7.a. [Mental element for Element 5] [Conduct of killing]: The perpetrator meant to engage in killing of one or more persons

7.a. [Mental element for Element 5] [Conduct of killing]: The perpetrator meant to engage in killing of one or more persons

ICTY

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"485. The mens rea of extermination requires the intention that a large number of individuals be killed.

486. In line with jurisprudence on the actus reus, the mens rea of extermination similarly does not require the intent to kill a certain threshold number of victims. Additionally, there is no requirement that the act of extermination be carried out with the intent to destroy the group or part of the group to which the victims belong, or pursuant to a pre-existing plan or policy." [1]

The Chamber in Stakić said:

"Turning now to the mental element, this Trial Chamber finds that the mens rea required for extermination is that the perpetrator intends to kill persons on a massive scale or to create conditions of life that lead to the death of large numbers of individuals. This includes the requirement that the perpetrator's mental state encompasses all objective elements of the crime: the annihilation of a mass of people.

"Relying on the Judgement of the Trial Chamber in Prosecutor v. Kayishema, the Prosecution argues that an accused can be held liable for his acts or omissions if they have been committed 'with intention, recklessness, or gross negligence'. This Trial Chamber does not agree and finds that it would be incompatible with the character of the crime of extermination and with the system and construction of Article 5 if recklessness or gross negligence sufficed to hold an accused criminally responsible for such a crime. It therefore considers that the threshold for the mens rea cannot be lower than the intent required for murder as a crime against humanity (i.e. dolus directus or dolus eventualis)."[2]

"The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he 'reconciles himself' or 'makes peace' with the likelihood of death. Thus, if the killing is committed with 'manifest indifference to the value of human life', even conduct of minimal risk can qualify as intentional homicide. [...] The Trial Chamber emphasises that the concept of dolus eventualis does not include a standard of negligence or gross negligence"[3]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 485-486:

"485. The mens rea of extermination requires the intention that a large number of individuals be killed."

"486. In line with jurisprudence on the actus reus, the mens rea of extermination similarly does not require the intent to kill a certain threshold number of victims. Additionally, there is no requirement that the act of extermination be carried out with the intent to destroy the group or part of the group to which the victims belong, or pursuant to a pre-existing plan or policy."

ICTR

In Akayesu:

"The Chamber defines the essential elements of extermination as the following:

1. [...]

2. the act or omission was unlawful and intentional.

"5. [...]."[4]

"According to the Kayishema and Ruzindana Trial Judgement "[t]he act(s) or omission(s) may be done with intention, recklessness, or gross negligence."[5]