Drawing the boundaries of Mens Rea in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia

International Criminal Law Review

Volumn 6, Issue 3, 2006, Pages 313-348

  Badar, Mohamed Elewa ^a  

^a MINISTRY OF JUSTICE   (Egypt)

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EID: 43249172382     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181206778553905     Document Type: Review

References (228)

1. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 was established pursuant to the Security Council Resolution 827 of 25 May 1993 (UN Doc. S/RES/827(1993).
2. see William A. Schabas, The U. N. International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra Leone, (Cambridge: Cambridge University Press, 2006) 293.
3. See Prosecutor v. Naser Orić, Case No. IT-03-68-T, Trial Judgment, 30 June 2006, (Orić Trial Judgment) para. 279.
4. Surprisingly, the Blaškić Trial Chamber stretched the fault element required for serious violations of Article 2 of the ICTY Statute to reach the boundaries of criminal negligence, see Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Trial Judgment, 3 March 2000 (Blaskic Trial Judgment) para. 152.
5. The present study covers the following case law of the ICTY: Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Trial Judgment, 25 June 1999 (Aleksovski Trial Judgment);
6. Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Appeal Judgment, 24 March 2000 (Aleksovski Appeal Judgment);
7. Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Trial Judgment, 17 January 2005 (Blagojevic Trial Judgment);
8. Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000 (Blaškić Trial Judgment);
9. Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgment, 29 July 2004 (Blaškić Appeal Judgment);
10. Prosecutor v. Radoslav Brdanin, Case No. IT-99-36-T, Trial Judgment, 1 September 2004 (Brdanin Trial Judgment);
11. Prosecutor v. Radoslav Brdanin, Decision on the Motion for Acquittal Pursuant to Rule 98 bis, Case No. IT-99-36-T, 28 November 2003 (Brdanin Rule 98 Trial Decision);
12. Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Trial Judgment, 16 November 1998 (Čelebići Trial Judgment);
13. Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Trial Judgment, 10 December 1998 (Furundžija Trial Judgment);
14. Prosecutor v. Stanislav Galić, Case No. IT-98-29, Trial Judgment, 5 December 2003 (Galić Trial Judgment);
15. Prosecutor v. Enver Hadzihasanović & Amir Kubura, Case No. IT-01-47-T, Decision on Rule 98 bis Motion for Judgment of Acquittal, 27 September 2004 (Hadžihasanović Rule 98 Trial Decision);
16. Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, 16 November 2005 (Halilović Trial Judgment);
17. Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Trial Judgment, 14 December 1999 (Jelisić Trial Judgment);
18. Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Appeal Judgment, 5 July 2001 (Jelisić Appeal Judgment);
19. Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-T, Trial Judgment, 26 February 2001 (Kordić Trial Judgment);
20. Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgment, 17 December 2004 (Kordić Appeal Judgment);
21. Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Trial Judgment, 15 March 2002 (Krnojelac Trial Judgment);
22. Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeal Judgment, 17 September 2003 (Krnojelac Appeals Judgment);
23. Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Trial Judgment, 2 August 2001 (Krstić Trial Judgment);
24. Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-T, Trial Judgment, 22 February 2001 (Kunarac Trial Judgment);
25. Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23&23/1-A, Appeal Judgment, 12 June 2002 (Kunarac Appeal Judgment);
26. Prosecutor v. Miroslav Kvoćka et al., Case No. IT-98-30/1-A, Appeal Judgment, 28 February 2005 (Kvoćka Appeal Judgment);
27. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Trial Judgment, 30 November 2005 (Limaj Trial Judgment);
28. Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. 98-34-T, Trial Judgment, 31 March 2003 (Naletilić Trial Judgment);
29. Prosecutor v. Naser Orić, Case No. IT-03-68-T, Trial Judgment, 30 June 2006, (Orić Trial Judgment);
30. Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Trial Judgment, 31 July 2003 (Stakić Trial Judgment);
31. Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002 (Stakić Rule 98 Trial Decision);
32. Prosecutor v. Milomir Stakić, sCase No. IT-97-24-A, Appeal Judgment, 22 March 2006 (Stakić Appeal Judgment);
33. Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Trial Judgment, 31 January 2005 (Strugar Trial Judgment);
34. Prosecutor v. Pavle Strugar, Case No IT-01-42-T, Decision on Rule 98 bis Motion for Judgment of Acquittal, 21 June 2004 (Strugar Rule 98 Trial Decision);
35. Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Trial Judgment, 7 May 1997 (Tadić Trial Judgment);
36. Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (Tadić Interlocutory Appeal Decision);
37. Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Trial Judgment, 29 November 2002 (VasiljevićTrial Judgment);
38. Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Appeal Judgment, 25 February 2004 (Vasiljević Appeal Judgment).
