Targeting and the Concept of “Intent”

by Jens David Ohlin

Cross-posted at LieberCode.

I read with interest the debate between Kevin Heller and Bob Chesney on allegations that recent drone attacks have caused civilian casualties under disturbing circumstances.

My views are too extensive for the comments section, so I am taking the liberty of outlining them here — guest-blogger’s prerogative.  Essentially, I think the issue boils down to intent — which the discussion in the comments section eventually worked its way around to – which is far more complex and thorny than some commentators realize.  Suppose that the object of the attack is a combatant (or DPHer or CCFer), but that the attacker realizes that civilians might be killed as well.

It’s black-letter ICL that it is a war crime to intentionally direct an attack against civilians.  Incidental killing of civilians is permissible if the civilian casualties are not “excessive in relation to the concrete and direct military advantage anticipated” in the words of the Additional Protocol, or “clearly excessive” in the language of the Rome Statute – i.e. a proportionality analysis.

The problem is the deep ambiguity over what is meant here by the concept of intent.  The tension is compounded by the fact that the ambiguity stretches along two axes: across legal cultures and across bodies of law.  Let me explain.

First, not every jurisdiction understands intent in the same way in its criminal law.  The word is notoriously vague and can capture situations where the defendant desires a particular outcome as well as situations where the defendant is aware of the practical certainty of the outcome but is indifferent to the result.  This is precisely why, for instance, the Model Penal Code abandoned the ambiguous language of intent in favor of the more precise categories of purpose and knowledge to capture these differences.  (Dolus directus and dolus indirectus cover the same conceptual territory).  So far, this is all U.S. Criminal Law 101.

On top of this ambiguity, there is the further issue of whether dolus eventualis qualifies as a form of intent.  To a criminal lawyer trained in a civil law jurisdiction that uses dolus eventualis, it is fairly uncontroversial to consider dolus eventualis as a subcategory of intent.  It is, after all, a form of dolus.  But to a U.S. criminal lawyer, the idea that dolus eventualis is a form of “intent” is rather nonsensical.  There are two positions on what dolus eventualis means.  Either it accords with the common law concept of recklessness, or it is a distinct mental state that resides above recklessness (but below knowledge or dolus indirectus).  If it is the former, it can’t be a form of intent, because acting recklessly is not the same thing as acting intentionally.  If it is the latter, then it is an utter mystery because there’s no analogous U.S. criminal law concept that matches its exact contours.

It’s therefore no surprise that there’s substantial disagreement in both the case law and the scholarly literature over whether dolus eventualis is covered by Article 30 of the Rome Statute and its default rule on mens rea.

Now here’s the added complication.  In addition to asking and answering these questions, a satisfactory theory of “intentionally attacking civilians” must also contend with the origins of this norm in International Humanitarian Law, in particular the Additional Protocol and the relevant customary norms.  International criminal law borrows the norm from IHL and then adds an additional aspect: individual criminal responsibility for violations of the norm.  But the norm itself comes from IHL.

So the relevant question is how the concept of intent, or the idea of “directing an attack” against civilians, is understood by IHL lawyers, and in particular how the concept was understood by the negotiators of the Additional Protocol and any other relevant treaty or convention.  More specifically, were there differences between common law and civil law trained lawyers involved in these negotiations?  This is a complicated question, especially since the preceding analysis, if it teaches us anything, teaches us that one cannot assume that each reference to the term “intent” – or any similar term – means the same thing.  Different people mean different things when they talk the language of intent.

Ironically, comparative analysis because more difficult, not less difficult, when the participants are using the same terms.  When they are using different terms, one can safely assume that they are referring to different concepts.  But when they are using the same terms, one is often lulled into assuming that they are referring to the same concepts.  Not so.

One might object that the reference to IHL is misplaced and irrelevant, because whatever the contours of the IHL norm, the Rome Statute drafters changed the norm when they crafted the relevant provisions of the Rome Statute.  I think this is an unsatisfactory response.  First, IHL remains an applicable body of law, and whatever the Rome Statute did, I do not think it changed IHL per se – it simply criminalized it.  Second, it is fine if the contours of the ICL norm and the IHL norm diverge, but the usual pattern is for the ICL crime to be narrower, on the assumption that the prosecutor should meet additional requirements before  punishment is warranted.  In other words, its fine if ICL exculpates individuals whose conduct violates the norm as it exists in another body of law.  But the opposite result would be curious.  If ICL inculpates individuals who did not violate the norm as it exists in IHL, this would be an odd and uncomfortable result indeed.

I’ve tried to scrupulously avoid taking a stand on the final issue here.  Rather, my point is to set the guideposts that a successful analysis should cover.  It’s a daunting task in my view.

http://opiniojuris.org/2012/02/08/targeting-and-the-concept-of-intent/

15 Responses

  1. Thanks for this, Jens.  I should add that I avoided the dreaded dolus eventualis issue in my comments to the previous post because we don’t have to resolve it to demonstrate that John Dehn incorrectly insists that intent=dolus directus and nothing more.  As the text of Article 30 and Lubanga indicate, at a minimum intent as it’s used in the Rome Statute with regard to consequence and circumstance elements extends beyond dolus directus to include dolus indirectus.

    It’s also worth reiterating that the ICRC Commentary to AP I defined “wilfully” to include recklessness.

  2. Thanks Jens.  As Kevin obviously does not know, I well understand your post and the concept of dolus eventualis thanks in large part to you and George Fletcher.  I simply believe that the IHL prohibition of intentionally attacking civilians, and the related war crime in the ICC statute, requires something more.  It is, to my mind, the fairest reading of the text of the relevant treaties on this specific issue.  I certainly do not contend that intent always means dolus directus, as Kevin seems to believe. I have made that point more than once, as well as the point that you made about the relevant IHL being important to such issues, in more than one of my comments his previous post on this subject.

  3. “Fairest reading of the text” = not the textual reading of Article 30, not the reading of Article 30 provided by Lubanga, not the reading of the war crime by the ICTY, and not the reading offered by the ICRC in its authoritative commentary to AP I.  Got it.

  4. Kevin, try reading the actual arguments I made in my comments to your post.  Article 30 applies “unless otherwise provided” in the text and elements of a crime defined in the Rome Statute, as well as the international law underlying that crime.  The Lubanga decision itself does not even apply Article 30 alone, but rather the elements (not the text) of the crime, as your own post here on OJ and others have ecplained.  The case you cited from the ICTY is entirely inapposite for the reasons I explained for the benefit of the OJ readers in a another comment to your post.  And the ICRC’s general definition of intent is, like Article 30, not to be applied in preference to relevant substantive international law, as I have explained and Jens makes clear in this post.

  5. And, Kevin, as I explained in my last comment to your post:

    Your arguments boil down to this: Article 30 applies to every war crime in spite of the text of Article 30, in spite of the conclusions and reasoning of the decision that I cite as supporting my belief, and regardless of whether the mens rea concepts of Article 30 are reflected in the text or elements of the crime defined by the Rome Stute…or the substance of the international law underlying that crime.

    Got it.

  6. Response…
    A major issue that seems to have been slighted is whether the standard(s) in the ICC statute reflects customary international law, especially since some provisions do not and the ICC simply has limited jurisdiction (e.g., not all war crimes are listed in art. 8 and not all crimes against humanity are listed in art. 7).  Moreover, does Geneva Protocol I?  And is the Protocol standard merely limiting of that Geneva treaty’s standard?  And since the U.S. has ratified neither treaty, how can U.S. nationals take advantage of higher mens rea standards (IF they exist) under such treaty law when under customary international law (and HC IV) has included the wanton/reckless distregard standard?

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