6.a. [Mental element for Element 3] [Conduct of directing an attack]: The perpetrator meant to engage in directing an attack

6.a. [Mental element for Element 3] [Conduct of directing an attack]: The perpetrator meant to engage in directing an attack

In Galić, the Trial Chamber held that:

"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."[1]

The Appeals Chamber in Strugar recalled that:

"The Appeals Chamber has previously ruled that the perpetrator of the crime of attack on civilians must undertake the attack 'wilfully' and that the latter 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 wilfully directed against civilians, that is, either deliberately against them or through recklessness. The Appeals Chamber considers that this definition encompasses both the notions of 'direct intent' and 'indirect intent' mentioned by the Trial Chamber, and referred to by Strugar, as the mens rea element of an attack against civilians."[2]

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. 450, 456-457:

"450. As for the elements of the offence of unlawful attacks on civilians, they consist of (i) acts of violence directed against the civilian population or individual civilians not taking a direct part in hostilities causing death or serious injury to body or health within the civilian population (actus reus) and (ii) the offender wilfully making the civilian population or individual civilians not taking a direct part in hostilities the object of those acts of violence (mens rea)."

"456. For unlawful attacks on civilians to be established, the Prosecution must show that the perpetrator wilfully made the civilian population or individual civilians the object of the acts of violence. In other words, the perpetrator has to act consciously and with intent, willing the act and its consequences. This encompasses the concept of recklessness but not negligence."

"457. For the mens rea to be established, the Prosecution must also show that the perpetrator was aware, or should have been aware, of the civilian status of the persons attacked. In cases of doubt as to the status of those persons, the Prosecution must show that a reasonable person could not have believed that the individuals attacked were combatants. In addition, it is not required to establish the intent to attack particular civilians; rather, it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack."