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.51. Evidence inferred from an utterance, a document, or a deed.
P.52. Evidence inferred from a circumstance.
