Home | Databases | WorldLII | Search | Feedback New Zealand Yearbook of International Law

Clark, Roger S --- "Elements of Crimes in Early confirmation Decisions of Pre-Trial Chambers of the International Criminal Court" [2008] NZYbkIntLaw 28; (2008) 6 New Zealand Yearbook of International Law 209

Last Updated: 7 February 2019

ELEMENTS OF CRIMES IN EARLY CONFIRMATION DECISIONS OF PRE-TRIAL CHAMBERS OF THE INTERNATIONAL CRIMINAL COURT

Roger S. Clark^[∗]

I. INTRODUCTION

Article 9 of the Rome Statute of the International Criminal Court provides for the creation of ‘Elements of Crimes [which] shall assist the Court in the interpretation and application of articles 6, 7 and 8 [of the Statute].’^[1] Ultimate control over the consistency of The Elements with the provisions of the Statute (and hence their validity) lies with the Court. Paragraph 3 of the Statute thus provides: ‘[t]he Elements of Crimes and amendments thereto shall be consistent with this Statute.’ Article 9 was adopted in Rome at the insistence of the United States over the scepticism of most of the remainder of the participants in the negotiation. In practice, however, the drafting of The Elements in the Preparatory Commission for the Court^[2] provided a useful opportunity for clarification of many of the offence definitions in the Statute. Perhaps more importantly, it formed an opportunity for understanding how the General Principles found in Part III of the Statute, notably Article 30 which is headed ‘mental element,’ play out in individual instances. How the ICC itself deals with Article 30 and The Elements is of particular interest in New Zealand since Article 30 is one of the provisions of the Statute which is said to ‘apply, with any necessary modifications’ to prosecutions under the New Zealand Criminal Court Statute.^[3] Moreover, in such prosecutions, a New Zealand court ‘may have regard to any elements of crimes adopted or amended in accordance with article 9 of the Statute.’^[4]
The present comment, after a few general remarks about the nature and structure of The Elements, offers some thoughts about the remarkable ways in which Pre-Trial Chambers have been using the Elements to ‘assist’ the analysis in confirmation proceedings. (Confirmation proceedings represent the determination that there are sufficient grounds to proceed to a trial.) This is particularly the situation with Pre-Trial Chamber I in the cases from the Democratic Republic of the Congo of Thomas Lubanga Dyilo^[5] and of Germain Katanga & Mathieu Ngudjolo Chui,^[6] and Pre-Trial Chamber II in the case of Jean-Pierre Bemba Gombo^[7] (Central African Republic).
As one who was involved in the drafting of The Elements, I found it very heartening to see the product being used in a manner which is central to the way the Chambers have been going about their tasks. I shall, however, note some ways in which Pre-Trial Chamber I has, I believe, departed from the structure of the Statute and Elements. In one respect (ultimately not shared by all its judges) this is on substantive grounds, namely in contemplating responsibility based on dolus eventualis/recklessness which is inconsistent with both the Statute and its preparatory work. In other respects it is in terms of terminology in articulating the elements of the relevant offenses; the judges of Pre-Trial Chamber I have often ignored the language of the Statute which uses the terms ‘mental’ and ‘material’ elements, speaking instead in a confusing manner of ‘subjective’ and objective’ elements. The essential concepts may be the same, but ignoring the treaty language and using other modes of analysis carries with it a grave risk of picking up other baggage that the drafters of the treaty had not sought. Pre-Trial Chamber II has, however, hewed much closer to the analysis in the Rome Statute and The Elements.
The early decisions have also found it necessary to address a matter involving elements of crimes not dealt with by the Preparatory Commission when drafting The Elements, namely how to articulate the various modes of complicity in crimes, including those dealt with in Articles 25 and 28 of the Rome Statute.
Part II of this Article recaps the conceptual framework of the Rome Statute, in particular its notions of ‘mental’ and ‘material’ elements, and how this played out in drafting The Elements. Part III discusses the pre-trial decisions from two perspectives. The first part of it discusses the use (and sometimes mis-use) of the concepts of mental and material elements. The second part discusses ‘secondary’ parties and modes of participation and the Chambers’ efforts to articulate appropriate elements here.
In view of the interesting structural use to which The Elements are put in the so-called ‘In-Depth Analysis Chart of Incriminatory Evidence’ contained in the Annex to the Bemba Gombo Chamber’s November 2008 decision concerning a Chart of Incriminatory Evidence,^[8] I have included that Annex as an appendix to this note. It speaks for itself in providing a framework for the organization of evidence along the lines of The Elements!

