committed as part of a widespread or systematic attack directed against any civilian population. Article 7(2)(a) requires that the “attack directed against any civilian population” was committed “pursuant to or in furtherance of a State or organizational policy to commit such 1 Article 7(1) ICCSt. 2 Article 7(2)(h) and (i) ICCSt.

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attack.” Furthermore, the attack must involve the multiple commission of acts as listed in article 7(1). The icty statutorily required a nexus with an armed conflict. It required the existence of an armed conflict, but the accused’s acts need not necessarily be linked to the armed conflict. Such a link was required, however, between the acts of the accused and the widespread or systematic attack against the civilian population.3 A connection to an armed conflict, as was already observed in the Tadić appeals judgment, is not part of customary international law on crimes against humanity.4 In the Tadić case, the Appeals Chamber considered that “the armed conflict requirement is a jurisdictional element, not a ‘substantive element of the mens rea of crimes against humanity’ (i.e., not a legal ingredient of the subjective element of the crime)”.5 In the K ­ unarac, Kovač and Vuković case, the icty Trial Chamber outlined the ­elements that have to be fulfilled before an accused can incur criminal responsibility for crimes against humanity: – The existence of an armed conflict (statutory requirement); – The existence of an attack; – The perpetrator’s acts must have formed part of the attack; – The attack must have been “directed against any civilian population”; – The attack must have been “widespread or systematic”; – The perpetrator’s knowledge of the wider context in which his acts occurred, as well as knowledge that his acts formed part of the attack.6 The icty did not require that the widespread or systematic attack against any civilian population was part of the armed conflict.7 It had to be proven, however, that the perpetrator had knowledge of the broader context in which he committed his offence (i.e. knowledge that his acts formed part of the attack).8 3 Prosecutor v. Kordić and Čerkez, Case No.: IT-95-14/2-T, Trial Judgment, 26 February 2001, para. 33. 4 Prosecutor v. Tadić, Case No.: IT-94-1-A, Appeals Judgment, 15 July 1999, para. 251; see also Margaret M. deGuzman, “Crimes against humanity,” in Research Handbook on International Criminal Law, ed. Bartram S. Brown (Edgar Elgar Publishing, 2011), 9; Margaret M. deGuzman, “The Road From Rome: The Developing Law of Crimes Against Humanity,” Human Rights Quarterly 22 (2000): 335 at 355–360. 5 Tadić, Appeals Judgment, para. 249. 6 Prosecutor v. Kunarac, Kovač and Vuković, Case No.: IT-96-23 & IT-96-23/1-T, Trial Judgment, 22 February 2001, para. 410. 7 Kunarac et al., Appeals Judgment, 12 June 2002, para. 8; Prosecutor v. Naletilic and Martinovic, Case No.: IT-98-34-T, Trial Judgment, 31 March 2003, para. 233. 8 Prosecutor v. Kupreškić et al., Case No.: IT-95-16-T, Trial Judgment, 14 January 2000, para. 556.

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Thus, in order to prove crimes against humanity were committed, it must be established that the criminal act committed by the accused was part of a widespread or systematic attack against any civilian population. Secondly, it must be demonstrated that the accused had knowledge that his act formed part of a widespread or systematic attack. The accused’s knowledge of the attack is one of the mens rea elements of crimes against humanity; yet, this cannot be established without first discussing whether there existed a widespread or systematic attack against any civilian population committed pursuant to or in furtherance of a State or organizational policy. The following section will discern the contextual elements of an “attack”, before discussing how the accused’s mens rea for such an attack is established. 6.2.1 Widespread or Systematic The Rome Statute does not encompass an exact definition of a “widespread or systematic attack”. The exact meaning should be construed on the basis of customary international law, as well as the case law of the ad hoc tribunals. While the ictr statute and the icty statute are very similar their definition of crimes against humanity differ slightly. The ictr Statute specifically refers to the criterion “widespread or systematic” while the icty did not include these wordings in its Statute. In the icty case law it has been established, however, that the acts must have been committed (1) on a widespread or systematic basis; (2) pursuant to a group, governmental, or organizational policy; and (3) with discriminatory intent (e.g. racial, religious, political or ethnic grounds).9 In the first icty Judgment, in the Tadić case, the defense raised the issue of a widespread and systematic attack, arguing that both elements had to be fulfilled in order to constitute a crime against humanity.10 This argument was rejected by the Trial Chamber: [I]t is now well established that the requirement that the acts be directed against a civilian “population” can be fulfilled if the acts occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.11 The criterion of “widespread or systematic” pertains only to the attack and not to the individual acts of the accused.12 The element “widespread” denotes the 9 10 11 12

Tadić, Trial Judgment, 7 May 1997, para. 644. Ibid., para. 645. Ibid., para. 646. Kunarac et al., Trial Judgment, 22 February 2001, para. 431.

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“large scale and nature of the attack and the number of victims”, while systematic represents the “organized nature of the acts of violence and the improbability of their random occurrence”.13 Factors that can be considered in order to assess whether an attack was widespread or systematic are the number of victims, the means and methods used to conduct the attack, the result and consequences of the attack upon the civilian population, the possible involvement of authorities or officials, identifiable patterns of crimes.14 More specifically, the widespread nature of an attack can be found in, for example, the “cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude” or at the “scale of the acts perpetrated”, as well as “the number of victims”.15 In the Confirmation of the Charges Decision in the Blé Goudé case, the icc Pre-Trial Chamber found that the crimes committed in Ivory Coast between 27 November 2010 and 12 April 2011 constituted a “widespread” attack within the meaning of article 7(1) ICCSt., because it: “(i) involved a large number of acts; (ii) targeted and victimised a significant number of individuals; (iii) extended over a time period of more than four months; (iv) affected the entire city of Abidjan, a metropolis of more than three million inhabitants”.16 The systematic nature of an attack seems to be fulfilled in situations where a pattern of crimes emerge, which has been defined as the “non-accidental repetition of similar criminal conduct on a regular basis”.17 In the Blaškić case, the icty Trial Chamber identified four factors that may result in an expression of the systematic character: 1. the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; 2. the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;

13 14 15 16 17

Bagosora and Nsengiyumva v. the Prosecutor, Case No.: ICTR-98-41-A, Appeals Judgment, 14 December 2011, para. 389. Kunarac et al., Appeals Judgment, para. 95. Kordić and Čerkez, Trial Judgment, para. 179; Prosecutor v. Blaškić, Case No.: IT-95-14-T, Trial Judgment, 3 March 2000, para. 206. Prosecutor v. Blé Goudé, Case No.: ICC-02/11-02/11-186, Decision on the Confirmation of Charges, 11 December 2014, para. 131. Kunarac et al., Appeals Judgment, para. 431.

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3. the perpetration and use of significant public or private resources, whether military or other; 4. the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.18 In the Blé Goudé case, the Pre-Trial Chamber derived the systematic nature of the attack from the alleged facts that: “(i) preparations for the attack were taken in advance, and the attack was planned and coordinated; and (ii) the acts of violence analysed by the Chamber reveal a clear pattern of violence directed at pro-Ouattara demonstrators or activists, and more generally against areas whose inhabitants were perceived to be supporters of Alassane Ouattara”.19 6.2.2 Directed against Any Civilian Population Under customary international law, an absolute prohibition on targeting a civilian population exists. Under some circumstances civilian casualties may be justified if the attack was conducted out of military necessity. In such cases, the principle of proportionality must be complied with, meaning that the damage to civilians or civilian objects may not outweigh the military advantage anticipated by the attack. The presence of soldiers within a civilian population does not automatically change the nature of that civilian population. As noted in the icrc Commentary on this issue: in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.20 In its first judgment, in the Tadić case, the icty Trial Chamber found that the criterion of “directed against any civilian population” implicated an emphasis “on the collective”, and not on one particular act, but on a course of conduct.21 Furthermore, the civilians need not be linked to either one side of the conflict. 18 19 20

21

Blaškić, Trial Judgment, para. 203. Blé Goudé, Decision on the Confirmation of Charges, para. 132. International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva: International Committee of the Red Cross, 1987), para. 1922; cited from Blaskić, Appeals Judgment, 29 July 2004, para. 115. Tadić, Trial Judgment, para. 644.

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Persons hors de combat are not deemed to be “civilians” according to the definition of crimes against humanity. This does not imply, however, that non-civilians cannot be victims of crimes against humanity. It is required that the attack was “primarily directed against a civilian population, rather than ‘against a limited and randomly selected number of individuals’”.22 6.2.3 Pursuant to or in Furtherance of a State or Organizational Policy The Rome Statute requires that an attack “directed against any civilian population” was committed “pursuant to or in furtherance of a State or organizational policy to commit such attack”.23 The Elements of Crimes, in the Introduction to crimes against humanity, reiterate this requirement, while adding that: The acts need not constitute a military attack. It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.24 Footnote 6 to this Introduction further clarifies that: [a] policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such policy cannot be inferred solely from the absence of governmental or organizational action.25 The requirement of a State or organizational policy as a contextual element of crimes against humanity within the Rome Statute has been subject to controversy. Particularly, the concept of “organizational” was subject to debate, as a definition thereof is lacking in the Rome Statute. Referring to the preparatory stage of article 7 ICCSt. Professor Bassiouni argued that there are restrictions as to the criterion of “organizational” and refutes the idea that Article 7 can be interpreted to include the concept of crimes against humanity to non-State actors:

22 23 24 25

Prosecutor v. Martić, Case No.: IT-95-11-A, Appeals Judgment, 8 October 2008; Kunarac et al., Appeals Judgment, para. 90. Article 7(2)(a) ICCSt. Elements of Crimes, Introduction to Article 7. Ibid.

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Contrary to what some advocates advance, Article 7 does not bring a new development to crimes against humanity, namely, its applicability to non-state actors. If that were the case, the mafia, for example, could be charged with such crimes before the icc, and that is clearly neither the letter nor the spirit of Article 7. The question arose after 9/11 as to whether a group such as al-Qaeda, which operates on a worldwide basis and is capable of inflicting significant harm in more than one state, falls within this category. In this author’s opinion, such a group does not qualify for inclusion within the meaning of crimes against humanity as defined in Article 7, and for that matter, under any definition of that crime up to Article 6(c) of the imt, notwithstanding the international dangers that it poses […]. The text [of Article 7(2)] clearly refers to state policy, and the words ‘organizational policy’ do not refer to the policy of an organization, but the policy of a State. It does not refer to non-state actors.26 Notwithstanding this observation there, a tendency can be detected to broadly interpret the term “organization”. In its Decision on the Authorization of an Investigation in the Kenya situation, the majority of the icc Pre-Trial Chamber held the a group’s capability to perform acts which infringed upon basic human values was determinative, instead of the formal nature of a group and its level of organization.27 However, Judge Kaul appended a dissenting opinion which narrowed down the scope of crimes against humanity, holding that an organization within the purview of article 7 must have “State-like” characteristics.28 Both trial chambers in the Katanga and Bemba case seems to disagree with Judge Kaul’s described requirements of “State-like” characteristics. The chamber in the Bemba case relied on the decision made by the Trial Chamber in the Katanga case which ruled that:

26

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M. Cherif Bassiouni, The legislative history of the International Criminal Court (New York: Transnational Publishers, 2005), 151–152; M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 2nd ed., (The Hague: Kluwer Law International, 1999), 243–281. Situation in the Republic of Kenya, Case No.: ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 90; see also Mathias Holvoet, “The State or Organizational Policy Requirement Within the Definition of Crimes Against Humanity in the Rome Statute: An Appraisal of the Emerging Jurisprudence and the Implementation Practice by icc States Parties,” International Crimes Database Brief (October 2013): 4. Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kaul, para. 51.

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by no means can it be ruled out, […] that an attack against a civilian population may also be the doing of a private entity consisting of a group of persons pursuing the objective of attacking a civilian population; in other words, of a group not necessarily endowed with a well-developed structure that could be described as quasi-State.29 In the Decision on the Confirmation of Charges in the Katanga and Ngudjolo Chui case, it was outlined that article 7(2)(a) ICCSt. requires that: the attack, even if carried out over a large geographical area or directed against a large number of victims, must still be thoroughly organized and follow a regular pattern. It must also be conducted in furtherance of a common policy involving public or private resources. Such a policy may be made either by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be explicitly defined by the organizational group. Indeed, an attack which is planned, directed or organized – as opposed to spontaneous or isolated acts of violence – will satisfy this criterion.30 In the Blé Goudé decision on the Confirmation of Charges, the Pre-Trial Chamber assumed the existence of a State or organizational policy as it found, on the basis of the evidence, that preparatory activities had been undertaken to keep President Laurent Gbagbo in power. These encompassed, in view of the Pre-Trial Chamber, the possibility to use violence in order to attain this goal, while the plan was planned and coordinated by Gbagbo and his alleged inner circle, and implemented by the forces under their control.31 As to the element of a “policy or plan”, the Rome Statute seems to impose a more strict requirement than previously established by the ad hoc tribunals. In the Semanza case, the ictr Appeals Chamber considered with respect to a pre-existing “plan or policy” that:

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Prosecutor v. Jean-Pierre Bemba, Case No. ICC-01/05-01/08, Judgement pursuant to article 74 of the Statute, 21 March 2016, para. 158. Referring to, Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute, 7 March 2014 para. 1119. Prosecutor v. Katanga and Ngudjolo Chui, Case No.: ICC-01/04-01-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 396. Blé Goudé, Decision on the Confirmation of Charges, para. 128.

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although the existence of a policy or plan may be useful to establish that the attack was directed against a civilian population and that it was widespread and systematic, it is not an independent legal element.32 Likewise, in the Nahimana case, the ictr Appeals Chamber held it to be “well established that, while it may be helpful to prove the existence of a policy or plan, that is not a legal element of crimes against humanity”.33 6.3

Mens Rea Requirements: Knowledge of the Attack

6.3.1 International Criminal Tribunal for the Former Yugoslavia Once it has been established that a widespread or systematic attack against any civilian population, it must be demonstrated that the accused had knowledge of such an attack existed. In the Elements of Crimes, in the Introduction to article 7, it has been specified that “with knowledge” “should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization.”34 In the Tadić case, the icty Trial Chamber articulated that “if the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives completely unrelated to the attack on the civilian population, that is sufficient to hold him liable for crimes against humanity.”35 The Trial Chamber found the majority approach taken in the Canadian case R. v. Finta to be instructive in regard to knowledge of a widespread or systematic attack on a civilian population.36 The majority in R v. Finta held that:

32 33 34

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Semanza v. the Prosecutor, Case No.: ICTR-97-20-A, Appeals Judgment, 20 May 2005, para. 269. Nahimana, Barayagwiza and Ngeze v. the Prosecutor, Case No.: ICTR-99-52-A, Appeals Judgment, 28 November 2007, para. 922. Elements of the Crimes, Introduction to Article 7 ICCSt., see also Prosecutor v. 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, para. 88. Tadić, Trial Judgment, para. 659. Ibid., para. 657; R v. Finta, scc Case Nos.: 23023, 23097, Supreme Court Judgment, 24 March 1994.

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[t]he mental element required to be proven to constitute a crime against humanity is that the accused was aware of or willfully blind to facts or circumstances which would bring his or her acts within crimes against humanity. However, it would not be necessary to establish that the accused knew his actions were inhumane.37 Knowledge on part of the accused is required, and may be inferred from the circumstances of the case. An accused may, as it seems, incur criminal responsibility for crimes against humanity if he was “willfully blind” to the consequences that might occur (dolus eventualis). It has been said to signify “the mental disposition of someone who does not want to know that which he already knows or foresees, and fakes ignorance in order to escape liability”.38 In the Tadić case, the icty Appeals Chamber held with regard to the requisite level of knowledge of the accused that: to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.39 The Appeals Chamber considered that “a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives” was not required as a substantive element of mens rea.40 The accused’s motives for taking part in an attack are irrelevant, and will thus not bar an accused from incurring criminal liability for crimes against humanity. Furthermore, “the accused need not share the purpose and goal behind the attack.”41 The Appeals Chamber in the Kunarac, Kovač and Vuković case promulgated that: [i]t is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the

37 38 39 40 41

R v. Finta, Supreme Court Judgment. Johan Van der Vyver, “The International Criminal Court and the Concept of Mens Rea in International Criminal Law,” Miami International & Comparative Law Review 12 (2004): 75. Tadić, Appeals Judgment, para. 271. Ibid., para. 272. Kunarac et al., Appeals Judgment, para. 103.

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target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of the attack.42 In the same case, the icty Appeals Chamber articulated the following mens rea requirements for crimes against humanity: [T]he accused must have had the intent to commit the underlying offence or offence with which he is charged, and that he must have known “that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.” This requirement […] does not entail knowledge of the details of the attack.43 This double knowledge requirement, namely (1) the accused’s knowledge of the attack on the civilian population, and (2) knowledge that his act was part of the attack on the civilian population, was confirmed by the icty Appeals Chamber in the Blaškić case.44 The Trial Chamber’s requirement that it suffices that the accused “knowingly took the risk of participating in the implementation of the ideology, policy or plan”, was reversed by the Appeals Chamber, which held that there is “no legal requirement of a plan or policy” when it concerns the accused’s mens rea.45 The Appeals Chamber did not establish elements to infer evidence of knowledge of the accused, as this would depend on the facts of a particular case.46 6.3.2 International Criminal Court Once it has been established that there existed “a widespread or systematic attack directed against any civilian population”, the accused knowledge as to the nature of this attack must be demonstrated. It is, however, unclear whether this includes other and lesser forms of knowledge as opposed to dolus directus. As noted by one author:

42 43 44 45 46

Ibid. Ibid., para. 102. Blaskić, Appeals Judgment, para. 126. Ibid. Ibid.

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It is unclear whether this subjective element should be understood as part of the general intent or as a specific subjective element of the offence.47 Article 30(3) ICCSt. defines knowledge as “awareness that a circumstance exists or [that] a consequence will occur in the ordinary course of events”.48 Such knowledge may be inferred from circumstantial evidence, as follows from the Decision on the Confirmation of Charges in the Katanga and Ngudjolo Chui case. In that decision it was held that an accused’s knowledge of the attack may be inferred from circumstantial evidence, for example from: the accused’s position in the military hierarchy; his assuming an important role in the broader criminal campaign; his presence at the scene of the crimes; his references to the superiority of his group over the enemy group; and the general historical and political environment in which the acts occurred.49 In the Confirmation of the Charges Decision in the Blé Goudé case, Pre-Trial Chamber i found substantial grounds to believe that Blé Goudé intended his acts in the post-election crisis and was aware – and accepted – that “the implementation of the common plan to maintain power at any cost would result in the use of violence against civilians”.50 Blé Goudé’s awareness was derived from the evidence, which, according to Pre-Trial Chamber i, demonstrated that Blé Goudé, Laurent Gbagbo and his inner circle had: (i) Mobilized youths to commit crimes against (perceived) Ouattara supporters; (ii) Conducted preparatory activities, such as weapons acquisition and recruitment for the pro-Gbagbo forces, in anticipation of the use of violence; (iii) Coordinated the implementation of the common plan through their interaction with pro-Gbagbo forces, which was evidenced by meetings and instructions given during the post-election crisis; (iv) In reaction to the crisis, taken specific steps to ensure the continued implementation of the common plan to keep Gbagbo in power by all means, including the use of violence against civilians.51 47 48 49 50 51

Kai Ambos, Treatise on International Criminal Law: Volume i: Foundations and General Part (Oxford Scholarly Authorities on International Law, 2013), 280. Article 30(3) ICCSt. Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 402. Blé Goudé, Decision on the Confirmation of Charges, para. 154. Ibid., para. 155.

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Furthermore, the Pre-Trial Chamber found that he was “aware that the crimes committed formed part of a widespread and systematic attack directed against a civilian population”.52 The Pre-Trial Chamber found that Blé Goudé was aware of the influence he asserted over the pro-Gbagbo youth as he had publicly issued instructions to the pro-Gbagbo youth.53 In conclusion, the icc – in line with icty case law – pursues similar criteria to ascertain the mens rea level of “knowledge of the attack”. 6.4

Mens Rea for the Underlying Crimes

The Rome Statute enumerates ten acts that may qualify as a crime against humanity plus the residual category of “other inhumane acts”. In addition to the nine acts (including “other inhumane acts”) listed in the statutes of the icty and ictr, the icc also lists enforced disappearance and the crime of apartheid as a crime against humanity, provided that they were committed as part of a widespread and systematic attack against any civilian population.54 Next to the general mens rea requirements of Article 30 ICCSt., namely intent and knowledge, the specific acts listed in article 7(1) ICCSt. may include additional mens rea requirements, provided that it has been established that the accused’s act was part of a widespread and systematic attack directed against any civilian population, and that the accused had knowledge that his act formed part of such an attack. The following paragraphs will ascertain the specific acts listed in article 7(1) ICCSt. As the ICC’s case law on crimes against humanity is still rather modest, the analysis will also be based on past precedent, such as case law of the ad hoc tribunals, and customary international law. Customary international law is of particular relevance to crimes against humanity, as the crimes – as opposed to war crimes and genocide – have not been codified in an international convention. 6.4.1 Murder The act of murder as a crime against humanity under the Rome Statute system does not include an additional mens rea requirement, next to the general requirements of article 30 ICCSt. The objective element of murder as a crime against humanity is that the perpetrator killed, either himself or through other persons, one or more persons, which may include the infliction of “conditions

52 53 54

Ibid., para. 156. Ibid., para. 157. Article 7(1)(a)-(k) ICCSt.

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of life calculated to bring about the destruction of part of a population”.55 The subjective element is that the perpetrator had the intention to kill one or more persons, which encompasses dolus directus of the first and second degree.56 It must be established that the accused intended to kill one or more persons. Such intention can be demonstrated if the accused deliberately acted or failed to act, and thus (1) caused the death of one or more persons; or (2) was aware that the deaths would occur in the ordinary course of the events.57 Furthermore, the Chamber must demonstrate that the accused knew that his conduct was part of a widespread or systematic attack directed against any civilian population or that he intended that his behavior was part of such an attack.58 In the Bemba Gombo case, Pre-Trial Chamber ii held that, in order to determine an accused’s requisite level of mens rea for murder, it has to be satisfied that: the perpetrator meant to cause death or was aware that death ‘will occur in the ordinary course of events’ required by article 30(2)(b) of the Statute. In the case of murder as a crime against humanity, the intent can be inferred from the use of a firearm against unarmed persons.59 The actus reus and mens rea for murder may be inferred from the factual circumstances.60 The Pre-Trial Chamber, confirming the charges of murder as a crime against humanity against the accused Bemba Gombo, took into account the following factual circumstances regarding the death of two victims by the soldiers of the Mouvement de Liberation du Congo (mlc): the death of the two victims, the discovery of the corpses and location of the graves, witness statements, the presence of mlc soldiers at the crime scene, a witness identification of one of the soldiers, and the fact that the act was committed against two unarmed civilians.61 In the Kayishema case, the ictr Trial Chamber held that the requisite mens rea for murder as a crime against humanity is intentional and premeditated killing: 55 56 57 58 59 60 61

Elements of Crimes, Article 7(1)(b) ICCSt. Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 423. Prosecutor v. Katanga, Case No.: ICC-01/04-01/07-3436, Trial Judgment, 7 March 2014, para. 781. Ibid., para. 782. Bemba Gombo, Decision Pursuant to Article 67(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 138. Ibid., para. 149. Ibid.

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The result is premeditated when the actor formulated his intent to kill after a cool moment of reflection. The result is intended when it is the actor’s purpose, or the actor is aware that it will occur in the ordinary course of events.62 The accused’s level of knowledge may take the form of dolus directus (“the actor’s purpose”) or dolus indirectus (“awareness that it will occur in the ordinary course of events”). The following four elements were distinguished by the Trial Chamber in the Kayishema case to determine an accused’s criminal responsibility for murder: 1. 2. 3. 4.

the accused must have caused the death of another; the act may be caused by act or omission; the accused must have had the intention to kill any person or, he must have intended to cause grievous bodily harm to any person.63

Similar criteria were applied by the icty. In Kordić and Čerkez, the Trial Chamber considered that the following elements had to be established before an accused could incur criminal responsibility for murder: “the death of a victim; that the death resulted from an act or omission of the accused or his subordinate; that the accused or his subordinate intended to kill the victim, or to cause grievous bodily harm or inflict serious injury in the reasonable knowledge that the attack was likely to result in death.”64 6.4.2. Extermination The crime of extermination does not encompass a mental element, other than the general mens rea requirement of article 30 ICCSt. Extermination as a crime against humanity can be defined as killing on a large scale. The Elements of Crimes to the Rome Statute provides the following requirement: “The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population”. Although the term “inflicting” suggests differently, it may also include acts of deprivation, such as the deprivation of access to food or medicine.65 During the Rome Statute negotiations, the Cuban delegate held that the acts “could include embargoes which were calculated to achieve this result”. As noted in a Commentary 62 63 64 65

Prosecutor v. Kayishema and Ruzindana, Case No.: ICTR-95-1-T, Trial Judgment, para. 139. Ibid., para. 140. Kordić and Čerkez, Trial Judgment, para. 236. Elements of Crimes, Article 7(1)(b) ICCSt., element 1, fn. 9.

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to the Rome Statute, the word “calculated” expresses an intention on behalf of the accused to bring about the destruction of a part of the population.66 Different from genocide, which also includes intentional killing on a large scale, extermination does not require that the group of individuals who are killed share common characteristics (i.e. the intent to discriminate) and it also applies to situations where some group members are killed and others not.67 Yet, extermination as a crime against humanity requires that the acts were part of a widespread or systematic attack against any civilian population. The contours of extermination as a crime against humanity were developed by the icty and ictr, where it has been established that the mental element for extermination requires proof of the accused’s intention to kill on a large scale or to subject a widespread number of people to “conditions of living” that would result in their death. In the Stakić case, the icty Appeals Chamber, citing ictr case law, set forth the requisite level of mens rea in 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”.68 The intent to kill a certain number of victims is irrelevant.69 If the crime is committed through the infliction of certain conditions of life, it must be demonstrated, as was held by the icc Pre-Trial Chamber in its decision to issue an arrest warrant against Omar Al Bashir, that the conditions were “calculated to bring about the physical destruction of that group, in whole or in part”.70 According to Bassiouni, extermination is characterized by its massive scale and may include unintentional killing: “[E]xtermination” implies both intentional and unintentional killing. The reason for the latter is that mass killing of a group of people involves planning and implementation by a number of persons who, though knowing 66

67

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69 70

Christopher K. Hall, “Article 7, Crimes against Humanity,” in Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article, ed. Otto Triffterer (Baden-Baden: Nomos Verlagsgesellschaft, 2000), 160. Draft Code of Crimes Against the Peace and Security of Mankind (International Law Commission), Report of the International Law Commission on the Work of Its 48th session, u.n. Doc. A/51/10 (1996), p. 97. Prosecutor v. Stakić, Case No.: IT-97-24-A, Appeals Judgment, 22 March 2006, para. 259; citing Prosecutor v. Ntakirutimana and Ntakirutimana, Case No.: ICTR-96-17-A, Appeals Judgment, 13 December 2004, para. 522. Stakić, Appeals Judgment, para. 260. Prosecutor v. Al Bashir, Case No.: ICC-02/05-01/09-94, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010, para. 33.

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and wanting the intended result, may not necessarily know their victims. Furthermore, such persons may not perform the actus reus that produced the deaths, nor have specific intent toward a particular victim.71 With respect to the accused’s level of knowledge, this scholar opines that: the individual responsibility of each actor (whether direct, indirect, or vicarious) for a given killing cannot be predicated on the element of specific knowledge of the identity of the victim or personal knowledge of the specific act that was the direct cause of death of a given victim.72 Thus, an accused’s knowledge as to the precise identity of the victims, seems not to be a requisite mens rea element of crimes against humanity. As noted in a Commentary to the Rome Statute, the killings must have been “directed at groups of individuals, but these groups could include not only the national, ethnical, racial and religious groups […] but a variety of other groups, such as political, social, linguistic groups and groups based on their sexual orientation, such as homosexuals, lesbians and transgenders”.73 Both the icty and ictr did not specifically define murder and extermination in their statutes. The only requirement was that these crimes be committed within the meaning of crimes against humanity (i.e. as part of a widespread and systematic attack against any civilian population).74 The Rome Statute incorporates an additional requirement for extermination, namely that it must include “the intentional infliction of conditions of life […] calculated to bring about the destruction of part of a population”.75 This additional requirement of infliction of “conditions of life”, which may include food deprivation or barring access to medicine, does not relate to an accused’s intent as a result of the reasonable foreseeable consequences. Furthermore, it does not address whether there are “lawful justifications” for the infliction of “conditions of life”.76 Thus, food deprivation can amount to a crime against humanity if the general mens rea requirements of crimes against humanity have been met, i.e. the deprivation must be part of a widespread and systematic attack against the

71 Bassiouni, Crimes against humanity in International Criminal Law, 302. 72 Ibid. 73 Hall, “Article 7, Crimes against Humanity,” 132. 74 See Article 5 ICTYSt. and Article 3 ICTRSt. 75 Article 7(2)(b) ICCSt.; Elements of Crimes, Article 7(1)(b) ICCSt. 76 Bassiouni, Crimes against humanity in International Criminal Law, 305.

