7.b.ii. [Mental element for Element 5] [Consequence of killling:] The perpetrator was aware that death would occur in the ordinary course of events.

P.19. Evidence inferred from an utterance, a document or a deed.

P.20. Evidence inferred from a circumstance.

7.b.ii. [Mental element for Element 3] [Consequence of killling:] The perpetrator was aware that death would occur in the ordinary course of events.

P.19. Evidence inferred from an utterance, a document or a deed.

P.20. Evidence inferred from a circumstance.

A. Evidentiary comment:

In some of the ICTR jusisprudence the view was taken that "recklessness, or gross negligence" would suffice in the place of actual intent (Kayishema Trial Judgment, para. 146; Bagilishema Trial Judgment, para. 89. That approach was rejected by in Semanza (Trial Judgment, para. 341). Subsequent Trial Chamber decisions failed to satisfactorily resolve this conflict, but seem to accept that recklessness or gross negligence may suffice (Kajelijeli Trial Judgment, paras 894 – 895; Kamuhanda Trial Judgment, paras. 695 – 696). The ICTY Trial Chamber has rejected that approach, requiring actual intent (see, most recently, Brđanin Trial Judgment, paras. 392 – 395 for a summary). (The Appeals Chamber is yet to consider the question, but is expected to do so in Stakic). In any event article 30 of the Rome Statute sets out the mental elements for crimes under the Rome Statute, and these do not include recklessness or gross negligence. However, if "killing" or "causing death" can be seen as an act including two elements, namely (1) conduct and (2) the consequential death of the victim, then the mental element for the second of these could be established at least by demonstrating that "the perpetrator ws aware that death would occur in the ordinary course of events" under article 30(2)(b).