A determination to perform a particular act or to act in a particular manner for a specific reason; an aim or design; a resolution to use a certain means to reach an end.
Intent is a mental attitude with which an individual acts, and therefore it cannot ordinarily be directly proved but must be inferred from surrounding facts and circumstances. Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. For example, suppose Billy calls Amy names and Amy throws a snowball at him. Amy's intent is to hit Billy with a snowball. Her motive may be to stop Billy's taunts.
The legal importance of what an individual intended depends on the particular area of law. In contract law, for example, the intention of the parties to a written contract is fixed by the language of the contract document.
In tort law, intent plays a key role in determining the civil liability of persons who commit harm. An intentional tort is any deliberate invasion of, or interference with, the property, property rights, personal rights, or personal liberties of another that causes injuries without just cause or excuse. In tort an individual is considered to intend the consequences of an act—whether or not she or he actually intends those consequences—if the individual is substantially certain that those consequences will result.
Basic intentional torts include assault and battery, conversion of property, false arrest, false imprisonment, fraud, intentional infliction of emotional distress, invasion of privacy, and trespass. It is ordinarily not necessary that any wrongful or illegal means be used to accomplish the negative result, provided the wrongful conduct was intentional and was not accompanied by excuse or justification.
In criminal law the concept of criminal intent has been called mens rea, which refers to a criminal or wrongful purpose. If a person innocently causes harm, then she or he lacks mens rea and, under this concept, should not be criminally prosecuted.
Although the concept of mens rea is generally accepted, problems arise in applying it to particular cases. Some crimes require a very high degree of intent, whereas others require substantially less. larceny, for example, requires that the defendant intentionally take property to which the person knows he or she is not entitled, intending to deprive the rightful owner of possession permanently. On the other hand, negligent homicide requires only that the defendant negligently cause another's death.
Criminal law has attempted to clarify the intent requirement by creating the concepts of "specific intent" and "general intent." specific intent refers to a particular state of mind that seeks to accomplish the precise act that the law prohibits—for example, a specific intent to commit rape. Sometimes it means an intent to do something beyond that which is done, such as assault with intent to commit rape. The prosecution must show that the defendant purposely or knowingly committed the crime at issue.
General intent refers to the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result that occurred. Thus, in most states, a defendant who kills a person with a gun while intoxicated, to the extent that the defendant is not aware of having a gun, will be guilty of second-degree murder. The law will infer that the defendant had a general intent to kill.
Criminal law dispenses with the intent requirement in many property-related crimes. Under common law the prosecution had to establish that the defendant intended to steal or destroy property. By 1900 many statutes eliminated the "intent-to-defraud" requirement for property crimes. Passing a bad check, obtaining property under false pretenses, selling mortgaged property, and embezzling while holding public office no longer required criminal intent.
Criminal law and tort law share the concept of transferred intent. For example, if A shoots a gun at B, intending to strike B, but the bullet hits C, the intent to strike is transferred to the act of shooting C and supplies the necessary intent for either a criminal conviction or a civil tort action. Under the criminal doctrine of transferred intent, the intent is considered to follow the criminal act regardless of who turns out to be the victim. Under the tort doctrine of transferred intent, the defendant is liable for monetary damages to the unintended victim.
"Intent." West's Encyclopedia of American Law. . Encyclopedia.com. (November 18, 2018). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/intent
"Intent." West's Encyclopedia of American Law. . Retrieved November 18, 2018 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/intent
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American Psychological Association
in·tent / inˈtent/ • n. intention or purpose: with alarm she realized his intent | a real intent to cut back on social programs. • adj. 1. (intent on/upon) resolved or determined to do (something): the administration was intent on achieving greater efficiency. ∎ attentively occupied with: Jill was intent on her gardening magazine. 2. (esp. of a look) showing earnest and eager attention: a curiously intent look on her face. PHRASES: to (or for) all intents and purposes in all important respects: a man who was to all intents and purposes illiterate. with intent Law with the intention of committing a specified crime: he denied arson with intent to endanger life charges of wounding with intent.DERIVATIVES: in·tent·ly adv. in·tent·ness n.
