Mens rea. Article 8(2)(b)(iv) appears to contain a triple mens rea test. It requires that the attack be launched “intentionally”, that the perpetrator know that the anticipated environmental harm will be widespread, long-term and severe, and that this damage be clearly excessive in relation to the concrete and direct overall military advantage anticipated from the information known to the Accused at the time. 496 See travaux préparatoires to Article 35(3) of Additional Protocol I CDDH/215/Rev.1, para.27. 497 See Xxxxxxx, 1997, p.8. 498 See UNEP Study (2009), p.5. 499 UNEP Study (2009), p.8. 500 Economic and Social Impact Assessment of the Syrian Conflict, World Bank Report, September 2013, Para.261 (available xxxx://xxx.xxxx.xxx/content/dam/rbas/doc/SyriaResponse/Lebanon%20Economic%20and%20Social%20Impac t%20Assessment%20of%20the%20Syrian%20Conflict.pdf last checked April 2014). 501 UNCC Recommendations First Instalment (2001), para.13. See also para.31(b). The first aspect of intentionality appears to simply indicate that the attack must be a volitional act. It would not be sufficient if military force was accidentally unleashed, or accidentally directed at the wrong target.
Mens rea. The tribunals consistently emphasized that knowledge was sufficient to satisfy the mens rea of enterprise liability. In Ministries, Tribunal IV began its analysis of von Xxxxxxxxxxx and Xxxxxxxx‟s responsibility for the mass deportation of Jews following the Wannsee Conference by stating that “[t]he question is whether they knew of the program and whether in any substantial manner they aided, abetted, or implemented it.” 46 In the Justice case, Tribunal III said that the defendants‟ responsibility for the Night and Fog program depended solely on whether they had participated in it, because “[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out knew that its enforcement 41 Id. at 985. 42 Id. at 1118. 43 Ministries, XIV TWC 611. 44 RuSHA, V TWC 155. 45 Ministries, XIV TWC 560. 46 Ministries, XIV TWC 478. violated international law of war.”47 And in Xxxx, Tribunal II held Xxxxx responsible for participating in the concentration-camp system because he “knew that the slave labor was being supplied by the concentration camps on a tremendous scale.”48 What is particularly striking about these examples – and there are numerous others – is the complete absence of any reference to the defendant‟s intent to commit the crimes contemplated by the criminal enterprise. Indeed, the Ministries tribunal made clear that a defendant could be convicted of participating in a criminal enterprise even if he did not subjectively desire the commission of those crimes. With regard to xxx Xxxxxxxxxxx and Xxxxxxxx‟s responsibility for the deportation program, for example, the Tribunal specifically acknowledged that they “neither originated it, gave it enthusiastic support, nor in their hearts approved of it.”49 Even more dramatically, the Tribunal held Xxxx responsible for the extermination program even though it believed that Action Xxxxxxxxx “was probably repugnant to him” and that he would not have participated in the extermination program itself “even under orders.” The fact that he “knew that what was to be received and disposed of was stolen property and loot taken from the inmates of concentration camps” was enough.50 Although not requiring intent, the tribunals rejected the idea that the requisite knowledge could be inferred from the defendant‟s position in the Nazi hierarchy. In Xxxx, the prosecution argued that the defendants had to have known that crimes were being committed in the concentration-camps, because they eac...
Mens rea. Finally, a defendant had to have participated in issuing, drafting, or transmitting an illegal order with the necessary mens rea. According to High Command tribunal, that requirement was satisfied if the defendant knew that the order was illegal or, because the order was “criminal on its face,” should have known that it was: Military commanders in the field with far reaching military responsibilities cannot be charged under international law with criminal participation in issuing orders which are not obviously criminal or which they are not shown to have known to be criminal under international law…. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions. It is therefore considered that to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal.48 43 Id. at 510. 44 RuSHA, V TWC 106. 45 Justice, III TWC 1085. 46 Ministries, XIV TWC 462. 47 Id. at 463. 48 High Command, XI TWC 511. That statement of ordering‟s mens rea applied specifically to transmitting an order that was illegal on its face or was capable of being illegally applied. The Tribunal made clear, however, that the same mens rea applied to issuing and drafting such orders, as well.49
Mens rea. The tribunals did not take a consistent approach to the mens rea of command responsibility. Some held that a superior had to have actually known that his subordinates had committed or were going to commit crimes. Others held that negligence sufficed. And one – the High Command tribunal – held that different standards applied depending on the nature of the underlying crimes.
