Table of contents:
Element:
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 adopted a similar but slightly stricter standard, requiring actual intent or recklessness (dolus eventualis) but treating gross negligence as insufficient (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 Stakić).
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 gross negligence or recklessness. 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 was aware that death would occur in the ordinary course of events" under article 30(2)(b). It may be that this requirement will be met in similar circumstances to those in which the standard of dolus eventualis would be satisfied. For this reason, ICTY decisions showing examples of evidence sufficient to prove recklessness are given below.
P.15. Inference of recklessness drawn from nature of violence committed against victim.
P.15.1. Evidence of the severity of the beating inflicted.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para 851- 855, 877, 890, 894:
"851. It is not disputed by the Defence for Mr. Landzo that Bosko Samoukovic was beaten inside Hangar 6. In addition, with the exception of Witness P and Dr. Petko Grubac, all of the other witnesses mentioned above were confined in the same Hangar and were in a position to see the beating inflicted upon Mr. Samoukovic. These witnesses have stated, with minor variations, that Esad Landzo walked up to the deceased, asked him his name and ordered him to stand up. Mr. Landzo then began beating him with a wooden plank, which was around one metre long and five or six centimetres thick, and which was ordinarily used to secure the door of the Hangar. This beating lasted for some time, until, ultimately, Bosko Samoukovic fell down. He was then carried to the makeshift infirmary in Building 22, where he succumbed to his injuries.
852. At the so-called infirmary the two doctors who were housed there examined Mr. Samoukovic. They observed that he was finding it difficult to breathe and had some broken ribs. Witness P testified that, on his inquiry, Mr. Samoukovic told him that he had been beaten by Esad Landzo. He further deposed that, before the arrival of the deceased in the infirmary, he had been hearing cries and the sound of blows from elsewhere in the prison-camp for about 20 minutes. Both Witness P and Dr. Grubac stated that Bosko Samoukovic died within 20 minutes of his arrival in the infirmary.
853. From the testimony of Witness P it would seem that the arrival of Esad Landzo at the infirmary was not out of any concern for the health of Bosko Samoukovic. This witness stated that Mr. Landzo in fact issued him with a threat, saying that Mr. Samoukovic should be "ready" by 6 oclock or he (that is, the witness) should be "ready". Witness P understood this threat as implying that Bosko Samoukovic should be made ready for a another beating by the evening or he himself should get ready to receive a beating instead.
854. According to Dr. Grubac, Hazim Delic also came to the infirmary and, when he saw the condition of Bosko Samoukovic, he sent for Esad Landzo and inquired from him what he had done. Thereupon Esad Landzo asked the doctor to see that Mr. Samoukovic was treated and, indeed, to "cure" him.
855. Even should it be conceded that Mr. Landzos request to Dr. Grubac is evidence of some remorse for his actions, rather than a mere expression of his fear of recriminations from Mr. Delic, this can hardly detract from the gross nature of his conduct in mercilessly beating an elderly person with a heavy implement. It appears that the only reason for his assault on Mr. Samoukovic was that the latter was a Serb from Bradina and thus somehow deserving of punishment for the acts of other Serbs from Bradina in killing several Bosnian police officers. The ferocity of the attack can further be gauged from the fact that the victim did not survive for more than half an hour afterwards. Such a brutal beating, inflicted on an old man and resulting in his death, clearly exhibits the kind of reckless behaviour illustrative of a complete disregard for the consequences which this Trial Chamber considers to amount to wilful killing and murder. In these circumstances, any subsequent pleas to the doctor cannot detract from the gravity of Mr. Landzos inhuman conduct."
"877. In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber finds that the act of severely beating Zeljko Cecez over a prolonged period of time evidences an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, and as we have been left in no doubt that the injuries inflicted upon Zeljko Cecez in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Zeljko Cecez, as described above, constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute."
"890. Considering the severity of the beatings to which Petko Gligorevic was subjected and the fact that the perpetrators used metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we have been left in no doubt that the injuries inflicted upon Petko Gligorevic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Petko Gligorevic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."
"894. Considering the severity of the beatings to which Gojko Miljanic was subjected and the fact that the perpetrators used rifle butts and other metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we are convinced that the injuries inflicted upon Gojko Miljanic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Gojko Miljanic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."
P.15.2. Evidence of the use of a firearm against unarmed person.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 903:
"903. In the instant case it is established that Miroslav Vujicic was shot and killed by one of the individuals participating in the collective beating, as described above, in the Celebici prison-camp. The Trial Chamber finds that, under these circumstances, the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, the Trial Chamber finds that the killing of Miroslav Vujicic constitutes the offences of wilful killing under Article 2 and murder under Article 3 of the Statute."
P.15.3. Evidence of violence against a particularly vulnerable person.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 907 908:
"907. Based upon this evidence, the Trial Chamber finds that Pero Mrkajic was already seriously injured when he arrived at the Celebici prison-camp. Despite the serious nature of his medical condition, Mr. Mrkajic was subjected to further beatings during his period of detention within the prison-camp. He was subsequently transferred to the so-called infirmary, where he remained until his death a few days later.
908. In relation to the present charge and based upon the foregoing facts, the Trial Chamber finds that the act of beating Pero Mrkajic, given the serious nature of his medical condition, demonstrates an intent on the part of the perpetrators to kill or to inflict serious injury in reckless disregard of human life."