39. Galić Trial Judgment, para. 133, (emphasis added). The original text of element (iii) reads as follows "the above offence was committed...", however, it is preferable to substitute the word "acts" for "offence".
40. Galić Trial Judgment, para. 134.
41. According to the Galić Judgment, "willfully" as a mens rea standard is satisfied whenever the accused acts deliberately or recklessly
42. Galić Trial Judgment, para. 596.
43. See Galić Trial Judgment, para. 433.
44. See Glanville Williams, Criminal Law: The General Part, (London: Steven & Sons, 2d ed. 1961) 56.
45. See Galić Trial Judgment, para. 433.
46. See D. H. Derby, 'Torture', in M. Cherif Bassiouni (ed), 1 International Criminal Law (New York: Transnational Publishers, 2nd ed. 1999) 19.
47. Limaj Trial Judgment, para. 235, fn. 723;
48. Brdanin Trial Judgment, para. 482;
49. Krnojelac Trial Judgment, para. 178;
50. Furundžija Trial Judgment, para. 139. It is to be noted that torture is sanctioned as a grave breach, violation of the laws and customs of war, and as a crime against humanity, under Articles 2 (b), 3, and 5 of the ICTY Statute respectively.
51. Limaj Trial Judgment, para. 235;
52. Kunarac Appeals Judgment, paras. 142, 144
53. confirming Kunarac Trial Judgment, para. 497;
54. Brdanin Trial Judgment, para. 481;
55. Krnojelac Trial Judgment, para. 179. It is to be noted that where "torture" is charged as a crime against humanity under Article 5 of the ICTY Statute, knowledge of the nature of the attack is considered additional element which must be established on the part of the accused.
56. Limaj Trial Judgment, para. 238;
57. Kunarac Appeal Judgment, para. 153. The Limaj Trial Chamber used the term "direct intent";
58. Kunarac Appeal Chamber, and Krnojelac Trial Chamber used the term "deliberately", paras. 154, 184 respectively;
59. Furundžija and Kunarac Trial Chambers used the term "intentional" para. 162, para. 497 respectively. Thus, "direct intent", "intentional", and "deliberately" are mens rea terms used interchangeably by the ICTY.
60. See Andrew Byrnes, 'Torture and Other Offences Involving the Violation of the Physical or Mental Integrity of the Human Person' in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds.), 1 Substantive and Procedural Aspects of International Criminal Law, (The Hague: Kluwer Law International, 2000) 212.
61. Guénaël Mettraux, International Crimes and the ad hoc Tribunals, (Oxford: Oxford University Press, 2005) 116.
62. Limaj Trial Judgment, para. 239.
63. Krnojelac Trial Judgement, para. 180.
64. Čelebići Trial Judgment, para. 470.
65. Kunarac Appeal Judgement, para. 155.
66. See the Finalized draft text of the Elements of Crimes, U. N. Preparatory Commission for the International Criminal Court, U. N. Doc. PCNICC/2000/1/Add. 2(2000), Article 7(1) (f), fn. 14.
67. Stakic Appeal Judgment, para. 327;
68. Kordić Appeal Judgment, para. 101;
69. Blaškić Appeal Judgment, para. 131;
70. Vasiljević Appeal Judgment, para. 113;
71. Krnojelac Appeal Judgment, para. 185;
72. Blagojević Trial Judgment, para. 579.
73. For more details on the objective and subjective elements of persecution in the case law of the ICTY, see Mohamed Elewa Badar, 'From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity', 5 San Diego International Law Journal (2004) 73, 122-140.
74. Krnojelac Appeal Judgment, paras. 185, 200-02
75. citing with approval Krnojelac Trial Judgment, para. 431;
76. Blagojević Trial Judgment, para. 583;
77. Stakić Trial Judgment, para. 733;
78. Vasiljević Trial Judgment, para. 245.
79. Stakić Trial Judgment, para. 733 (emphasis in original)
80. citing with approval Tadić Trail Judgment, para. 715. The Stakić Trial Chamber found that the accused guilty of persecutions based on the underlying acts of murder and deportations, as well as torture, physical violence, rape, constant humiliation and degradation, and destruction of or wilful damage to religious and cultural buildings.
