WEBVTT

1
00:00:15.760 --> 00:00:18.440
Pursuant to article (30), second paragraph,

2
00:00:18.880 --> 00:00:20.900
letter (b) of the Rome Statute,

3
00:00:21.220 --> 00:00:22.640
a person is deemed to

4
00:00:22.640 --> 00:00:24.900
to have acted with intent

5
00:00:25.040 --> 00:00:27.100
in relation to consequence or result

6
00:00:27.800 --> 00:00:30.060
if he or she "means to cause

7
00:00:30.220 --> 00:00:32.340
that consequence or is aware

8
00:00:32.340 --> 00:00:34.200
that it will occur in the ordinary

9
00:00:34.200 --> 00:00:35.140
course of events".

10
00:00:37.580 --> 00:00:40.300
The former alternative of article (30),

11
00:00:40.300 --> 00:00:42.100
second paragraph letter (b),

12
00:00:42.300 --> 00:00:43.480
of the Rome Statute

13
00:00:44.220 --> 00:00:46.400
refers to situations

14
00:00:46.900 --> 00:00:48.960
where the individual clearly

15
00:00:48.960 --> 00:00:51.940
wanted to bring about a criminal result.

16
00:00:52.920 --> 00:00:55.400
For example, a person

17
00:00:55.400 --> 00:00:59.180
aiming at killing another individual

18
00:00:59.740 --> 00:01:01.560
would fall under this alternative.

19
00:01:03.380 --> 00:01:04.460
On the other hand,

20
00:01:05.080 --> 00:01:06.460
the latter alternative

21
00:01:06.800 --> 00:01:09.940
of article (30), second paragraph,

22
00:01:09.940 --> 00:01:11.940
letter (b) of the Rome Statute

23
00:01:12.860 --> 00:01:15.720
refers to situations where the person

24
00:01:15.720 --> 00:01:18.180
did not clearly want to bring about

25
00:01:18.180 --> 00:01:19.460
the criminal result

26
00:01:20.500 --> 00:01:23.220
but foresaw it with a certain

27
00:01:23.220 --> 00:01:24.460
degree of likelihood.

28
00:01:26.600 --> 00:01:27.860
That being said,

29
00:01:28.320 --> 00:01:29.860
it must be underlined

30
00:01:30.140 --> 00:01:32.180
that the precise interpretation

31
00:01:32.180 --> 00:01:34.240
of the wording "is aware

32
00:01:34.240 --> 00:01:36.220
that it will occur in the ordinary

33
00:01:36.220 --> 00:01:37.400
course of events"

34
00:01:37.980 --> 00:01:39.720
in the second alternative

35
00:01:39.720 --> 00:01:41.720
of article (30), second paragraph,

36
00:01:41.860 --> 00:01:43.640
letter (b) of the Rome Statute,

37
00:01:44.120 --> 00:01:47.340
has raised a major interpretative issue.

38
00:01:49.340 --> 00:01:52.760
According to a first school of thought,

39
00:01:54.600 --> 00:01:57.200
intent in relation to

40
00:01:57.440 --> 00:01:58.880
consequence or result

41
00:02:00.000 --> 00:02:01.800
could be established already

42
00:02:01.800 --> 00:02:03.140
in some situations

43
00:02:03.140 --> 00:02:05.560
where the person was aware

44
00:02:05.560 --> 00:02:09.000
of a risk below the threshold

45
00:02:09.000 --> 00:02:09.100
of practical certainty

46
00:02:09.100 --> 00:02:10.380
of practical certainty

47
00:02:11.300 --> 00:02:14.020
that the result or consequence

48
00:02:14.020 --> 00:02:15.200
could have occurred.

49
00:02:17.380 --> 00:02:19.280
Let's think, for example,

50
00:02:19.680 --> 00:02:22.520
about a person performing

51
00:02:22.520 --> 00:02:25.080
a strike close to a civilians' settlement,

52
00:02:26.300 --> 00:02:29.600
while knowing that the military operation

53
00:02:29.760 --> 00:02:31.480
will bring about also

54
00:02:31.480 --> 00:02:35.300
civilian casualties with some

55
00:02:35.300 --> 00:02:36.880
degree of likelihood.

56
00:02:40.020 --> 00:02:44.240
Notably, the ICC first decision

57
00:02:44.240 --> 00:02:45.900
on the confirmation of charges,

58
00:02:46.240 --> 00:02:47.600
which was pronounced

59
00:02:47.600 --> 00:02:52.580
in Lubanga in 2007, has adhered

60
00:02:52.840 --> 00:02:55.000
to this first school of thought.