"intent." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (November 18, 2018). https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/intent
"intent." The Oxford Pocket Dictionary of Current English. . Retrieved November 18, 2018 from Encyclopedia.com: https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/intent
Modern Language Association
The Chicago Manual of Style
American Psychological Association
The anatomies of international crimes tend to include material elements (relevant to conduct), mental elements (relevant to state of mind) and contextual or circumstantial elements (relevant to the context or pattern within which the criminal conduct occurs). Each of these elements must be established beyond a reasonable doubt—within the context of international criminal jurisdictions—if a criminal conviction is to be sustained. In addition, one must establish beyond a reasonable doubt the appropriate mode of liability or form of participation by the accused in the relevant crime, such as individual perpetration, superior responsibility, complicity, or common purpose. Legal definitions of modes of liability have both subjective and objective requirements.
Intent describes a specific state of mind, proof of whose existence is required in the establishment of some of the abovementioned mental elements of crime. The distinction between the scope and degree or quality of requisite intent is valuable in international criminal law in the same way as it is in many national jurisdictions. There is a logical distinction to be made between the intensity of intent (i.e., its degree or quality) and the result, consequence, or other factor that such intent is alleged to have engendered (i.e., its scope). Intent may be described in relative terms, as lesser in degree (at the level of premeditation) or greater in degree (rising to the level of recklessness, or dolus eventualis).
This article examines the degree or quality of intent that is requisite to a finding of guilt with regard to the international crime of genocide. The definition of genocide in international law includes specific intent (dolus specialis) as a distinctive mental element of the crime; namely, the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. However, the degree of that specific intent is not articulated explicitly in the relevant international treaties. Thus, a close analysis of case law coming out of the two ad hoc international criminal tribunals—the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)—is in order. Also relevant are other sources of international criminal law (including the work of the United Nations (UN) International Law Commission), national case law, and commentaries by some publicists in the field. The state of international criminal law is critically appraised, with particular reference made to the Judgment of the ICTY Appeals Chamber in Prosecutor v. Goran Jelisić and other related cases.
International Treaty Law on Degree or Quality of Genocidal Intent
International treaty law does not define the degree or quality of intent that is requisite to the international crime of genocide more precisely than is provided by its use of the word intent. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) simply states that the genocidal conduct must have been committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." This definition is, in the words of the International Law Commission, "widely accepted and generally recognized as the authoritative definition of this crime." The same wording is used in the Statutes of the ICTY, the ICTR, and the International Criminal Court (ICC). The chapeaux of Article 4, paragraph 2, of the ICTY Statute and Article 2, paragraph 2, of the ICTR Statute reiterate a portion of Article II of the Genocide Convention. Article 6 of the ICC does the same. This minimalist formulation of the requisite degree or quality of intent may have been of practical value to the declaratory function of the Genocide Convention and to national counterparts of the Convention, but it has proven to be somewhat vague, to the point where appellate litigation in the ICTY has been needed. Prosecutor v. Goran Jelisić provides an appropriate window on the problem.
International Case Law on Degree or Quality of Genocidal Intent
The Judgment of the ICTY Appeals Chamber in Prosecutor v. Goran Jelisić sets forth the prevailing legal standard on the degree or quality of intent that must accompany the crime of genocide. In this case, the Prosecution appealed the Trial Chamber Judgment on the grounds that it "is ambiguous in terms of the degree or quality of the mens rea required under Article 4 for reasons articulated by the Trial Chamber itself." In its brief for the Appeals Chamber the Prosecution stated that the
Trial Chamber erred in law to the extent it is proposing that the definition of the requisite mental state for genocide in Article 4 of the Statute only includes the dolus specialis standard, and not the broader notion of general intent [. . .].
The expression "to the extent it is proposing" suggests a caution or conditionality in this declaration of the grounds for the appeal; indeed, its written Appeals submission had suggested that the Trial Judgment was far from clear, left open the question of degree of intent, and used inconsistent terminology.
The Appeals Chamber astutely ruled, without any detailed discussion, that in order to convict an accused of the crime of genocide, he or she must have sought to destroy a group entitled to the protections of the Genocide Convention, in whole or in part. The mental state that corresponds to having sought the destruction of a group is referred to as specific intent:
The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.
The Appeals Chamber went beyond setting aside the arguments of the Prosecution. It stated that the Prosecution had based its appeal on a misunderstanding of the Trial Judgment. The Appeals Chamber stated that a "question of interpretation of the Trial Chamber's Judgment is involved," and that
the question with which the Judgment was concerned in referring to dolus specialis was whether destruction of a group was intended. The Appeals Chamber finds that the Trial Chamber only used the Latin phrase to express specific intent as defined above [. . .].
In other words, because the Prosecution was judged to have misunderstood the Trial Chamber's singular use of the term dolus specialis in the Trial Judgment, the Appeals Chamber did not consider it necessary to take on the substance of the Prosecution's submissions. Rather, the Appeals Chamber ruled that the term intent (as it appears in the definition of genocide that is used in international law) means "specific intent," which again must be understood as an intent to seek the destruction of a group. The Prosecution's attempt to advance a broader interpretation of the term was dismissed as a mere misunderstanding of the Trial Chamber's Judgment.
The Appeals Chamber affirmed that insofar as its preferred term, specific intent, is concerned, it "does not attribute to this term any meaning it might carry in a national jurisdiction." In making this statement the Appeals Chamber could be seen to have characterized comparative analysis of domestic criminal law as having little significance in the development of ad hoc tribunal case law relating to the requisite quality or degree of genocidal intent.
The Jelisić Appeals Judgment was rendered on July 5, 2001. Less than five weeks later, in Prosecutor v. Radislav Krstić, an ICTY Trial Chamber—in a Judgment dated August 2, 2001—convicted General Krstic of genocide for his participation in genocidal acts following the fall of the "safe area" of Srebrenica in July 1995. The Krstić Trial Judgment is in keeping with the Jelisić Appeals Judgment with respect to the mental state requirement for the establishment of guilt for the crime of genocide:
For the purpose of this case, the Chamber will therefore adhere to the characterization of genocide which encompasses only acts committed with the goal of destroying all or part of a group.
The Trial Chamber stated that it is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognizes that, despite recent developments, customary international law limits the definition of genocide to those acts seeking [italics added] the physical or biological destruction of all or part of the group.
However, the Krstić Trial Chamber did not exclude the possibility that the definition of genocide is a portion of the international law on genocide that is evolving. The Judgment provides that "[s]ome legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequence is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act."
On the whole, in Prosecutor v. Radislav Krstić, the Trial Chamber's discussion of genocidal intent was unusually event-dependent. The discussion of the elements of genocide never strayed from the facts of the case. (In this way a Trial Chamber may try to shelter its legal findings and prevent them from being over-turned on appeal.) The Trial Judgment did, however, give more space to its finding on the mental state requisite to the crime of genocide than the corresponding (and very brief) discussion in the Jelisić Appeals Judgment. The Krstić Appeals Chamber held that the Trial Chamber "correctly identified the governing legal principle" and "correctly stated the law," but "erred in applying it."
The Jelisić Appeals Chamber standard (with respect to genocidal intent), as reinforced by the Krstić Trial Chamber, has been upheld by later decisions of the ad hoc tribunals.
ICTY Trial Chamber III, in Prosecutor v. Duško Sikirica et al., issued a "Judgment on Defense Motions to Acquit" (September 3, 2001), in which it engaged in an elaborate and frank discussion of the law of genocide. The Prosecution's response to the half-time challenges submitted by the Defense, as well as the oral hearing before the Sikirica Trial Chamber, predated the Jelisić Appeals Judgment. In other words, the Prosecution had not adjusted its statements on the question of intent so as to encompass the Jelisić Appeals Judgment. It had, however, formulated these statements so as to be in line with the revised position advanced by the Prosecution during the oral argument in the Jelisić appeal.