81. For more information on error in persona in German criminal law see Mohamed Elewa Badar, 'Mens Rea - Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals', 5 International Criminal Law Review (2005) 203, 238-9.
82. Kordić Trial Judgment, paras. 211-12, (emphasis added). It is not clear if the Trial Chamber wanted to say that the underlying act requires a "specific intent" to the effect that purpose is required.
83. Krnojelac Trial Judgment, para. 435;
84. Vasiljević Trial Judgment, para. 248;
85. Kordić Trial Judgment, para. 217.
86. Stakić Appeal Judgment, para. 329
87. endorsing Stakić Trial Judgment, para. 737.
88. Kai Ambos, 'Selected Issues Regarding the 'Core Crimes' in International Criminal Law', 19 Nouvelles Études Pénales (2004) 219, 259 (emphasis in original).
89. see Stakić Trial Judgment, para. 741.
90. Stakić Trial Judgment, para. 743.
91. In Kordić, the Trial Chamber inferred the discriminatory intent of the accused from their active participation of the common criminal design. The Trial Chamber concludes that discriminatory intent of a perpetrator can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds. Kordić Trial Judgment, paras. 829, 831.
92. Radić Appeal Brief, para. 71
93. quoted in Kvoćka Appeal Judgment, para. 364.
94. Kvoćka Appeal Judgment, para. 366.
95. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNITS 277. Article 4 of the ICTY Statute states: [...] 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevents birth within the group; (e) forcibly transferring children of the group to another group. For more details on the mental element of the crime of genocide in the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda
96. see William A, Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000) 207-256.
97. See also Schabas, The U. N. International Criminal Tribunals, supra note 2, at 164-172.
98. Brdanin Trial Judgment, para. 681.
99. The exact scope of this sub-element was the subject of the Prosecution's third ground of appeal in the Jelisic case. The Prosecution position on the requisite degree of intent was spelled in paragraph 4.9 of the Jelisić Appeal Brief: The Prosecutor formulated the correct mental state standard under Article 4 in paragraph 3.1 of its pre-trial brief in the present case: The Accused committed the acts with the requisite intent if: a. he consciously desired the acts to result in the destruction, in whole or in part, of the group, as such; b. he knew his acts were destroying, in whole or in part, the group, as such; c. he knew that the likely consequence of his acts would be to destroy, in whole or in part, the group, as such.
100. See Prosecutor v. Goran Jelisić, Prosecutor's Appeal Brief (Redacted Version), Case No. IT-95-10-A, Submitted 14 July 2000, para. 4. 9, p. 54.
101. See also Prosecutor v. Goran Jelisić, Prosecutor's Pre-Trial Brief Case No. IT-95-10-T, 19 November 1998, para. 3.1.
102. Jelisić Appeal Judgement, para. 45. The Appeals Chamber further ruled that 'the existence of a plan or policy is not a legal ingredient of the crime'
103. Krstić Trial Judgement, para. 550.
104. Krstic Trial Judgement, para. 571. Interestingly, in paragraph 571, the Krstić Trial Chamber opines that "some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequences is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act. Whether this interpretation can be viewed as reflecting the status of customary international law at the time the acts involved here is not clear"
105. Among those commentators referred to by the Trial Chamber is Alexander K. A. Greenwalt, 'Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation" 99 Columbia Law Review (1999) 2259. In his work, Greenwalt observes that the Genocide Convention's intent standard is subject to multiple interpretations, and the drafting history of this Convention does not "clearly support a purpose standard", but rather "reveals a vigorous and confused debate over the intent standard that remained alarmingly unresolved at the time of the Convention's adoption"
106. Stakić Trial Judgment, para. 520;
107. Brdanin Trial Judgment, para. 695.
108. Stakić Trial Judgment, para. 520.
109. A Trial Chamber may enter convictions for rape under both Article 3 and rape as a crime against humanity under Article 5 (g) of the ICTY Statute. According to the Jelisić Appeals Judgement, Article 3 and Article 5 are crimes each containing "a special ingredient not possessed by the other." Jelisić Appeal Judgement, para. 82. But where rape is charged as part of Article 5 (h) (persecution) and 5 (g) and where all requirements for both charges are met, the former prevails over Article 5 (g) for reasons of specificity.
