Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

http://opiniojuris.org/2016/05/03/thoughts-on-jens-post-about-the-kunduz-attack/

11 Responses

  1. First, I think you and Adil are discussing slightly different issues. He is mostly concerned with recklessness and the situation where the attacking force recklessly makes an erroneous determination about the status of the target. You are asking about knowledge.

    But to your important question: You say that the attacker in that situation “means to engage” in an attack against a specific group of people. To me, the meaning of that phrase stems entirely from the mental state of “intentionally…” But if intent means knowledge, then the attacking force in a collateral damage situation truly does “intend” to attack the civilians in the building because “intent” equals “knowledge” and they know that the civilians are practically certain to die as a result of the attack.

  2. P.S. If I’m not understanding your argument, by all means clarify. Thanks!

  3. My argument is that intent means something other than direct intent only with regard to consequence elements, where Art. 30 says that either direct intent or oblique intent will suffice. So the war crime of wilful killing, which consists of a conduct element (the act) and a consequence element (death) requires the defendant to mean to engage in the conduct that causes the death of a protected person (ie, it’s not an accident) and either intend to cause death or know that death will occur in the ordinary course of events.

    By contrast, I don’t see how the intent that applies to conduct elements can mean anything other than direct intent — the subjective desire to engage in the conduct. So insofar as a war crime consists only of a conduct element and a circumstance element, the idea that intent can be satisfied by knowledge does not come into play — the defendant has to intend to engage in the conduct and must know (“be aware”) that the circumstance exists. The war crime of employing prohibited bullets is an example: the defendant must intentionally fire a gun (firing it accidentally or recklessly is not enough) knowing that the bullets it shoots will flatten on impact.

    The question, then, is how to properly describe the war crime of “intentionally directing attacks against a civilian population.” In my view, that crime consists of a conduct element (attacking a specific group of people) and a circumstance element (the group of people qualifying as a civilian population). A defendant commits the crime, therefore, only if he intends to attack the specific group of people that qualifies as a civilian population while knowing that the specific group of people qualifies as a civilian population. So I do not believe that an attack on a military objective that causes proportionate incidental harm can be described as an intentional attack on a civilian population — in such a situation, the defendant does not intentionally attack (does not mean to attack) the specific group of people that qualifies as a civilian population; he only intends to attack (means to attack) the military objective. The harm caused to the civilian population is purely accidental, even if the defendant knows full well the harm will occur.

    That said, I may be wrong about the war crime of intentionally attacking a civilian population. Perhaps that crime consists of a conduct element (launching an attack), a consequence element (affecting a specific group of people), and a circumstance element (the specific group of people qualifying as a civilian population). In that case, because of the consequence element, the multiple meanings of intent in Art. 30 would criminalise two different situations: (1) where the defendant launches an attack subjectively intending to harm a civilian population; or (2) where the defendant launches an attack knowing a civilian population will be harmed in the ordinary course of events. Because (2) is criminal, launching an attack on a legitimate military objective knowing that the attack will incidentally but proportionately harm a civilian population would qualify as the war crime of intentionally directing attacks against a civilian population. But again, I don’t believe there is a consequence element in that war crime.

    I don’t know if this helps, but it’s the best I can do at the moment!

  4. “A defendant commits the crime, therefore, only if he intends to attack the specific group of people that qualifies as a civilian population while knowing that the specific group of people qualifies as a civilian population.”

    In this rendering, you are giving intent two meanings. In the first mention, it means purpose; in the second mention (“while knowing”), it means knowledge.

    If that’s what people mean when they redefine intent to include “knowledge or recklessness,” then I am fine with it. But I am only fine with your interpretation of the crime because your first use of the word “intends” means purpose, while your second use of the mental element means knowledge.

    I’m fine with that. But I wouldn’t pretend that this crime scrubs purpose from the definition of the crime. In fact it retains it for one material element.

  5. “In this rendering, you are giving intent two meanings. In the first mention, it means purpose; in the second mention (“while knowing”), it means knowledge.”

    Yes — that’s precisely what I think Art. 30 does. Indeed, we know intent for conduct in Art. 30(2)(a) (“means to engage”) is direct intent, not indirect intent, because intent for consequence in Art. 30(2)(a) includes both direct intent (“means to cause”) and indirect intent (“aware that it will occur”).

  6. So we are in agreement that the war crime requires a first layer of dolus directus at its foundation, and then other mental elements on top of that.

    My sense of the ICTY case law (discussed in my article) is that several chambers have not been explicit that the conduct requirement–not just the firing of the weapon but the actual targeting of the civilians–must remain purpose, and that any watering down of this mental element produces the perverse consequences that I am concerned about.

    In those cases, the text being interpreted is “willfully directed”. I think we both agree that the correct definition of that phrase requires a first layer of dolus directus, and that knowledge or recklessness as to that first layer is inappropriate as a mental state.

  7. “A defendant commits the crime, therefore, only if he intends to attack the specific group of people that qualifies as a civilian population while knowing that the specific group of people qualifies as a civilian population. ”

    Do you think this crime was committed in the Kunduz case? Under your definition, it seems that the attacking soldiers did not commit the attack “while knowing that the specific group of people qualified as civilian…”

  8. Jens,

    No, I don’t think there is any argument that the air crew (much less JTAC) acted with knowledge. But I think that the air crew might well have acted recklessly.

  9. Fascinating discussion, thanks. Buy I wonder – in terms of legal coherence, isn’t it quite obvious? It seems clear to me that ICL cannot criminalize what IHL allows. It wouldn’t make sense that IHL allows proportional incidental harm (even when concretely “expected”) on the one hand, while on the other, the same expectation be interpreted as intent or knowledge for the sake of criminal culpability.

  10. Response…CIL used a wanton, reckless disregard test as well

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