Table of contents:
Element:
In the Dorđević Appeals Judgement, the Appeals Chamber held that:
"While the Appeals Chamber has not expressly considered the terms "meurtre" and "assassinat ", the case law of the ICTY has been consistent in not requiring premeditation as one of the elements of the crime of murder either as a violation of the laws or customs of war or as a crime against humanity. The elements of the crime of murder as a war crime pursuant to Article 3 of the Statute have been established by the ICTY Appeals Chamber as follows: (i) the death of a victim taking no active part in hostilities; (ii) the death was the result of an act or omission of the perpetrator(s) or of one or more persons for whom the accused is criminally responsible; and (iii) the perpetrator intended to kill the victim or wilfully harm or inflict serious injury with reasonable knowledge that the attack was likely to result in death. These elements have been established to be identical to those required for murder as a crime against humanity under Article 5 of the Statute, with the exception that the general chapeau requirements for each be met."[1]
The Blaskić Trial Chamber said:
"The Defence claimed that it is not sufficient to prove that an offence was the result of reckless acts. However, according to the Trial Chamber, the mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence. [...] ."[2]
According to the Delalić (Čelebići) Trial Judgement:
"[...] the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life."[3]
Footnotes:
[1] ICTY, Dorđević Appeals Judgement, 27 January 2014, para. 548.
[2] ICTY, Prosecutor v. Blaškić, "Judgement", IT-95-14-T, 3 March 2000, para. 152.
[3] ICTY, Prosecutor v. Delalić et al., "Judgement", IT-96-21-T, 16 November 1998, para. 439. See also ICTY, Prosecutor v. Kordić and Cerkez, "Judgement", IT-95-14/2-T, 26 February 2001, para. 236; ICTY, Prosecutor v. Krnojelac, "Judgement", IT-97-25-T, 15 March 2002, para. 324.