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civilian population and must be perpetrated as part of a state or organizational policy, while the “knowledge” element is also complied with. In the Krstić case, the icty Trial Chamber held that, in order to prove extermination, there “must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.”77 In the Lukić and Lukić case, the icty Appeals Chamber held that the mens rea of extermination requires the intention of the perpetrator “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”.78 Although the requirement of killing on a large scale distinguishes extermination from murder, an accused’s mens rea does not have to be established in relation to the number of victims. As observed by the icty Appeals Chamber in the Lukić and Lukić case: The Trial Chamber thus considered the number of victims when assessing whether the element of massiveness was met. It also took into consideration the specific circumstances of the case, such as the type of victims and […] the area of origin of the victims. While these factors may be taken into consideration in the assessment of whether the element of massiveness for extermination is fulfilled, they do not constitute elements of the crime of extermination as a crime against humanity. […] Milan Lukić’s arguments that the Trial Chamber inconsistently considered population density in relation to the Pionirska Street and the Bikavac Incidents therefore fail. Furthermore, as these factors do not constitute elements of the crime of extermination, there is no mens rea requirement in relation to them as suggested by Milan Lukić.79 Extermination as a crime against humanity was particularly relevant before the eccc where the defendants stood trial for crimes committed during the Khmer Rouge regime in Cambodia from 1975–1979. The Khmer Rouge’s efforts to establish a rural classless society resulted in the death of over 20 per cent of Cambodia’s population due to starvation, execution, exhaustion from ­overwork, or diseases, which was reinforced by a lack of medicine and medical

77 78 79

Prosecutor v. Krstić, Case No.: IT-98-33-T, Trial Judgment, 2 August 2001, para. 503. Prosecutor v. Lukić and Lukić, Case No.: IT-98-32/1-A, Appeals Judgment, 4 December 2012, para. 536. Ibid., para. 542.

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facilities.80 The eccc had to establish the accused’s mens rea for extermination as a crime against humanity predicated on starvation.81 Since there were no documents or communiques that clearly determined that the Khmer Rouge leadership was aware of the massive scale starvation, the Prosecution had to demonstrate – in order to secure a conviction for extermination as a crime against humanity – that a possible lack of knowledge of the mass starvation was solely due to willful ignorance on behalf of the accused, instead of a true lack of information.82 On 7 June 2014, the eccc arrived at a judgment in Case 002/01 against the accused NUON Chea and KHIEU Samphan. The accused were charged with extermination as a crime against humanity as it was alleged that: ‘[m]any people’ died as a result of the conditions imposed during phases one and two of the population movement, specifically the deprivation of food, accommodation, medical care and hygiene.83 The eccc Trial Chamber ascertained the actus reus of extermination to be “an act, omission or combination of each that results in the death of persons on a massive scale”, while the requisite mens rea is the intent: 1. to kill persons on a massive scale; or 2. to inflict serious bodily injury or create conditions of living that lead to death, in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons (dolus eventualis).84 Even though the icty and ictr did not allow a dolus eventualis standard for extermination as a crime against humanity, the eccc did adopt this standard,

80 “Khmer Rouge History,” Cambodia Tribunal Monitor, accessed 23 February 2015. http://www.cambodiatribunal.org/history/cambodian-history/khmer-rouge-history/; “Cambodian Genocide Program,” Yale University, accessed 23 February 2015. http://www .yale.edu/cgp/. 81 Randle C. DeFalco, “Accounting for Famine at the Extraordinary Chambers in the Courts of Cambodia: The Crimes Against Humanity of Extermination, ‘Other Inhumane Acts’ and Persecution,” International Journal of Transitional Justice 5, 1 (2011). 82 Ibid., p. 10. 83 Prosecutor v. NUON Chea and KHIEU Samphan, Case 002/01 Judgment, eccc Trial ­Chamber, 7 August 2014, para. 414. 84 Ibid., para. 417.

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considering that “there was no reasoned basis for a departure from the original approach taken in the Krstić Trial Judgment, which encompassed dolus eventualis and was based on a review of pre-1975 jurisprudence.”85 The eccc Trial Chamber found that the conditions and a lack of any assistance during the victims’ journey to their home villages, constituted murder. As the “scale” requirement was satisfied, the murders amounted to extermination, even though the exact number of victims as a result of the severe conditions imposed during their journey could not be established.86 The Chamber found that the Khmer Rouge soldiers possessed the requisite mens rea – in the form of dolus eventualis – for extermination as a crime against humanity, considering that: the Khmer Rouge soldiers intended to create conditions of life that lead to death in the reasonable knowledge that such act or omission was likely to cause the death of a large number of persons. Accordingly, through these acts, the Chamber finds they committed extermination.87 NUON Chea and KHIEU Sampan were both held criminally responsible under different liability modes.88 The Chamber considered with respect to NUON Chea that he: through his senior leadership roles, knew or had reason to know that Khmer Rouge forces would commit the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity during the course of movement of population.89 For the accused KHIEU Sampan, the eccc entered a conviction under jce liability (in its basic form) for the murder and extermination that took place at Tuol Po Chrey, as well as for planning, instigating, aiding and abetting extermination during the movement of the population.90

85 86 87 88 89 90

Ibid., para. 417. Ibid., para. 560. Ibid., para. 562. Ibid., para. for the accused NUON Chea paras. 877 et seq. and for the accused KHIEU Sampan paras. 1039 et seq. Ibid., para. 915. Ibid., para. 1053–4.

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6.4.3 Enslavement The Rome Statute provides the following definition of enslavement: [T]he exercise of any or all the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. The Elements of Crimes furthermore provide that exercising the right of ownership may include “purchasing, selling, lending or bartering” a person or persons, “or by imposing on them a similar deprivation of liberty”.91 There exists no icc case law on enslavement yet, and neither article 7(1)(c), nor the Elements of Crimes provide guidance as to the requisite level of mens rea. The starting point may thus be that the material elements of the crime must have been committed, pursuant to article 30 ICCSt., with intent and knowledge.92 The icty case law may provide guidance. Kunarac, the former leader of a reconnaissance unit of the Bosnian Serb Army (vrs), and Kovač, who was one of the sub-commanders of the military police of the vrs, stood trial before the icty on charges of enslavement, in the form of maltreatment of women and children and forced or compulsory labor service.93 Before promulgating a definition on slavery, the Trial Chamber analyzed existing conventions on slavery and compulsory labor, as well as case law of the Nuremberg Tribunal. Even though the Nuremberg Tribunal had indicted and convicted thirteen defendants for their involvement in the slave labor program, it failed to indicate whether it had entered these convictions for war crimes or for crimes against humanity, except for the defendant Von Schirach.94 In this judgment, slavery or forced labor were interpreted not only as a war crime, but also as enslavement as a crime against humanity.95 In other judgments, the imt went into the so-called “voluntary” recruitment of forced laborers, as well as the conditions in which the laborers had to work. A conviction for his participation in the forced labor program was entered in the case of defendant Speer, despite that he had “insisted that the slave labourers be given adequate food and working

91 92

93 94 95

Elements of Crimes, article 7(1)(b) ICCSt. Jonas Nilsson, Commentary Rome Statute, article 7(1)(c), Case Matrix Network, accessed 19 October 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary -clicc/commentary-rome-statute/commentary-rome-statute-part-2-articles-5-10/. Kunarac et al., Trial Judgment, para. 516. Ibid., para. 523. Ibid., para. 523.

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conditions so that they could work efficiently”.96 Here, the defendants mens rea to use slave labor could be established on the basis of his own statements. Speer admitted that he had deployed people in the labor program, but hoped that giving adequate food and working conditions could absolve him from criminal responsibility. In the Kunarac, Kovač and Vuković case the icty Appeals Chamber held that the actus reus of enslavement is “the exercise of any or all of the powers attaching to the right of ownership over a person”, while the mens rea entails “the intentional exercise of such powers”.97 It furthermore gave some indicia of enslavement, which can be found in the “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”.98 In Krnojelac, the Trial Chamber found the “exaction of forced or compulsory labor” to be an indication of enslavement.99 6.4.4 Deportation or Forcible Transfer of Population Deportation or forcible transfer is a crime under the Rome Statute if one or more persons are deported or forcibly transferred by expulsion or other coercive acts, while there were no grounds under international law permitting such transfer.100 The term “forcibly” can be interpreted broadly as it not only includes physical force, “but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”.101 Furthermore, it is required that the persons were lawfully present in the area from which they were deported or forcibly transferred.102 In order to hold an accused criminally responsible for this crimes, it must be established – as an additional mens rea requirement – that the accused knew that the deported or forcibly transferred persons were lawfully present in the area.103 This material element, i.e. that the victims were lawfully present in the area from which 96 97 98 99 100 101 102 103

Cited from Kunarac et al., Trial Judgment, para. 523. Kunarac et al., Appeals Judgment, para. 116. Ibid., para. 119. Prosecutor v. Krnojelac, Case No.: IT-96-25-T, Trial Judgment, 15 March 2002, para. 359. Elements of Crimes, article 7(1)(d)-1 ICCSt. Ibid., article 7(1)(d) ICCSt, footnote 12. Ibid., article 7(1)(d)-2 ICCSt. Ibid., article 7(1)(d)-3 ICCSt.

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they were deported or forcibly transferred, requires the accused’s awareness of the factual circumstances establishing the victims’ lawful presence in the area. Proof of a legal evaluation by the accused on whether or not the victims were lawfully present in the area is not required.104 The two acts, deportation and forcible transfer, have different connotations within international criminal law. Deportation implies “the forcible removal of people from one country to another”, while forcible transfer relates to the “compulsory movement of people from one area to another within the same State”.105 6.4.5 Imprisonment or Other Severe Deprivation of Physical Liberty As to the crime of imprisonment or other severe deprivation of physical liberty, the Elements of Crimes provide the following additional requirements, next to the requirements that the acts must have been part of a widespread or systematic attack directed against any civilian population and that the perpetrator knew or was aware that his conduct was part of such an attack: 1. 2. 3.

The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. The gravity of the conduct was such that it was in violation of fundamental rules of international law. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.106

Element sub (3) to this crime relates to the mens rea aspect and requires the perpetrator’s awareness vis-à-vis the gravity of the conduct. It has been noted that this element is to be understood as “that the prosecutor need not prove that the perpetrator made any legal evaluation that the imprisonment was in

104 Barbara Goy, Commentary to article 7(1)(d), Case Matrix Network, accessed 19 October 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/ commentary-rome-statute/commentary-rome-statute-part-2-articles-5-10/, referring to Darryl Robinson, “Article 7 (1)(d) – Crime Against Humanity of Deportation Or Forcible Transfer of Population,” in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, ed. Roy S. Lee (Ardsley: Transnational Publishers, 2001), 86–88. 105 Bassiouni, Crimes against humanity in International Criminal Law, 301, cited in Hall, “Article 7, Crimes against Humanity,” 133. 106 Elements of Crimes, Article 7(1)(e) ICCSt.

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violation of fundamental rules of international law”.107 Awareness seems to embrace dolus eventualis. 6.4.6 Torture Torture as a crime against humanity includes an additional mens rea requirement, the infliction of pain or suffering must be “intentional”. This is consistent with the definition of torture in article 1 of the Convention against Torture which reads: torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity.108 Article 7(2)(e) ICCSt. sets forth the following definition of torture, in which the “intentional” element is reiterated: [T]he intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. Different from the Convention against Torture, the Rome Statute and Elements of Crimes, do not require that the torture was committed with a specific purpose or by a public official or person acting in an official capacity. Torture within the meaning of the Rome Statute requires the fulfilment of two material elements: (1) the intentional infliction of severe pain or suffering, and (2) upon a person in the custody or under the control of the accused. Yet, such person thus not necessarily need to be a “public official”. As the torture provision includes the mens rea requirement of “intentional”. Article 30(3) ICCSt., which is applicable “unless otherwise provided”, does thus not cover the crime of torture. In the Bemba Gombo case, the icc Pre-Trial Chamber held that this mens rea requirement of intentional infliction of severe pain or suffering, meant that 107 Robinson, “Article 7(1)(e)-Crime Against Humanity of Imprisonment or Other Severe ­Deprivation of Physical Liberty,” 89. 108 See also Article 7(2)(e) ICCSt.

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the knowledge requirement of article 30(3) ICCSt. need not be proven. In other words, it was “not necessary to demonstrate that the perpetrator knew that the harm inflicted was severe”.109 The mental element of torture can be proven once it can be established that “the perpetrator intended the conduct and that the victim endured severe pain or suffering”.110 Rape, which is criminalized as a crime against humanity under article 7(1) (g) ICCSt., may – under circumstances – be considered to constitute torture under article 7(1)(f) ICCSt., when looking at icty precedent. In the Čelebići case, the icty Trial Chamber found that rape and other forms of sexual violence may constitute torture within the meaning of the icty Statute, if the following requirements are met: (i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.111 Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, or Any Other Form of Sexual Slavery of Comparable Gravity Article 7(1)(g) ICCSt. lists the acts of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as a crime against humanity. The Elements of Crimes establish the objective and subjective elements of the separate crimes listed in this provision. Rape, for example, requires that the “perpetrator invaded the body of a person”.112 Furthermore, the rape must have been committed

6.4.7

109 Bemba Gombo, Decision Pursuant to Article 67(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 194. 110 Ibid., para. 194. 111 Prosecutor v. Delalić et al., Case No.: IT-96-21-T, Trial Judgment, 16 November 1998, para. 494. 112 Elements of Crimes, article 7(1)(1)-1 ICCSt.

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by force, threat of force or coercion.113 Such coercion need not necessarily take the form of physical force, but may be derived from a “coercive environment”. As noted by the ictr Trial Chamber in the Akayesu case and reiterated in Katanga and Ngudjolo Chui: Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or military presence.114 The subjective element of rape as a crime against humanity is governed by article 30 ICCSt. and encompasses dolus directus of the first and second degree. It requires that the perpetrator intended to forcibly (be it direct force, threat of force, or coercion) invade a person’s body “with a sexual organ, or the anal or genital opening of the victim with any object or any other part of the body”.115 Katanga and Ngudjolo Chui stood trial before the icc on charges of sexual slavery, which – pursuant to the Elements of Crimes – occurs when: 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty; 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.116 These are the objective elements of sexual slavery as a crime against humanity. The subjective element requires that the perpetrator intended “to impose a deprivation of liberty and cause the victim to engage in one or more acts of a sexual nature”, which encompasses a dolus directus of the first and second degree.117

113 Ibid. 114 Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 688; Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 440. 115 Elements of Crimes, article 7(1)(g)-1 ICCSt.; Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 441. 116 Elements of Crimes, article 7(1)(g)-2 ICCSt.; see also Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 429. 117 Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 433.

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Forced prostitution has been said to refer to “conditions of control over a person who is coerced by another person to engage in sexual activity”.118 The inclusion of this provision is relevant, as it can cover situations that do not amount to (sexual) slavery, but in which a person may nevertheless be compelled to “perform sexual acts in order to obtain something necessary for survival or to avoid further harm”.119 Finally, a woman giving birth to a baby as a result of forced sexual intercourse, does not automatically constitute forced pregnancy, as this latter crime requires proof of the accused’s intention to affect the “ethnic composition of any population” or his intention to carry out “other grave violations of international law”, such as genocide.120 6.4.8 Persecution Article 7(1)(h) ICCSt. sets forth persecution as a crime against humanity. It specifies that persecution must have been committed “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.121 Article 7(2)(g) ICCSt. furthermore specifies that “‘persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. Article 30 ICCSt. is not applicable to the crime of persecution, since the general mens rea requirement of this article is only applicable “unless otherwise provided”. Article 7(2)(g) requires that the deprivation of fundamental rights was “intentional” and “severe”. In the Kordić and Čerkez case, the icty Trial Chamber outlined the “intent” requirements for the crime of persecution. Firstly, it presupposes “specific intent”, which is defined as “to commit the act and produce its consequences”. Secondly, there is a requirement of “general intent”, which is defined as “objective knowledge of the context in which the accused acted”. The third 118 Machteld Boot, “Article 7, Crimes against Humanity,” in Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article, ed. Otto Triffterer (Baden-Baden: Nomos Verlagsgesellschaft, 2000), 143. 119 Ibid., 143. 120 T.A. Salzman, “Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia,” Human Rights Quarterly 20 (1998): 365–66, cited in Boot, “Article 7, Crimes against Humanity,” 165. 121 Article 7(1)(h) ICCSt.

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requirement, discriminatory intent, sets persecution apart from the other crimes against humanity. It is defined as “the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on its individual nature and gravity”.122 The first requirement aims at the act, while the third requirement aims at the group. In the Kordić and Čerkez case, the icty Appeals Chamber held that the perpetrator’s mens rea for persecution requires proof of a “specific intent to discriminate on political, racial, or religious grounds.”123 The Chamber furthermore clarified that the mens rea for persecutions is: the specific intent to cause injury to a human being because he belongs to a particular community or group […] there is no requirement in law that the actor possesses a “persecutory intent” over and above a discriminatory intent.124 The accused’s mens rea for persecution, and thus his discriminatory intent, can be inferred from the general discriminatory nature of an attack that has been characterized as a crime against humanity provided that “in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent”.125 Thus, the “general discriminatory nature” of the attack alone is not sufficient. In the Kordić and Čerkez case, the Appeals Chamber assumed the existence of discriminatory intent on part of the perpetrators on the basis of its determination that the factual context in which the crimes were committed had as a common denominator that they were directed against Bosnian Muslims.126 It furthermore took into account the evidence related to “Kordić’s political activities and inclinations, his strongly nationalist and ethnical stance, and his desire to attain the sovereign Croatian state within the territory of Bosnia and Herzegovina at seemingly any cost”.127 In the Tadić case, the Prosecution contended on appeal that the Trial Chamber erred in its finding that crimes against humanity required discriminatory intent. The Appeals Chamber agreed with the prosecution: 122 Kordić and Čerkez, Trial Judgment, para. 212. 123 Kordić and Čerkez, Appeals Judgment, 17 December 2004, para. 110, 674, referring to Blaškić, Appeals Judgment, 29 July 2004, para. 164. 124 Kordić and Čerkez, Appeals Judgment, para. 111. 125 Ibid., Appeals Judgment, para. 110, 674, referring to Blaškić, Appeals Judgment, para. 164. 126 Kordić and Čerkez, Case No. IT-95-14/2-A, 17 December 2004, para. 675. 127 Ibid., para. 722.

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Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h) [persecutions on political, racial and religious grounds], concerning various types of persecution.128 Persecution as a crime against humanity requires thus proof of discriminatory intent on part of the accused. As held by the icty Trial Chamber in the Tadić case: “what is necessary is some form of discrimination that is intended to be and results in an infringement of an individual’s fundamental rights”.129 It is to be expected that the icc will endorse the same interpretation of this type of intent. 6.4.9 Enforced Disappearance of Persons The crime of enforced disappearances of persons appears to have been created in Nazi Germany in the Nacht und Nebel Erlass (Night and Fog Decree) issued on 7 December 1941.130 Although enforced disappearance of persons was not incorporated in the Nuremberg Charter, Field Marshal Keitel was convicted of carrying out enforced disappearances as being a war crime.131 The icc Elements of Crimes requires for enforced disappearance the following: 1. The perpetrator: (a) Arrested, detained or abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. 2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom.132

128 129 130 131 132

Tadić, Appeals Judgment, para. 305. Tadić, Trial Judgment, para. 697. Hall, “Article 7, Crimes against Humanity,” 151. Ibid. Elements of Crimes article 7(1) (i) ICCSt.

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The two pivotal substantive elements are 1) an arrest, detention or abduction of a person or persons, and 2) a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons. According to the Elements of Crimes, there must be an objective nexus between these material elements in order to convict a defendant for enforced disappearance of persons. Furthermore, such arrest, detention or abduction ought to be carried out by, or with the authorization, support or acquiescence of, a State or a political organization.133 Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons ought to be carried out by, or with the authorization or support of, such State or political organization.134 In the Preamble to the 1992 un Declaration on the Protection of All Persons from Enforced Disappearance, the definition of enforced disappearance was quite similar since it promulgated the condition: in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, thereby placing such persons outside the protection of the law.135 In order to have a person convicted for enforced disappearance, it is paramount that the enforced disappearance was committed as part of a widespread or systematic attack directed against civilian population.136 For the enforced disappearance of persons, it is also required that the perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.137 It is tenable that the mens rea level here is that of dolus in the first or second degree. Moreover, the perpetrator also had to know that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.138 133 134 135 136 137 138

Ibid., article 7(1) (i) (4) ICCSt. Ibid., article 7(1) (i) (5) ICCSt. un Declaration on the Protection of All Persons from Enforced Disappearance, Preamble. Elements of Crimes article 7(1) (i) (7) ICCSt. Ibid., article 7(1) (i) (6) ICCSt. Ibid., article 7(1) (i) (8) ICCSt.

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6.4.10 The Crime of Apartheid As to the crime of apartheid, the icc Elements of Crimes stipulate: 1. The perpetrator committed an inhumane act against one or more persons. 2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts. 3. The perpetrator was aware of the factual circumstances that established the character of the act. 4. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups. 5. The perpetrator intended to maintain such regime by that conduct.139 Sub (3) – (5) specifically pertain to the accused’s mens rea. The word “character” in sub 2 and 3 refers to the nature and gravity of the act.140 The Elements of Crimes furthermore clarify that the crime of apartheid may be committed by an act against one or more persons. Whether this level of mens rea alludes to dolus eventualis is yet to be determined. As a crime against humanity, the conduct should be committed as part of a widespread or systematic attack directed against a civilian population;141 however, the crime of apartheid also holds a special mental element, namely that the conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.142 Presently, no case law of the icc was produced interpreting the crime of apartheid. The crime of apartheid was qualified as a crime against humanity by the un General Assembly through a Resolution on 16 December 1966.143 The crime of apartheid was also incorporated in the International Convention on the Suppression and Punishment of the Crime of Apartheid. Several scholars objected

139 140 141 142 143

Ibid., article 7(1) ICCSt. Ibid., article 7 (1) (j) ICCSt., footnote 29. Ibid., article 7 (1) (j) (6) ICCSt. Ibid., article 7 (1) (j) (4) ICCSt. un ga res. 2202 (xxi), concerning The Policies of Apartheid of the Government of the Republic of South Africa, 16 December 1966.

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to incorporating the crime of apartheid in the Rome Statute, as they believed that the crime was already fully covered by the abovementioned conventions. 6.4.11 Other Inhumane Acts The “other inhumane acts” provision under article 7(1)(k) ICCSt. cannot be used as a residual category to prosecute minor or obscure offences. The Elements of Crimes provide that the act must be of a similar character (i.e. ­nature and gravity) as the acts listed in articles 7(1)(a)-(j) ICCSt.144 In the Confirmation of Charges Decision in the Katanga and Ngudjolo Chui case, the icc Pre-Trial Chamber held that “inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law.”145 The Chamber furthermore noted that the Rome Statute’s scope of “other inhumane acts” departs from its precedents, such as the imt Charter and the ictr and icty Statutes. Within the icty “other inhumane acts” were seen as a “catch all provision” with a broad margin to determine its limits in its case law. The Rome Statute, on the other hand, “contains certain limitations, as regards to the action constituting an inhumane act and the consequence required as a result of that action”.146 The objective elements of the act must have been committed with intent and knowledge pursuant to article 30 ICCSt. Furthermore, the perpetrator must have been “aware of the factual circumstances that established the character of the act”, as required by article 7(1)(k)-3 of the Elements of Crimes.147 It is not clear whether dolus eventualis is sufficient for proof of “other inhumane acts”. This would lower the mens rea threshold for some (future) other inhumane acts. The icty case law seems to exclude this type of mens rea. Both the Statute of the icty and the Statute of the ictr similarly contain the phrase “other inhumane acts” as an all-encompassing term. In the Tadić Judgment, the Trial Chamber indicated that the other inhumane act must be similar in character as the crimes indicated in paragraph 1 of article 7 ICCSt. and the act must intentionally cause great suffering, or serious injury to body or to the mental or physical health of the victim. The Trial Chamber of the icty held in the Tadić case that the accused:

144 Elements of Crimes, article 7(1)(k) ICCSt. 145 Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 448; see also Kupreškić et al., Trial Judgment, para. 566. 146 Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 450. 147 See also Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, para. 455.

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intended […] to inflict severe damage to the victim’s physical integrity and human dignity […] [and] that the accused [in other instances] intentionally assisted directly and substantially in the common purpose of inflicting physical suffering upon them.148 The intent requirement was confirmed in the Čelebići case, which concluded that willfully causing great suffering or serious injury to body or health: constitutes 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.149 The intent requirement was also adopted by the icc, in contrast to the wording chosen by the ilc.150 Contrary to these observations, the eccc relied on a rather low mens rea standard for crimes against humanity. In the first judgment, the Duch case, the eccc stipulated with regard to other inhumane acts: The requisite intention to inflict inhumane acts is satisfied when the perpetrator had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim, or knew that the act of omission was likely to cause serious physical or mental suffering or a serious attack upon the human dignity.151 It remains to be seen whether the icc will adopt this approach for “other inhumane acts”. 6.5

Crimes against Humanity at the icc

In March 2014, the icc rendered its first conviction for crimes against humanity in the case of Germain Katanga in the Democratic Republic of the Congo (drc) situation. This judgment exemplifies the approach taken by the icc

148 149 150 151

Tadić, Opinion and Judgment, 7 May 1997, para. 730 (emphasis added). Delalić et al., Trial Judgment, para. 511. Boot, “Article 7, Crimes against Humanity,” 156. Prosecutor v. KAING Guek Eav alias Duch, Case No.: 001/18-07-2007/ECCC/TC, Trial Judgment, 26 July 2010, para. 371 (emphasis added).

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when analyzing a case based on crimes against humanity and its mens rea requirements. The Majority of the Trial Chamber found him guilty for murder as a crime against humanity under Article 7(1)(a) ICCSt. and acquitted him for the other count, namely rape and sexual slavery as a crime against humanity under Article 7(1)(g) ICCSt. Even though the Trial Chamber found that such crimes had been committed, it could not establish the accused’s guilt beyond reasonable doubt for these crimes. Katanga was also convicted on four charges of war crimes.152 The Trial Chamber articulated that the first step of the analysis relates to whether there existed an “attack” within the meaning of article 7(2)(a) ICCSt. It examined the following three elements: 1. 2. 3.

Whether there existed an operation or course of conduct, which involved the multiple commission of (one of the) acts listed in article 7(1) ICCSt.; Whether the operation or course of conduct was committed against the civilian population; and Whether the operation or course of conduct was committed pursuant to or in furtherance of a State or organizational policy.153

The second step relates to the characterization of the attack, and, more particularly, whether the attack was conducted in widespread or systematic manner.154 This second examination is only to take place once the first step (i.e. the existence of an attack) has been fulfilled. The Trial Chamber held that it is generally accepted that “widespread” refers to the large scale of the attack, while “systematic” refers to the organized nature of the attack(s).155 The third stage encompasses two steps. In the first place, it must be established that there was a link between the widespread or systematic attack and the relevant act under article 7 of the Statute. Secondly, it must be established that the perpetrator of the act had knowledge of such a link (i.e. knew that his act was part of a widespread or systematic attack).156 Crimes against humanity must be conducted pursuant to or in furtherance of a state or organizational policy, according to the Elements of Crimes to crimes against humanity this encompasses a requirement that “the State or 152 153 154 155 156

See Chapter 4 on War Crimes. Katanga, Trial Judgment, para. 1097. Ibid., para. 1098. Ibid. Ibid., para. 1099.

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organization actively promote or encourage such an attack against a civilian population.”157 The footnote to this Element provides that: A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.158 All attacks directed against any civilian population that can be qualified as “systematic” will, in principle, presume the existence of a State or organizational policy.159 This does not mean, however, that “systematic” and “State or organizational policy” can be considered synonyms.160 The Trial Chamber held that it need not be proven that the perpetrator adhered to the State or organizational policy. Also, deliberate intention on part of the perpetrator that his act would be part of an attack against the civilian population need not be proven.161 A perpetrator’s motive is therefore irrelevant in order to prove crimes against humanity. For an act to qualify as a crime against humanity, it is sufficient to establish that, in light of the context, the accused had knowledge of the fact that his act fell within the scope of an “attack” within the meaning of article 7 ICCSt.162 Judge Christine Van den Wyngaert appended a dissenting opinion in which she made some observations related to the Majority’s findings on the contextual elements for crimes against humanity. Firstly, she held that the number of attacks, resulting in 33 deaths, did not meet the “Multiple Commission Requirement” and thus, in her view, the crimes were not committed as part of a widespread or systematic attack.163 Secondly, the evidence did not conclusively show that the Hema civilian population was the primary target of the attackers and thus the criminal purpose (i.e. “directed against any civilian population”) required for crimes against humanity could not be met.164 157 158 159 160 161 162 163

Elements of Crimes, article 7 ICCSt., introduction, no. 3. Ibid., article 7, no. 3, footnote 6. Katanga, Trial Judgment, 7 para. 1111. Ibid. Ibid. Ibid., para. 1125. Katanga, Trial Judgment, Minority Opinion of Judge Christine Van den Wyngaert, 7 March 2014, para. 264–6. 164 Ibid., para. 266.

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Furthermore, Judge Van den Wyngaert found that there was no organization, no organizational policy and requirement for the attack to be “systematic” could not be established.165 In the Katanga case, Trial Chamber ii outlined three concepts that are to be applied when establishing the mental element encapsulated in Article 30 ICCSt., namely actions, consequences and circumstances.166 With regard to a consequence, Article 30 ICCSt. includes two forms of intent. Article 30(2)(b) ICCSt. is the dolus directus to the first degree, which means that the person intended to cause the consequence. The second form revolves around the notion that the accused was aware that the consequence would occur in the ordinary course of the events.167 Trial Chamber ii held that the term “will occur” in Article 30 ICCSt. read in conjunction with “in the ordinary course of the events” clearly indicates that the requisite standard, as regards to the occurrence of the consequence in question, is near certainty. It is a “virtual certainty”, also referred to as “oblique intention”.168 It implies that it is almost impossible to imagine that the consequence will not occur.169 With regard to the “circumstance” criterion, article 30(3) ICCSt. requires that the accused is aware of the existence of this circumstance or, with regard to a consequence, is aware that the consequence will occur in the ordinary course of the events.170 On 18 December 2012, Trial Chamber ii acquitted Mathieu Ngudjolo Chui for murder as a crime against humanity.171 It was the first time the icc had to judge upon an accused who was charged with crimes against humanity and sexual violence offences. Trial Chamber ii found that there was insufficient evidence to proof beyond reasonable doubt that Ngudjolo Chui was the commander of the Lendu combatants at the time of the attack on Bogoro in 2003, and therefore, his responsibility for the crimes, as charged, could not be proven. The Trial Chamber did not examine whether there existed a common plan between Ngudjolo Chui and Katanga to commit the attack on Bogoro.