Hence, the Prosecution proposed that three different mental state standards be part of the mental state requirement of the genocide provision in the ICTY Statute (Article 4):
- The accused consciously desired the genocidal acts to result in the destruction, in whole or in part, of the group, as such;
- The accused, having committed his or her genocidal acts consciously and with will to act, knew that the genocidal acts were actually destroying, in whole or in part, the group, as such; or
- The accused, being an aider and abettor to a manifest, ongoing genocide, knowing that there was such an ongoing genocide and that his or her conduct of aiding and abetting was part of that ongoing genocide, knew that the likely consequence of his or her conduct would be to destroy, in whole or in part, the group, as such.
The Trial Chamber's response to this proposition is, although cursory, unmistakably clear. The Chamber stated that Article 4 of the ICTY Statute, "expressly identifies and explains the intent that is needed to establish the crime of genocide. This approach follows the 1948 Genocide Convention and is also consistent with the ICC Statute. [. . .]." The Chamber also noted that, "[a]n examination of theories of intent is unnecessary in construing the requirement of intent in Article 4(2). What is needed is an empirical assessment of all the evidence to ascertain whether the very specific intent required by Article 4(2) is established."
The Trial Chamber adopted a purely textual approach in its interpretation of genocidal intent, and refused to "indulge in the exercise of choosing one of the three standards identified by the Prosecution"—because, in its opinion, the wording of the ICTY Statute (and hence, the Genocide Convention) expressly provides and explains the applicable standard. The fact that the word intent does not reveal the degree of intent that is required suggests that the Trial Chamber wished to defuse the notion of quality or degree of intent (as opposed to its scope) in the context of the international crime of genocide.
The half-time Decision in Prosecutor v. Milomir Stakić provides some clarification. It was a Decision pursuant to a Defense challenge to dismiss the Prosecution's case on the grounds that there was insufficient evidence to sustain a conviction prior to the Defense's presentation of its evidence (in accordance with Rule 98bis of the ICTY Rules of Procedure and Evidence). The Stakić Trial Chamber had observed that genocide is "characterized and distinguished by the aforementioned surplus intent." Genocidal conduct, it held, is only elevated to the crime of genocide
when it is proved that the perpetrator not only wanted to commit those acts but also intended to destroy the targeted group in whole or in part as a separate and distinct entity. The level of this specific intent is the dolus specialis. The Trial Chamber observes that there seems to be no dispute between the parties on this issue.
At the time of this Decision (October 2002), the ad hoc tribunal Prosecution had for more than one year accepted the mental state requirement as set forth in the Jelisić Appeals Judgment and the subsequent Krstić Trial Judgment. The emphasis of the Stakić Rule 98bis Decision was therefore not the quality or degree of genocidal intent, but rather the mental state requirement for accomplices. The Stakić Trial Judgment, not surprisingly, confirmed Jelisić and Krstić and its own half-time Decision. The Trial Chamber observed that the crime of genocide is "characterized and distinguished by a surplus of intent." The perpetrator must not only have "wanted to commit those acts but also intended to destroy the targeted group in whole or in part as a separate and distinct entity. The level of this intent is the dolus specialis or specific intent—terms that can be used interchangeably."
Several decisions of the ICTR in effect confirm that there is a specific intent requirement for the international crime of genocide. In Prosecutor v. Jean-Paul Akayesu the Trial Judgment clearly states that a "specific intention" is required, a dolus specialis; however, the Judgment is rather unclear when it attempts to describe what this means. The Judgment suggests that the significance of this "specific intention" is that the perpetrator "clearly seeks to produce the act charged." Accordingly, the object of the seeking is "the act charged," and not the complete or partial destruction of the group, as such. In other words, the ordinary meaning of the formulation used in the Judgment would suggest that the "specific intention" referred to by the Akayesu Trial Chamber actually concerns the genocidal conduct or actus reus, and not the aim of destruction.
Furthermore, in Prosecutor v. Clément Kayishema and Obed Ruzindana, the Trial Judgment states that a "distinguishing aspect of the crime of genocide is the specific intent (dolus specialis) to destroy a group in whole or in part." The Trial Chamber then opined that, "for the crime of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts. The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent."