110. Kunarac Trial Judgment, paras. 460, 437
111. approved in Kunarac Appeal Judgment, para. 128.
112. Kunarac Trial Judgement, para. 647 (emphasis added).
113. This provision expressly prohibits "outrages upon personal dignity, in particular humiliation and degrading treatment." It is well established under the jurisprudence of the Yugoslavia Tribunal that Article 3 of the Statute permits the prosecution of offences falling under common Article 3 of the Geneva Conventions of 1949, Kunarac Trial Judgment, para. 498;
114. See also Tadic Interlocutory Appeal Decision, para 89.
115. Aleksovski Trial Judgment para. 54. The Aleksovski Appeals Chamber concurred that outrages upon personal dignity is a category of inhuman treatment proscribed by Common Article 3 that resides within the broader concept of human dignity
116. Aleksovski Appeals Judgment, para. 26.
117. Kunarac Trial Judgment, paras. 507, 514;
118. Kunarac Appeal Judgment, paras. 161, 163.
119. Kunarac Trial Judgment, para. 512. On appeal, the Appeals Chamber rejected the appellant's argument that, to be convicted under that heading, the perpetrator needed to know that his acts or omission would have had such an effect
120. Kunarac Appeal Judgment, paras. 164-166.
121. Kunarac Trial Judgment, para. 512.
122. Kunarac Trial Judgment, para. 512 (emphasis in original).
123. According to the Kunarac Trial Chamber, the crime of outrages upon personal dignity requires that the accused knew that his act or omission could cause serious humiliation, degradation or otherwise be a serious attack on human dignity, Kunarac Trial Judgment, para. 514.
124. Kunarac Trial Judgement, para. 512.
125. Kunarac Appeal Judgement, para. 166.
126. Kunarac Appeal Judgment, para. 165.
127. Blagojević Trial Judgment, para. 571;
128. Brdanin Trial Judgment, para. 388;
129. Krstić Trial Judgment, para. 492;
130. Vasiljević Trial Judgment, para. 226;
131. Stakić Trial Judgment para. 638. The commentary on the International Law Commission Draft Code of Crimes against the Peace and Security of Mankind defines extermination in the following terms: "[e]xtermination is a crime which by its very nature is directed against a group of individuals. In addition, the act used to carry out the offence of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crime of genocide"
132. See the International Law Commission Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session, 6 May-26 July 1996, Official Documents of the United Nations General Assembly's 51st session, Supplement no. 10 (A/51/10), Article 18, p. 118.
133. Blagojević Trial Judgment, para. 572;
134. Brdanin Trial Judgment, para. 388;
135. Stakić Trial Judgment, paras. 638, 641.
136. Stakić Trial Judgment, para. 639
137. citing with approval Vasiljević Trial Judgment, para. 227.
138. Brdanin Trial Judgment, para. 391
139. citing with approval Stakić Trial Judgment, para. 640, and other Judgments of the International Criminal Tribunal for Rwanda.
140. see Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 144. It is to be noted that the Kayishema Judgment requires knowledge as to the circumstance element - the accused be aware that his act or omission formed part of mass killing attack.
141. For more on the mens rea of extermination under the jurisprudence of the Rwanda Tribunal, see Mohamed Elewa Badar, 'Rethinking Mens Rea in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda', in Olaoluwa Olusanya (ed), Rethinking International Criminal Law: The Substantive Part (The Hague: Europa Law Publishing, 2006) (forthcoming).
142. Krstić Trial Judgment, para. 495.
143. Stakić Trial Judgment, para. 642.
144. Vasiljević Trial Judgment, para. 229 (emphasis added).
145. However, the Stakić Appeals Chamber noted that "the Vasiljević Trial Judgment did not include 'knowledge of a vast scheme of collective murder' in its summation of the elements of the crime of extermination"
146. See Stakić Appeal Judgment, para. 258.
147. Blagojević Trial Judgment, para. 576
148. endorsing the view of Brdanin Trial Judgment, para. 394;