61
00:02:56.140 --> 00:02:57.360
In this decision,

62
00:02:57.700 --> 00:03:00.040
Pre-Trial Chamber I of the International

63
00:03:00.200 --> 00:03:02.820
Criminal Court has opined

64
00:03:02.820 --> 00:03:04.960
that the requirements of article (30),

65
00:03:04.960 --> 00:03:07.660
second paragraph, letter (b)

66
00:03:07.660 --> 00:03:09.660
of the Rome Statute would be

67
00:03:09.920 --> 00:03:13.200
satisfied already in situations - I quote

68
00:03:13.200 --> 00:03:16.040
from the decision - "in which the suspect

69
00:03:16.300 --> 00:03:18.740
(a) is aware of the risk

70
00:03:19.220 --> 00:03:20.900
that the objective elements

71
00:03:20.900 --> 00:03:23.160
of the crime may result

72
00:03:23.320 --> 00:03:26.120
from his or her actions or omissions,

73
00:03:26.940 --> 00:03:29.800
and (b) accepts such an outcome

74
00:03:30.180 --> 00:03:33.340
by reconciling himself or herself with it

75
00:03:33.900 --> 00:03:35.100
or consenting to it

76
00:03:35.860 --> 00:03:38.100
(also known as <i>dolus eventualis</i>)"

77
00:03:39.000 --> 00:03:40.540
[end of the quotation].

78
00:03:43.060 --> 00:03:44.540
The Lubanga decision

79
00:03:45.100 --> 00:03:46.840
on the confirmation of charges

80
00:03:47.320 --> 00:03:49.380
further added that the relevant

81
00:03:49.380 --> 00:03:52.180
<i>dolus eventualis</i> could be established

82
00:03:52.180 --> 00:03:54.700
in two different kinds of scenarios.

83
00:03:55.720 --> 00:03:59.740
Firstly, the relevant <i>dolus eventualis</i>

84
00:03:59.740 --> 00:04:01.500
will exist in cases

85
00:04:02.320 --> 00:04:04.240
where the risk of bringing

86
00:04:04.240 --> 00:04:06.540
about the consequence

87
00:04:06.540 --> 00:04:08.540
or result was substantial.

88
00:04:09.860 --> 00:04:11.920
According to the Lubanga decision

89
00:04:11.920 --> 00:04:13.560
on the confirmation of charges,

90
00:04:14.260 --> 00:04:16.200
in this kind of situation

91
00:04:16.540 --> 00:04:18.740
the person's acceptance

92
00:04:18.740 --> 00:04:21.780
of the crime could be inferred

93
00:04:22.160 --> 00:04:25.000
already from his or her decision

94
00:04:25.520 --> 00:04:27.700
to carry out the action or omission,

95
00:04:28.200 --> 00:04:29.900
despite the awareness

96
00:04:30.840 --> 00:04:32.760
of the result in terms

97
00:04:32.760 --> 00:04:34.120
of substantial likelihood.

98
00:04:36.520 --> 00:04:38.820
Furthermore, according

99
00:04:39.840 --> 00:04:41.220
to the Lubanga decision

100
00:04:41.220 --> 00:04:43.000
on the confirmation of charges,

101
00:04:45.400 --> 00:04:47.640
<i>dolus eventualis</i> could be established

102
00:04:47.640 --> 00:04:50.500
also in situations of low criminal risk.

103
00:04:52.140 --> 00:04:54.680
However, in these situations,

104
00:04:55.260 --> 00:04:57.440
for criminal responsibility to be triggered,

105
00:04:57.820 --> 00:04:59.860
the person must have clearly

106
00:04:59.860 --> 00:05:01.860
or expressly accepted

107
00:05:02.360 --> 00:05:04.800
the possibility of course in defense.

108
00:05:07.640 --> 00:05:10.120
Hence, according to the Lubanga decision

109
00:05:10.360 --> 00:05:12.120
on the confirmation of charges

110
00:05:13.360 --> 00:05:15.320
put forward a very broad

111
00:05:15.320 --> 00:05:18.660
interpretation of the notion of intent

112
00:05:18.660 --> 00:05:20.100
under the Rome Statute.