The expression "done in furtherance of the genocidal intent" is to a certain extent helpful in addressing the relationship between the genocidal conduct and the genocidal intent. The genocidal conduct must be undertaken in the service of the broader intent to destroy a group in whole or in part. The expression suggests the presence of both a cognitive component and volition as part of the mental state. It is difficult to imagine how one can do something to further the realization of an intention without knowing about and wanting the intended result. Doing something in furtherance of a specific intent would seem to imply a conscious desire.
Prosecutor v. Alfred Musema also includes a consideration of genocidal intent. In this case, the Trial Chamber stated that the crime of genocide is distinct from other crimes "because it requires a dolus specialis, a special intent." The Trial Chamber then tried to elucidate what it meant by dolus specialis by positing that the "special intent of a crime is the specific intention which, as an element of the crime, requires that the perpetrator clearly intended the result charged." This language expressly identifies result as the object of the perpetrator's intent or mental state. The specific intent does not refer to the conduct of destroying, but rather the result of at least partial destruction of the group. In this sense, it may be illustrative to use the term subjective surplus (of intent).
However, the Musema Trial Judgment refers to the result "charged." Identifying the result of destruction as pivotal (in the assignment of guilt), rather than the conduct that contributes to or brings about that destruction, would seem to be based on the assumption that the result of destruction is an integral part of the crime of genocide. Regrettably, paragraph 166 of the Musema Trial Judgment reinforces this assumption:
The dolus specialis is a key element of an intentional offense is characterized by a psychological nexus between the physical result and the mental state of the perpetrator.
The word nexus is not particularly descriptive in this context; neither is the reference to physical result. The very notion of subjective surplus presupposes a broader intent that goes beyond the actus reus and includes a further objective result or factor that does not correspond to any objective element of crime. That is why this intent requirement amounts to a "surplus." International case law suggests that there has been no recognition of an objective contextual element (such as actual physical destruction) for genocide in international treaty law. It is certainly difficult to locate such an objective contextual element in the wording of the Genocide Convention.
The Musema decision draws on the earlier Rutaganda Trial Judgment (Prosecutor v. Georges Anderson Nderubumwe Rutaganda). The latter asserts that the distinguishing feature of the crime of genocide is the requirement of "dolus specialis, a special intent." It also uses the expression "clearly intended the result charged"—as well as "encompass the realization of the ulterior purpose to destroy"—both of which have been discussed in preceding paragraphs.
Finally, the International Court of Justice itself insisted (borrowing the word of the Krstić Trial Judgment), in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, that specific intent to destroy is required for the international crime of genocide, and it indicated that "the prohibition of genocide would be pertinent in this case [possession of nuclear weapons] if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above." The Krstić Trial Chamber noted that some of the dissenting opinions criticized the Advisory Opinion "by holding that an act whose foreseeable result was the destruction of a group as such and which did indeed cause the destruction of the group did constitute genocide."
Other Relevant Sources on the Requisite Quality or Degree of Genocidal Intent
Even if international case law were unequivocal vis-àvis the question of the requisite quality or degree of genocidal intent, it is also useful to consider additional sources of international law.
International Law Commission
Notably, the International Law Commission stated in its commentary on the 1996 Draft Code of Crimes Against the Peace and Security of Mankind that "the definition of the crime of genocide requires a specific intent which is the distinguishing characteristic of this particular crime under international law." The Commission further observed that
[a] general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited act."
Caution should be observed in relying on the travaux préparatoires (preparatory work, or works) of the Genocide Convention, insofar as it is often difficult to establish the prevailing thinking of the negotiating states at the time. One can find support for widely differing positions on the same issues in the preparatory work. However, the Krstić Trial Judgment invoked the preparatory work for its position, claiming that it "clearly shows that the drafters envisaged genocide as an enterprise whose goal, or objective, was to destroy a human group, in whole or in part." The Chamber continued:
The draft Convention prepared by the Secretary-General presented genocide as a criminal act which aims to destroy a group, in whole or in part, and specified that this definition excluded certain acts, which may result in the total or partial destruction of a group, but are committed in the absence of an intent to destroy the group.
