9.a. [Mental Element for Element 5] [Conduct of killing or injuring such person or persons:] The perpetrator meant to engage in the conduct of killing or injuring such person or persons.

P.43. Evidence inferred from an utterance, a document, or a deed.

P.44. Evidence inferred from a circumstance.

9.a. [Mental Element for Element 5] [Conduct of killing or injuring such person or persons:] The perpetrator meant to engage in the conduct of killing or injuring such person or persons.

A. Evidentiary comment:

The means of proof from the MPMD on Article 7(1)(a) Crime against humanity of murder have been included in this MPMD to throw some light on the constitutive act of "killing". Correspondingly, means of proof, as well as evidentiary comments relevant to the mental element from the same MPMD have also been included.

The elements of crimes equates "killing" with "causing death". This presumably is intended to mean "engaging in conduct which causes death". That is to say that killing itself involves two elements: a conduct element and a consequence element. (This is consistent with the approach of the ICTY Trial Chamber in Delalić, which held that the actus reus of killing is "the death of the victim as a result of the actions of the accused": para. 424.) For this reason application of article 30 should require it to be demonstrated that the perpetrator meant to engage in the conduct that caused the victim’s death.

As a general matter, just as the element requiring that "the perpetrator killed one or more persons" should be interpreted consistently throughout the Elements of Crimes document (see above), so too should the mental elements required in respect of this element. There is some support in the jurisprudence of the ICTY for the proposition that the mental elements of the war crimes of wilful killing and murder and the crimes against humanity of murder and extermination are the same in repsect of the "killing" element (that is, leaving aside the contextual aspects of the crimes and the additional element required in the case of extermination regarding the massive scale of the crime): see Stakić Trial Judgment, para. 642; Delalić Trial Judgment, para. 439; Krstić Trial Judgment, para. 495.

Unfortunately this element is rarely considered seperately in the jurisprudence from the question of whether death was intended to result (or whether the perpetrator was reckless about the liklihood of death resulting).

P.43. Evidence inferred from an utterance, a document, or a deed.

P.44. Evidence inferred from a circumstance.