165 166 167 168 169 170 171

Ibid., para. 268–273. Katanga, Trial Judgment, para. 771, 779. Ibid., para. 774. Ibid., para. 776. Ibid., para. 777. Ibid., para. 778. Prosecutor v. Ngudjolo Chui, Case No.: ICC-01/04-02/12-3-tENG, Trial Judgment, 18 ­December 2012.

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Concluding Remarks and Overview

In order to secure a conviction for crimes against humanity, it is essential to first construe the contextual elements of an attack. It is required that the specific crime with which the accused was charged formed part of a widespread or systematic attack directed against any civilian population which was executed pursuant to a state or organizational policy. The accused’s mental element is to be proven in regard to at the specific crime, as well as in regard to the contextual elements of the attack. It must be demonstrated that the accused had knowledge that a widespread or systematic attack was being conducted against the civilian population. Furthermore, the specific crimes against humanity listed in the Rome Statute may impose additional mens rea requirements. As the above analysis has shown, the elements of crimes may provide guidance on how to construe such mens rea, as well as the case law of the ad hoc tribunals. To date, the icc has rendered two final judgments on crimes against humanity, in which the first contours for this crime became visible.

chapter 7

Mens Rea and the Crime of Aggression 7.1 Introduction With the establishment of the Nuremberg Tribunal individuals for the first time could incur criminal responsibility for crimes against peace, the predecessor of the icc crime of aggression, which is one of the four core crimes in the Rome Statute. Since the cessation of the Second World War trials, no criminal prosecutions for the crime of aggression have taken place.1 Criminal intent is a constitutive element of the crime of aggression. The Judgments of the Nuremberg and Tokyo Tribunals delineated the contours of the requisite level of mens rea for the crime of aggression. These judgments, as well as the judgments of the subsequent Nuremberg trials conducted under Control Council Law No. 10, were attributive to the legislative developments that have resulted in the criminalization of aggression in the Rome Statute, as well as in several national jurisdictions.2 This chapter discerns the mens rea element for aggression. Before delving into this topic, the predecessor of the crime of aggression is analyzed. During the Nuremberg trials, individuals could incur criminal responsibility for acts of aggression of the state. At that time, this novelty was challenged by defense counsels in their pleadings. Before turning to these issues, the crimes against peace and accompanying levels of mens rea at the International Military Tribunal (imt) will be discussed. 7.2

Mens Rea for Crimes against Peace at the imt

Prior to discerning what the mens rea prerequisites for the newly established crime of aggression are, it is instructive to assess the mens rea concept for the predecessor of said crime (i.e. crimes against peace). Crimes against peace were defined in Article 6 of the imt Charter as:

1 Sergey Sayapin, The Crime of Aggression in International Criminal Law. Historical Development, Comparative Analysis and Present State (The Hague: Asser Press, 2014), 200. 2 Ibid.

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the 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. In order to incur criminal responsibility for crimes against peace within the context of the Nuremberg trial, the accused’s criminal intent could either be derived from his active participation in the preparation or execution of the plan to wage an aggressive war, or, from the accused’s knowledge of the plan and the fact that he took some sort of action in furtherance of the implementation of the plan. Two categories of crimes against peace could be derived from the imt Charter, which were reflected in the first two counts of the imt-indictment: 1. 2.

Participation in a common plan or conspiracy for the accomplishment of “any of the foregoing”; or The planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.3

The imt did not elaborate at length on the extent to which the aggressive wars were also “in violation of international treaties, agreements or assurances”, as all Germany’s wars, from the attack on Poland onwards, were found to be “aggressive wars”.4 Examining whether these aggressive wars also violated international treaties would thus have been superfluous.5 Yet, such examination would have illuminated some important questions that could arise before the icc if a present-day prosecution for the crime of aggression takes place. What if, for example, the un Security Council determines that an act of aggression took place and refers the situation to the icc, are the judges imbued with discretion to deviate from this conclusion or is this already a fait accompli? Are aggressive wars distinct from violations of international treaties, and, if so, what are the distinguishing factors? The mens rea test for crimes against peace was whether the accused had knowledge of the plan to wage an aggressive war. If the accused did not possess such knowledge, regardless of his actions or even contribution to the “plan”, he could not incur criminal responsibility for crimes against peace. This is 3 Article 6 imt Charter; Indictment of the International Military Tribunal; count 3 and 4 were respectively war crimes and crimes against humanity. 4 United Nations – General Assembly, The charter and judgment of the Nürnberg Tribunal. History and Analysis (New York, 1949), 50. 5 Ibid.

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why the defendant Hjalmar Schacht was acquitted for crimes against peace. Schacht, who was President of the Reichsbank from 1923 until 1939 and Reich Minister of Economics from 1934 until 1937, actively supported the Nazi party before its rise to power in 1933. In the years preceding the Second World War, Schacht played an important role in the German rearmament program. He created a system under which large amounts of money could be obtained for rearmament from the short-term money market and he was active in organizing the German war economy.6 The requisite mens rea to wage an aggressive war could, however, not be derived from his contribution to the rearmament program. The judges, although not being unanimous, reasoned that: It is clear that Schacht was a central figure in Germany’s rearmament program, and the steps which he took, particularly in the early days of the Nazi regime, were responsible for Nazi Germany’s rapid rise as a military power. But rearmament of itself is not criminal under the charter. To be a crime against peace under Article 6 of the Charter it must be shown that rearmament must be undertaken as part of a plan to wage aggressive wars.7 Schacht’s acquittal probably had to do with Schacht’s decreasing influence in Nazi Germany as a result of his opposition to some of the Nazi regime’s plans. In 1936, Hitler appointed Herman Göring as Plenipotentiary tasked with putting “the entire economy in a state of readiness for war” within four years. Schacht was against the four year plan and, moreover, his economic policies were deemed to be “too conservative for the drastic rearmament policy which Hitler wanted to put into effect”.8 In 1939, Hitler withdrew Schacht from his position as President of the Reichsbank and in 1943 he lost his position as Reichsminister without Portfolio, because of his “whole attitude during the present fateful fight of the German Nation”.9 Schacht was deported to a concentration camp in 1944 where he had to stay until the end of the war.10 For crimes against peace, a defendant’s knowledge that his actions contributed to the plan to wage an aggressive war must be proved, which can be inferred from his actions or attitude. It can be argued that once Schacht became aware of 6 7 8 9 10

International Military Tribunal (Nuremberg trial), Judgment, 1 October 1946, 1 imt 171, p. 307. Ibid., p. 309. Ibid. Ibid., p. 308. Ibid.

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the aggressive schemes, he changed his attitude towards the rearmament program, which eventually led to his acquittal. Another German defendant, Franz von Papen, was also acquitted for crimes against peace, because his actions were not directed at the planning of an aggressive war. According to the evidence, Von Papen’s primary purpose was “to undermine the Schuschnigg regime and strengthen the Austrian Nazis for the purpose of bringing about the Anschluss”.11 The occupation of Austria, as well as Czechoslovakia, was not considered as an aggressive war by the imt. Thus, even though the judges found that Von Papen’s actions were contrary to political morality, his intent was not directed at planning an aggressive war and therefore he could not be found guilty.12 Similarly, the defendant Ernst ­Kaltenbrunner, who was actively involved in the seizure of Austria, was acquitted for crimes against peace. Yet, he was executed after the imt found him guilty on charges of war crimes and crimes against humanity.13 In conclusion, it can be said that three consecutive elements must be fulfilled to hold an individual criminally responsible for crimes against peace. Firstly, it must be established that there existed an aggressive war. Secondly, the defendant must have delivered a contribution to the aggressive war. Thirdly, the defendant must have had knowledge that his contribution formed part of the plan to wage an aggressive war. In other words, the imt required proof of the accused’s “knowledge of the aggressive purpose of the planning”.14 The next paragraph will determine whether these three criteria also feature within the concept of the icc crime of aggression. 7.3

General Constitutive Elements of the icc Crime of Aggression

During the 1998 diplomatic conference on the adoption of the Rome Statute, the delegates could not arrive at an agreement on a definition on the crime of aggression, nor could they reach consensus with respect to the Security ­Council’s role in determining whether one State conducted an act of a­ ggression against another State.15 As a compromise, the crime of aggression was listed 11 12 13 14 15

Ibid., p. 327. Ibid. Ibid., p.111, 154; United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis (New York, 1949), 48. Ibid., p. 57–8. Handbook Ratification and Implementation of the Kampala Amendments to the Rome Statute of the icc. Crime of Aggression and War Crimes (Princeton: Liechtenstein Institute on

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as one of the crimes in the Rome Statute. However, a definition and the conditions for exercising jurisdiction over this crimes had yet to be determined. During the 2010 Review Conference in Kampala, the delegates of the State parties to the Rome Statute adopted Resolution RC/Res.6 to amend the Rome Statute. The resolution contained a definition of the crime of aggression, as well as articles containing provisions for exercising jurisdiction over this crime, and a new liability mode for this specific crime.16 The new provisions will only enter into force after the Assembly of States Parties takes a one-time decision to activated the icc’s jurisdiction, which will be taken no sooner than 2017, and only at least one year after the 30th icc State Party has ratified the amendments on the crime of aggression.17 Similar to crimes against peace, the existence of an aggressive war must be proved before an individual can incur criminal responsibility. The icc pursues the line of reasoning of the imt, as an accused can only be prosecuted for the “crime of aggression” if first it has been established that an “act of aggression” took place. Whereas a definition of an act of aggression is now found in Article 8 bis ICCSt., no such definition existed at the time of the imt trials. An act of aggression is defined in the Rome Statute as: the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.18 The Rome Statute’s general definition, proceeds with seven acts that would qualify as an act of aggression.19 A formal declaration of war is not a prerequisite to qualify a certain act as an “act of aggression”.20 An act of aggression must, however, “by its character, gravity and scale”, constitute “a manifest violation” of the un Charter.21 The key question is who determines what a manifest violation of the un Charter might be. In this regard, one must bear in mind that justified use of force perceived by one side to the conflict, might be seen as an act of aggression by the other side. The un Charter allows for the use of

16 17 18 19 20 21

Self-Determination/Woodrow Wilson School of Public and International Affairs), 3. Respectively, article 8bis, articles 15bis and ter, article 25bis ICCSt. Handbook Ratification and Implementation of the Kampala Amendments to the Rome Statute of the icc. Crime of Aggression and War Crimes, 3. Article 8 bis (2) ICCSt. Article 8 bis (2)(a)-(g) ICCSt. Article 8 bis (2) ICCSt. Article 8 bis (1) ICCSt.

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force in cases of individual or collective self-defense. Hence, the qualification of a certain act as either an act of aggression or self-defense may be determinative for possible (future) icc prosecutions.22 As to individual criminal responsibility for the crime of aggression, article 25(3)bis is introduced into the Rome Statute: In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State. This mode of liability coincides with the definition of the crime of aggression, which requires that the crime of aggression was planned, prepared, initiated of executed “by a person in a position effectively to exercise control over or to direct the political or military action of a State”.23 This specific liability mode seems to only allow for prosecution of political or military leaders. The determination of whether certain acts constituted an “aggressive war” surfaced before the imt, and even led to the acquittal of some of the defendants for crimes against peace.24 The imt called the annexation of Austria an “aggressive act”, but it was “not charged as an aggressive war”.25 “Aggressive actions” were distinguished from “aggressive wars” thus, not every armed ­invasion of a State was considered to be an “aggressive war”. The distinction made by the imt pertained to the attacked State’s level of resistance. Whereas G ­ ermany faced armed resistance when it tried to annex Poland (the first country that was attacked in a series of aggressive wars), it did not meet such resistance when it annexed Czechoslovakia and Austria. As noted in the un Memorandum on the Charter and Judgment of the Nurnberg Tribunal:

22

23 24

25

Article 51 un Charter reads: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defense shall be immediately reported to the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Article 8bis (1) ICCSt. Defendants Von Papen and Kaltenbrunner were acquitted for crimes against peace. They had a role in the invasion of Austria, but as this invasion did not constitute an “aggressive war”, crimes against peace could not be proved (see supra). International Military Tribunal (Nuremberg trial), Judgment, p. 111; United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 48.

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The juxtaposition of aggressive acts or action, on one side, and aggressive wars, on the other, seems to imply that cases, where only the attacker has recourse to armed force while the victim puts up no, or a negligible, armed resistance, do not come within the notion of ‘aggressive war’.26 .

Yet, with the advance of modern warfare, it becomes less likely that a State is able to (directly) resist an armed attack with armed force. If, for example, State A launches a drone-attack on State B, the attack already manifested itself before State B was able to respond. Furthermore, it might, different from the invasions during the Second World War, not be directly clear which party launched the attack in the first place. In this regard, the imt provides little guidance as to what could constitute an “act of aggression” in the present day era. 7.4

Elements of Aggression within the Ambit of the Rome Statute

Within the ambit of Rome Statute, the crime of aggression means: the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations regardless of a declaration of war.27 The elements of crimes within the jurisdiction of the Court can be categorized into conduct, consequences, and circumstances.28 The introduction to the crime of aggression in the Elements of Crimes, provides the following clarifications with respect to the crime of aggression: 1. 2. 3. 26 27 28

I t is understood that any of the acts referred to in Article 8bis, paragraph 2, qualify as an act of aggression. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. The term ‘manifest’ is an objective qualification. United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 49. Artice 8 bis ICCSt. Noah Weisbord, “The Mens Rea of the Crime of Aggression,” Washington University Global Studies Law Review 12, 3 (2013): 490.

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There is no requirement to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the Charter of the United Nations.29

A subjective – or mens rea – qualification is lacking in this introduction, which seems to imply that the mens rea will coincide with the objective qualification of “manifest”. The Special Working Group on the Crime of Aggression (swgca) did not find sufficient support for the inclusion of a subjective approach requiring “a specific aggressive intent or purpose (animus aggressionis), coupled with the aim of (long-term) occupation, subjugation or annexation”.30 The general mens rea requirements of article 30 ICCSt. apply to the crime of aggression, making a specific reference to the mental elements in the definition of the crime redundant.31 A further specification was provided in the elements of the crime of aggression, defined at the Kampala Review Conference: 1. 2. 3.

4. 5. 6.

29 30

 he perpetrator planned, prepared, initiated or executed an act of T aggression. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed. The perpetrator was aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the United Nations. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. The perpetrator was aware of the factual circumstances establishing such a manifest violation of the Charter of the United Nations.32

Elements of Crimes, Introduction to Article 8 bis. Kai Ambos, Treatise on International Criminal Law: Volume ii: The Crimes and Sentencing (Oxford Scholarly Authorities on International Law, 2014), 199; see also International Criminal Court, Assembly of States Parties, Special Working Group on the Crime of Aggression, 28 November to 3 December 2005, para. 51. 31 Ambos, Treatise on International Criminal Law: Volume ii: The Crimes and Sentencing, 211. 32 Review Conference of the Rome Statute of the International Criminal Court, Official Records (June 11, 2010), Attachment ii: Amendments to the Elements of Crime.

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Firstly, the defendant must have intended (i.e. meant) to plan, prepare, initiate or execute an “act of aggression”. This implies that a causal relation must be established between the planning, preparation, initiation or execution by the defendant and the act of aggression, which is to be determined by the judge hearing the particular case. The judge will take into account other factors and participants in the act.33 It also implies, that an “act of aggression” took place, as is reflected in the other elements as well. As seen in the preceding paragraphs, the existence of an “act of aggression” is not always clear-cut. Element 2 reflects the leadership nature of the crime of aggression. The defendant must have been in a position to “control or direct” the acts of the State, which can be seen as a departure from the imt jurisprudence.34 The imt Statute, nor the first two charges in the indictment, or the jurisprudence with its three criteria (1) the existence of an aggressive war; (2) the accused’s contribution to the aggressive war; and (3) the accused’s knowledge as to his contribution, require that the accused controlled or directed the acts of the State. It should be noted, however, that only the “major war criminals” were tried before the imt, which might have made the leadership requirement redundant beforehand. In the subsequent Nuremberg Trials conducted under Control Council Law No. 10 all accused were acquitted on charges of crimes against peace. Not on the basis of their non-leadership position, but because of their lack of knowledge.35 Furthermore, the accused must have been in a position to “shape or influence” the State policy, which seems to imply a lower standard than “control or direct”. In the High Command case, the imt held: But mere knowledge is not sufficient to make participation even by highranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it, shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it.36 33

34 35 36

Frances Anggadi, Greg French and James Potter, “Negotiating the Elements of the Crime of Aggression,” in Crime of Aggression Library: The Travaux Préparatoires of the Crime of Aggression, eds. Stefan Barriga and Claus Kreß (Cambridge: Cambridge University Press, 2012), 58. Kevin J. Heller, “Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression,” The European Journal of International Law 18 (2007): 482. Heller, “Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression,” 485. United States v. Von Leeb et al., Law Reports of Trials of War Criminals Before the ­Nuremberg Military Tribunals Under Control Council Law No. 10 (1949), Volume xii, High

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Element 4 does not require that the defendant knew he violated the un Charter.37 He must, however, have been aware of “the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations”. Guidance as to the meaning of “manifest” is provided in Element 6, which requires the prosecution to prove that the defendant “was aware of the factual circumstances that established a manifest violation of the Charter of the United Nations”. What follows from these two elements, is that “factual circumstances” must be proven in order to hold someone criminally responsible for the crime of aggression.38 It is not required that the defendant had “knowledge of the legal doctrine and rules used to evaluate whether a State use of force is inconsistent with the Charter of the United Nations”.39 The general mens rea standard of article 30 ICCSt. applies to the crime of aggression. It entails that the person in a leadership position must have had awareness of the state act of aggression and of the criminal nature of the act.40 This awareness of the “act of aggression” does not include a legal understanding of such an act, meaning that knowledge of the legal elements that make a certain use of state force an unlawful act of aggression, is not required. The person in a leadership position must have had knowledge “of facts establishing the inconsistency of the use of force with the Charter of the United Nations”, as opposed to knowledge of the law.41 Furthermore, the awareness of the state act of aggression is said to presuppose actual knowledge; lower forms of knowledge, such as constructive knowledge or recklessness cannot be used to impose criminal responsibility on the accused aggressor.42 7.5

Mens Rea Defenses Concerning Aggression

Defenses pertaining to a lack of mens rea were particularly applicable to crimes against peace, because, if a defendant’s knowledge of his contribution to the “aggressive war” could not be proved, it would result in an acquittal. Command Judgment, p. 68. Review Conference of the Rome Statute of the International Criminal Court. Roger S. Clark, “Alleged Aggression in Utopia: An International Criminal Law Examination Question for 2020,” in The Ashgate Research Companion to International Criminal Law, eds. William A. Schabas, Yvonne McDermott and Niamh Hayes (Ashgate, 2013), 67. 39 Review Conference of the Rome Statute of the International Criminal Court, Annex ii, Explanatory Note, p. 3. 40 Ambos, Treatise on International Criminal Law: Volume ii: The Crimes and Sentencing, 211. 41 Ibid., 211–2 (emphasis added). 42 Ibid., 212. 37 38

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An accused’s knowledge could be inferred from the position he held or by demonstrating that he was in fact informed; yet the imt was cautious in drawing conclusions from either one of them.43 Consequently, defenses focused on the accused’s knowledge that his actions would contribute to the implementation of the aggressive plans. Other defenses pertained to an accused’s lack of knowledge of the law, as well as the defense of obedience to national law. Defense counsels tried to attribute criminal responsibility to the State for acts of the accused, usurping individual criminal responsibility either because the accused had to commit himself to the will imposed by the sole dictator or because he had to obey national laws. Both lines of defense were rejected by the judges; the considerations thereto will be discussed in the following section. In order to hold an accused criminally responsible for crimes against peace at the imt, either the accused’s planning, preparation, initiation or waging of an aggressive war had to be established, or, his “participation in a common plan or conspiracy”. This latter criterion was controversial, as defense counsels argued that a conviction on the basis of conspiracy would violate the principle of nullum crimen sine lege. Conspiracy was a concept used in the Anglo-American legal system, but it was unknown in the German legal system. Moreover, defense counsels argued that “to conspire” implies that a person participated “knowingly and willingly”. Imposing one’s will on another, which is the essence of a dictatorship, contradicts with the notion of conspiracy.44 The defense reasoned that “a conspiracy with a dictator at its head is a contradiction in itself”.45 This defense was dismissed by the imt, ruling that: A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and businessman. When they, with knowledge of his aims, gave him their co-operation they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing.46 43 44 45 46

United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 57–58. United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 51, referring to the Nazi conspiracy and aggression, supplement B, p. 53. Ibid. United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 52 (emphasis added).

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To hold someone criminally responsible under the conspiracy charge, it had to be proved that the person contributed significantly “with knowledge of its purpose” to the advance of the “concrete plan to wage a war”.47 Mere membership of the Nazi party or participation in the government’s activities did not suffice to establish an accused’s participation in a criminal conspiracy.48 This was confirmed in the High Command case, which was one of the subsequent Nuremberg trials conducted under Control Council Law No. 10. The imt withdrew the conspiracy charge and all defendants were acquitted for the planning, preparation, initiation or waging of an aggressive war. The imt considered: The crime denounced by the law is the use of war as an instrument of national policy. Those who commit the crime are those who participate at the policy-making level in planning, preparing, or in initiating war. After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policymaking level.49 It demonstrates that the defense of obedience to superior orders would not be a viable defense to crimes against peace, as only leaders were held accountable on this charge. This principle is also reflected in the Rome Statute, which implies that the crime of aggression is a leadership crime. Only persons “in a position effectively to exercise control over or to direct the military action of a State” can incur criminally responsible for the crime of aggression.50 Yet, different from the imt, the icc applies the “control or direct” criterion, whereas the imt used the “shape or influence” criterion. As noted by the un War Crimes Commission in its report on the High Command trial: Regardless of whether they had at any time or had not actual knowledge of, or were involved in, concrete plans and preparations for aggressive wars or invasions, it was established by the evidence that they were not in a position which enabled them to exercise any influence on such a policy. No matter what their rank or status, it was clear from the evidence that

47 48 49 50

Ibid., p. 53. Ibid. United States Military Tribunal sitting at Nuremberg, Vol. xii, The German High Command Trial, p. 70. Article 8 bis (a) ICCSt.

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they had been outside the policy-making circle close to Hitler and had no power to shape or influence the policy of the German State.51 Defense counsels could focus their efforts on demonstrating that the accused was not in a leadership position. In mounting such a defense, it can be taken into account that the “leadership” standard applied before the imt – where all defendants were acquitted for crimes against peace – is, in fact, lower that the standard incorporated into the Rome Statute. Furthermore, the state of the law was extensively discussed. It was questioned how an individual could be held criminally responsible under international law, as – at that time – only States were “subjects of the law of nations”.52 Defense counsels argued that “only a sovereign State, not an individual, can be a subject of international law”.53 The “acts of the State” defense was particularly relevant for charges of crimes against peace. It was argued that: If the German Reich […] attacked other countries in violation of international law, it committed an offence under the law of nations and was responsible therefor according to the rules of that law […] But acts carried out by individuals as its organs were in fact acts of State, not private acts of the individuals. To punish individuals for their decisions regarding war and peace would be to destroy the notion of the State.54 The main argument in this line of defense was that criminalization of aggression would infringe upon State sovereignty. A concept that has lost relevance with the evolvement of international criminal law. As noted by one of the defense counsels “One could, of course, still call such States sovereign, but they would no longer be sovereign.”55 The imt dismissed this argument, stating that: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.56 51 52 53 54 55 56

United States v. Wilhelm von Leeb et al., High Command Judgment (emphasis added). United Nations, The charter and judgment of the Nürnberg Tribunal. History and Analysis, p. 39. Ibid. Ibid., p. 40. Ibid. Ibid., p. 41.

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The imt furthermore ruled: [T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.57 Thus, the imt Judgment affirmed that international law has primacy over national law. Obligations imposed or authorized by the national State cannot absolve an individual from criminal responsibility if his actions violated international law.58 As to the icc crime of aggression, a relevant defense may be found in article 32(1) ICCSt. on mistake of fact. The mistake of law defense, under article 32(2) ICCSt., seems to have limited value, as it is not required that the accused had knowledge of the “legal elements that turn a certain use of force into an unlawful act of state or even a crime of aggression”.59 This follows from the fourth and sixth Elements to the crime of aggression, read in conjunction with the second and fourth paragraph of the introduction to this crime (see supra).60 The mistake of law defense will, in cases of aggression, only succeed if the mistake pertained to the “manifest” nature of the act or the “use of force”, as these elements may negate the mental element of the crime, which is a requirement under the second sentence of article 32(2) ICCSt.61 It has been said, however, that the criterion of “manifest illegality” excludes the use of armed force that falls within a grey area.62 It is thus questionable how successful this defense will be once a certain use of armed force has been labelled as an act of aggression. Arguing that the state itself was involved in a self-defensive operation will probably not be a viable defense to the accused aggressor. Article 31(1)(c) ICCSt. imposes a limitation on self-defense, as the “fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility”.63 An accused’s mens rea for the crime of aggression may, in fact, be inferred from the underlying – collective – use 57 Ibid., p. 42. 58 Ibid. 59 Ambos, Treatise on International Criminal Law: Volume ii: The Crimes and Sentencing, 211. 60 Claus Kreß and Leonie von Holtzendorff, “The Kampala Compromise on the Crime of Aggression,” Journal of International Criminal Justice 8 (2010): 1200, doi: 10.1093/jicj/mqq069. 61 Ambos, Treatise on International Criminal Law: Volume ii: The Crimes and Sentencing, 211. 62 Kreß and Von Holtzendorff, “The Kampala Compromise on the Crime of Aggression,” 1200. 63 Article 31(1)(c) ICCSt.

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of force.64 The “collective intent” of political or military leaders to use force must be distinguished from the accused’s “individual intent”, which is “the mental element stricto sensu of the crime of aggression”.65 The collective intent pertains to the goal underlying the use of force, and forms part of the objective elements of the crime of aggression.66 Although the collective intent is not an ingredient of the accused individual’s mens rea, it can be used as a reference point for the requisite mens rea on part of the individual.67 7.6

Self-defense, Humanitarian Intervention, Protection of Nationals Abroad or Aggression

The discussion how to qualify the use of armed force, has surfaced in several cases in the past. The distinction between acts of self-defense and acts of aggression is ambiguous in international criminal law. For one State, a certain armed intervention is perceived as self-defense, whilst for the other State the same act or operation will qualify as aggression. The same holds true for other justified uses of force, such as, for example, humanitarian intervention, anticipatory self-defense (although the status thereof is subject to debate), reprisals, protection of nationals abroad and defense against non-State actors. Al-Shifa: (Error in) Self-defense against Al-Qaeda or Act of Aggression?68 The 1998-bombing of the Sudanese pharmaceutical factory (al-Shifa) was justified by the us for reasons of self-defense against the attacks on two us embassies in Nairobi and Dar es Salaam (Tanzania), whereby 224 people were killed and more than 5000 wounded.69 The us held Osama Bin Laden responsible for 7.6.1

64

65 66 67 68

69

Claus Kreß, “The German Chief Federal Prosecutor’s Decision Not to Investigate the Alleged Crime of Preparing Aggression against Iraq,” Journal of International Criminal Justice 2 (2004): 256. Ibid. Ibid., p.257. Ibid. See also, Geert-Jan Alexander Knoops, “Pursuing the icc Crime of Aggression: Law or Politics?” Justice 56 (2015): 26–33; examples in this paragraph have been published in Justice before. James Astill, “Strike one,” The Guardian, 2 October 2001, http://www.theguardian.com/ world/2001/oct/02/afghanistan.terrorism3; “1998 u.s. Embassies in Africa Bombings Fast Facts,” cnn, accessed 26 October 2015, http://edition.cnn.com/2013/10/06/world/africa/ africa-embassy-bombings-fast-facts/.

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the embassy bombings and decided to launch missiles on installations said to be part of Osama Bin Laden’s infrastructure in Afghanistan. One of the targets was the al-Shifa factory in Sudan, which, according to the us, produced chemical weapons as part of Osama Bin Laden’s infrastructure of international terrorism.70 The al-Shifa factory was totally destroyed; twelve workers were killed in the attack, and two nearby food processing factories were damaged.71 As soon as it became apparent that the us was mistaken about the factory’s activities, the us raised several claims to justify the attack, such as: [t]he al-Shifa plant was making precursors to the vx nerve gas, namely a compound known as Empta; that the al-Shifa factory did not produce any medicines or drugs; that the al-Shifa factory was a high security facility guarded by the Sudanese military; and that there were weapons of mass destruction technology links between Sudan and Iraq.72 The us claimed it had acted out of self-defense. The British Prime Minister, Tony Blair, backed this claim, stating that: [a] country like the United States, when its citizens are under attack in this way and when they are at risk, must have the right to defend itself and we support our allies in this cause.73 Sudan perceived this act of “self-defense” as an “act of aggression”. Several hours after the attack, President Omar al Bashir of Sudan announced that the government of Sudan would file an official complaint against the us before the un Security Council, and that he would ask the Council to establish a commission to “verify the nature of the activity of the plant”.74 The German ambassador to Sudan, Werner Daum, condemned the us attacks, stating that: “One can’t, even if one wants to, describe the Shifa firm as a 70

71 72

73 74

“The Al-Shifa bombing: September 1998 ‘Confused, inconclusive and contradictory’: An assessment and analysis of the American Government’s ‘Evidence’ for the cruise missile attack on Sudan,” The European Sudanese Public Affairs Council, September 1998, accessed 23 February 2015, http://www.espac.org/al_shifa_pages/al-shifa_1.asp. Ibid. “American claims about the Al-Shifa factory put to the test,” The European Sudanese Public Affairs Council, 1998, p. 1, accessed 23 February 2015, http://www.espac.org/pdf/4%20 alshifa%204.pdf. “The Al-Shifa bombing: September 1998”. Ibid.