National Case Law
A few recent cases presented in German courts may be relevant to this discussion (although there is little evidence of other relevant national case-law). The Federal Supreme Court of Germany observed in its review of a 2001 case that genocidal acts "only receive their imprint of particular wrong by their combination with the intent [Absicht] required by section 220a(1) to destroy, in whole or in part, a group protected by this norm as such, keeping in mind that the desired goal, i.e., the complete or partial destruction of this group, does not have to be accomplished." The German term Absicht signifies dolus directus in the first degree—or, in more familiar terminology, conscious desire. The Court added, with an encouraging degree of precision:
However, this goal has to be included within the perpetrator's intent as a subjective element of the crime that does not have an objective counterpart in the actus reus. This intent, which really characterizes the crime of genocide and distinguishes it, presupposes that it is the objective of the perpetrator, in the sense of a will directed towards a specific goal, to destroy, in whole or in part, the group protected by section 220a.
In another case that went before the German Federal Supreme Court, the judges provided further elaboration of the same conscious desire standard that was upheld by the Jelisić Appeals Chamber:
The desired result, i.e., the complete or partial destruction of the group as such, does not have to be accomplished; it suffices that this result is comprised within the perpetrators intent [Absicht]. It is through this subjective element that, figuratively speaking, "anticipates" the desired outcome in the subjective sphere, that the crime of genocide [. . .] as such and thus its full wrong is determined.
Antonio Cassese, a widely recognized authority on international criminal law, observes that genocidal intent "amounts to dolus specialis, that is, to an aggravated criminal intention, required in addition to the criminal intent accompanying the underlying offense [. . .]." He states that it "logically follows that other categories of mental element are excluded: recklessness (or dolus eventualis) and gross negligence." He correctly points out the ad hoc tribunals have contributed greatly to the elucidation of the subjective element of genocide.
William A. Schabas, an expert on the law of genocide, commenting on Article 6 (concerning genocide) of the ICC Statute, mentions "the special or specific intent requirement," "this rigorous definition," and the "very high intent requirement" without describing what the standard set out in the Genocide Convention and the ICC Statute actually is. It would seem that Schabas does not recognize the concept of degree or quality of mental state. He reiterates that the "offender must also be proven to have a 'specific intent' or dolus specialis," but without elaboration of what this phrase or the language of the intent formulation in the Genocide Convention actually means. He does observe that a "specific intent offense requires performance of the actus reus but in association with an intent or purpose that goes beyond the mere performance of the act." He also suggests that the chapeau of Article II of the Genocide Convention actually defines the specific intent via the formulation "with intent to destroy, in whole or in part."
German legal scholar Albin Eser's brief but sophisticated treatment of specific intent in a contribution to Cassese's three-volume commentary on the Rome Statute of the ICC is instructive. He observes that "with special intent particular emphasis is put on the volitional element." Or, more specifically on genocide:
In a similar way, it would suffice for the general intent of genocidal killing according to Article 6(a) of the ICC Statute that the perpetrator, though not striving for the death of his victim, would approve of this result, whereas his special "intent to destroy" in whole or in part the protected group must want to effect this outcome.
This overview of the positions taken by leading specialists on the issue of degree or quality of genocidal intent shows that there are no significant discrepancies between principal and secondary sources of international law with respect to the requisite degree or quality of intent for the international crime of genocide.
The Nature of the Prosecution's Third Ground of Appeal in Prosecutor v. Goran Jelisić
Against the background of such strong and consistent arguments coming out of primary and secondary sources of international criminal law, it is necessary to inquire whether the Prosecution's third ground of appeal (pertaining to genocidal intent) in the Jelisić case was completely without merit, and whether it was misinterpreted by the Appeals Chamber.
