Element:
The Blaskić Appeal Chamber has said in relation to the mental element applicable to offence of hostage taking under Article 7(1) of the ICTY Statute:
"the Appeals Chamber has articulated the mens rea applicable to ordering a crime under Article 7(1) of the Statute, in the absence of direct intent: 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 for ordering the crime under Article 7(1) of the Statute. Ordering with such awareness has to be regarded as accepting that crime."[1]
"468. In addition to fulfilling the chapeau requirements for Article 3, the offence of hostagetaking requires the following elements. The actus reus of this offence is the detention of persons and the use of a threat concerning the detained persons, including a threat to kill, injure or continue to detain, in order to obtain a concession or gain an advantage. The Appeals Chamber has held that the prohibition on the taking of hostages pursuant to Common Article 3 applies to “all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants”. The mens rea required for hostage-taking is the intention to compel a third party to act or refrain from acting as a condition for the release of the detained persons. Because the essential feature of the offence of hostagetaking is the use of a threat to detainees to obtain a concession or gain an advantage, which may happen at any time during the detention, the requisite intent may be formed at the time of the detention or it may be formed at some later time, after the person has been detained. The erroneous belief that detained combatants are not entitled to Common Article 3 protections is not a defence should the elements of hostage-taking be met."
Footnotes:
[1] ICTY, Blaškić Appeal Chamber, 29 July 2004, para. 645.