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chemical factory.”75 The Associated Press reported that “[t]here are no signs of secrecy at the plant. Two prominent signs along the road point to the factory, and foreigners have been allowed to visit the site at all hours.”76 The attack on the al-Shifa factory is not the only example where an act would be determined as an “act of aggression” by one State, while the other State would qualify it as the legitimate resort to armed force. What to think of, for example, the 1976 Entebbe raid by Israeli special forces which led to the rescue of 102 hostages, but also resulted in the death of all the hijackers, 45 Ugandan and 3 hostages. Several members of the United Nations Security Council, among which the Soviet Union, condemned the operation as being an act of aggression.77 Furthermore, the us intervention in Iraq in 2003, without un Security Council approval triggered the same discussion. The us claimed that Saddam Hussein had weapons of mass destruction; yet, these were never found. Similarly, the nato intervention in Kosovo in 1999, which supposedly prevented a “humanitarian catastrophe”, was conducted without un Security Council approval and condemned by several states Entebbe Incident: Defense of One’s Own Nationals Abroad or Act of Aggression? On 27 June 1976 an Air France plane with 248 passengers was hijacked by a hijacker of the Popular Front for the Liberation of Palestine – External ­Operations (pflp-eo). The plane left from Tel Aviv and was bound for Paris. After a layover in Athens, the hijackers were able to direct the plane to Entebbe, the main airport of Uganda. Dictator Idi Amin, the leader of Uganda, supported the act of the hijackers and personally welcomed them. The Israeli’s and the crew were separated from the other passengers, who were released and flown to Paris. The 94 Israeli passengers and 12 crew members were kept hostage. The hijackers demanded that 40 Palestinian and pro-Palestinian militants imprisoned in Israel and 13 prisoners in four other countries were released, otherwise the hostages would be killed. The Israel Defense Forces (idf), acting on intelligence provided by the Mossad, prepared a rescue operation. 7.6.2

75 76

77

“American claims about the Al-Shifa factory”. “Questions Remain, but Some Sudanese Claims on Factory Prove True,” News Article by Associated Press on August 24, 1998, accessed 23 February 2015, http://news.google .com/newspapers?nid=1291&dat=19980824&id=x0FUAAAAIBAJ&sjid=XI4DAAAAIBAJ& pg=6673,2488632. “Excerpts from United Nations Security Council Debate on the Entebbe Incident,” 13 un Monthly Chronicle (August-September 1976), http://www.tjsl.edu/slomansonb/Entebbe .html.

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The operation took place on the 4th of July 1976 and lasted 90 minutes. All hijackers, 45 Ugandan soldiers and 3 hostages died in the operation, and thirty Soviet-built fighter aircrafts of Uganda’s air force were destroyed. After the Entebbe raid, a discussion took place within the un Security Council. Draft resolutions were introduced, in which Israel’s rescue mission was condemned as a violation of the principle that prohibits force within international relations. The un Secretary General Kurt Waldheim called the Israeli operation “a serious violation of the sovereignty of a Member State of the United Nations”.78 The us stated that: Israel’s action in rescuing the hostages necessarily involved a temporary breach of the territorial integrity of Uganda. Normally, such a breach would be impermissible under the Charter. However, there was a well-established right to use limited force for the protection of one’s own nationals from an imminent threat of injury or death in a situation where the State in whose territory they were located was either unwilling or unable to protect them. The right, flowing from the right of self-defence, is limited to such use of force as was necessary and appropriate to protect threatened nationals from injury. […] The requirements of that right to protect nationals were clearly met in the Entebbe case. Israel had good reason to believe that at the time it acted Israeli nationals were in imminent danger of execution by the hijackers. In addition, there was substantial evidence that the Government of Uganda cooperated with and aided the hijackers.79 The Soviet Union, argued the opposite, stating that “the armed action against Uganda was an act of direct, flagrant aggression and an outright violation of the Charter”.80 There are numerous examples of armed attacks that are viewed as aggression by one side, while the other side claimed that it resorted to the justified use of force. A determination of an act of aggression, is a prerequisite to hold an accused criminally responsible for the crime of aggression. The icj has been confronted with several cases in which it determined that the use of force 78 79 80

United Nations Security Council, Official Records, 1939th meeting, 9 July 1976, S/PV.1939, para. 13. United Nations Security Council, Official Records, 1941st meeting, 12 July 1976, S/PV.1941, para. 77–78. Ibid., para. 162.

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was illegal under international law. The icj can, however, adjudicate individual criminal responsibility, but only rule on acts of States. The question is whether the icj could be able to determine whether an act of aggression took place, and if so, whether this could eventually lead to icc prosecutions of individuals? To date, no prosecutions of individuals for the crime of aggression have taken place. The Iraqi Special Tribunal (ist), endowed with the task to try high placed government officials of the Ba’ath regime that ruled Iraq from July 1968 until May 2003, did, however, had the opportunity to try the defendants domestically for acts of aggression. 7.6.3 The Invasion of Kuwait: An Act of Aggression? On 13 December 2003, Saddam Hussein was captured. On 10 December 2003, the Iraqi Special Tribunal was created to adjudicate Saddam Hussein and other high placed government officials in the Ba’ath regime. The Iraqi Special Tribunal had jurisdiction over the crime of genocide, crimes against humanity, war crimes. Furthermore, there was a provision titled “Violations of Stipulated Iraqi Laws”, which listed, under Article 14(c), as a crime within the Tribunal’s jurisdiction: The abuse of position and the pursuit of policies that may lead to the threat of war the use of force of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended. This article created the possibility to adjudicate acts of aggression committed by the Ba’ath regime against other Arab states. During the reign of Saddam Hussein, Iraq was involved in two wars in which it invaded neighboring States: Iran (1980–1988) and Kuwait (1990–1991).81 In 1990, Iraq invaded Kuwait with the aim to annex its territory. Many international law scholars agree that this is a clear example of an act of aggression on part of Iraq. As noted by Cassese: “nobody would deny that the attack by Iraq on Kuwait was […] an international crime of aggression.”82 Even though none of the defendants were eventually tried for acts of aggression by Iraq against Arab States, the Iraqi Special Tribunal was the first tribunal

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Elizabet Salmón, “El crimen de agresión después de Kampala: Soberanía de los estados y lucha contra la impunidad,” Journal of International Criminal Justice 12, 2 (2014), doi: 10.1093/jicj/mqu019. Antonio Cassese, International Criminal Law (Oxford : Oxford University Press, 2003), 113.

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since Nuremberg to include the act of aggression in its Statute.83 Different from the imt Charter, which applied to the crime against peace at an international level, the ist Statute applied to the crime of aggression at a regional level. France, the uk and the us, invaded Iraq in 1991 to rescue the Kurds, without Iraq’s consent. Was this to be seen as an act of aggression or a humanitarian intervention? It will probably depend on to whom the question is posed. However, waiting for Iraq to consent, would not have resulted in the rescue of the Kurds. As noted by one author: “Expecting all parties to a conflict to give their consent for military intervention is naïve and will only make reaction times worse, at potentially great cost in civilian lives lost.”84 7.7 Conclusion No criminal prosecutions for the crime of aggression have yet taken place since the end of the Second World War. This may change with the introduction of a new provision which allows for the prosecution of the crime of aggression within the jurisdiction of the icc. This possibility will enter into force no sooner than 2017 and only after at least 30 icc State Parties have adopted the amendments on the crime of aggression. Before an individual can be prosecuted for the crime of aggression, it must be established that an act of aggression took place. Such an act of aggression must constitute “a manifest violation” of the un Charter. This objective criterion of manifest illegality ensures that borderline cases are excluded.85 The general mens rea requirements of article 30 ICCSt., namely “intent” and “knowledge”, apply to the crime of aggression. It is not required, as follows from the Elements to the crime of aggression, that the alleged aggressor made a legal evaluation as to the inconsistency with the un Charter by using of armed force or as to the manifest nature of the violation. Since “knowledge of law” is not required, the defense of mistake of law seems to have limited value for this crime.

83 84 85

Salmón, “El crimen de agresión después de Kampala: Soberanía de los estados y lucha contra la impunidad”. Taylor B. Seybolt, Humanitarian Military Intervention: The conditions for success and failure (Oxford: Oxford University Press, 2008), p. 22. Review Conference of the Rome Statute of the International Criminal Court, Annex ii, Explanatory Note, p. 6.

chapter 8

Mens Rea for the Criminalization of Political Speeches 8.1 Introduction In some cases political speeches are said to have incited masses to commit certain crimes.1 The ictr has convicted several defendants for “incitement to commit genocide” after they gave political speeches or held speeches on the radio. A defense in such cases may be that the defendants did not have the intent to incite the masses to commit certain crimes. When analyzing such speeches most speakers did not literally call upon their masses to commit crimes, but – according to some judgments – the words allegedly “implied” it or the audience knew what the speakers meant with their disguised language. How does one determine a defendant’s mens rea for crimes against humanity or genocide, if allegedly (co)perpetrated through (violent) rhetoric and hate speech? Such charges are mostly juxtapositioned by the freedom of expression. This chapter will analyze the mens rea for crimes against humanity perpetrated through political speeches. It will first discuss the continuum of speeches, on which freedom of expression, hate speech and incitement to racial discrimination, persecution and incitement to genocide, are situated. Secondly, it addresses the early cases of incitement on the basis of speeches, which were conducted in the aftermath of the Second World War. Followed by the case law of the ictr and icty will be discussed, before turning to “political speeches” at the icc. 8.2

The Potential Criminal Nature of Political Speeches Subjected to International Criminal Trials

In some instances, prosecutors, did rely on alleged hate speeches in order to substantiate criminal liability for genocide and crimes against humanity. One of the examples is the case of Simon Bikindi, who was prosecuted before the ictr. Bikindi was a Rwandan singer of Hutu descent whose songs were 1 This Chapter mainly uses the word “speaker”, while (political) texts or videos that might incite masses to commit crimes will also be discussed. For reasons of readability the word “speaker” – instead of writer and/or producer – is used throughout the Chapter.

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deemed to have incited the Hutu population to participate in crimes against the Tutsi population (see infra). The causality between political speeches and international crimes also emerges within icc trial proceedings against the Ivorian former minister of youth and education, Charles Blé Goudé. One of the allegations made against him by the prosecution revolved around a speech held by Blé Goudé, allegedly the leader of a youth movement, on the 25th of February 2011. In that speech he allegedly asked the youth to “prevent the movement of the unoci [i.e. the United Nations Operation in Côte d’Ivoire], contact the neighbourhood president, get together to be aware of and check the entrances and exits of their neighbourhoods, and report every ‘personne étrangère’ coming into their neighbourhood”.2 On 11 December 2014, the icc Pre-Trial Chamber confirmed the charges brought against Blé Goudé for crimes against humanity. In this regard, the icc judges held the “relevant mental elements” for instigating – which may be assumed on the basis of speech – to be that Blé Goudé: (i) meant to instruct or instigate the pro-Gbagbo forces to carry out certain actions in the execution of which the crimes charged were committed as part of the repression of the march on the rti [the national Ivorian Radio and Television station] building on 16 December 2010 and in the course of the attacks in Yopougon on 25–28 February and on or around 12 April 2011; (ii) was aware that crimes would be committed in the ordinary course of events as a consequence of his instructions or instigation, and in particular, was aware that the use of violence against civilians would lead to killings, rapes and acts causing serious injury to body and great suffering; (iii) knew that the civilians targeted would be those considered to be supporters of Alassane Ouattara; and (iv) was aware that the crimes were committed as part of a widespread and systematic attack against a civilian population, namely known of perceived supporters of Ouattara.3 One of the most pertinent legal questions, apart from the causality between the particular speech and the crimes charged, pertains to the issue of the requisite level of mens rea. This level of mens rea is also dependent on the liability mode with which the accused is charged. In the Decision on the Confirmation of Charges of 11 December 2014 the Pre-Trial Chamber set forth the following 2 Prosecutor v. Blé Goudé, Case No. ICC-02/11-02/11, Decision on the confirmation of charges against Charles Blé Goudé, 11 December 2014, para. 28. 3 Ibid., para. 164.

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parameters for the mental element of the liability mode of “in any other way contributing” (under which a speech may be subsumed): (i) [the accused] meant to contribute to the commission of the crimes; and (ii) carried out his or her contribution either with the aim of furthering the purpose or the activity of the group (in case of a criminal common purpose or activity involving the commission of crimes within the jurisdiction of the Court), or in the knowledge of the intention of the group to commit the crimes.4 Yet, for political speeches to serve as the underpinning of a crimes against humanity charge, the determination of the mens rea element constitutes a complex legal exercise. One of the controversial issues within international criminal law revolves around the differentiation between dolus directus and dolus eventualis. The icc Pre-Trial Chambers displayed no uniformity thereto.5 In the Lubanga trial judgment, the mens rea standard was postulated as follows: The drafting history of the Statute suggests that the notion of dolus eventualis, along with the concept of recklessness, was deliberately excluded from the framework of the Statute (e.g. see the use of the words “unless otherwise provided” in the first sentence of Article 30). The plain language of the Statute, and most particularly the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis.6 Thus, according to the Lubanga judgment article 30 ICCSt. does not include dolus eventualis. The accused’s mens rea must be established for all aspects of the case, such as the constitutional elements of the attack, the elements of the specific crime itself, as well as the elements applicable to the liability mode with which the accused is charged. For political speeches to be transformed into a crime against humanity it is thus important to look at the context of the case, the causality, as well as the specific liability mode. 4 Ibid., para. 173. 5 Prosecutor v. Lubanga Dyilo, Case No.: ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007, paras. 352–355 and Prosecutor v. 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, paras. 360–396. See also Chapter 3 paragraph 2. 6 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, 14 March 2010, para. 1011.

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Hate Speech, Incitement, or Freedom of Expression?

In 2008, the eu adopted the Council Framework Decision 2008/913, which criminalizes the public condemnation, denial or grossly trivialization of genocide, crimes against humanity and war crimes, if the conduct is likely to result in hatred or violence against identifiable groups. The framework decision is placed within a fundamental rights context, namely the need to protect the rights of individuals, groups and the society at large against racial discrimination, while protecting the right to freedom of expression.7 Member states are obliged to implement the framework legislation into their national laws. A balance must be struck between “genuine and serious incitement to extremism” and an individual’s right, including journalists and politicians, to “express their views freely and to ‘offend, shock or disturb’ others”.8 The ECtHR has held that it may be necessary in “democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance.”9 This is what Belgium did when it convicted Daniel Féret, the founder and long-term leader of the Front National, a far right political party in Belgium, of incitement to racial discrimination. During the election campaign, Féret had spread leaflets with texts such as “Stand up against the Islamification of Belgium”, “Stop the sham integration policy” and “Send non-European job-seekers home”.10 Féret claimed that his right to freedom of expression had been violated under Article 10 of the Convention. The ECtHR ruled that there was no violation, because it was clear that his expressions could arouse f­ eelings of ­distrust towards the established democratic institutions11 and rejection or 7

8

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10 11

European Commission, “Report from the commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law,” (27 January 2014): 2, accessed 20 June 2016, http://ec.europa.eu/justice/ fundamental-rights/files/com_2014_27_en.pdf. “ECtHR Case Information Sheet on Hate speech, July 2013,” European Court of Human Rights, accessed 7 January 2015. http://www.echr.coe.int/Documents/FS_Hate_speech_ ENG.pdf; referring to Handyside v. the United Kingdom, Appl. No. 5493/72, Judgment, 7 December 1976, para. 49. European Commission, “Report from the commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law,” p. 2, referring to, inter alia, Jersild v. Denmark, Appl. No. 15890/89, ECtHR Judgment, 23 September 1994. Féret v. Belgium, Appl. No. 15615/07, ECtHR Judgment, 10 December 2009, para. 8–9; E ­ CtHR Case Information Sheet on Hate speech, July 2013, p.2. Féret v. Belgium, para. 77.

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even hatred towards foreigners.12 Moreover, his conviction was justified in light of the protection of the rights of the immigrant community and in interests of preventing disorder.13 The question is, however, when does hate speech ­become incitement? The un Special Adviser on the Prevention of Genocide, Adama Dieng, stated in a panel that: [i]t is important to balance the right of freedom of expression with the need to prevent or stop the most extreme cases of hate speech – those that have the potential to incite mass violence.14 The panel agreed that it was a critical topic in light of the role of speech during the Second World War, in Rwanda, in the former Yugoslavia, and, more recently, in light of the widespread violence triggered by the anti-Islam movie (“Innocence of Muslims”) in 2012.15 Although the movie triggered a chain of protests worldwide and led to attacks on us embassies, which resulted in the death of at least 74 people, it did not “incite” mass atrocity crimes or, at least, such crimes did not ensue after the film was released. The most prominent crime to hold speakers criminally responsible on the basis of their speeches is “incitement to commit genocide”, which is a so-called inchoate crime. This means that it is not necessary that the consequence (i.e. genocide) occurred in order to hold an individual criminally responsible for incitement to commit genocide: [D]irect and public incitement to commit genocide under Article 2(3) (c) is itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide. In order words, the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom.16 The rationale behind this rule is that if there was a requirement for the consequence to occur, the criminalization of incitement to commit genocide would 12 13 14 15 16

Ibid., para. 76. Ibid., para.78. “Fighting incitement to crimes against humanity,” United Nations Human Rights, 11 ­February 2013, http://www.ohchr.org/EN/NewsEvents/Pages/Fighting.aspx. Ibid. Nahimana, Barayagwiza, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Appeals ­Judgment, 28 November 2007, para. 678.

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have a more limited preventive effect.17 In other words, “it is the intent of the speaker that matters, not the effectiveness of the speech in causing criminal action.”18 Yet, to date, there have been no international prosecutions for incitement to commit genocide, while a genocidal situation is absent. Thus, it seems to be more of a legal criterion, as the Prosecutor is not required to demonstrate a causal relationship between the “incitement” and the “genocide”. Furthermore, incitement to genocide is a “speech crime” in and of itself, which prohibits calls for group destruction. Speeches that do not call for group destruction, but rather target “civilians for inhumane treatment, up to and including violence and killing”, can give rise to criminal liability for persecution as a crime against humanity.19 In order to hold an accused criminally responsible for persecution as a crime against humanity on the basis of his speech, it must be established that the speech was uttered as a component of a widespread and systematic attack against a civilian population.20 8.4

The Rudiments of the Criminalization of Hate Speeches

The case of Julius Streicher, conducted in the aftermath of the Second World War before the International Military Tribunal (imt) at Nuremberg, has been termed the “most famous conviction for incitement to commit crimes of international dimension”.21 At that time, incitement to commit genocide had not yet been criminalized. In 1948, the un General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide” (hereinafter: Genocide Convention), through which, inter alia, conspiracy, complicity and direct and public incitement to commit genocide became an international crime.22 The first contours of the criminalization of hate speech within the context of international crimes became visible in the trials conducted in the aftermath of the Second World War. In 1994, the ictr became the first international criminal tribunal to adjudicate the crime of incitement to commit genocide. The 17 18

Ibid. “Holocaust Encyclopedia. Incitement to genocide in international law,” United States Holocaust Memorial Museum, accessed 4 August 2015. http://www.ushmm.org/wlc/en/ article.php?ModuleId=10007839 (emphasis added). 19 Gregory S. Gordon, “Hate Speech and Persecution: A Contextual Approach,” Vanderbilt Journal of Transnational Law 46, 2 (2013): 372. 20 Ibid. 21 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 550. 22 Article iii (a)-(e) of the Genocide Convention 1948.

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icty, dealt with several cases in which speeches of the accused played a role in their conviction. Amongst these are Dario Kordić, a leading political figure in the Bosnian Croat community, Radovan Karadžić, the Bosnian Serb leader and former President of Republika Srpska and Vojislav Šešelj, founder of the Serbian Radical Party and member of the Assembly of the Republic of Serbia.23 In 1946, Julius Streicher, the publisher and editor of the anti-Semitic weekly newspaper Der Stürmer, was sentenced to death by the imt for crimes against humanity for his incitement to murder and extermination.24 Hans Fritzsche, head of the Radio Division of the Propaganda Ministry of the Third Reich and best known for his weekly speeches on the radio for his own program “Hans Fritzsche Speaks”, was indicted on charges of crimes against peace, war crimes and crimes against humanity.25 He was acquitted on all charges. These two cases can be seen as the “predecessor” of the modern day “incitement” cases. The different outcomes of the two cases can be attributed to the different levels of mens rea – as determined by the judges – of the defendants. Different from Fritzsche, Streicher literally called for the extermination of the Jews. As noted in the imt Judgment, Streicher’s “speeches and articles week after week, month after month, […]infected the German mind with the virus of anti-Semitism, and incited the German people to active persecution.”26 In a September 1938 article, he termed the Jew not a human-being, but “a parasite, an enemy, an evil-doer, a disseminator of diseases who must be destroyed in the interest of mankind.”27 In the court record, there were 26 articles, 12 of Streicher’s own hand, published in Der Stürmer between 1941 and 1944, which called for the extermination of the Jews.28 Streicher himself had testified at trial that he had no knowledge of the mass execution of the Jews; yet, the evidence pointed in a different direction.29 Streicher’s calls for annihilation of the Jews were unequivocal, and thus no other reasonable conclusion than that he had incited the German people to commit murder was to be drawn; the judges 23

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25 26 27 28 29

Kordić was convicted for, amongst others, crimes against humanity. Karadžić was convicted of genocide and crimes against human and violations of the laws or customs of war. Šešelj was acquitted of all charges including crimes against humanity and violations of the laws or customs of war. In both the Karadžić and Šešelj an appeal was filed. Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi conspiracy and aggression. Opinion and judgment, Washington: United States Government Printing Office, 1947, 131. Ibid., 161. Ibid., 129. Ibid. Ibid., 130. Ibid.

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were unanimous in their conviction of defendant Streicher for crimes against humanity. He was acquitted for his alleged conspiracy or participation in the common plan to wage an aggressive war (count one) as there was no evidence that he was within Hitler’s inner circle of advisors or that he was involved in the formulation of the policies that resulted in the war.30 The imt found that Fritzsche had shown “definite anti-Semitism on his part”. He broadcasted some false news, said that the war was caused by the Jews and that their fate was “as unpleasant as the Fuehrer predicted”.31 How abhorrent his statements may be, the judges could not infer that it was a call for the persecution or extermination of the Jews, and therefore acquitted him on all charges in the indictment.32 As noted in the imt Judgment: It appears that Fritzsche sometimes made strong statements of a propagandistic nature in his broadcasts. But the Tribunal is not prepared to hold that they were intended to incite the German people to commit atrocities on conquered peoples, and he cannot be held to have been a participant in the crimes charged. His aim was rather to arouse popular sentiment in support of Hitler and the German war effort.33 The judges were not unanimous on Fritzsche’s acquittal. In his dissenting opinion, the Soviet Judge Nikitchenko disagreed with the majority’s characterization of Fritzsche as a “secondary figure” operating under the auspices of Goebbels and Von Ribbentrop. According to Judge Nikitchenko insufficient weight was attached to the role of propaganda in general and radio propaganda in particular: Without propaganda, founded on the total eclipse of the freedom of press and of speech, it would not have been possible for the German fascism to realize its aggressive intentions, to lay the groundwork and then put to practice the war crimes and the crimes against humanity.34 From the Streicher and Fritzsche judgments it can be inferred that the nature of the speeches, as well as the positions of the defendants, are factors to be taken into consideration. Whereas Streicher literally called for the extermination of 30 31 32 33 34

Ibid., 129. Ibid., 163. Ibid. Ibid. Ibid., 175.

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the Jews, Fritzsche’s language was more concealed. In Fritzsche, however, the Soviet Judge appended a strong dissenting opinion, stressing the importance of propaganda in waging an aggressive war. The issue on whether or not the speech must directly and literally call for violence, surfaced again before the imt, the so-called subsequent Nuremberg Trials under Control Council Law No. 10. In the Ministries35 case, the defendant Otto Dietrich, the Reich press chief, stood trial for crimes against humanity. The prosecution stressed the atmosphere in Germany from 1933 onwards as a factor to be taken into consideration: Through the effective control of the radio and the press, the German people […] were subjected to the most intensive propaganda in furtherance of the regime. Hostile criticism, indeed, criticism of any kind was forbidden, and the severest penalties were imposed on those who indulged it.36 In such an atmosphere the criminal responsibility of Dietrich is immeasurably heightened. His control of the press became a lethal weapon in the conditioning of the people to accept aggressive wars.37 Furthermore, the prosecution underlined the widespread nature of Dietrich’s activities. Dietrich had over 3,000 publications with a circulation of more than 3,000,000 at his disposal.38 This was contrasted with the Streicher case before the imt, whose newsletter – one of the publications at Dietriech’s disposal – had a circulation of 600,000.39 Dietrich was acquitted for crimes against peace (count one), even though his relationship to Hitler’s inner circle of advisors was deemed to be closer than that of defendant Streicher before the imt.40 The nmt considered: while he was in constant attendance at Hitler’s headquarters as a member of his entourage, the only proof that he had knowledge of these plans is that he had control over the German and Party press which played the tune before and upon the initiation of each aggressive war […]. 35 36

37 38 39 40

Also known as the United States of America vs. Ernst von Weizsäcker, et al. case. Nuernberg Military Tribunals, Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, Washington: u.s. Government Printing Office, ­Volume xiv, 39. Ibid. Ibid., 40. Ibid. Ibid.

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Although he attended none of the Hitler conferences to which we have averted, we deem it entirely likely that he had at least a strong inkling of what was about to take place. But suspicion, no matter how well founded, does not take the place of proof.41 The nmt found Dietrich guilty of persecution as a crime against humanity, because of his means of control over the press.42 The nmt attached weight to the role of the press in the war effort, as well as a defendant’s means to control the press, while the imt considered the text of the speech as determinative criterion. Giving credence to the role of the press in the war effort automatically implies that the defendant must have had awareness of the context in which he made his speech, as well as the extent or reach of his message. Merely looking at the text of the speech seems to imply that the actus reus of the accused coincides with his mens rea, although if the consequence does not ensue, this view cannot be upheld. Crimes against humanity are – different from incitement to genocide – not an inchoate crime; the latter means that a relationship between the speech and the genocide need not be proven. In the Second World War trials, defendants could incur criminal responsibility for persecution or extermination as a crime against humanity on the basis of their speeches or propaganda. The diverging views in the cases conducted in the aftermath of the Second World War are still of relevance, as the requisite level of mens rea has not been fully resolved by the ad hoc tribunals. Although the icty and ictr have provided indicia on how to ascertain an accused’s mens rea of political speeches or propaganda, the outcomes have been different as the following section will demonstrate.43 8.5

Criminalization of Hate Speeches at the ictr

In the months leading up to the Rwandan genocide of 1994, in which at least half a million Tutsis were killed, the number of speeches and texts with extremist language against the Tutsis increased, while the content became more hateful.44 In 1964, President Kayinbanda – the first president of Rwanda who 41 42 43 44

Ibid., p. 417. Ibid., p. 861. See for example. Prosecutor v. Kordić and Čerkez, Case no. IT-95-14/2-A, Appeals Judgment, 17 December 2004; Nahimana, Barayagwiza, Ngeze, Appeals Judgment. “Preparing for genocide,” Rwandan Stories, accessed, 4 August 2014. http://www.rwandan stories.org/origins/preparing_for_genocide.html; “Leave none to tell the story: genocide

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rose to power with the help of the Belgian colonizers – already stated that in case the Tutsi refugees would try to regain political power, they “may well find that the whole Tutsi race will be wiped out”.45 In Rwandan history there have been several clashes between the Hutus and the Tutsis. It is relevant to determine why the speeches just before the 1994 genocide were deemed to be criminal; whether the speakers really had the intention to kill over half a million Tutsis and whether they knew what they were going to bring about with their speeches. This section discusses the requisite levels of mens rea in order to hold an accused criminally responsible for a crime within the jurisdiction of the ictr on the basis of a speech. In 1998, the ictr Trial Chamber handed down its first judgment on incitement to genocide in the Akayesu case.46 Both the Trial and the Appeals Chamber found Jean-Paul Akayesu, the bourgemestre of the Taba commune in Rwanda, guilty for incitement to commit genocide. On 19 April 1994 Akayesu held a speech for a crowd of over 100 people, who had gathered around the body of a death Interhamwe member. In his speech, Akayesu urged the crowd to unite so that they could eliminate “the accomplices of the Inkotanyi [the cockroaches]”, what he termed the sole enemy. On the basis of evidence provided by a linguistics expert, as well as witness statements, the Trial Chamber determined that Akayesu’s speech was interpreted by the crowd as a call to kill the Tutsis.47 Akayesu’s function as bourgemestre and his authority were taken into consideration, as this enabled him to lead the gathering and the proceedings.48 Akayesu was aware of the impact his speech had on the crowd, and he had testified that he was aware of the consequences of reading a list with names of rpf accomplices to the crowd, namely that such a person would be put in danger.49 The ictr Trial Chamber defined the mens rea for direct and public incitement to commit genocide as: the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is

45 46 47 48 49

in Rwanda, Numbers,” Human Rights Watch, accessed, 4 August 2014. http://www.hrw .org/reports/1999/rwanda/Geno1-3-04.htm. Rwandan Stories, “Preparing for genocide.” Akayesu, Trial Judgment. Ibid., para. 361. Ibid., para. 673. Ibid., para. 673.