The essence of the Prosecution's argument was: (1) that the Trial Chamber had erroneously held that the requisite quality or degree of intent for genocide is dolus specialis; (2) that the Trial Chamber had erroneously construed dolus specialis as being confined to consciously desiring complete or partial destruction; and (3) that the Trial Chamber had erred in not including the following two mental states in the scope of the requisite genocidal intent: knowledge that one's acts were destroying, in whole or in part, the group, as such; and that described by the case in which an aider and abettor commits acts knowing that there is an ongoing genocide which his acts form part of, and that the likely consequence of his conduct would be to destroy, in whole or in part, the group as such.
The Appeals Chamber held that the Prosecution's first assertion in the foregoing sequence was wrong and based on a misunderstanding, and that as a consequence it was rejecting the Prosecution's third ground of appeal. The Appeals Chamber proceeded to interpret the word intent as requiring that the perpetrator was seeking the result of destruction, which in reality amounts to a requirement of conscious desire. In other words, the Appeals Chamber did not address whether the Trial Chamber had held that the genocide provision of the ICTY Statute requires conscious desire (the Prosecution's second assertion in the foregoing sequence), but the Appeals Chamber itself held that conscious desire in the form of seeking the destruction of the group is required under the Statute. The concern that underlay the Prosecution's third ground of appeal was of course the level of the requisite intent, not whether or not it was called dolus specialis.
The Prosecution had advanced the two additional mental states (described above) that it claimed fell within the scope of the requisite genocidal intent—the first referring to the perpetrator of genocidal conduct, the second referring exclusively to accomplice liability. By insisting that the point of departure of the Prosecution's argument had been based on a misunderstanding, the Appeals Chamber chose not to discuss the merits of the Prosecution's second and third assertions with respect to the Trial Chamber's putative failings. As a consequence, there does not seem to be a recorded consideration by the Appeals Chamber of the possible merit of the Prosecution's material propositions.
This omission is noteworthy, not only against the background of the extensive briefing on this issue by the parties in the Jelisić appeal, but also in light of recent case law coming out of the same ad hoc tribunal.
The relevant sources in international criminal law provide a firm legal basis for the conclusion that conscious desire is the special intent requirement for the international crime of genocide.
It would seem that findings by the ICTY Jelisić Appeals Chamber and the Krstić Trial Chamber of the requisite quality or degree of genocidal intent remain sound. It is difficult to see how one can avoid requiring that the perpetrator of genocide has sought at least partial destruction of the group, or had such destruction as the goal of the genocidal conduct. It is reasonable to assert that the mental state must be composed both of a cognitive and emotive or volitional component. The perpetrator consciously desires the result of destructive action if that is what he or she seeks or harbors as the goal. The idea that one can seek a result with a mind bereft of volition as regards this result seems to be an abstraction not in conformity with practical reality. Consciousness of the result of action undertaken to further the destruction of the group, of the process leading to the destruction of the group, or of how one's conduct is an integral part of this process is not the same as wanting, desiring, or hoping for the destruction to occur. Desiring the destruction itself, with no awareness of a process to bring it about, of one's own contribution to such a process, or of the ability of one's conduct to bring about partial destruction would amount to a mental state that lacks the resolve that characterizes the intent to undertake action with a view to that action's ensuring at least the partial destruction of the targeted group.
It is unlikely that the state of the law will evolve significantly in the milieu of the ad hoc Tribunals, which are expected to be in operation until sometime between 2008 and 2010. The ICTY Appeals Chamber did not leave sufficient room for the Trial Chambers to attempt to expand the scope of the applicable standard for genocidal intent. The Krstić Trial Judgment is courageous in this respect, insofar as it suggests that customary international law could have moved on this question but had not done so by 1995.
SEE ALSO Complicity; Convention on the Prevention and Punishment of Genocide; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Superior (or Command) Responsibility; War Crimes
"Intent." Encyclopedia of Genocide and Crimes Against Humanity. . Encyclopedia.com. (November 18, 2018). https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/intent
"Intent." Encyclopedia of Genocide and Crimes Against Humanity. . Retrieved November 18, 2018 from Encyclopedia.com: https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/intent