9.b.ii [Mental Element for Element 5] [Consequence of killing or injuring such person or persons:] The perpetrator meant to cause the killing or injuring of such person or persons.

P.47. Evidence inferred from an utterance, a document, or a deed.

P.48. Evidence inferred from a circumstance.

P.49. Evidence of perpetrators indicating their intention prior to acting.

P.49.1. Evidence of the perpetrators’ declaring or singing their intention to cause death prior to acting.

P.49.2. Evidence that threats were made prior to killing.

P.50. Evidence that killings were planned or premeditated.

P.50.1. Evidence of planning of killings.

P.50.2. Evidence that the killers were acting on instructions.

P.50.3. Intent inferred from evidence of large and organised nature of killings.

P.51. Evidence of the violence or acts committed indicating that it was intended to cause death.

P.51.1. Inference drawn from the brutality of the accused’s actions that death was intended to result.

P.51.2. Inference drawn from use of firearm against unarmed person.

P.51.3. Evidence of violence against a particularly vulnerable person.

P.51.4. Evidence that the accused participated in actions knowing that people were to be killed.

P.52. Evidence of conduct after the crime suggesting it had been intentional.

9.b.ii. [Mental Element for Element 5] [Consequence of killing or injuring such person or persons:] The perpetrator was aware that the killing or injuring of such person or persons would occur in the ordinary course of events.

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.51. Evidence inferred from an utterance, a document, or a deed.

P.52. Evidence inferred from a circumstance.