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inciting to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.50 In the Media Case, three accused, Nahimana, Barayagwiza and Ngeze, stood trial as they were the alleged masterminds behind a media campaign used to dehumanize the Tutsi population and inciting to murder the Tutsis. Nahimana was member of the political party Mouvement Révolutionnaire National pour le Développement (mrnd) and one of the founders of the radio station Radio Télévision des Mille Collines (rtlm); he was charged mainly in relation to this station. Barayagwiza was charged in relation to the rtlm and to the Coalition pour la Défense de la République (cdr) of which he was a founding member. Ngeza stood trial mainly in relation to the Kangura newspaper, which he founded in 1990 and of which he was the editor-in-chief. He was also a founding member of the cdr party.51 On 3 December 2003, the ictr Trial Chamber found all three defendants guilty of genocide, conspiracy to commit genocide, incitement to commit genocide and persecution and extermination as a crime against humanity.52 Not only an explicit call for genocide falls within the ambit of Article 2(3) ICTRSt. – as was contended by the defendants in the Media Case – but the cultural context, as well as nuances in the language, may be taken into account when determining whether there was incitement to commit genocide. The Trial Chamber held: there need not be a call to action in communications that constitute persecution. For the same reason, there need be no link between persecution and acts of violence. The Chamber notes that Julius Streicher was convicted by the International Military Tribunal at Nuremberg of persecution as a crime against humanity for anti-semitic writings that significantly predated the extermination of Jews in the 1940s. Yet they were understood to be like a poison that infected the minds of the German people and conditioned them to follow the lead of the National Socialists in persecuting the Jewish people.53 The Trial Chamber failed, however, to explain which parts of the speech exactly constituted incitement to genocide.54 On appeal, all sentences were reduced, 50 51 52 53 54

Ibid., para. 560. Prosecutor v. Nahimana, Barayagwiza and Ngeze, ICTR-99-52-T, Trial Judgment, 3 December 2003. Ibid. Ibid., para. 1073. Nahimana, Barayagwiza, Ngeze, Appeals Judgment.

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and Barayagwiza’s conviction for incitement to genocide was overturned. The Appeals Chamber upheld the Trial Chamber’s view that the language of the speech does not have to be explicit, but that the relevant criterion is what the speech meant in a certain context (i.e. how the audience understood the speech).55 The Appeals Chamber held that it “may be helpful to examine how a speech was understood by its intended audience in order to determine its true message.”56 As a consequence, the “meaning of the words used in the specific context” are of primary concern, as it “does not matter that the message may appear ambiguous to another audience or in another context.”57 The Appeals Chamber also elaborated upon the actus reus and mens rea for incitement to commit genocide: A person may be found guilty of the crime specified in Article 2(3) (c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent.58 Supervising a group of people manning a roadblock, as Barayagwiza did according to the evidence, did not amount to the requisite level of mens rea on behalf of the accused, as: the supervision of roadblocks cannot form the basis for the Appellant’s conviction for direct and public incitement to commit genocide, it cannot constitute public incitement, since only the individuals manning the roadblocks would have been the recipients of the message and not the general public.59 Therefore, Barayagwiza’s conviction for incitement to genocide, as well as extermination and persecution as a crime against humanity, were reversed on appeal; his conviction for having instigated the commission of genocide and

55 56 57 58 59

Ibid., para. 739. Ibid., para. 700. Ibid., para. 701. Ibid., para. 677. Ibid., para. 862.

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having ordered or instigated the commission of extermination and persecution as a crime against humanity were upheld.60 Another issue raised by the appellants in the Media Case was that hate speech could not constitute persecution as a crime against humanity. The Appeals Chamber held that there was no need to review the Trial Chamber’s determination in this regard as: the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).’ However, not every act of discrimination will constitute the crime of persecution: the underlying acts of persecution, whether considered in isolation or in conjunction with other acts, must be of a gravity equal to the crimes listed under Article 3 of the Statute. Furthermore, it is not necessary that these underlying acts of persecution amount to crimes in international law.61 The Appeals Chamber went on to state that hate speech alone cannot: amount to a violation of the rights to life, freedom and physical integrity of the human being. Thus, other persons need to intervene before such violations can occur; a speech cannot, in itself, directly kill members of a group, imprison or physically injure them.62 In Kayishema and Ruzindana the Trial Chamber held that, in absence of an accused’s statement, his mens rea may be deduced from: the number of group members affected[…][;] the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning; the systematic manner of killing; […] [and] the relative proportionate scale of the actual or attempted destruction of a group.63 60 61 62 63

Ibid. Ibid., para. 985. Ibid., para. 986. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Judgment, 21 May 1999, para. 93.

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Even though intent may be difficult to determine, it can be inferred from the accused’s “actions, including circumstantial evidence” and “from words or deeds and may be demonstrated by a pattern of purposeful action”.64 On Appeal, Kayishema submitted that the Trial Chamber erred in applying the correct mens rea standard for genocide, as it had not taken (properly) into account that Witness O gave evidence to the effect that Kayishema had rescued 72 Tutsi children, which demonstrated his innocence.65 The Appeals Chamber reiterated the Trial Chamber’s finding that Kayishema possessed “intent to destroy the Tutsi group in whole or in part”, which it had inferred from the following factors: (i) the number of victims that were killed; (ii) the manner in which the killings were carried out (the methodology); and (iii) Kayishema’s utterances during and after the massacres.66 As the Trial Chamber had determined that the requisite mens rea was present after assessing and weighing “all relevant evidence that had been presented to it”, therefore, the Appeals Chamber saw no reason to reverse the Trial Chamber’s conclusion.67 In 2010, the Appeals Chamber upheld Bikindi’s conviction for incitement to genocide. Simon Bikindi was a singer-songwriter, whose patriotic songs were played on the national radio station Radio Rwanda before and during the genocide (1990–1994). The Appeals Chamber recalled the mens rea standard for incitement: “the intent to directly and publicly incite others to commit genocide”, and that “such intent in itself presupposes a genocidal intent”.68 The Trial Chamber had inferred the accused’s culpability from “the words he proffered and the manner [in which] he disseminated his message”.69 In absence of direct evidence, the Trial Chamber held that it inferred the accused’s genocidal intent (mens rea) from “the relevant facts and circumstances of the case”. “Bikindi’s direct and public address on the Kivumu Kayove road” left, according to the Trial Chamber, no doubt as to his genocidal intent at that 64 65 66 67 68 69

Ibid. Ibid., para. 147. Ibid., para. 148. Ibid., para. 148–9. Bikindi v. the Prosecutor, Case No. ICTR-01-72-A, Appeals Judgment, 18 March 2010, para. 135. Ibid., para. 136; Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgment, 2 December 2008, para. 424.

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time.70 Furthermore, Bikindi “could not have been unaware of the impact that his words would have on the audience, the words of a well-known and popular artist, an authorative figure for the Interhamwe and a man perceived as an influential member of the mrnd”.71 The Appeals Chamber found no error in the Trial Chamber’s reasoning and held that it was up to the Trial Chamber to determine the accused’s influence or authority on the basis of “the totality of the evidence before it”.72 The Trial Chamber has the discretion to take these findings into account and consequently establish the accused’s mens rea for the crime of direct and public incitement to commit genocide.73 To infer an accused’s mens rea for incitement to commit genocide on the basis of his speeches, not only the text of the speech is important, but also the context in which the speech was given and how the audience understood the speech. The following indicators may be used in order to examine whether a speech constituted incitement: – The circumstances or social climate preceding or at the time of the speech; – The frequency of the speeches (or dissemination thereof to the audience); – The availability of opposing views (i.e. examining the control over the media controlled and whether only propagandistic messages were being disseminated); – The amount of violence suffered by the targeted group in the past.74 The social climate in a country may thus result in the fact that speeches, in one country lead to devastating consequences, while, in the other country a “mere” balance has to be struck between inciting racial discrimination or hate speech and the freedom of expression. As noted in relation to the Rwandan genocide: As with farm work, we waited for the right season. The death of our president was the signal for the final chaos. But as with a harvest, the seed was planted before.75 70 71 72 73 74

75

Bikindi, Appeals Judgment, para. 136. Ibid., para. 136. Ibid., para. 137. Ibid., para. 137. Kate Kovarovic, One Spark Can Set a Fire: The Role of Intent in Incitement to Genocide, 1 December 2009: 30–31, Social Science Research Network, accessed 20 June 2016, http:// dx.doi.org/10.2139/ssrn.1738768. Jean Hatzfeld, A time for machetes: the Rwandan genocide – the killers speak (London: Serpent’s Tail, 2008), cited in: Rwandan Stories, “Preparing for genocide.”

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And: These genocidal and extremist voices were not only tolerated – they were not prosecuted, not contradicted by government officials, not denounced by the President – but had the active moral and financial support from the highest levels of government and the military.76 The genocide in Rwanda could occur, because the society was characterized by structural violence that can “needlessly and brutally limit people’s physical and psychological capacities.”77 Furthermore, resource scarcity and other social and political factors, such as processes of exclusion which were not stopped, crop failures, loss of income and war in neighboring countries, contributed to an environment where genocide could take place.78 In conclusion it can be said that the “guilty mind” of an accused is partly inferred from the social circumstances in which he finds himself. Not the words itself, but the context in which the words were spoken and the meaning given to it by the audience are determinative in establishing the accused’s mens rea for incitement on the basis of his speeches. 8.6

Criminalization of Hate Speeches at the icty

The icty faced the question of a hate speech as a possible crime against humanity in the case of Kordić and Čerkez. Dario Kordić was a leading political figure in the Bosnian Croat community. He was President of the Croatian Democratic Union of Bosnia and Herzegovina from 1991–1995, and, at the same time, Vice-President and member of the Presidency of the Croatian Community of Herceg-Bosna (hz H-B). In the view of the icty Trial and Appeals Chamber, Kordić’s speeches amounted to persecution as a crime against humanity. Persecution, within the meaning of Article 5(h) ICTYSt., has been defined by the icty Trial Chamber as “the occurrence of discriminatory acts on racial, religious or political grounds committed with intent to cause an infringement of an individual’s basic or fundamental rights”.79 76 77 78 79

Peter Uvin, cited in: Rwandan Stories, “Preparing for genocide.” Peter Uvin, Aiding Violence: The Development Enterprise in Rwanda (West Hartford: ­Kumarian Press, 1998), 110. Ibid.; “Pressures on a fragile society,” Rwandan Stories, accessed 4 August 2015. http:// www.rwandanstories.org/origins/pressures.html. Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, Trial Judgment, 26 February 2001, para. 827.

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In the events leading to the conflict, Kordić had addressed the troops during the swearing-in ceremonies for the Croatian Defence Council (Hrvatsko Vijeće Obrane (hvo)) forces. In the text of the proposed speech held in Travnik, it was stated that “those who do not wish to live in the Croatian provinces of hz H-B are all enemies and must be fought with both political and military means”.80 In Vitez, Kordić’s speech mainly revolved around a “statement to the Muslims of the Lašva Valley that this was Croat land and that they had to accept that this was Herceg Bosna.”81 The minutes of a meeting on 30 September 1992 of the Presidency of the Kakanj hvo record that Kordić, who was present as Vice-President of hz H-B, called the hvo the government of the hz H-B and that “it is a question of time whether we will take or give up what is ours. It has been written down that Vareš and Kakanj are in hz H-B. The Muslims are losing morale and then it will end with ‘give us what you will’.”82 Kordić stressed that he did not use derogatory language with regard to the Muslim population, and that he his speeches were not racially inflammatory or did not incite violence.83 The Trial Chamber held in the Kordić and Čerkez case that encouraging and promoting hatred on political grounds did not fall under the ambit of persecution as a crime against humanity: this act, as alleged in the Indictment, does not by itself constitute persecution as a crime against humanity. It is not enumerated as a crime elsewhere in the International Tribunal Statute, but most importantly, it does not rise to the same level of gravity as the other acts enumerated in Article 5. Furthermore, the criminal prohibition of this act has not attained the status of customary international law. Thus to convict the accused for such an act as is alleged as persecution would violate the principle of legality.84 The Trial Chamber held the requisite level of mens rea for persecution to be: acting with discriminatory intent on the political, racial, and religious grounds provided in the Statute […]. The issue before the Trial Chamber is whether the accused must have had the specific intent to advance the 80 81 82 83 84

Ibid., para. 522. Ibid. Ibid. Kordić and Čerkez, Appeals Judgment, para. 643. Kordić and Čerkez, Trial Judgment, para. 209.

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persecutory policy and shared the discriminatory intent behind that policy, or whether a showing that the accused had the objective knowledge that his acts fit within the widespread or systematic attack on discriminatory grounds is sufficient. Defining the appropriate mens rea for the crime of persecution is a complex task. Generally, determining whether the accused possessed the requisite mens rea for other crimes against humanity involves a two-step process. The accused must first have had the requisite specific intent to commit the underlying act (such as murder, extermination or torture). Then, if that 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.85 Persecution requires proof of a particular intent, namely “discriminatory intent”, in addition to specific intent (committing an act and producing its consequences) and general intent (objective knowledge of the context in which the acts were being committed).86 The mens rea (discriminatory intent) necessary to hold an accused criminally responsible for the crime of persecution has been defined by the icty Trial Chamber in the Blaškić case: It is the specific intent to cause injury to a human being because he ­belongs to a particular community or group, rather than the means ­employed to achieve it, that bestows on it its individual nature and gravity.87 The other crimes against humanity listed in Article 5 ICTYSt. require mere “knowledge of the context” of a widespread and systematic attack, whereas persecution requires, additionally, discriminatory intent. As noted in the Kupreškić Trial Judgment: The mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide.88

85 86 87 88

Ibid., para. 211. Ibid., para. 212. Kordić and Čerkez, Trial Judgment, para. 212, referring to Prosecutor v. Blaškić, Case No. IT-95-14-T, Trial Judgment, 3 March 2000, para. 235. Kupreskić et al., Case No. IT-95-16-T, Trial Judgment, 14 January 2000, para. 636.

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The accused need not have participated in the formulation of the discriminatory plan, but it is his “intent to discriminate” that matters.89 The Prosecution argued, in the Kordić and Čerkez case, that the requisite discriminatory mens rea requirement for persecution need not amount to a “specific intent requirement”, as it deemed it sufficient that the accused had “knowledge of discriminatory grounds on which the widespread or systematic attack against a civilian population was launched.”90 The Trial Chamber rejected this argument, as: This approach does not incorporate the requisite heightened mens rea that justifies the increased gravity of criminal liability for the crime of persecution. Rather, it simply requires that the accused have known one more thing.91 The expansion of mens rea is an easy but dangerous approach. The Trial Chamber must keep in mind that the jurisdiction of this International Tribunal extends only to ‘natural persons’ and only the crimes of those individuals may be prosecuted. 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.92 Therefore, the Trial Chamber decided to uphold the more strict mens rea standard for persecution as a crime against humanity: The accused must have shared the aim of the discriminatory policy: “the removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself.”93 The Trial Chamber found that this heightened mens rea standard was met in the case of Kordić and convicted him for persecution as a crime against humanity for his speeches. His mens rea was inferred, inter alia, from his position of authority, his role in the events leading up to the conflict, his role at the eve

89 90 91 92 93

Kupreskić et al., Trial Judgment, para. 636; Kordić and Čerkez, Trial Judgment, para. 213. Kordić and Čerkez, Trial Judgment, para. 216. Ibid., para. 217. Ibid., para. 219. Ibid., para. 220.

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of the conflict, as well as during the attacks.94 The Appeals Chamber confirmed Kordić’s conviction for persecution as a crime against humanity. It held that: the mens rea for persecutions “is the specific intent to cause injury to a human being because he belongs to a particular community or group.” The Appeals Chamber stresses that there is no requirement in law that the actor possess a “persecutory intent” over and above a discriminatory intent.95 Furthermore, the Appeals Chamber considered that: a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions.96 The Appeals Chamber inferred Kordić’s mens rea from the evidence as accepted by the Trial Chamber, which demonstrated that: Kordić’s political activities and inclinations, his strongly nationalist and ethnical stance, and his desire to attain the sovereign Croatian state within the territory of Bosnia and Herzegovina at seemingly any cost, Kordić possessed the specific intent to discriminate required for the crime of persecutions.97 Ratko Mladić, the commander of staff of the Bosnian Serb Army (vrs) from 1992–1996, stands trial before the icty on charges of genocide, persecution as a crime against humanity and war crimes. Mladić’s individual criminal 94 95 96 97

Ibid., para. 828; Kordić and Čerkez, Appeals Judgment, para. 721. Kordić and Čerkez, Appeals Judgment, para. 111; Blaškić, Appeals Judgment, 29 July 2004, para. 165. Kordić and Čerkez, Appeals Judgment, para. 112; Blaškić, Appeals Judgment, para. 166. Kordić and Čerkez, Appeals Judgment, para. 722.

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­responsibility pertains to alleged his participation in a joint criminal enterprise, which means that he need not have physically committed any of the crimes charged personally.98 In the review of the indictment – in which the Trial Chamber considers whether there are reasonable grounds to believe that the accused committed one or all of the offenses charged in the indictment99 – it was held that the specific intent requirement of genocide may be derived from “a certain number of facts such as the general political doctrine which gave rise to the acts […] or the repetition of destructive and discriminatory acts”.100 Furthermore, the Trial Chamber considered that the intent could be derived from: the combined effect of speeches or projects laying the groundwork for and justifying the acts, from the massive scale of their destructive effect and from their specific nature, which aims at under mining what is considered to be the foundation of the group.101 Different from incitement to genocide, persecution as a crime against humanity requires an additional mens rea requirement on behalf of the accused. Yet, in order to hold an accused criminally responsible for persecution, it is sufficient to establish “discriminatory intent” on behalf of the accused, whereas for incitement it must be established that the accused called for the destruction of a group, or at least, that the audience understood it as such. 8.7

Criminalization of Speeches at the icc

Pursuant to Article 25(3)(b) ICCSt. any person who “orders, solicits or induces” the commission of a crime within the jurisdiction of the icc shall be held criminally responsible for direct and public incitement to commit genocide. The “commission or attempted commission of such a crime” is not required. 98

Prosecutor v. Mladić, Case No. IT-09-92-PT, Fourth Amended Indictment, 16 December 2011, para. 4. 99 Prosecutor v. Karadžic and Mladić, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 2; a Rule 61 procedure may take place if the Tribunal has been unable to obtain custody of an accused; Mladić was arrested on 26 May 2011 and transferred to the icty on 31 May 2011. 100 Karadžic and Mladić, Review of the indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, para. 94. 101 Ibid., para. 95.

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The only type of speech that is explicitly criminalized under the ICCSt. is the one that falls within “incitement to commit genocide”; yet, as the previous section has shown, contemporary prosecutions sometimes use the political speeches to build a criminal case on crimes against humanity. Speeches play a role in cases where political leaders, or influential journalists with the power to produce propaganda that contributed to the crimes, are being prosecuted. The reason thereof is that those leaders, or journalists, did not commit the principal crimes themselves, neither where they the military leaders who directed troops to commit the crimes. Thus, their criminal responsibility has to be inferred from the speeches they gave to their masses. Laurent Gbagbo, the former president of Ivory Coast, faces trial before the icc on four counts of crimes against humanity (murder, rape, other inhumane acts or attempted murder and persecution). According to the prosecution, Gbagbo’s Presidency provided financial support to the (youth) groups that politically supported Gbagbo, while these groups organized meetings where discussions took place and speeches were held.102 The speeches held at these meetings are said to have contributed to the violence that ensued in Ivory Coast in the aftermath of the 2010-elections. As noted in the decision on the confirmation of the charges in the Gbagbo case: According to the evidence, influence over these groups was exercised primarily through speeches at mass gatherings, which did not cease with the end of the campaign period. Violent and xenophobic rhetoric was used to incite the masses to violence.103 In its decision on the confirmation of the charges, the icc Pre-Trial Chamber inferred Gbagbo’s intention to remain in power “at any cost, including by use of force against civilians”, from the speeches that he held.104 On 27 August 2010, Gbagbo held a speech before members of the Republican Security Company (crs) at Divo, in which he talked about the crs’s task: Votre tâche, elle est simple … votre tâche elle est simple, parce que la ligne de démarcation est nette. Entre la paix et le désordre, vous êtes pour la paix et vous battez contre ceux qui veulent semer le désordre. Entre la 102 Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Decision on the confirmation of charges against Laurent Gbagbo, 12 June 2014, para. 107. 103 Ibid., para. 108. 104 Ibid., para. 110 et seq.

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légalité et l’illégalité, vous êtes pour l’ill… la légalité et vous vous battez contre tous ceux qui sont pour l’illégalité. C’est ça votre rôle […]. Mais quand le moment arrive, pour que ces bras se lancent, les bras se lancent […] votre rôle est un rôle pour mater tous ceux qui sont contre la République, tous ceux qui sèment le désordre.105 The Pre-Trial Chamber rejected the defense argument that the speech had nothing to do with the upcoming elections in Ivory Coast, but was aimed at fighting banditry in the region. The defense’s alternative interpretation of the speech was deemed untenable because of Gbago’s: – Repeated references to the defense of the Republic; – His reference to combat; – His reference – although concealed – to his own willingness to use force in certain circumstances, instead of negotiating; – His appeal to the military forces not to question the legality of the orders given; – His implication that there would be no punishment, regardless the means applied by the military forces to implement orders.106 This early speech at Divo was used as evidence to show Gbagbo’s alleged intention to resort to force if necessary.107 Furthermore, the Pre-Trial Chamber inferred Gbagbo’s awareness that there were non-military deaths during the march on the rti from a speech that he held on the rti on 21 December 2010, in which he said, inter alia: “Les troubles que l’on observe aujourd’hui en CÔTE D’IVOIRE ont nés des refus de mon adversaire de se soumettre aux lois.”108 In an interview with Euronews on 31 December 2010, Gbagbo stated: I told the Ivorian people at the start of my campaign that they would have the choice between a candidate for Ivory Coast and a candidate for foreigners. That appears to be something of a caricature, but it’s the reality. […] I don’t believe at all that there will be a civil war. But obviously if these pressures continue, it will make confrontation more likely.109

105 106 107 108 109

Ibid., para. 111. Ibid., para. 112. Ibid., para. 218. Ibid., para. 113. Ibid., para. 114.

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The Pre-Trial Chamber thus found his speeches, with implicit references to the use of force, sufficient to form part of the evidence to confirm the charges in the Gbagbo case. The Pre-Trial Chamber found that the evidence indicated that “violent rhetoric and hate speech” were utilized at political rallies; the speeches at rallies in Yopougon were deemed to be particularly strong and violent.110 Another factor that was considered, was the use of the rti by the Gbagbo camp. This station was, according to the Pre-Trial Chamber, used to “spread messages of hate against specific groups considered to be opponents, such as perceived Ouattara supporters, foreigners or the un”.111 Charles Blé Goudé as the alleged leader of the “Patriotic Galaxy”, an alleged umbrella organization for a large number of (youth) organizations that politically supported Laurent Gbagbo, was also prosecuted for crimes against humanity based on certain speeches he held.112 The Pre-Trial Chamber attached weight to Blé Goudé’s alleged ability to mobilize youth groups. In the Decision on the Confirmation of Charges in the Gbagbo case, a separate section is dedicated to the “mobilization of the youth for violent acts”. The Pre-Trial Chamber found that the evidence shows that the youth groups acted in response to Blé Goudé’s calls to “erect roadblocks and be suspicious of foreigners, as well as to obstruct unoci”.113 It is alleged that Blé Goudé contributed to the implementation of the common plan through his speeches in which he conveyed the message to keep the Gbagbo government in power at any cost, including the use of force.114 In the Decision on the Confirmation of Charges in the Blé Goudé case, the Pre-Trial Chamber asserted that Blé Goudé incited the pro-Gbagbo forces and the pro-Gbagbo youths to commit crimes or facilitated the commission of their crimes.115 The prosecutor alleges that Blé Goudé can be found guilty of incitement because he: (i) used xenophobic rhetoric; (ii) laid responsibility for violence during the post-election crisis on the Ouattara camp; (iii) accused Ouattara supporters and the international community of having genocidal intentions against “Ivorians”; 110 111 112 113 114 115

Ibid., para. 118. Ibid., para. 167. Ibid., para. 106. Ibid., para. 114. Blé Goudé, Decision on the confirmation of charges against Charles Blé Goudé, para. 192. Ibid., para. 192.

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(iv) singled out perceived pro-Ouattara supporters as targets for attacks; (v) called on the youth to erect roadblocks […] and to identify and report étrangers in their neighborhoods; (vi) commended the pro-Gbagbo youth for their actions and asking them to continue fighting for Laurent Gbagbo and defend the country against the “rebels”; (vii) legitimated the actions of the pro-Gbagbo youth; (viii) used the media and other channels of communication to propagate messages of hate.116 The decisions on the confirmations of charges in both cases introduce an era in which prosecutors rely on political speeches to build their case. Whether the accused had “discriminatory intent”, next to “specific intent” to commit the underlying act and “knowledge” of the context of a widespread or systematic attack directed against a civilian population, is yet to be determined. 8.8

The Level of Mens Rea Required for the Criminalization of Political Speeches

In the past, individuals have been held criminally responsible for mass atrocity crimes on the basis of their speeches. The outcomes of the trials before different international criminal tribunals are varied. Whereas, at the imt, the literal text of the speech seemed to be determinative, the nmt attached more weight to the role of the media in the war effort. The ictr was the first international criminal tribunal to establish some indicators to infer an accused’s mens rea on the basis of his speech. It turns out that the context in which the speech was given, as well as how the audience interpreted the speech, are determinative criteria for incitement to commit genocide. Thus, an accused’s “guilty mind” seems to be correlated with the social circumstances that exist in a certain country and certain period of time. 116 Ibid.

chapter 9

Defenses against Mens Rea 9.1 Introduction Apart from the evidentiary burden, the prosecutor bears the onus to proof mens rea on part of the accused, there are several defenses at the disposal of the defense to refute the mens rea component. In criminal law, a theoretical distinction has been made between defenses by way of an excuse and defenses by way of a justification. This distinction, although less prominent in the defenses listed in the Rome Statute, is relevant as it pertains to different aspects of the accused’s mens rea. The Rome Statute lists, in article 31, “grounds for excluding criminal responsibility”, which are: – A mental disease or defect; – Intoxication; – Self-defense or defense of others; and – Duress and necessity.1 The defense of mistake of fact or law and the defense of superior orders are covered by respectively article 32 and 33 ICCSt. The distinction between excuses and justifications also relates to the accused’s mental state. In defenses that are qualified as excuses, the defendant admits to have committed a criminal act, but claims that he cannot be held criminally responsible because he lacked criminal intent. It does not negate the wrongfulness of an action, but it sees at the culpability of the accused.2 Defenses being justifications, on the other hand, negate the wrongdoing of an action by transforming what would otherwise be an unlawful action into a lawful one.3 Excuses, such as duress, intoxication, mental disease or defect, superior orders, mistake of law and mistake of fact impede the free will of the defendant. Justifications, such as self-defense, defense of others and necessity, involve a choice of evils. According to one scholar, defenses of justification 1 Article 31(1)(a) to (d) ICCSt. 2 Jens Ohlin, “Part B Issues, Institutions and Personalities, E, Excuses and Justifications,” in The Oxford Companion to International Criminal Justice, ed. Antonio Cassese (Oxford: Oxford University Press, 2009), 319. 3 Ibid., 318.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004307889_010

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“pertain specifically to mens rea, because, unlike most excuse defenses, the defendant has made a meaningful choice.”4 Yet, Dinstein identified the defense of duress, mistake of law or fact, and mental disease, as the most prominent defenses pertaining to the absence of mens rea.5 In short, excuses pertain to the blameworthiness of the actor, while justifications pertain to the (in)correctness of the act.6 This chapter will go into each of the defenses listed in the Rome Statute, while referring to the application of these defenses in the past, and discuss if and how they relate to the accused’s mens rea or lack thereof. 9.2

Mental Disease or Defect

9.2.1 General Analysis A defendant cannot incur criminal responsibility under the Rome Statute if his actions were the result of a mental disease or defect, that affected his “capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law”.7 If the defendant – at the time of the commission of the crimes – lacked the capability to engage in moral reasoning or to control his behavior, he lacked the culpable mental state necessary to reach a conviction.8 The defense, sometimes referred to as the insanity defense, revolves around the question whether the accused possessed the requisite mens rea at the time of the alleged crimes.9 If the requisite mens rea was lacking due to a mental disease or defect, a decisive element of the crime cannot be fulfilled, which should necessarily lead to an 4 Noah Weisbord, “The Mens Rea of the Crime of Aggression,” Washington University Global Studies Law Review 12, 3 (2013): 500. 5 Yoram Dinstein, “International Criminal Courts and Tribunals, Defences,” in Max Planck Encyclopedia of Public International Law (Oxford University Press: 2009), accessed 21 June 2016, http://opil.ouplaw.com/. 6 Kai Ambos, “Grounds Excluding Responsibility (‘Defences’),” in Treatise on International Criminal Law: Volume 1: Foundations and General Part, ed. Kai Ambos (Oxford: Oxford University Press, 2013), 306. 7 Article 31(1)(a) ICCSt. 8 Jens Ohlin, “Issues, Institutions and Personalities, M, Mental Disease,” in The Oxford Companion to International Criminal Justice, ed. Antonio Cassese (Oxford: Oxford University Press, 2009), 415; see also Shane Darcy, “Defences to International Crimes,” in Routledge Handbook of International Criminal Law, ed. William A. Schabas and Nadia Bernaz (New York: Routledge, 2011), 231–245. 9 John Tobin, “The psychiatric defence and international criminal law,” Medicine, conflict and Survival 23, 2 (2007): 113.