113
00:05:22.000 --> 00:05:24.600
After having being endorsed

114
00:05:24.600 --> 00:05:28.100
in principle in the Katanga decision

115
00:05:28.100 --> 00:05:30.100
on the confirmation of charges

116
00:05:30.100 --> 00:05:32.100
in 2008, however,

117
00:05:33.080 --> 00:05:34.560
this broad interpretation

118
00:05:34.560 --> 00:05:36.340
was later abandoned

119
00:05:36.340 --> 00:05:38.560
by the International Criminal Court

120
00:05:38.880 --> 00:05:42.300
in favour of an alternative understanding.

121
00:05:43.880 --> 00:05:45.320
More precisely,

122
00:05:45.580 --> 00:05:47.280
in the Bemba decision

123
00:05:47.280 --> 00:05:49.040
on the confirmation of charges

124
00:05:49.040 --> 00:05:52.560
in 2009, Pre-Trial Chamber II

125
00:05:52.560 --> 00:05:54.560
of the International Criminal Court

126
00:05:55.280 --> 00:05:57.320
stated that intent under

127
00:05:57.320 --> 00:05:59.240
the Rome Statute should

128
00:05:59.240 --> 00:06:01.240
only be considered as established

129
00:06:01.780 --> 00:06:04.480
if the person was aware

130
00:06:05.420 --> 00:06:06.820
that the material elements

131
00:06:06.820 --> 00:06:09.220
of the defence would have been

132
00:06:09.480 --> 00:06:12.180
the almost inevitable outcome

133
00:06:12.620 --> 00:06:13.960
of his or her conduct.

134
00:06:16.580 --> 00:06:17.760
The Bemba decision

135
00:06:17.760 --> 00:06:19.760
affirmed - I quote from it -

136
00:06:20.240 --> 00:06:22.540
that "with respect to <i>dolus eventualis</i>

137
00:06:22.820 --> 00:06:24.920
as the third form of <i>dolus</i>,

138
00:06:25.260 --> 00:06:28.380
recklessness or any lower form of culpability,

139
00:06:28.980 --> 00:06:30.780
the Chamber is of the view

140
00:06:31.180 --> 00:06:32.760
that such concepts are not

141
00:06:32.760 --> 00:06:35.320
captured by Article (30) of the Statute"

142
00:06:35.960 --> 00:06:37.320
[end of the quotation].

143
00:06:40.420 --> 00:06:42.580
The narrower interpretation

144
00:06:42.580 --> 00:06:45.200
of intent put forward

145
00:06:45.480 --> 00:06:48.600
by Pre-Trial Chamber II in Bemba

146
00:06:49.320 --> 00:06:50.440
is also shared by

147
00:06:50.440 --> 00:06:51.700
numerous commentators.

148
00:06:52.680 --> 00:06:54.900
This interpretation is most notably

149
00:06:54.900 --> 00:06:57.140
rooted in a literal interpretation

150
00:06:57.320 --> 00:06:59.320
of the wording "will occur

151
00:07:00.040 --> 00:07:01.920
in the ordinary course of events"

152
00:07:02.480 --> 00:07:05.120
pursuant to article (30), second paragraph,

153
00:07:05.340 --> 00:07:07.120
letter (b) of the Rome Statute.

154
00:07:09.420 --> 00:07:11.960
After the Bemba decision

155
00:07:11.960 --> 00:07:13.660
on the confirmation of charges,

156
00:07:13.940 --> 00:07:16.000
the interpretation of intent

157
00:07:16.380 --> 00:07:19.880
as requiring practical certainty

158
00:07:19.880 --> 00:07:22.000
of the crime was endorsed

159
00:07:22.000 --> 00:07:24.000
in principle at the trial level,

160
00:07:24.500 --> 00:07:27.220
namely in the Lubanga

161
00:07:27.320 --> 00:07:29.380
trial judgment in 2012,

162
00:07:30.000 --> 00:07:31.940
and in the Katanga trial judgment

163
00:07:32.280 --> 00:07:33.940
in March 2014.

164
00:07:35.900 --> 00:07:39.460
More recently, in December 2014,

165
00:07:39.740 --> 00:07:41.460
the Lubanga appeal judgment

166
00:07:41.820 --> 00:07:43.360
confirmed that under

167
00:07:43.360 --> 00:07:45.840
article (30) of the Rome Statute

168
00:07:46.980 --> 00:07:48.360
- I quote from the judgment -

169
00:07:49.120 --> 00:07:51.500
"the standard for the foreseeability

170
00:07:51.500 --> 00:07:53.500
of events is virtual certainty".