Mens Rea and War Crimes

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 rea- soning 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 precaution- ary 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 prop- erty 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.

Mens Rea And War Crimes 67 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.