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acquittal of the accused or a dismissal of the charges. In common law systems, the M’Naghten rules had a major influence on examining an accused’s alleged insanity at the time of the alleged crimes. The British House of Lords set forth the following rule, which has also been termed the right-wrong test: “at the time of committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong.”10 The accused’s capacity to distinguish between right and wrong has been addressed before international criminal tribunals, and has been discussed by the Preparatory Committee on the Establishment of an International Criminal Court. In its discussion on the inclusion of defenses in the Rome Statute, the Preparatory Committee compared the insanity defense with the intoxication defense (see infra). Whereas the former was found to be related to an accused’s capacity to distinguish between right and wrong, the latter was more related to the accused’s loss of judgment.11 The Preparatory Committee debated whether to merge the two defenses in the Rome Statute to cover situations where intoxication would lead to temporary insanity.12 Yet, two separate provisions were adopted (article 31(1)(a) and 31(1)(b) ICCSt.). The insanity defense, as adopted in the Rome Statute, includes two types of insanity, namely: (1) the incapacity to understand unlawfulness; (2) the inability to control actions.13 The insanity defense should be distinguished from a plea of diminished mental responsibility, which may be used in mitigation of a sentence, while full mental incapacity at the time of the crimes precludes a conviction.14 In the Delalić et al. case, the defendant Esad Landžo raised the defense of diminished responsibility, which, according to the icty Trial Chamber, is to be ­distinguished from a plea of insanity.15 While both pleas are founded on an ­abnormality of mind, a defense of diminished responsibility “is based on the premise that, despite recognizing the wrongful nature of his actions, the accused, 10 11

12 13 14 15

Daniel M’Naghten’s Case, United Kingdom House of Lords decision J16, 26 May and 19 June 1843. Initial Summary Reports On December 1–12 Meetings Of The United Nations Preparatory Committee On The Establishment Of An International Criminal Court, 18 December 1997, accessed 7 July 2015, http://www.iccnow.org/?mod=prepcommittee5. Ibid. Ibid. Dinstein, “International Criminal Courts and Tribunals, Defences”.; Ohlin, “Issues, Institutions and Personalities, M, Mental Disease,” 415. Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Judgment, 16 November 1998, para. 1156.

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on account of his abnormality of mind, is unable to control his actions”.16 Insanity, on the other hand, implies that the accused was, at the time he committed the acts, “unaware what he is doing or incapable of forming a rational judgement as to whether such an act is right or wrong”.17 The text of article 31(1) (a) ICCSt. includes a reference to the defendant’s “capacity to control his or her conduct”. The mental defect must be such that it “destroyed” the defendant’s capacity to control, which seems to leave no room for lesser forms, such as diminished responsibility. The icty has determined that the defendant bears the burden of proving the lack of mental capacity advanced by him on the balance of probabilities, which implies that it must be made “more probable than not”.18 Furthermore, the abnormality of mind must have “substantially impaired” the accused’s ability to control his or her actions. A less then substantial impairment may lead to mitigation of the sentence, but cannot exonerate the accused, as was held by the icty Trial Chamber in the Landžo case.19 The defense of mental disease or defect will only be successful once the defendant lacked mental capacities at the time of the commission of the crimes. If he is insane at the time of the trial, the defendant may still incur criminal responsibility, albeit that a defense of fitness to stand trial may be raised. The International Military Tribunal (imt) held in the case of Rudolf Hess: That Hess acts in an abnormal manner, suffers from loss of memory, and has mentally deteriorated during his trial, may be true. But there is nothing to show that he does not realize the nature of the charges against him, or is incapable of defending himself […]. There is no suggestion that Hess was not completely sane when the acts charged against him were committed.20 The insanity defense should thus be distinguished from the procedural defense of unfitness to stand trial. Once a defendant is unfit to stand trial, due to an illness at the time of the trial, the proceedings against him or her may be halted. This happened, for example, in the case of Gustav Krupp before the imt and the case of Ieng Thirith before the Extraordinary Chambers in the 16 17 18 19 20

Ibid. Ibid. Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeals Judgment, 20 February 2001, paras. 582, 590. Delalić et al., Trial Judgment, para. 1156; Delalić et al., Appeals Judgment, para. 578. Case of Goering et al., Trial of the Major War Criminals before the International Military Tribunal, 14 November – 1 October 1946, vol. 22, 530.

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Courts of Cambodia (eccc). The eccc Trial Chamber stayed the proceedings against Ieng Thirith, who was suffering from dementia.21 In the Strugar case, as well as the Stanišić case, the icty Trial Chamber established indications to determine an accused’s fitness to stand trial.22 9.2.2 Scientific Developments and Their Impact on the Insanity Defense It is not unimaginable that the insanity defense under article 31(1)(a) ICCSt. coincides with the intoxication defense under article 31(1)(b) ICCSt. What if, for example, a defendant suffers from a disease or defect that causes him or her to overreact to certain drugs? In national legal systems, the insanity defense has been raised in cases where defendants committed crimes, while they had taken anti-depressants.23 Research has shown that some persons are particularly vulnerable to anti-depressants.24 By determining a person’s dna-structure, it can be established whether a person has a specific variation in his or her dnastructure that may cause vulnerability for side-effects – such as aggression – of antidepressants.25 The human body varies considerably in the way it degrades 21

Case 002, Decision on ieng Thirith’s Fitness to Stand Trial, Case No. 002/19-09-2007/ ECCC/TC, 17 November 2011. 22 In the Strugar case, the icty Appeals Chamber endorsed the Trial Chamber’s non-exhaustive list of capacities to be evaluated in the assessment of the accused’s fitness to stand trial. The list included the accused’s capacity “to plead, to understand the nature of the charges, to understand the course of the proceedings, to understand the details of the evidence, to instruct counsel, to understand the consequences of the proceedings, and to testify”. The Appeals Chamber held the applicable standard to be “that of meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings”, see Prosecutor v. Strugar, Case No. IT-01-42-A, Appeals Judgment, 17 July 2008, para. 41, 55; see also Prosecutor v. Stanišić and Simatović, Case No. IT-03-69-T, Decision on Stanišić defence’s motion on the fitness of the accused to stand trial, 27 April 2006., described in Geert-Jan Alexander Knoops, Theory and Practice of International Criminal Tribunals (The Hague: Kluwer Law International, 2005). 23 See, for example: Court of Appeals Amsterdam, the Netherlands, ECLI:GHAMS:2011:BP6664, 3 March 2011; State v. DeAngelo, cr 97 018766S (Milford, ct); Arizona v. Jodi Lisa Henry, cr 2000–017302 (Maricopa County). 24 See, for example: David Healy, Andrew Herxheimer and David B. Menkes, “Antidepressants and Violence: Problems at the Interface of Medicine and Law,” PLoS Medicine 3, 9 (2006): 372, doi: 10.1371/journal.pmed.0030372. 25 Letter of dr. Selma Eikelenboom to the Dutch House of Representatives on the relation between use of prescription drugs and aggression, 18 September 2014 [“Kanttekeningen bij de beantwoording van uw vragen over het verband tussen medicijngebruik en agressie door de ministers Schippers en Opstelten, respectievelijk per brief van 11 juni 2014 en per

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drugs.26 If the drugs are not degraded adequately due to certain defects in a person’s dna-structure, it may trigger aggressive behavior. By 2015, 495 cases of aggression and paroxetine (i.e. an antidepressant) had been reported to the uk Medicines and Healthcare Products Regulatory Agency (mhra),27 which is most likely an underestimation as mental health professionals are said to report only between one and ten percent of adverse side-effects.28 A state of intoxication caused by prescription drugs may be reinforced by the use of alcohol or other drugs, while consuming alcohol can be seen as a “voluntary” form as intoxication, which can render the defense of intoxication inadmissible (see infra). Another neurobiological insight that may be of relevance to the determination of an accused’s mental state at the time of the crime is somnambulism (i.e. sleepwalking).29 If a person committed a murder while he was sleepwalking, the determination of criminal intent is debatable. Again, the interplay between insanity and intoxication arises; research has shown a connection between drug use and sleepwalking. A report to the uk Medicines and Healthcare Products Regulatory Agency revealed that antidepressants related to sleepwalking occupied eight of the seventeen slots.30 Nightmares were also reported as a side-effect of antidepressants; in the said report, nightmares related to antidepressants occupied six of the ten slots.31 It is, however, questionable to what extent such a defense can be transposed to international crimes. Different from an ordinary murder that has been committed in an impulse, murder as a crime against humanity, for example, requires the existence of an organizational plan or policy and that the crime was committed as part of a widespread and systematic attack against any civilian population. Likewise, war crimes require the existence of an armed conflict. Can a person defending himself against such crimes, still claim he committed

26 27

28 29 30 31

aanhangsel 2412, vergaderjaar 2013-2014”], accessed 16 July 2015, http://www.ifscolorado .com/images/Ingezonden%20brief%202deKamer%2018Sep14.pdf. Ibid. “Drug Analysis Print, Paroxetine, 29 May 2015,” uk Medicines and Healthcare Products Regulatory Agency, accessed 16 July 2015. http://www.mhra.gov.uk/home/groups/public/ documents/sentineldocuments/dap_6686624096629069.pdf. Munir Pirmohamed, Alasdair M. Breckenridge, Neil R. Kitteringham and Kevin Park, “Adverse drug reactions,” British Medical Journal 316 (1998): 1295–1298. Healy, Herxheimer and Menkes, “Antidepressants and Violence: Problems at the Interface of Medicine and Law,” 372. Ibid.; referring to: uk Medicines and Healthcare Products Regulatory Agency. Adverse drug reactions online information tracking: Drug analysis print, 2006. Ibid.

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the crimes in an impulse, while having had at least awareness of the overall attack? The same question can be raised for crimes that covered an extended period of time; as is frequently seen with respect to international crimes. It will be more difficult to argue that the defendant was in a constant state of insanity or intoxication, resulting in an incapability to control conduct or to appreciate the unlawfulness of behavior. Another element that is becoming more pertinent, is the interplay between neurobiological deficits and the commission of crimes. The field of neuroscience produces increasing evidence that the presumed “free will” is non-existent. Neuro-genetics are seemingly of increased importance in criminal cases. This became apparent in two criminal cases before an Italian court, where the judges imposed lower sentences because the defendants suffered from an ineffective variant of the, so-called, maoa-gene (monamine oxidase A gene), a gene that regulates the degradation of neurotransmitters in the human brain.32 Likewise, in a us criminal case, 1st degree murder charges were attenuated to voluntary manslaughter, because the defendant successfully demonstrated that he suffered from a defect in said gene.33 Thus, impairments in his brain may result in a presumption of mental disease or defect.34 Yet, the co-existence of neurobiological developments with the trials for international crimes will be difficult to legitimize. If a defendant lacked a free will, will one accept exoneration for a serious charge such as a war crime charge? Criminal law systems have been criticized for assuming a concept of the human mind that does not correspond with the (scientific) reality.35 Are these proponents of the “lack of free will” theory at the basis of a shift in legal thinking? And how can such lack of free will claims be transposed to international crimes? These questions are yet to be answered, and defense counsel raising such defenses will have to bypass hurdles of a well-established criminal law system with, as noted, a clear focus on individual criminal responsibility. Furthermore, it should be stressed that the “lack of free will” theorists, have 32

33 34 35

Matthew L. Baum, “Monoamine Oxidase A (maoa) Genetic Predisposition to Impulsive Violence: Is It Relevant to Criminal Trials?” Neuroethics (2011): 1. doi: 10.1007/s12152-0119108-6; Katy de Kogel, Pim Haselager, Frank Leoné and Lizanne Westgeest, “Beperkingen van neurowetenschap en gedragsgenetica in de rechtspraktijk,” Nederlands Juristenblad 45 (2013): 3157–3161. Baum, “Monoamine Oxidase A” 1. See also, Geert-Jan Alexander Knoops, An Introduction to the Law of International Criminal Tribunals (Leiden/Boston: Brill Nijhoff, 2014), 169–170. Dick Swaab, Wij zijn ons brein. Van baarmoeder tot alzheimer (Amsterdam/Antwerpen: Uitgeverij Contact, 2011), 218–220; Victor Lamme, “Controle, vrije wil en andere kletskoek,” Justitiële Verkenningen 34, 1 (2008): 76–88.

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been criticized for falling into the “mereological fallacy”. This fallacy occurs when a certain aspect (e.g. the brain) is being blamed for something that can only be attributed to the whole (e.g. human beings as a legal entity).36 With respect to international crimes, neurological defenses will be difficult to raise successfully, especially in regard to crimes that allegedly were committed during an international or internal conflict which span a considerable time frame. At this time, neurological defenses have only been successfully raised (in part) in domestic criminal cases when it concerned very specific and time restricted situations. A cross-review between national and international criminal law remains relevant as individual behavior is influenced by one’s own cultural, biological, educational and emotional background, which will influence his or her perceptions, relations and, ultimately, legally relevant behavior.37 Much can be learned from neurobiological research, as well as from research related to the effects of drugs, and its impact on the human mind and possibly criminal behavior.38 Legal reasoning should not be abstracted from the social reality. Tension remains once the law is only applied as an abstract theory based on systematic reasoning and legal dogmas without taking into account the social reality with its innumerous demands and variety of possible actions, where pragmatism and policy considerations will also play a role.39 Legal reasoning can benefit from taking into account the scientific reality vis-à-vis the functioning of the human mind, as it will almost automatically relate to the social reality. Awareness of the neurobiological developments may prevent a wrongfully construed mens rea. 9.3 Intoxication Article 31(1)(b) ICCSt. excludes criminal responsibility for persons who were in a state of (involuntary) intoxication at the time of the commission of the crimes. This state of intoxication must have been such that it destroyed the “person’s capacity to appreciate the unlawfulness or nature of his or her 36

37 38 39

Lucas Noyon, Hjalmar J.C. van Marle, Paul A.M. Mevis and Michiel J.F. van der Wolf, “De discussie over neurowetenschap en strafrecht: een overzicht en een richting,” Delikt & Delinkwent 34 (2015). Geert-Jan Alexander Knoops, Defenses in Contemporary International Criminal Law 2nd ed. (Leiden: Martinus Nijhoff Publishers, 2008), 108. Ibid. See for example, Carel R. Snyman, “The tension between legal theory and policy considerations in the general principles of criminal law,” Acta Juridica 1 (2003): 1–22.

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conduct, or capacity to control his or her conduct to conform to the requirements of law.” Furthermore, the person must have been in this state of intoxication involuntarily, as otherwise it can be said that he or she “knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court”.40 Dinstein questioned whether this defense could ever be raised successfully before the icc and termed it “the dubious defense of intoxication”, as it is hard to imagine how this defense can be relevant to high-level defendants at whom the icc aims.41 It is also questionable what can be subsumed under “voluntarily”. What if, for example, a child soldier is recruited and given amphetamines and tranquilizers to engage in the armed conflict fearlessly and painlessly? And what if this child soldier becomes addicted to these drugs, can it still be said that he took them voluntarily if he did not take them voluntarily in the first place? The icc does not aim at prosecuting individual child soldiers engaged in a conflict, but at high-level defendants. In such cases this example may be less relevant, as already suggested by Dinstein. Yet, the icc is currently undertaking proceedings against Dominic Ongwen, the former commander of the Sinia Brigade of the Lord Resistance Army (lra), who was abducted himself by the lra at the age of 10 when he was on his way home from school.42 Despite this fact, the defense of intoxication will most likely not be viable. Little is known about Ongwen’s history of potential intoxication, and it would be even more difficult to establish a causal relationship between a state of intoxication and the commission of alleged crimes taking place over an extended period of time. The Ongwen case may, however, result in interesting case law vis-à-vis a defendant’s mens rea. If not under the defense of intoxication, his defense might advocate that he acted under duress, maybe as a result of his childhood trauma, or superior orders (with respect to the war crimes charged). 9.4

Self-defense or Defense of Others

Once a defendant relies on a self-defense or defense of others, a lack of mens rea for the act as such is not decisive; rather the defense should put forward arguments showing that the defendant should be absolved from criminal 40 41 42

Article 31(1)(b) ICCSt. Dinstein, “International Criminal Courts and Tribunals, Defences”. Gregory Warner, “A Former Child Soldier Will Stand Trial In The Hague For War Crimes,” npr, 23 January 2015, accessed 21 June 2016, http://www.npr.org/2015/01/23/379419891/ international-criminal-court-to-try-former-child-soldier-with-war-crimes.

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responsibility as his act was justified under the circumstances at hand. The defendant has fulfilled the actus reus elements of the offence in question, but this actus reus is superseded by acting upon a permissive norm.43 Article 31(1) (c) ICCSt. absolves a person from criminal responsibility if that person acted: reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility.44 An otherwise unlawful action may become lawful if it meets the criteria mentioned in this provision, namely: (i) an act of self-defense or defense of others; (ii) against an imminent and unlawful use of force; and (iii) which was proportional to the degree of danger. The words “imminent” and “unlawful” seem to suggest that the self-defensive action cannot be pre-emptive, preventative or retaliatory.45 Yet, in most domestic criminal law systems, it is accepted that the adjective “imminent” does not require the accused to wait for the “first strike”; as long as the danger is unavoidable. Furthermore, the person must have acted “reasonably”, which means that the defense must have been necessary and appropriate.46 Determining whether a person acted reasonably comes down to the question whether a reasonable person would have acted the same under the same circumstances. The icty has held that self-defense cannot be invoked to justify the deliberate targeting of a civilian population. In the Martić case, the Appeals Chamber considered: As for Martić’s alternative argument that the shelling of Zagreb was a lawful military action conducted in self-defence, the Appeals Chamber recalls that ‘whether the attack was ordered as pre-emptive, defensive 43 Ambos, “Grounds Excluding Responsibility,” 305. 44 Article 31(1)(c) ICCSt. 45 Mark Klamberg, Article 31(1)(c), Case Matrix Network, accessed 15 May 2015 at http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/ commentary-rome-statute/commentary-rome-statute-part-3/. 46 Ambos, “Grounds Excluding Responsibility,” 341.

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or offensive is from a legal point of view irrelevant […]. The issue a hand is whether the way the military action was carried out was criminal or not.” […] As Martić has failed to show any error in the Trial Chamber’s conclusion that he deliberately targeted the civilian population of Zagreb, his argument that the shelling of Zagreb was conducted in self-defence must fail. The Appeals Chamber takes note of Martić’s arguments in his concluding statement at the appeal hearing that ‘the Serbs were not aggressors but rather defended themselves in a situation when the United Nations made no attempt to protect them […].’ However, in particular in light of the fact that the prohibition against attacking civilians is absolute, the Appeals Chamber fails to see how this claim could justify Martić’s actions in relation to the shelling of Zagreb.47 Likewise, in the Boškoski and Tarčulovski case, the defendant’s argument that the use of force was proportionate was rejected, as the prohibition to target civilians is absolute and civilian casualties are “only legitimate if their deaths are incidental to the conduct of military operations”.48 There exists a clear distinction between a State acting in self-defense versus a person acting in self-defense (e.g. pursuant to a State order). States are allowed to resort to individual or collective defense against an armed attack under article 51 of the un Charter. The defendant Tarčulovski submitted that he acted pursuant to a lawful government order to conduct the operation in Ljuboten and thus had to be absolved from criminal responsibility for this operation. The icty Appeals Chamber rejected this defense, holding that: [t]he fact that a State is acting in lawful self-defence (jus ad bellum) is irrelevant for a determination as to whether a representative of this State has committed a serious violation of international humanitarian law during the exercise of the State’s right to self-defence which constituted part of an armed conflict (jus in bello). Consequently, the Trial Chamber did not err in attributing criminal liability to Tarčulovski without making a finding on whether an order was lawfully given by the President of the fyrom to carry out a self-defence operation against domestic ‘terrorists’.49

47 48 49

Prosecutor v. Martić, Case No. IT-95-11-A, Appeal Judgment, 8 October 2008, para. 268; (internal footnotes omitted). Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-A, Appeal Judgment, 19 May 2010, para. 46. Ibid., para. 51; (internal footnotes omitted).

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This distinction is also clearly envisaged in the Rome Statute, which reads in this regard that “a defensive operation conducted by forces shall not in itself” absolve a defendant from criminal responsibility.50 Thus, the State’s right to self-defense cannot automatically be transposed to individuals acting on behalf of the State. Self-defense is not frequently invoked as a defense to international crimes, but reflects a provision that has been adopted in most national law systems and thus can be regarded as being part of customary international law.51 Furthermore, even though a theoretical distinction can be made between justifications and excuses – as discussed in the introduction – this distinction may not be as clear-cut in practice. Self-defense can, for example, have a common ground with the defense of duress, as a defendant’s judgment may be impaired as a result of duress, and as a result he or she may fail to meet the proportionality requirement for self-defense. There is no case law yet on self-defense before the icc, but the text of the Statute does not seem to leave leeway for the use of “excessive self-defense”, as follows from the wordings “as a manner proportionate to the degree of danger”. Likewise, a person’s insanity may also impact upon his abilities to properly judge or act upon a situation of self-defense. If a defendant mistakenly judges a situation as being a situation of self-defense and consequently acts pre-emptively, he or she may consider invoking the defense of mistake of fact or law.52 Article 31(1)(c) ICCSt. on self-defense requires the “danger” to be “imminent”; yet, the case law should point out whether and to what extent this requires the commencement of an actual attack against which a person may reasonably defend him- or herself or others or that merely a threat thereto suffices. 9.5

Duress and Necessity

Article 31(1)(d) ICCSt. excludes criminal responsibility for persons whose criminal conduct: has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and that the person acts necessarily and reasonably to avoid 50 51 52

Article 31(2)(c) ICCSt. Prosecutor v. Kordić and Čerkez, Case No. IT 95-14/2, Trial Judgment, 26 February 2001, para. 451. Ambos, “Grounds Excluding Responsibility” 339.

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this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.53 By requiring that the person did not intend to “cause a greater harm than the one sought to be avoided”, the defense of duress introduces a criterion which is only to be applied with necessity.54 Duress can be defined as the “lack of freedom of will or choice in the face of an immediate threat”, while necessity can be defined as “a choice of evils” where the person is compelled to choose the lesser evil.55 Whereas duress is an excuse that anticipates the frailty of the human mind, necessity is a justification that may render an unlawful act (for which the actus reus has been fulfilled) lawful.56 Therefore, the requirement of “not intending to cause a greater harm than the one sought to be avoided” only pertains to necessity while this requirement contravenes the rationale of duress. 9.5.1 Duress The defense of duress revolves around the argument that the accused lacked mens rea, as he acted under an irresistible compulsion, causing him to have no reasonably moral choice to act differently.57 The defense of duress surfaced in the case of Otto Sandrock and three others before the British Military Court at Almelo, the Netherlands, although at that time (i.e. after the Second World War) it was referred to as the defense of “superior force”.58 Defense counsel in the so-called Almelo trial held that the defendants, who stood trial for

53 54 55 56 57 58

Article 31(1)(d) Rome Statute. Darcy, “Defences to International Crimes,”, 231–245. Ambos, “Grounds Excluding Responsibility”, 346. Ibid., 347. William A. Schabas, “Mens rea and The International Criminal Tribunal for the Former Yugoslavia,” New England Law Review 37, 4 (2003): 1018. Otto Sandrock, Ludwig Schweinberger and Franz Joseph Hegemann were charged with committing a war crime by killing Pilot Officer Gerald Hood (a British prisoner of war) on March 21, 1945; Otto Sandrock Ludwig Schweinberger and Helmut Wiegner were charged with committing a war crime by killing Bote van der Wal, a Dutch civilian on March 24, 1945. See The Almelo Trial, Case No. 3, Trial of Otto Sandrock and Three Others, 24th-26th November 1945 in United Nations War Crimes Commission, Law-Reports of Trials of War Criminals, vol. 1, (London: His Majesty’s Stationery Office, 1947).

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violating the laws and usages of war by killing a British prisoner of war and a Dutch civilian, lacked mens rea.59 Although the four defendants did not commit the murders themselves, they had to face trial because of their knowledge and contribution to the “common enterprise”.60 The defense of “superior force”, which resembles the contemporary defense of duress, also reflects mens rea. The evidence demonstrated that the defendants experienced the existence of superior force as a matter of life and death to them, as well as to their families.61 The mental element in this defense lies in the impact of superior force on the accused’s ability to make a correct judgment: Superior force could compel the accused to commit an act which they might have known or should have known to be unlawful and might also have debased their judgment as to what was lawful and what was not lawful.62 Unfortunately, the British Military Court did not provide insight in its reasoning when it rejected the defense of superior force, stating that: “By convicting the accused, the Court rejected this defence.”63 Nearly fifty years later, in 1997, the icty Appeals Chamber extensively analyzed the defense of duress in the Erdemović case. Judge McDonald and Judge Vorah held in their Joint and Separate Opinion that duress cannot be a complete defense to crimes against humanity.64 Judge Cassese appended a strong dissent, holding that the defense of duress should be afforded to the accused, regardless of the crime, if the following four criteria are met: 1. 2. 3. 4.

a severe threat to life or limb; no adequate means to escape the threat; proportionality in the means taken to avoid the threat; the situation of duress should not have been self-induced.65

59 60 61 62 63 64

United Nations War Crimes Commission, Law-Reports of Trials of War Criminals. Ibib., p. 40. Ibid., p. 40. Ibid. Ibid. Prosecutor v. Erdemović, Case No.: IT-92-22-A, Joint and Separate Opinion of Judge McDonald and Judge Vorah, 7 October 1997, para. 88. Prosecutor v. Erdemović, Case No.: IT-92-22-A, Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para. 16, 41.

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Furthermore, Judge Cassese considered that the third criterion of proportionality will be difficult to satisfy, as the judge will have to determine whether the accused was allowed – due to the circumstances at that time – to save his own life at the expense of others.66 A relevant consideration in this respect might be whether the victims would have been killed anyway, regardless of the accused’s actions.67 The criteria of Judge Cassese’s approach in the Erdemović case, reflect the view taken in the Rome Statute, requiring that: 1.

2. 3.

there existed a threat of imminent death or of continuing or imminent serious bodily harm, which may either be (i) made by other persons; (ii) constituted by other circumstances beyond that person’s control; the person acted necessarily and reasonably to avoid this threat; the person did not intend to cause a greater harm than the one sought to be avoided (i.e. proportionality requirement).68

As mentioned, including a proportionality requirement contradicts the notion of duress, as the defendant lacked a free will due to the duress. How can a defendant be expected to have been able to weigh his own actions based on proportionality if he lacked a free will, if his mens rea for the crime was absent due to the circumstances he found himself in? Scholarly opinion holds that the defense of duress can and should not be adjudicated upon the notion of proportionality.69 This is exactly where the theoretical distinction between justifications and excuses becomes relevant. Duress is an excuse and negates the accused’s mens rea. An irresistible force of threat caused the defendant to be unable to make a (righteous) moral choice.70 As held by the Nuremberg Military Tribunal in the Einsatzgruppen case with respect to situations of duress: Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever.71 66 67 68 69 70 71

Ibid., para. 42. Ibid. Article 31(1)(d) ICCSt.; see also Klamberg, Case Matrix Network. Darcy, “Defences to International Crimes”, 231–245. Benjamin J. Risacher, “No Excuse: The Failure of the icc’s Article 31 ‘Duress’ Definition,” Notre Dame Law Review 89, 3 (2014): 1417. Nuernberg Military Tribunals, Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 4, 480.

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Thus, even though it may be tempting to include a proportionality requirement, as it is generally thought that someone should not place his own life over that of, for example, 70 innocent civilians, as happened in the Erdemović case, such reasoning does not take into account that the accused lacked mens rea due to an irresistible threat. As noted by one author: “The actor under duress is not making choices of his own free will; instead, he is doing whatever is necessary to avoid the irresistible threat.”72 9.5.2 Necessity The concepts of duress and necessity are often conflated with each other.73 This is also reflected in the Rome Statute’s definition in article 31(1)(d) ICCSt. In the trials conducted in the aftermath of the Second World War, defense counsels frequently relied on defenses that involved the freedom of decision making by a defendant.74 The case law demonstrated that the defendants were said to have acted under coercion or compulsion (i.e. duress), while it was referred to as necessity.75 External coercion, impeding upon the defendant’s free will, is considered as the relevant objective element of necessity.76 us Military Tribunal sitting at Nuremberg held in the High Command case that: [t]o establish the defense of coercion or necessity in the face of danger there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong.77 Necessity has, however, been distinguished from duress, in that necessity involves a threat arising out of objective circumstances, mostly threats of nature, which brings the defendant in a situation where he has to choose between two evils.78 Duress, on the other hand, emanates from a threat to life or limb made by other persons.79 The Rome Statute merges these two concepts by requiring

72 73 74 75 76 77 78 79

Risacher, “No Excuse,”: 1420. Ambos, “Grounds Excluding Responsibility”, 348. Kai Ambos, “Defences,” in General Principles of International Criminal Law, eds. Antonio Cassese, Paola Gaeta and John R.W.D. Jones (Oxford: Oxford University Press, 2002), 1006. Ibid. Ibid. Nuernberg Military Tribunals, Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 11, 509. Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law 3rd ed. (Oxford: Oxford University Press, 2014), 241. Ibid.

