Table of contents:
Element:
A. Evidentiary comment:
The elements of crimes equates "killing" with "causing death" (footnotes 2, 7, and 31). 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 the 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).
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. 447-448:
''447. In order to satisfy the mens rea of murder, the Prosecution must prove that the act was committed, or the omission was made, with an intention to kill (animus necandi) or to wilfully cause serious injury or grievous bodily harm which the perpetrator should reasonably have known might lead to death.''
''448. Thus, the mens rea of murder includes both direct intent (dolus directus), which is a state of mind in which the perpetrator desired the death of the individual to be the result of his act or omission, and indirect intent (dolus eventualis), which is knowledge on the part of the perpetrator that the death of a victim was a probable consequence of his act or omission.''