149. Stakić Trial Judgment, para. 640.
150. Stakić Appeal Judgment, para. 259.
151. Stakić Appeal Judgment, para. 259.
152. Stakić Appeal Judgment, para. 260.
153. Stakić Appeal Judgment, para. 260.
154. Stakić Appeal Judgment, para. 260.
155. It is to be noted that under the jurisprudence of the ICTY the elements of this offence are the same for "murder" under Article 3 and 5. See in this regard Brdanin Trial Chamber, fn. 913: '... the constitutive requirements of murder and wilful killing under the different provision of the Statute are the same...';
156. Čelebići Trial Judgement, ara. 422: '... there can be no line drawn between "wilful killing" and "murder" which affects their content";
157. Krnojelac Trial Judgement, para. 323: "It is clear from the jurisprudence of the Tribunal that the elements of the offence of murder are the same under both Article 3 and Article 5 of the Statute".
158. Čelebići Trial Judgement, para. 439. In paragraph 436 of the Čelebići Trial Chamber had this to say: "The Trial Chamber is mindful of the benefits of an approach which analyses the amount of risk taken by an accused that his action will result in death and considers whether that risk might be deemed excessive. Under this approach, all of the circumstances surrounding the infliction of harm and the resulting death of the victim are examined and the relevant question is whether it is apparent from these circumstances that the accused's actions were committed in a manner manifesting extreme indifference to the value of human life"
159. ICRC Commentary on Additional Protocol I, Article 85, para. 3474, at 994 (emphasis added).
160. Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, 14 June 2002, Prosecution's Respondent Appeal Brief, para. 5.28.
161. Blaškić Appeal Judgment, para. 41 (emphasis added).
162. Čelebići Trial Judgement, para. 437 (emphasis added).
163. Strugar Trial Judgment, para. 236.
164. Strugar Rule 98 Trial Decision, para. 236.
165. BGHSt 36, 1; 44, 99;
166. BGH NStZ (Neue Zeitschrift fuer Strafrecht, 1999) 507;
167. BGH NStZ 2000, 583.
168. Johannes Wessels and Werner Beulke, Strafrecht Allgemeiner Teil (Heidelberg: Müller Verlag, 2002) 76.
169. Claus Roxin, Strafrecht Allgemeiner Teil, (Muenchen: Beck'sche Verlagsbuchhandlung, 1997) 376.
170. See Michael Bothe, 'War Crimes', in Antonio Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2001) 392: "[t]he term "wilful killing" was chosen by the drafters of the Geneva Conventions of 1949 without any clear idea as to what distinguishes killing which is wilful and which is not.... A conduct can only be called wilful if the perpetrator acted intentionally or recklessly in relation to the death of the protected person"
171. Stakić Trial Judgment, para. 587.
172. Orić Trial Judgment, paras. 346-347 (emphasis added). In paragraph 345 of its Judgment, the Orić Trial Chamber asserted that: "The definition of murder as a violation of the laws or customs of war is now settled in the jurisprudence of this Tribunal and of the ICTR. The elements defining murder under Article 3 of the Statute are identical to those required for 'wilful killing' as a grave breach of the 1949 Geneva Conventions under Article 2 of the Statute and murder as a crime against humanity under Article 5 of the Statute"
173. Orić Trial Judgment, para. 348, (footnotes omitted).
174. Orić Trial Judgment, para. 279.
175. Orić Trial Judgment, fn. 1020.
176. Orić Trial Judgment, para. 279 (numbers added).
177. Čelebići Appeal Judgement, paras. 413, 423.
178. Galić Trial Judgment, para. 55.
179. This finding by Galić Trial Chamber was cited with approval in Halilović Trial Judgment, para. 36.
180. Halilović Trial Judgment, para. 36;
181. Strugar Trial Judgment, para. 236;
182. Naletilić Trial Judgment, para. 248.
183. William A. Schabas, 'Mens Rea and the International Criminal Tribunal for the Former Yugoslavia', 37 New England Law Review (2002-2003) 1015, 1021-2
184. citing Roger S. Clark, 'The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Element of Offences', 12 Criminal Law Forum (2001) 291, 330-31.
185. Čelebići Trial Judgement, para. 511 (emphasis added).
186. In the Limaj case, the Trial Chamber defined the mental state of torture as requiring direct intent, Limaj Trial Judgment, para. 238.
187. Kordić Trial Judgement, para. 245.
188. Prosecutor v. Blaškić, Case No. IT-95-14-T, Defence Final Trial Brief, 22 July 1999, at 57-8.
189. Prosecutor v. Blaškić, Case No. IT-95-14-T, Defence Final Trial Brief, 22 July 1999, at 57-8 (on file with the author).
190. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, supra note 118, at 1020.
191. Strugar Trial Judgment, para. 308.
192. Strugar Trial Judgment, para. 311;
193. Blaškić Trial Judgment, para. 185: "The damage or destruction must have been committed intentionally";
194. Naletilić Trial Judgment, paras. 603-4: "[T]he perpetrator acted with intent to destroy the property";
195. Kordić Trial Judgment, para. 361.
196. Strugar Trial Judgment, para. 299.
197. Brdanin Trial Judgment, para. 599.
198. Strugar Trial Judgment, para. 311.
199. See Mettraux, International Crimes, supra note 31, p. 95, fn. 21 and the above text.
200. Brdanin Trial Judgment, para. 584. In Naletelić, the Trial Chamber found that "two types of property are protected under the grave breach regime: (i) property, regardless of whether or not it is in occupied territory, that carries general protection under the Geneva Conventions of 1949, such as civilian hospitals, medical aircraft and ambulances; and (ii) property protected under Article 53 of the Geneva Conventions IV, which is real or personal property situated in occupied territory when the destruction was not absolutely necessary by military operations"
201. Naletelić Trial Judgment, para. 576;
202. Brdanin Trial Judgment, para. 587;
203. Blaškić Trial Judgment, para. 157.
204. Brdanin Trial Judgment, para. 589;
205. Naletelić Trial Judgment, para. 577;
206. Kordić Trial Judgment para. 341.
207. Brdanin Trial Judgment, para. 590 (emphasis added).
208. Naletilić Trial Judgment, para. 612.
209. Naletilić Trial Judgment, fn. 1498, p. 208.
210. (emphasis added). Most notably, other grave breaches which do not include, in their definition, the words "wilful", "wilfully" or "wantonly" must also be committed with intent. In Čelebići, the Trial Chamber found that grave breach of inhumane treatment consists of "an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity." Čelebići Trial Judgment, para. 348. I am indebted to Professor Schabas for this observation
211. see Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, supra note 118, at 1021.
212. Strugar Trial Judgment, para. 290. Whereas in the Kordić and Naletilić cases the accused were indicted with the offence of "wanton destruction not justified by military necessity", in Blaškić and Strugar, the accused were indicted with the offence of "devastation not justified by military necessity". In Brdanin, however, the prosecution has charged the accused with both offences "wanton destruction of cities, towns and villages, or devastation not justified by military necessity"
213. Kordić Trial Judgment, para. 346;
214. Kordić Appeals Judgment, para. 74.
215. See also Naletilić Trial Judgment, para. 579;
216. Hadžihasanović Rule 98 Trial Decision, para. 107;
217. Stakić Trial Judgment, para. 761. In Strugar, the Trial Chamber applied this definition to the crime of devastation with appropriate adaptations to reflect "devastation", for the crime of "devastation not justified by military necessity"
218. Blaškić Trial Judgment, para. 183 (emphasis added).
219. Kordić Trial Judgment, para. 346;
220. Naletilić Trial Judgment, para. 579 (emphasis added).
221. See also Koridć Appeal Judgment, para. 74.
222. Strugar Trial Judgment, paras. 296-7.
223. Naletilić Trial Judgment, fn. 1440.
224. Antonio Cassese, International Criminal Law, (Oxford: Oxford University Press, 2003) 167-8.
225. Cassese, International Criminal Law, p. 168 (emphasis in the original).
226. M. Cherif Bassiouni, Introduction to International Criminal Law, (New York: Transnational Publishers: 2003) 259-260.
227. Contra see William A. Schabas, 'Mens Rea and the International Criminal Tribunal for the Former Yugoslavia', 37 New England Law Review (2002-2003) 1015, 1025: "... although not required within the text of the ICTY Statute [a general provision on the mental element], in contrast with the Rome Statute, the judges of the ICTY have treated mens rea as an element of all of the offences within the Tribunal's subject matter jurisdiction.... Incidentally, this would suggest that article 30 of the Rome Statute is not only confusing and ambiguous, it is also superfluous, and that judges of the International Criminal Court, like their colleagues at the ICTY, would easily have understood the mental element of crimes without them having to be told"
228. Bassiouni, Introduction to International Criminal Law, supra note 155.