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that the threat may be made by (i) other persons; or (ii) founded on other circumstances beyond that person’s control.80 Clear and famous examples of necessity, can be found in the nineteenth century lifeboat cases of The Queen v. Dudley and Stephens and United States v. Holmes. The cases concerned defendants who stood trial, because they chose their own lives over the lives of others out of necessity. In 1884, Dudley, Stephens, Brooks and Parker shipwrecked.81 After floating on a life-boat for weeks, they started to discuss their survival. They came up with the idea of drawing lots; one of them should die, so that the others could live. They debated the issue for several days without resolving it, until Parker fell into a coma. Dudley and Stephens decided to kill and eat Parker, he was probably going to die anyway and he was the one without a wife and children. Shortly after taking the life of Parker, the three men were rescued by a German ship.82 Dudley and Stephens, who allegedly decided to kill Parker, had to stand trial for murder. Did they make the right decision? Was their life worth more than Parker’s life given the circumstances of the case? The judges ruled that necessity cannot be applied as a defense to a murder charge.83 It can, however, serve as a mitigating circumstance, as the “acts were found to have been illegal, but, in the extreme circumstances, justifiable”.84 United States v. Holmes concerned the case against Alexander Holmes, a crewman of the William Brown ship which sank in 1841.85 After the William Brown sank, nine crewman and 32 passengers managed to get onto the longboat, while the captain, eight seamen and one passenger succeeded to get onto the jolly boat. The other 31 passengers died in the shipwreck. The longboat was, however, leaking. The situation became life threatening to all passengers when it started to rain heavily and waves started splashing over the longboat’s bows. This is when Holmes, one of the seamen, and the rest of the crew, started throwing passengers out of the boat. Holmes defended himself stating that homicide was necessary for self-preservation.86 In the judgment, notice was taken of the fact that “[t]here was no other principle of selection [i.e. other than not to separate man and wife and not to throw out any women] […] No 80 81 82 83 84 85 86

Article 31(1)(d) ICCSt. The Queen v. Dudley and Stephens, 14 Queens Bench Division 273, 9 December 1884. Ibid. Ibid. Thomas Franck, Recourse to force: State action against threats and armed attacks, (Cambridge: Cambridge University Press, 2002), 179. United States v. Holmes, Circuit Court Eastern District of Pennsylvania, Case No. 15,383, 22 April 1842. Ibid.

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lots were cast, nor had the passengers, at any time, been either informed or consulted as to what was now done.”87 This sentence reflects the rationale underlying a necessity defense, namely that a meaningful choice must have been made between conflicting interests. The Circuit Justice, in instructing the jury, outlined with respect to necessity: But the case does not become ‘a case of necessity,’ unless all ordinary means of self-preservation have been exhausted. The peril must be instant, overwhelming, leaving no alternative but to lose our own life, or to take the life of another person.88 Most importantly, necessity does not take away the unlawfulness of the act, but it may – under certain, strict circumstances – justify the act. As considered in the Holmes case: “we must look, not only to the jeopardy in which the parties are, but also to the relations in which they stand. The slayer must be under no obligation to make his own safety secondary to the safety of others.”89 Yet, as held in this case, the sailors and passengers cannot be placed in the same category. Whereas the sailor is bound to “undergo whatever hazard is necessary to preserve the boat and the passengers”, no such duty rests upon the passengers. Yet, on the other hand, the captain and a sufficient number of seamen must stay aboard to navigate the boat. When there is a situation where either the sailor or the passenger should be sacrificed, the sailor is – due to the nature of his job – bound “to set a greater value on the life of others than on his own”.90 This reasoning seems to be in line with the defense of necessity, which implies a rational choice between two conflicting interests, where the lesser evil must prevail. It is not illogical that this includes an analysis as to what exactly constitutes a lesser evil. Even though the icc may not be confronted with lifeboat cases such as in the early nineteenth century, the reasoning may still bear relevance. With respect to military men, for example, it can be said that, if they voluntarily joined the army thereby risking their lives and sacrificing themselves to protect others, they cannot automatically invoke the defense of necessity when they are charged with killing innocent civilians. Or, if they did, they should demonstrate that their own life had to be preserved in order to successfully complete their mission. In the Holmes case, however, a ruling

87 88 89 90

Ibid. Ibid. Ibid. Ibid.

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was obtained which allowed for a new trial, as the instruction to the jury was deemed to be unjust, since: the court, instead of telling the jury that, in a state of imminent and deadly peril, all men are reduced to a state of nature, and that there is, then, no distinction between the rights of sailor and passenger, adopted a contrary doctrine, and charged the jury accordingly.91 This ruling was, however, discharged and Holmes’ conviction was upheld. The Court, even though it could have imposed a 3-year prison sentence and a 1,000 dollar fine, sentenced Holmes to one year imprisonment and a 20 dollar fine. Thus, it seems that the situation of necessity could serve as a mitigating circumstance, instead of as a full defense. Duress and necessity are thus merged in the Rome Statute, while both defenses are based on a different mental state on part of the accused. Whereas duress, in principle, does not require that the accused opted for a reasonable choice, necessity does require that the accused made a meaningful choice. By incorporating a proportionality requirement, however, the Rome Statute has departed from original notions of duress, in which the defendant’s abilities to make such an assessment have been impaired due to the threat. 9.6

Military Necessity in a Situation vs. Necessity in a Case

Military necessity may feature within a situation under investigation by the icc Prosecutor, which should be contrasted against the individual defense of necessity under article 31(1)(d) ICCSt. An example of the former can be found in the icc investigation into the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia.92 This situation already featured in this book in Chapter 4 in the context of the mens rea element for war crimes. To briefly resume the relevant facts in this situation: on 31 May 2010, the Israeli Defence Forces (idf) boarded six ships in a flotilla that was on its way to 91 92

Ibid. Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Case No. ICC-01/13-34, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015; see also Office of the Prosecutor of the International Criminal Court, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014.

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breach one of its naval blockades, while ignoring warnings of the idf to take a different route. When the idf boarded the Mavi Marmara, a Turkish vessel sailing under the flag of the Union of the Comoros, it was faced by heavy and unexpected resistance. The takeover of the Mavi Marmara resulted, in the end, in the death of ten Turkish nationals (including one with dual us-Turkish nationality).93 Judge Kovács offered a possible defense for the idf soldiers with respect to the Mavi Marmara takeover. In his dissenting opinion he remarked: It is clear that not only was it the Mavi Marmara’s intention to breach the blockade, but this was its main purpose, as an act of protest. With this in mind, Israeli forces had a right to capture the vessel in protection of their blockade. Furthermore, irrespective of this right, it was a logical reaction. Faced with a potential breach of the blockade, the idf acted out of necessity.94 Judge Kovács seems to be referring to military necessity, a term that is used when examining whether the resort to force was permissible. The use of force is only permissible if the principles of necessity and proportionality and distinction are respected. The principle of necessity requires that an attack is only conducted if it is aimed at accomplishing a legitimate military purpose.95 In armed conflicts, the “only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.”96 The proportionality principle requires that the expected civilian losses or damage to civilian objects may not exceed the anticipated military advantage to be achieved by the attack.97 The principle of distinction dictates that all parties to the armed conflict must, at all times, distinguish between combatants, who are legitimate objects of attack, and civilians, who are never legitimate objects of attack. Whether the idf can invoke the necessity of the attack will thus rely on the question whether the Mavi Marmara was a legitimate military purpose. One scholar observed in this regard that: 93 94

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96 97

Office of the Prosecutor of the International Criminal Court, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, para. 12. Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Case No. ICC-01/13-34-Anx, Partly Dissenting Opinion of Judge Peter Kovács, 16 July 2015, para. 33. Marco Sassòli, Antoine A. Bouvier and Anne Quintin, “How does law protect in war?” icrc, 5 June 2012, accessed 10 August 2015 https://www.icrc.org/casebook/doc/glossary/ military-necessity-glossary.htm. Ibid. Ibid.

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Israel’s initial decision to forcibly board the vessel can be regarded as necessary because the Mavi was clearly resisting capture by refusing to adhere to Israel’s demands to change course and dock at a nearby port. Whether Israel’s use of force whilst on board the Mavi was necessary, however, is less clear.98 The control question is whether the use of force was necessary to prevent the Mavi Marmara from breaching the blockade. Considering that the Mavi Marmara did not respond to any warnings given by the idf but continued its course to breach the blockade, this answer could be affirmative, provided that the naval blockade itself was lawful. A second question is whether the idf could legally resort to force and thus attack the activists once on board the Mavi Marmara. If the activists on board of the Mavi Marmara are considered as “civilians directly participating in the hostilities”, they have lost their protected status as civilians and, as combatants, they are legitimate targets for attack under the laws of war.99 If the activists, on the other hand, are classified as civilians engaged in violent disturbance and, therefore, remain their civilian status, the idf would be much more restricted in its use of force.100 With regard to the use of force, the Turkel Commission that investigated the incident noted that the idf soldiers had to make “difficult, split-second decisions regarding the use of force, under conditions of uncertainty, surprise, pressure, and in darkness, with the perception of a real danger to their lives and with only partial information available to them.”101 The otp found in its decision not to initiate an investigation into the incident: Based on idf soldiers’ own accounts, they were unprepared for, did not anticipate, and were surprised by the level of resistance and violence engaged in, by the passengers of the vessel […]. [T]he Israeli authorities did not have information indicating that passengers intended to respond to any boarding attempt with organised, violent resistance.102 98

Russel Buchan, “The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara,” Netherlands International Law Review 58, 2 (2011): 237. doi: 10.1017/ S0165070X11200032. 99 Ibid., at 237–8. 100 Ibid. 101 Situation on the Registered Vessels of the Union of the Comoros, Partly Dissenting Opinion of Judge Peter Kovács, para. 37; Turkel report, p. 268. 102 Office of the Prosecutor of the International Criminal Court, Article 53(1) Report, para. 81; Situation on Registered Vessels of Comoros, Greece and Cambodia, Partly Dissenting Opinion of Judge Peter Kovács, para. 36.

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Taking into account these circumstances it can be argued that the idf soldiers (the prospective suspects of a possible case before the icc) lacked mens rea to kill the civilians. A lack of mens rea may be assumed if the idf soldiers’ conduct was the result of “a threat of imminent death or of continuing or imminent serious bodily harm” and they were thus acting to avoid this threat. A lack of mens rea may also be assumed if the idf soldiers were justifiably mistaken about the civilian – and thus protected – status of the activists on board of the Mavi Marmara. They could mount a defense of mistake of fact under article 32(1) ICCSt. A mistake of fact is not unreasonable to assume, given the difficult circumstances the idf soldiers found themselves in. A third defense that may be raised by the idf soldiers, if prosecuted, is “self-defense” under article 31(1)(c) ICCSt. The soldiers were faced with heavy resistance and could thus reasonably defend themselves against the attack provided that the use of force was proportionate. 9.6.1 Anticipating Defenses A defense before international criminal tribunals and courts is to be based on both legal and factual research which can take a considerable time before the argument is sufficiently robust to sustain a challenge by the prosecution. The basis of the defense strategy is most often created at the preliminary stages of investigation. In most cases, defense counsel has an interest in not revealing its strategy at the early stages of the investigation. On the other hand, the icc rules for instance dictate that some defenses must be notified to the prosecution and the Chamber within a certain time-limit.103 In some situations, judicial economy might benefit from investigating potential defenses on part of the prosecution within the preliminary investigation. After all, when the prosecution estimates that a certain defense might be successfully raised at trial, it seems not illogical that the prosecution does not pursue a case. The icc’s case law is not transparent as to whether a Pre-Trial Chamber might anticipate such a potential defense. This question arose in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia related to the incident on the Mavi Marmara, discussed in the beginning of this chapter. On 6 November 2014, the otp closed its preliminary investigation into the situation as it found that the cases most likely to arise from such an investigation would not meet the gravity threshold of article 17 ICCSt. The 103 Rule 80 rpe provides: “The defence shall give notice to both the Trial Chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31, paragraph 3. This shall be done sufficiently in advance of the commencement of the trial to enable the Prosecutor to prepare adequately for trial.”

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Union of the Comoros disagreed with this decision and filed a request with the Pre-Trial Chamber to review the otp’s decision not to investigate.104 On 16 July 2015, the majority of Pre-Trial Chamber i issued a decision in which it requested the otp to reconsider its decision not to initiate an investigation in the situation.105 The majority found that the otp erred in its assessment of the gravity of the identified crimes.106 Aside from the gravity issue, the majority did not anticipate possible defenses to be raised by the idf soldiers once the investigation in the situation would result in a case. In his dissenting opinion to the decision of 16 July 2015, Judge Kovács did address this question. In paragraph 42 of his dissent he observed that: Indeed, it is likely that if an investigation was to be conducted most if not all of those acts will not qualify as war crimes within the meaning of article 8 of the Statute, either due to the difficulty in proving the mens rea of the potential suspect(s), or due to the existence of defences under articles 31 or 32 of the Statute (i.e., self-defence or justifiable error on the protected status of those on the Maria [sic] Marmara) with regard to the idf soldiers who intervened in those difficult circumstances. It follows from the lack of prospect for any successful prosecution, together with the relatively low gravity of the alleged crimes makes it clear that the initiation of an investigation in the present situation is unwarranted.107 Based upon the facts as presented at the preliminary stage, it is not unlikely that the idf soldiers, once there would be a case, could successfully invoke the defense of mistake of fact, self-defense, or even duress (as discussed in the previous paragraph). Given the fact that the icc has limited resources, why would it initiate a prosecution if the prospects of obtaining a conviction are seriously restrained? One can argue that it is still important to create a historic record, or maybe to do justice to the victims of serious crimes. Yet, it is important to 104 Situation on registered vessels of the Union of the Comoros, the Hellenic Republic of Greece and the Kingdom of Cambodia, Case No. ICC-01/13-3-Red, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015. 105 Situation on registered vessels of the Union of the Comoros, the Hellenic Republic of Greece and the Kingdom of Cambodia, Case No. ICC-01/13-34, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015. 106 Ibid., para. 49. 107 Situation on the Registered Vessels of the Union of the Comoros, Partly Dissenting Opinion of Judge Peter Kovács, para. 42.

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balance all factors, such as the limited resources, limited gravity and other serious crimes that may warrant the icc’s investigation. In that regard, the prospect of successfully raising a defense could also be taken into account at the icc preliminary examination phase. The dilemma for defense counsel when and how to exactly raise a defense featured in the Katanga case. The defense team’s anticipated defense backfired six months after the end of the trial.108 Germain Katanga was tried together with Mathieu Ngudjolo Chui for their role in the conflict in the Ituri region in the Democratic Republic of the Congo (drc). Katanga and Chui were both charged as indirect co-perpetrators under article 25(3)(a) ICCSt., a form of principal liability. As part of the defense strategy, Katanga testified on his own behalf at trial. He argued that he was possibly aware of the crimes committed by his subordinates and that he might have indirectly contributed to the crimes, but he explicitly denied his intention to commit the crimes or his control over the crimes (a necessary element for indirect co-perpetration).109 Six months after the end of the trial, the Trial Chamber invoked Regulation 55 to recharacterize the liability mode from indirect co-perpetration under article 25(3)(a) ICCSt. (a form of principal perpetration) to accessory liability under article 25(3)(d) ICCSt., which was approved by the Appeals Chamber.110 The outcome of this case was in particular incumbent on the interpretation of Regulation 55. A contrario, when Regulation 55 would not have been in place, the particular defense, raised at trial, contesting mens rea with respect to Katanga’s intention and alleged control over the crime, would have been successful. 9.7

Mistake of Fact or Mistake of Law

The defenses of mistake of fact or law have been invoked throughout history to establish accused’s innocence and have evolved into a principle of customary 108 Kevin Jon Heller, “‘A stick to hit the accused with’: The legal recharacterization of facts under regulation 55”, in The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements, ed. Carsten Stahn (Oxford: Oxford University Press, 2015). 109 See Kevin Jon Heller, “New Essay on the Legal Recharacterization of Facts at the icc,” Opinio Juris, posted 23 December 2013, accessed 11 August 2015, http://opiniojuris .org/2013/12/23/new-essay-legal-recharacterization-facts-icc/. 110 Prosecutor v. Katanga, Case No. ICC-01/04-01/07-3363 oa, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber ii of 21 November 2012 entitled “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, 27 March 2013.

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international law. Article 32 ICCSt. provides for the defense of mistake of fact or law. Sub 1 covers mistake of fact, whereas sub 2 covers mistake of law. The defenses can only succeed if the mistake “negated the mental element” of the offence. The provision reads: 1. A  mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.111 9.7.1 Mistake of Fact A soldier who mistakenly killed a group of civilians who he perceived as a group of enemy soldiers, may invoke the defense of mistake of fact. It is, however, required that his mistake did not arise out of negligence or recklessness.112 Likewise, the defense will not be available if the defendant could have avoided the mistake.113 A mistake of fact can be considered as a valid defense once it negated the mental element of the offense. This criterion imposes an important limitation to the defense. What if, for example, a person assumed he was defending himself against an attack, which turned out not to be imminent and unlawful, as required by the provision on self-defense in the Rome Statute? Most national legal systems allow for putative self-defense if the defendant reasonably, but mistakenly believed that he was being attacked.114 The “imminent” and “unlawful” requirements of the provision on self-defense seem to impose limitations on the defense, leaving no room for putative self-defense. The subsequent question is whether the defendant can rely on a defense of mistake of fact, as he was reasonably mistaken about the situation he found himself in. The mistake of fact provision in the Rome Statute imposes an important limitation on the defense: the mistake must negate the mental element of the offence, while a mistaken believe about the imminence of an attack negates the

111 112 113 114

Article 32 ICCSt. Ohlin, “Issues, Institutions, and Personalities, M, Mistake of Fact,”, 421. Ibid. George P. Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press: 2000), 762–763.

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mental element of the accused. One author has suggested that this dilemma can be circumvented by interpreting “the definition of the offence in such a way that it comprises not just the material elements of the offence but also the absence of the material elements of the justification”.115 The defense of mistake of fact may also coincide with the defense of superior orders. If a subordinate, for example, executes prisoners upon the orders of superior, he can invoke the mistake of fact defense if he reasonably, but mistakenly believed that the prisoners could be lawfully executed. This defense was invoked in the trial of Otto Sandrock and three others (the “Almelo trial”) before the British Military Court sitting at Almelo in the aftermath of the Second World War.116 The trial revolved around the question whether the defendants could be held criminally responsible for the killing of a British prisoner of war without a trial and that of a Dutch civilian of an occupied territory. The defense contended that the knowledge element could not be fulfilled, as the defendants, due to their “limited view of the facts, had reason to believe that the victims were guilty”.117 The defendants claimed to believe that the British officer had been convicted at trial and could thus lawfully be subjected to execution; therefore, their intention to commit a war crime could not be proven. The defendants believed that the Dutch civilian could be punished for war treason as he had allegedly given refuge to an enemy. The defense contended that, if the accused committed a crime, this could – at the most – amount to manslaughter as a result of negligence, but never to murder.118 The Judge Advocate considered with regard to the mistake of fact defense: if the court felt that circumstances were such that a reasonable man might have believed that this officer had been tried according to law, and that they were carrying out a proper judicial legal execution, then it would be open to the court to acquit the accused.119 All accused were convicted for the unlawful executions. The defense’s contention that the accused’s mens rea was lacking and that their judgment as to the lawfulness of their actions was fuelled by the orders they had received thus failed as there was – for them – apparently no “reason to believe that they 115 Ohlin, “Issues, Institutions, and Personalities, M, Mistake of Fact, 422. 116 Trial of Otto Sandrock and three others in United Nations War Crimes Commission, LawReports of Trials of War Criminals. 117 United Nations War Crimes Commission, Law-Reports of Trials of War Criminals, 39. 118 Ibid., 40. 119 Ibid., 41.

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were carrying out a lawful sentence”.120 In assessing whether there existed a reason to believe that the execution was a lawful sentence, the situation at hand may be taken into consideration. The defense had argued that the living atmosphere (i.e. times of war) contributed to their mistake of fact, while the prosecution replied that “there was no soldier in any army who had not heard of a firing party and who had not some general idea of the formalities proper and necessary for the carrying out of a lawful death sentence”.121 As with other defenses, the defense of mistake of law and fact themselves are often intertwined as well. A famous example that one author refers to as a mistake of fact, while the other as a mistake of law, is the case against Lieutenant William A. Calley, who stood trial for a us Military Court in 1975 for killing unarmed civilians in custody of us troops during the Vietnam war. Calley had argued that he genuinely thought that the civilians had no right to live as they were the enemy and that he had been ordered by his superiors to kill the inhabitants of My Lai (i.e. civilians). The Court held: To the extent that this state of mind reflects a mistake of fact, the governing principle is: to be exculpatory, the mistaken belief must be of such a nature that the conduct would have been lawful had the facts actually been as they were believed to be […]. An enemy in custody may not be executed summarily.122 It seems that Calley – who had followed the orders of his superior – was not mistaken about whether the inhabitants were civilians, but he was mistaken about the legality of killing civilians. Thus, the defense of mistake of fact touches upon other defenses and may be raised in combination with these other defenses as they do not necessarily exclude one another. However, it is important to bear in mind, that a mistake of fact, in principle, must negate the mental element of the offence, which may make the defense complicated in some instances. Furthermore, the defendant bears the burden of proving that he was “reasonably mistaken” as to the facts of the case.

120 Ibid., 45. 121 Ibid. 122 Calley v. Callaway, u.s. Court of appeals for the 5th Circuit 1975, 519 F.2d 184, cert. denied, 425 u.s. 911 (1975).

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9.7.2 Mistake of Law123 The Rome Statute provides that mistake of law is not a ground for excluding criminal responsibility, except for two strict exceptions, which are to be found in the second sentence of article 32(2) ICCSt.: if it negated the mental element required by such a crime, or as provided for in article 33. This principle is reflected in the Latin maxim ignorantia iuris neminem scusat, which ventilates that ignorance of the law is not a defense. It is based on the presumption of knowledge of the law on part of the accused. Yet, the validity of this presumption has been questioned as a result of the worldwide influx of criminal and quasi-criminal legislation.124 Knowledge of the illegality of an act can be inferred from a “reasonableness test”, which has been formulated as follows: Whether the ordinary reasonable person, possessed of the intellectual capacity and background of the actor, should have reasonably known or believed the act to be unlawful under international or national law.125 This test, however, ought not to be applied to crimes against humanity, which are mala in se crimes. Such crimes are “manifestly contrary to the norms, rules and principles of international criminal law, and to those of the world’s major criminal justice systems”.126 As a consequence, a defendant cannot rely on an act of the state doctrine, a defense that was frequently invoked by defendants facing trial after the Second World War. In such a defense, the defendants contends that he was following the rules in force at that time. The act of the state defense, however, does not negate a defendants mental element; he was not mistaken about the law, but he decided to follow the law despite the moral reprehensibility thereof. The defense of superior orders may also be intertwined with the mistake of law defense, if a defendant mistakenly believed that the orders received from his superior were in accordance with the law. The ilc, in its 1986 Draft Code, considered the following acts as an “error of law” (the predecessor of “mistake of law”):

123 Parts of this paragraph are derived from an earlier article by the author, see Geert-Jan Alexander Knoops, “Article 31: Mistake of fact and mistake of law,” in Commentary of the Law of the International Criminal Court, ed. Mark Klamberg (in press). 124 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 2nd ed. (The Hague: Kluwer Law International, 1999), 412. 125 Ibid., 415. 126 Ibid., 416.

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Error of law is clearly related to the implementation of an order which has been received, when the agent is called upon to assess the degree to which the order is in conformity with the law. It may also exist independently of an order, when the agent acts upon his own initiative, believing that his action is in conformity with the rules of law.127 The defense of mistake of law might be more relevant when it concerns international crimes which were at the time of their commission not crystallized or codified. On the other hand, the mere fact that a certain international crime was not, at the time of its commission, part of a national criminal law, does not automatically absolve the accused from criminal responsibility based upon the defense of mistake of law. In the case of a Rwandan national, the defense argued that the lex certa principle (i.e. the principle of legality) had been violated, because, in 1994 – at the time of the alleged crimes – the prohibition on genocide was not yet codified in Rwandan national legislation. Accordingly, the defense argued that the criteria of “foreseeability” and “accessibility” of the law, as laid down in article 7 of the European Convention on Human Rights, had been violated. The Dutch Supreme Court held, however, that the absence of a codification of the crime of genocide at the time of the alleged commission of crimes in Rwanda, did not contravene the principle of legality since, in 1994, the prohibition on genocide was part of customary international law.128 It has frequently been questioned how customary international law, which is binding to everyone, emerges. In the Military and Paramilitary Activities in and against Nicaragua the International Court of Justice considered: for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’ but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis’.129 127 United Nations, Yearbook of the International Law Commission 1986: Documents of the thirtyeighth session, Volume 2 Part 1, (New York: United Nations Publication, 1986) para. 204. 128 Supreme Court of the Netherlands, 16 December 2014, ECLI:NL:HR:2014:3627, para. 2.6. 129 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), icj Judgment, 27 June 1986, para 207, referring to annual icj report of 1969, p. 44, para. 77.

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In a report drafted by the International Law Commission on the “Identification of Customary International Law” it can be read that: the identification of a rule of customary international law requires an assessment of both practice and the acceptance of that practice as law (‘two-element’ approach).130 The two elements are indeed indispensable for any rule of customary international law properly so called. As one author has explained, “Without practice (consuetudo), customary international law would obviously be a misnomer, since practice constitutes precisely the main differentia specifica of that kind of international law. On the other hand, without the subjective element of acceptance of the practice as law the difference between international custom and simple regularity of conduct (usus) or other non-legal rules of conduct would disappear.131 Acceptance by the State was deemed important by the ilc, as follows from said report: for a treaty to serve as evidence of opinio juris, States (and international organizations), whether parties or not, must be shown to regard the rule(s) enumerated in the treaty as binding on them as rules of law regardless of the treaty.132 Whereas the Dutch Supreme Court argued that the prohibition on genocide was part of customary international law in Rwanda in 1994 and that extradition could thus not be barred based on this ground, the French Supreme Court (Cour de cassation) rejected the extradition of Rwandan nationals, holding that the principle of legality was violated. The French Supreme Court considered that, even though the Convention on the Prevention of Genocide was already adopted in 1948, a clear, precise and accessible definition of the constitutive elements thereof was lacking in the Rwandan law in 1994. Therefore, the principle of legality, as guaranteed by the European Convention of Human Rights (echr), the International Covenant on Civil and Political Rights (iccpr), and 130 United Nations General Assembly, “Second report on formation and evidence of customary international law: by Michael Wood, Special Rapporteur,” International Law Commission, Sixty-sixth session, May 2014, A/CN.4/672, para. 21. 131 Ibid., para. 23;(internal footnotes omitted.) 132 Ibid., para. 76 under f; (internal footnotes omitted, emphasis added).

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the French Constitution, formed an obstacle for extradition to Rwanda based on genocide allegations committed in 1994.133 Notwithstanding these French rulings, opinio juris dictates that one is expected to be aware that the annihilation of a population, which eventually amounts to genocide, is perceived as a crime by the international community. Yet, this notion is not always transparent when it concerns international crimes that have only been codified in recent years, such as the crime of recruiting child soldiers. Defense counsel before the scsl argued that the recruitment of child soldiers was not part of customary international law at the time of the alleged crimes under the scsl’s jurisdiction. The recruitment of child soldiers as a crime against humanity was for the first time expressly prohibited in the Rome Statute, which was adopted in 1998. Sam Hinga Norman, head of the Civil Defense Forces (cdf), a paramilitary organization that fought against the Revolutionary United Front (ruf) and the Armed Forces Revolutionary Council (afrc) in support of Sierra Leone’s elected government, claimed a mistake of law related to the charges on the recruitment of child soldiers. The scsl Appeals Chamber rejected this defense, considering that “[a] norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law”.134 The scsl Appeals Chamber held that the recruitment of child soldiers violated fundamental human rights related to the protection of children, as reflected in the Second Additional Protocol to the Geneva Conventions,135 as well as the Convention on the Rights of the Child, therefore, qualifying the recruitment of child soldiers as an international crime leading to individual criminal responsibility.136 The Appeals Chamber found there to be a “widespread recognition and acceptance of the norm prohibiting child recruitment 133 See, for example, Cloé Fonteix, “Génocide rwandais : le principe de légalité fait obstacle à l’extradition”, Dalloz Actualité, 12 March 2014, accessed 20 June 2016, http://www .dalloz-actualite.fr/printpdf/flash/genocide-rwandais-principe-de-legalite-fait-obstaclel-extradition. ; Arrêt n° 808 du 26 février 2014 (13–86.631), Cour de cassation, Chambre criminelle, ECLI:FR:CCASS:2014:CR00808. 134 Prosecutor v. Sam Hinga Norman, SCSL-2004-14-Ar72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction, 31 May 2004, para. 38. 135 Article 4(3)(c) of Additional Protocol ii to the Geneva Conventions provides that: “Children shall be provided with the care and aid they require, and in particular: (c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.” 136 Sam Hinga Norman, para. 118–119; see also, Kim Huynh, Bina D’Costa and Katrina LeeKoo, Children and Global Armed Conflict (Cambridge: Cambridge University Press, 2015), 229.

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in Additional Protocol ii and the crc [Convention on the Rights of the Child] provides compelling evidence that the conventional norm entered customary law well before 1996”.137 The decision was, however, criticized by international law scholars, as well as by Judge Robertson in his dissenting opinion, in which he considered that the recruitment of child soldiers was indeed for the first time prohibited in the Rome Statute, and only entered international criminal law after the enactment of this Statute.138 A mistake of law was raised de nuevo before the scsl in the afrc case. Defense counsel introduced expert evidence on the basis of which it contended with respect to the recruitment of child soldiers: – Throughout the past Sierra Leonean governments had applied a consistent policy that allowed for and facilitated the recruitment of child soldiers; – From the 1990s onwards, there was a lack of education within the Sierra Leonean army. This specifically pertained to the dissemination of knowledge on the Geneva Conventions and International Humanitarian Law in general and, in particular, when it concerned the prevention of recruitment of child soldiers.139 The defense expert argued with respect to the first prong that: Despite its track record of having ratified a number of international legal instruments bordering on the prevention of underage recruitment into the military, the Sierra Leone Government has not done much to prevent the recruitment of children into the Sierra Leone military. This is the case because the Sierra Leone military at various periods has a record of child recruitment. This is not necessarily out of a clearly thought out policy but one dictated by various circumstances at certain periods of the country’s history. One senior Sierra Leone military officer interviewed confirmed this point in noting that: the recruitment of children into the Sierra ­Leone military is not a deliberate government or military policy. The war circumstances created a fertile ground for the practice of involving children in the military. This latter view is not implying that the war started the practice of recruiting children into the Sierra Leone military.140 137 Sam Hinga Norman, Decision on Preliminary Motion para. 20. 138 Ibid., para. 32. 139 Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Joint Defence Disclosure of Expert Report on Child Soldiers by Mr. Gbla, 11 October 2006, para. 33. 140 Ibid.

