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In trials for war crimes or grave breaches,
the prosecution must generally prove not only that the accused did
the act complained of but also that he intended the consequences
of his act. This intent is usually referred to by lawyers as mens
rea, criminal intent or basic intent.
If, for example, in attacking a military target, a commander causes
unintended civilian casualties because of a weapons malfunction
or faulty target intelligence, he would not be guilty of an offense
because he lacked criminal intent, despite the consequences of his
actions.
Even if treaty provisions are silent on the question of intent as
in “taking of hostages,” basic intent must still be
proved. If a soldier is ordered to take civilians from a battlefield
village under armed guard to a town well away from the fighting
and there hand them over to the garrison commander and it later
transpires that they were being held as hostages to protect the
military headquarters in that town from attack, his defense might
be lack of criminal intent as he was unaware that the civilians
were hostages and assumed they were being taken to a place of safety.
Often a grave breach provision of a treaty specifies the intent
as willfulness, as in “willful killing, torture or inhuman
treatment” or “willfully... making the civilian population
or individual civilians the object of attack.” Or it may take
the form of wantonness, as in “extensive destruction... of
property, not justified by military necessity and carried out unlawfully
and wantonly.”
The terms willful and wanton include intentional or deliberate acts
and also cases of recklessness. Criminal liability is not limited
to positive acts. It can arise in the event of a failure to act
when there is a duty to do so and the failure is either with intent
that the consequences should follow or is due to recklessness about
those consequences.
In the International Committee for the Red Cross (ICRC) Commentary
on the Additional Protocols, willfulness is explained thus: the
accused must have acted consciously and with intent, i.e., with
his mind on the act and its consequences and willing them... : this
encompasses the concepts of “wrongful intent” or “recklessness,”
viz., the attitude of an agent who, without being certain of a particular
result, accepts the possibility of it happening; on the other hand,
ordinary negligence or lack of foresight is not covered, i.e., when
a man acts without having his mind on the act or its consequences.
However, negligence may suffice for disciplinary action under national
law.
The statute of the International Criminal Court specifies that an
accused person is only to be convicted if his offense was committed
“with intent and knowledge.” An accused has intent if,
in relation to conduct, he “means to engage in the conduct”
and, in relation to a consequence, he “means to cause that
consequence or is aware that it will occur in the ordinary course
of events.” Knowledge means “awareness that a circumstance
exists or a consequence will occur in the ordinary course of events.”
(See due process; wanton
destruction; war crimes;
willful killing.)
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