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On 20 June 2007, the Trial Chamber rejected this defense, holding that it was not persuaded that the defense of mistake of law could be invoked in this situation. It considered: The rules of customary international law are not contingent on domestic practice in one given country. Hence, it cannot be argued that a national practice creating an appearance of lawfulness can be raised as a defence of such conduct violating international norms. The submission by the Kanu Defence is therefore dismissed.141 Unfortunately, the judges did not go into the main issues raised in the expert report, namely if and to what extent national government’s own moral and/or criminal responsibility for the recruitment of child soldiers can be legally relevant for establishing the individual criminal responsibility of an accused.142 Even though the judges did not accept the mistake of law defense in the afrc case, it is not unlikely that a defendant can demonstrate a lack of mens rea as to the law, when this law is consistently misapplied by other parties. Rules that overlap are a common phenomenon in law systems throughout the world, whereas some rules have primacy over others. In international criminal law, treaty rules may overlap with rules of customary international law. Treaties are perceived to have primacy over customary law, as the former concerns rules specifically agreed upon by the treaties’ signatories. As noted by one author: “in the absence of a specific treaty hundred-year-old custom emerges again to rule the parties”.143 Yet, he goes on to state “an examination must be made in some detail of the nature of a treaty and the nature of customary law”.144 Thus, despite the diverging views, a “mistake of law” may still serve as a viable defense, notwithstanding that “a norm need not be expressly stated”.145 As a general rule, it can be said that one is expected to know – or at least be aware – of the national legislation. Contrary to national legislation, the advent of international crimes pertains to a more gradual process. The latter is 141 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Judgement, 20 June 2007, para. 732. 142 Geert-Jan Knoops, “De internationaalrechtelijke strafbaarstelling van het rekruteren van kindsoldaten: impact van het tribunalenstrafrecht,” Strafblad 6, 2 (2008): 195–204. 143 Antony D’Amato, “Treaties As a Source of General Rules of International Law,” Faculty Working Papers, Paper 120 (1962): 3. 144 Ibid. 145 Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction, para. 38.

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sometimes based on “customary practice”, which means that it is not always founded on an agreed rule. Moreover, the evolution of international law and the advent of modern warfare make certain concepts obsolete, while other concepts emerge, which contributes to the diffuse nature of international law.146 As a result of this ambiguity mistakes about such rules may be judged more leniently. Antonio Cassese identified four factors a court should take into account when judging upon alleged mistakes of international criminal law: (i) If the international rule that has allegedly been breached can be considered universal, or whether the rule has been written down in legal documents of which the defendant is notified, or alternatively if the international rule is controversial, obscure or subject to discussion; (ii) The defendant’s intellectual status (e.g. a layperson could more easily rely on the defense of mistake of law than a lawyer or someone working in the criminal justice system, as the latter are supposed to know the law as a result of their educational background); (iii) The defendant’s position within the military hierarchy (the higher the rank the more the defendant is expected and required to know the law); (iv) The importance of the value of the rule that has allegedly been breached (human life and dignity are protected under both national and international rules, as such, one may be more demanding in protecting these values).147 In conclusion, it should be noted, however, that ambiguity as to law and facts may only considered with respect to war crimes. In its Draft Statute, the ilc considered that mistake of fact and law cannot be invoked as an excuse to crimes against humanity.148 Although the Rome Statute did not include a provision thereto, it remains unlikely that an “error of law can excuse a crime which is motivated by racial hatred or political prejudices”149 or that “[a] person who mistakes the religion or race of a victim”150 can “invoke this error as

146 United Nations, Yearbook of the International Law Commission 1986, para. 207. 147 Antonio Cassese, International Criminal Law, 2nd ed. (Oxford: Oxford University Press, 2008), 298–299. 148 United Nations, Yearbook of the International Law Commission 1986, para. 214. 149 Ibid., para. 211. 150 Ibid. para. 214.

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a defence, since the motive for his act was, in any case, of a racial or religious nature”.151 9.8

Superior Orders

Contrary to the Statutes of the ad hoc tribunals, the Rome Statute allows for a conditioned defense of superior orders in case of war crimes. Article 33 ICCSt. provides that: 1. T  he fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.152 Under the Statutes of the icty, ictr and scsl superior orders could not absolve a person from criminal responsibility, but could merely be considered in mitigation of punishment.153 These statutes adopted – sometimes in slightly different wordings – the definition of the imt Charter, which provides that: [t]he fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.154 The Rome Statute allows for a limited defense of superior orders if there existed a superior-subordinate relationship, be it military or civilian. It will, however, bear more relevance in the military context, as the defense is only allowed if it concerns war crimes. This is consistent with the principle that soldiers are under a legal duty to obey orders, which is, in fact, the nature of their 151 152 153 154

Ibid. Article 33 ICCSt. Article 7(4) ICTYSt.; Article 6(4) ICTRSt.; Article 6(4) SCSLSt. Article 8 imt Charter.

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profession.155 Yet, in addition to a legal duty a soldier has, as a person is also accrued with a moral duty.156 These two concepts must be distinguished, and it lies exactly at the heart of the accused’s mens rea for war crimes committed upon a superior’s orders. Furthermore, the soldier is under a legal obligation to obey lawful orders, not unlawful ones, but the borderline may be thin as he is trained to presume that superior orders are lawful.157 In addition, the duty to obey that is drilled into every soldier will limit a soldiers’ moral autonomy, while – particularly in combat situations – there will be no or limited time to question the legality of an order.158 Two landmark cases in which defense of superior orders was invoked, albeit in a limited fashion, are the Llandovery Castle case and the Dover Castle case conducted as part of the Leipzig trials in the aftermath of the First World War.159 In the Llandovery Castle case, the German Supreme Court considered that military subordinates: are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law.160 The two members of the U-boat who had fired at the hospital ship Llandovery Castle could not resort to the defense of superior orders as the order was, in itself, illegal. In the Dover Castle case, the German Supreme Court accepted the defense of superior orders for defendant Neumann. Neumann had relied on the orders of his naval superiors when he torpedoed at a British hospital ship that was believed to be used for military purposes and thus had lost its protective status. The German Supreme Court considered that: 155 See also, Jeanne L. Bakker, “The Defense of Obedience to Superior Orders: The Mens Rea Requirement,” American Journal of Criminal Law 17, 1 (1989–1990): 56. 156 Alexander Zahar, “Issues, Institutions, and Personalities, S, Superior Orders,” in The Oxford Companion to International Criminal Justice, ed. Antonio Cassese (Oxford: Oxford University Press, 2009), 526. 157 Ibid. 158 Ibid., 527. 159 German War Trials: Judgment in case of lieutenants Dithmar and Boldt (Llandovery Castle) of 16 July 1921, American Journal of International Law 16, 4 (1922): 708–724; German War Trials: Judgment in case of commander Karl Neumann (Dover Castle) of 4 June 1921, American Journal of International Law 16, 4 (1922): 704–708. 160 Judgment in case of lieutenants Dithmar and Boldt, American Journal of International Law: 722.

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[i]t is a military principle that the subordinate is bound to obey the orders of his superiors. This duty of obedience is of considerable importance from the point of view of the criminal law. Its consequence is that, when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible.161 As Neumann relied on orders of his highest superiors when he torpedoed the hospital ship, which he believed to be binding, he could not be punished for following the orders.162 Also in this case it was held that an accused cannot rely on the defense of the superior orders if he knew that carrying out the order would involve the commission of a crime. The German Court found that Neumann had no such knowledge, as he had received various reports and there existed memoranda of the German government that hospital ships were used for military purposes. This, in combination with his conduct, convinced the Court that Neumann did not know of the illegality of the order. Factors to the accused’s advantage were the fact that he made no secret of sinking the ship, that he reported it to his superiors, and that he allowed an English prisoner on board of his ship to observe his approach to the Dover Castle, while he cooperated when this “enemy subject” asked for a certificate when they went ashore, on which he stated his name and rank.163 Once a defendant relies on a claim of superior orders, his or her mens rea is construed on the basis of the nature of the order. If the order was manifestly unlawful this may constitute proof of the defendant’s guilty mind. If not, then the prosecution bears the burden of proving that the defendant himself knew that the order was unlawful.164 The approach taken in the Rome Statute is referred to as the “manifest illegality principle”, which means that the perpetrator acting upon an order is not absolved from criminal responsibility if he knew that the order was unlawful or if the order was manifestly unlawful.165 This seems to be a compromise of two previous approaches. Under the principle of “respondeat superior”, which was the dominant view before the Second World War, the subordinate must act with unlimited obedience; only the superior ought

161 Judgment in case of commander Karl Neumann, American Journal of International Law: 707. 162 Ibid., 708. 163 Ibid. 164 Zahar, “Issues, Institutions, and Personalities, S, Superior Orders,” 527; article 33(1)(b) ICCSt. 165 Werle and Jeßberger, Principles of International Criminal Law, 249.

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to incur criminal responsibility.166 This does not mean, however, that subordinates could always successfully invoke this defense, as is demonstrated in the Llandovery Castle judgment where it was held that orders “universally known to everybody, including also the accused” were against the law.167 The “principle of absolute liability”, which was first reflected in the imt Statute, dictates that the fact that a person acted under orders does not absolve him or her from criminal responsibility.168 The Rome Statute departed from this approach, and adopted the “manifestly unlawful” principle, thereby opening up the possibility to rely on the defense of superior orders, albeit only for war crimes. It has been questioned, however, whether orders to commit international crimes are not always manifestly unlawful.169 The judges in the Llandovery Castle case adopted a criterion of “universally known to everybody”. The judges also required that the subordinate himself knew that the universally known unlawful order, was unlawful.170 The Rome Statute, on the other hand, unequivocally rejects the defense of superior orders if the order was manifestly unlawful, regardless of the accused’s knowledge. Furthermore, the Rome Statute, in article 33(1)(b), requires that the subordinate “did not know the order was unlawful”. The drafters of the Rome Statute thus adopted an additional knowledge test, while, in the pre-Second World War cases, the subordinate’s knowledge was an additional requirement to the “universally known” standard. From a soldier, for example, one may expect a higher level of knowledge of military law and, consequently, of possibly illegal orders. Thus, if the order was not manifestly unlawful, a soldier may still not “pass” the defense before the icc if it can be demonstrated that he knew the order was unlawful. Yet, the prosecution bears the burden of proving such knowledge. The “duty of obedience”, that was central in the pre-Second World War cases, but was abandoned in after the Second World War, has thus regained importance albeit in a restricted form. If an order was not manifestly unlawful, and the subordinate did not know the order was unlawful, this may also be perceived as a mistake of law, which is a defense under article 32(2) ICCSt. This provision specifically refers to article 33 ICCSt., and reads that:

166 167 168 169

Ibid. Judgment in case of lieutenants Dithmar and Boldt: 722; (emphasis added). Werle and Jeßberger, Principles of International Criminal Law, 249. Ibid., 251; orders to commit crimes against humanity and genocide are manifestly unlawful pursuant to article 33(2) ICCSt. 170 Judgment in case of lieutenants Dithmar and Boldt: 722.

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A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.171 The defense of superior orders is not only closely related to the defense of mistake of law, but also may touch upon the defense of duress. This was particularly relevant in cases conducted in the aftermath of the Second World War and cases before the ad hoc tribunals where superior orders could not absolve an accused from criminal responsibility, but could only be used in mitigation. A situation of duress could, however, cause the defendant to obey unlawful orders. In the Trial of Wilhelm List, the Nuremberg Military Tribunal responded to the attempted defense of superior orders, holding that: The true test […] is not the existence of the order, but whether moral choice was in fact possible. Even though the defense of duress and the defense of superior orders are closely related, as an order may constitute a factual context of duress, the absence of an order “does not mean that duress as a defense must fail”.172 As with self-defense, the acts of the State are to be seen separate from the acts of the individual. Defendants tried in the aftermath of the Second World War, for example, claimed that they lacked mens rea for the crimes as they obeyed the applicable rules at that time, as imposed by the Nazi regime. Again, one can observe the overlap in defenses of superior orders, mistake and duress; as they all revolve around a lack of mens rea on part of the accused. In the Peleus trial, conducted before the British Military Court sitting at Hamburg, the defense contended that: an individual could not be found guilty of having violated a rule of International Law if the States themselves had always quarreled about that rule, its meaning and bearing and if they had never really recognized it in anything that might be called a ‘common practice’.173 171 Article 32(2) ICCSt. 172 Erdemović, Joint and Separate Opinion of Judge McDonald and Judge Vorah, para. 35; Erdemović, Separate and Dissenting Opinion of Judge Cassese, para. 15; Ambos, “Defences”, 1013. 173 United Nations War Crimes Commission, Law-Reports of trials of War Criminals, 14.

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The defense in the Peleus trial revolved around the argument that an individual cannot be held criminally responsible if the rules are vague and uncertain. Under the National Socialist contention “the will and command of the nation had the supreme and absolute totalitarian value, and claimed an individual’s whole and undivided loyalty”.174 Furthermore, defense counsel argued that the “National Socialist administration had been recognized by foreign Powers, and the fear of emanating from the Hitler régime was almost irresistible and dominated Germany absolutely”.175 The Judge Advocate dismissed this defense, holding that: if this were a case which involved the careful consideration of the question whether or not the command to fire at helpless survivors struggling in the water was lawful in International Law, the Court might well think it would not be fair to hold any of the subordinates accused in this case responsible for what they were alleged to have done. In the present case, however, it must have been obvious to the most rudimentary intelligence that it was not a lawful command.176 Even though the Rome Statute has provided for the defense of superior orders in its Statute, the practical possibility to successfully rely on this defense seems restricted. The defense is seems only to be successful once it could be invoked with other defenses, such as mistake of law and fact and duress, that do not necessarily exclude one another and may in combination lead to exoneration. All these defenses pertain to a lack of free will on part of the accused. 9.9 Conclusions This Chapter has demonstrated that defenses to mens rea can be categorized into two types: (i) Defense arguments that challenge whether the evidentiary threshold of a certain mens rea standard has been met; this type of “defenses” are not defenses as such; rather they qualify as evidentiary arguments. Yet, they can undermine proof of mens rea.

174 Ibid., 14. 175 Ibid., 14–15. 176 Ibid., 15.

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(ii) Defense arguments that have evolved into doctrinal concepts meant to challenge mens rea. This type of argument pertains to conceptual defenses within international criminal law. Defenses that are meant to challenge the issue of mens rea are confined to the sub category of “excuses” as opposed to justifications; such defenses denounce the mental element required for a crime; yet, they do not dismantle the crime itself of its illegality.177 This analysis results in a rather limited scope of potential mens rea defenses as far as it concerns international crimes, namely: – Mistake of law and fact – Duress – Self-intoxication – Mental disease or defect These four defenses are listed in article 31 and article 32 ICCSt., this codification was the first one in the history of international criminal tribunals. Although the enumeration of article 31 ICCSt. is not supposed to be exhaustive when reading article 31(3) ICCSt., which provides that “the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21”. Law practice before international criminal tribunals reveals that the defenses that are now encapsulated in article 31 ICCSt. create a considerable burden of proof for the defense. Yet, the defense is not required to prove a legal defense “beyond reasonable doubt”,178 but merely by a “preponderance of evidence”179 or to “the balance of probabilities”.180 However, to date no legal defense on mens rea has been successfully raised before international criminal tribunals, as demonstrated in this chapter. It is intriguing to ascertain why defenses of duress or mistake of law/fact apparently have little standing before international criminal tribunals. It is unlikely that due to the societal or legal-political consequences of a person of war crimes being exonerated due to a lack of mens rea – which may affect the burden of proof – or due to the nature of international crimes that judges accrue

177 Darcy, “Defences to International Crimes,” 231–245. 178 Knoops, Defenses in Contemporary International Criminal Law, 261. 179 Ibid. 180 Ibid.

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a strict burden of proof. In both instances, one has to conclude that defenses before international criminal tribunals do face a considerable obstacles. For the same reasons, at the domestic level, it seems that the defenses of duress and mistake of law or fact, which affect the requisite mens rea element, are rather restrictively interpreted.181 This chapter has examined the parameters for these defenses, while at the same time reviewing the case law of international criminal tribunals on this area. As exemplified in this chapter, the element of mens rea features as an important safeguard against wrongful convictions. In the same vein, defenses that challenge mens rea fulfill this function.

181 Geert-Jan Knoops, “De Nood en noodzaak van het strafrecht. De oratie van C. Bronkhorst (Tilburg, 1964),” Strafblad (2012): 418–423.

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Table of Cases

Extraordinary Chambers in the Courts of Cambodia

Case 002 (also known as the Case of IENG Thirith) Prosecutor v. KAING Guek Eav alias Duch Prosecutor v. NUON Chea and KHIEU Samphan



European Court of Human Rights

Féret v. Belgium Handyside v. the United Kingdom Jersild v. Denmark

France Cour de cassation, Chambre criminelle, ECLI:FR:CCASS:2014:CR00808



Imperial Court of Justice

Case of Dithmar and Boldt Case of Neumann



International Criminal Court

Prosecutor v. Al Bashir Prosecutor v. Bemba Gombo Prosecutor v. Bemba Gombo, Musamba, Kabongo, Wandu and Arido Prosecutor v. Blé Goudé Prosecutor v. Gbagbo Prosecutor v. Katanga Prosecutor v. Katanga and Ngudjolo Chui Prosecutor v. Lubanga Dyilo Prosecutor v. Mbarushimana Prosecutor v. Ngudjolo Chui

table of cases Prosecutor v. Ntaganda Prosecutor v. Ruto Public Redacted Version of Prosecution Response to the Application for Review of its Determination under article 53(1)(b) of the Rome Statute Situation in the Republic of Kenya Situation on registered vessels of the union of the Comoros, the Hellenic Republic of Greece and the Kingdom of Cambodia



International Court of Justice

Bosnia and Herzegovina v. Serbia and Montenegro Nicaragua v. United States of America Croatia v. Serbia



International Criminal Tribunal for Rwanda

Bagosora and Nsengiyumva v. Prosecutor Bikindi v. Prosecutor Nahimana, Barayagwiza and Ngeze v. Prosecutor Nchamihigo v. Prosecutor Ntawukulilyayo v. Prosecutor Prosecutor v. Akayesu Prosecutor v. Bikindi Prosecutor v. Karera Prosecutor v. Kayishema and Ruzindana Prosecutor v. Nahimana Prosecutor v. Nahimana, Barayagwiza and Ngeze Prosecutor v. Ntagerura, Bagambiki and Imanishimwe Prosecutor v. Ntakirutimana and Ntakirutimana Semanza v. Prosecutor Simba v. Prosecutor



International Criminal Tribunal for the Former Yugoslavia

Prosecutor v. Aleksovski Prosecutor v. Blagojević and Jokić Prosecutor v. Blaškić

249

250

table of cases

Prosecutor v. Boškoski and Tarčulovski Prosecutor v. Brđanin Prosecutor v. Delalić, Mucic, Delic and Landžko Prosecutor v. Erdemović Prosecutor v. Furundžija Prosecutor v. Galić Prosecutor v. Haradinaj, Balaj and Brahimaj Prosecutor v. Karadžić and Mladić Prosecutor v. Kordić and Čerkez Prosecutor v. Krnojelac Prosecutor v. Krstić Prosecutor v. Kunarac, Kovač and Vukovič Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Josipović, Papić and Šantić Prosecutor v. Limaj, Bala and Musliu Prosecutor v. Lukić and Lukić Prosecutor v. Martić Prosecutor v. Milošević, D.(Dragomir) Prosecutor v. Mladić Prosecutor v. Naletilic and Martinovic Prosecutor v. Orić Prosecutor v. Perišić Prosecutor v. Popović, Beara, Nikolić, Miletić and Pandurević Prosecutor v. Šainović, Pavković, Lazarević and Lukić Prosecutor v. Simić Prosecutor v. Stakić Prosecutor v. Stanišić and Simatović Prosecutor v. Strugar Prosecutor v. Tadić Prosecutor v. Vasiljević



International Military Tribunal

Case of Goering et al.



United Nations Mechanism for International Criminal Tribunals

Ngirabatware v. Prosecutor

table of cases



The Netherlands

Court of Appeals Amsterdam, ECLI:GHAMS:2011:BP6664. Supreme Court of the Netherlands, ECLI:NL:HR:2014:3627



Nuremberg Military Tribunal

United States v. Von Leeb et al. United States of America vs. Ernst von Weizsäcker, et al. United States of America vs. Otto Ohlendorf et al.

Canada R. v. Finta



Special Court for Sierra Leone

Prosecutor v. Brima, Kamara and Kanu Prosecutor v. Norman Prosecutor v. Taylor



South Africa

S v. Mtshiza The State v. Pistorius Director of Public Prosecutions, Gauteng v. Pistorius



United Kingdom

Daniel M’Naghten’s Case The Queen v. Dudley and Stephens

251

252

table of cases

United States of America

Arizona v. Jodi Lisa Henry Calley v. Callaway State v. DeAngelo Turner v. us us v. Jewell United States v. Holmes

Index Act of aggression 61–62, 149, 151–167 Actus reus X, 5–8, 14–16, 20–21, 24–34, 35, 49, 55, 58, 60, 70, 89, 95, 97, 103, 124, 127, 129, 132, 177, 180–181, 203, 206 Additional protocols 22, 68, 71, 89–91, 224 Aggression, crime of 6, 61, 148–167 Aiding and abetting 5–6, 24, 14–24, 39–63, 52–53, 57, 101–102, 104, 130 Apartheid, crime of 111, 123, 141–142 Armed conflict 66–67, 77–78, 80, 81, 83–84, 92, 112, 120, 136, 199, 202, 204, 213 Attack see also Widespread or systematic attack 11, 16, 18, 47, 67–71, 77–78, 84, 85–92, 111–147, 149, 153–154, 160, 162, 163–166, 169, 170, 172, 173, 186–188, 193, 199, 200, 203–205, 213–215, 218 Awareness 9–10, 15, 20–21, 26–28, 31–33, 35, 36, 38, 43, 51, 52–53, 78–79, 81–82, 83, 88, 92, 101, 105, 107, 122, 125, 133–134, 157, 177, 188, 191, 200–201 Causality 169–170 Child soldiers 79–83, 202, 224–226 Circumstantial evidence 27, 103, 109–110, 122, 182 Civilian 11, 16, 47, 60, 66–74, 77, 84, 85–92, 111–147, 167, 169, 173, 186, 187, 190, 193, 199, 203–204, 206n, 207, 209, 211, 213–215, 218–220, 228 Command responsibility 61, 62–64, 74 Common design 17 Common law 2, 196 Complementarity 84n Complicity 52 Confirmation of the charges 55, 109 Control of the crime 21 Co-perpetration / co-perpetrator 14, 17, 40–44, 49, 56, 63, 80, 82, 217 Crimes against humanity 5, 6, 27, 47, 72, 74, 95, 108, 111–147, 149n, 151, 166, 168–170, 171, 174–176, 177, 186, 190, 192, 207, 221, 227, 228 Criminal intent 3, 5, 20, 55, 148, 149, 194, 199

Democratic Republic of Congo (drc) 87, 143, 217 Deportation 16, 96, 130, 132–133 Diminished responsibility 196–197 Dolus directus 11, 37–39, 56, 83, 86–88, 121, 124, 125, 136, 146, 170 Dolus eventualis 11, 12, 13, 18–19, 37–39, 61, 87, 120, 129–130, 134, 141, 142, 170 Dolus specialis see Specific intent Domestic cases 201, 226, 235 law see also National law 1, 73, 166, 203 Duress 43, 132, 136, 194–195, 202, 205–212, 216, 232–233, 234–235 Effective authority 62, 63 Effective control 23–24, 62, 176 Enforced disappearances 111, 123, 130, 139–140 Enslavement 111, 131–132 Ethnic cleansing 20, 69, 99 discrimination 113 group 93–94, 96, 99, 103, 108, 127, 137, 179 hatred 104 Evidentiary arguments 233 burden 194 findings 98 standards 108–110 threshold 109, 233 Exceptional circumstances 116, 145 Excuses 194–195, 205, 206, 208, 227, 234 Ex post facto 2, 8, 28, 85 Extradition 223–224 Extraordinary Chambers in the Courts of Cambodia (eccc) 197–198, 128–130, 143 Extermination 15, 111, 125–130, 174–177, 179–181 Facilitating 5, 6, 16, 25–27, 48–49, 192, 225 Financial support 184, 190

254 Forcible transfer of population, see Deportation Freedom of expression 168, 171–173, 183 Genocide 15, 32, 57–59, 72, 93–110, 123, 126, 137, 166, 168, 171- 173, 174n, 177–180, 182–184, 186, 188–190, 193, 222–224, 228 Hate speech 168, 171–193 Hors de Combat 116 International Military Tribunal (imt), see also Nuremberg Tribunal 117, 131, 142, 148–167, 173–177, 193, 197, 228, 231 Incitement 57–59, 106–108, 168, 171–193 Indirect (co-)perpetration 40–44, 58, 217 Individual criminal responsibility 13, 39, 43, 59, 106, 153, 158, 166, 200, 224, 226 liability 50 Insanity 195–201, 205 International armed conflict 66, 83, 92 International Criminal Tribunal for Rwanda (ictr) 7, 13, 15, 32, 33, 58, 78, 88, 98, 102, 103, 106, 107, 109, 118, 119, 124, 126, 129, 136, 168, 173, 177–184, 193 statute 25, 58, 106, 113, 123, 127, 142, 228 International Criminal Tribunal for the former Yugoslavia (icty) 5–6, 7, 13, 15–34, 36, 38, 48, 58, 67, 69, 78, 83, 88–92, 99–101, 104, 106, 112–115, 119–121, 123, 125, 125–132, 135, 137–139, 142, 168, 174, 177, 184–189, 196–198, 203–204, 207 statute 25, 31, 58, 88, 112, 113, 135, 228 Intoxication 194, 196, 198–200, 201–202, 234 Iraq 163, 164, 166–167 Iraqi Special Tribunal 166 Ivory Coast 45, 114, 190–191 Joint criminal enterprise (jce) 14, 15–21, 24, 30–31, 57, 104–105, 130, 189 Jus in bello 204 Justification 10, 127, 194–195, 205–206, 208, 219, 234 Kenyan situation 117 Legitimate targets 11, 214 Liability modes accessory liability 1, 24–33, 42, 57, 217

Index ad hoc tribunals 13–34 aggression, crime of 151–154 defenses 217 International Criminal Court 39–64 genocide 98–110 political speeches 168–170 principal 1, 14, 22, 24, 30, 217 war crimes 81 Lord Resistance Army (lra) 202 maoa-gene 200 Mental 1, 70 element 1–3, 6, 35, 37, 52, 61, 81, 95, 120, 125, 126, 135, 141, 146, 147, 155, 161–162, 169–170, 207, 218–221, 232–234 disease see also Insanity 43, 194–201, 234 harm 91, 93, 94n, 96–97, 108, 134, 135, 142–143 state 8–9, 56, 87, 106, 120, 194, 199, 212 Mistake of fact 4, 10–11, 161, 194, 205, 215–220, 227, 234, 235 Mistake of law 161, 167, 194–195, 205, 217–218, 220, 221–228, 231–234 Mitigating circumstance 210, 212 Modes of liability see Liability modes National law 13, 18, 30, 148, 158, 161, 171, 198, 201, 205, 218, 221–222, 226, 227 Necessity 66, 67, 84, 85, 89, 92, 115, 194, 205–217 Negligence 11, 13, 18, 19, 23, 71, 73, 79, 90–91, 218, 219 Neuroscience 200 Nullum crimen sine lege 158 Nuremberg Trials/Tribunal see also International Military Tribunal 36, 131, 148–149, 156, 159, 176 Policy 16, 65, 74–75, 77, 82, 111, 113, 116–119, 121, 128, 144–147, 150, 156, 159–160, 171, 186, 187, 199, 201, 225 Political independence 61, 152, 155 Principal perpetration 5, 14–25, 28–29, 31, 217 Racial group 141 Recklessness 18, 37, 39, 71, 90, 92, 157, 170, 218

255

Index Religious group 93–94, 96, 99, 103, 127, 137, 179, 185 Security Council, un 69, 149, 151, 153n, 163–165 Self-defense 13, 84, 153, 161, 162–166, 194, 202–205, 215–216, 218, 232 Sexual violence offences enforced prostitution 135–137 forced pregnancy 135–137 rape 47, 56, 88, 96, 99, 135, 135–137, 144, 169, 190 sexual assaults 20–21 sexual slavery 56, 135–137, 144 Sovereignty 61, 138, 152, 155, 160, 165, 188 Special Court for Sierra Leone (scsl) 5, 22, 29, 50–51, 88, 224, 225, 228 Specific direction 5–6, 27–31, 59, 90 Specific intent 19, 26, 32, 53, 66, 89, 90, 95, 97, 98, 101–102, 104–105, 108–109, 127, 137–138, 155, 185–189, 193

State of mind 4, 17, 18, 25, 27, 28, 178, 220 Standard of proof 108–109 Sudan situation 58, 96, 108–109 Superior orders 159, 194, 202, 219, 221, 228–233 Superior responsibility 22–24 Territorial integrity 61, 152, 155, 165 Terrorism 163 Torture 7, 66, 91, 96, 134–135, 186 un Security Council, see Security Council, un War crimes 5, 6, 16, 27, 66–92, 108, 123, 131, 144, 151, 166, 171, 174, 175, 188, 199, 202, 203, 212, 216, 227, 228–229, 231, 234 Weapons of mass destruction 163, 164 Widespread or systematic attack, see also Attack 111–115, 118, 119, 121, 124, 126, 133, 140, 141, 144–145, 147, 186–187, 193 Willful 66, 83–85, 92, 120, 129, 143