II. MENTAL AND MATERIAL (PHYSICAL) ELEMENTS: A CONCEPTUAL FRAMEWORK

Breaking ‘a crime’ or ‘guilt’ into physical (or ‘material’) components and mental (or ‘culpability’) components provides a structure for pedagogy and for analysis for judges and juries.^[9] It also offers a framework for some policy decisions on what kinds of culpability are appropriate in the relevant context, in this instance the ‘most serious crimes of concern to the international community as a whole.’^[10] Since the negotiations on both the general part of the Rome Statute and The Elements proceeded on a basis of ‘consensus’ and nothing was ever forced to a vote, one cannot be sure of the ultimate positions of particular States, other than that they agreed to ‘live with’ the results. My understanding of the terms of this debate, however, was that most of the players did not want any of the crimes to involve strict liability; they were generally uncomfortable with negligence-based liability;^[11] they were generally uncomfortable with liability based on recklessness or its civil law (near) counterpart dolus eventualis.^[12] What they could agree upon was a default rule in Article 30 of the Statute^[13] that ‘unless otherwise provided’^[14] the ‘material elements’^[15] had to be committed ‘with intent and knowledge.’^[16] For purposes of the Article, a person was said to have ‘intent’ where (a) in relation to conduct, that person means to engage in the conduct; and (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the normal course of events.^[17] ‘Knowledge’, for the purpose of the article ‘means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.’^[18] In the next paragraphs, I explain how the mental elements, at least as a default rule, got stripped down to intent and knowledge, as defined.
For our purposes, the story begins in the General Assembly’s Ad Hoc Committee on the Establishment of an International Criminal Court which met in 1995 to examine the draft Statute proposed by the International Law Commission the previous year. The ILC Draft did not include a general part and a Working Group of the Ad Hoc Committee suggested a number of issues that ought to be considered, in the expectation that there should be such a general part. These included, under the heading ‘mens rea’:

• Intention (culpa, dolus/intentionally, knowingly, recklessly/dolus eventualis, gross negligence);
• General intention – specific intention? (motives);
• Age of responsibility.^[19]

The Ad Hoc Committee was succeeded in 1996 by the Preparatory Committee on the Court. It produced a massive compilation of concrete proposals that had been made formally in the course of the discussion (because of its size, it was known affectionately by the participants as ‘The Phone Book’). In addition to language on intent and knowledge that provided the basis for what became Article 30, the proposals included a bracketed proposal as follows:

[4. For the purposes of this Statute and unless otherwise provided, where this Statute provides that a crime may be committed recklessly, a person is reckless with respect to a circumstance or a consequence if:

(a) The person is aware of a risk that the circumstance exists or that the consequence will occur;

(b) The person is aware that the risk is highly unreasonable to take; [and]

(c) The person is indifferent to the possibility that the circumstance exists or that the consequence will occur.]^[20]

A ‘Note’ that followed this language in the Compilation, stated, in relevant part:

The concepts of recklessness and dolus eventualis should be further considered in view of the seriousness of the crimes considered.

Therefore, paragraph 4 would provide a definition of ‘recklessness’, to be used only where the Statute explicitly provides that a specific crime or element may be committed recklessly. In all situations, the general rule, as stated in paragraph 1, is that crimes must be committed intentionally and knowingly.^[21]

This was the last time that the words dolus eventualis appear in any draft. It seems quite clear that the participants thought they were subsumed into the discussion of recklessness. The bracketed provision on recklessness, however, continued in each of the subsequent drafts leading up to Rome, in 1997,^[22] early in 1998,^[23] and in April of that year.^[24]
The only thing to emerge clearly from the discussions at Rome was that the definition of recklessness was deleted when it was concluded that it was redundant, the term not appearing anywhere in the special part to which the definition could be applied.^[25] No further attempt to introduce dolus eventualis appeared – I have no doubt that it went into outer darkness along with recklessness.
Exactly what fits into the ultimate category of ‘material elements’ in the Statute has to be inferred from the definitions of mental elements that are contained in Article 30 of the Statute, since each of those mental elements has some reference to a material element in its definition. In the preparations before Rome, an effort was made to define what was meant by the physical element. The draft that came forward from New York^[26] was headed ‘Actus reus (act and/or omission).’ It did not cover the whole field of what we normally think of in respect of physical or material elements of a crime, being concerned primarily with whether there could be responsibility for omissions as well as acts, when that might be (when there was a duty) and with articulating some notions of causation as attribution.^[27] This part of the drafting effort was abandoned in Rome, apparently as ‘too difficult.’^[28] Hence the need to infer, from the definitions of the mental element in Article 30, a conceptual structure for what now became ‘material elements’. Notice that Article 30 speaks of ‘conduct’ (in defining ‘intent’) of ‘a consequence’ (in defining both ‘intent’ and ‘knowledge’) and of ‘a circumstance’^[29] (in defining ‘knowledge’). While they are not defined further, conduct, consequences and circumstances are a serviceable set of categories for purposes of analysis. The drafters of The Elements of Crimes ultimately adopted this framework – as they concluded the Statute required. Paragraph 7 of the General Introduction to the Elements reads: ^[30]

The elements of crimes are generally structured in accordance with the following principles:

As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order;

When required, a particular mental element is listed after the affected conduct, consequence or circumstance;
Contextual circumstances are listed last.

This left causation, the subject of much discussion pre-Rome, somewhere in limbo. Probably most of the participants saw it as included (at least implicitly) in either conduct or consequences; some perhaps saw it as an extra category that could safely be left for another day.^[31]

III. THE PRE-TRIAL DECISIONS

A. Material and mental elements, alias objective and subjective ones

There is some thoughtful, but far from definitive, discussion of aspects of Article 30 in the first reasoned opinion from the Court on substantive matters, the Lubanga Confirmation decision.^[32] Lubanga Dyilo was charged (in what is a remarkably sparse set of charges for an international court) with the war crimes of conscripting and enlisting children under the age of fifteen into an armed group and using them to participate actively in hostilities.^[33] He was alleged to be connected to the crimes as a ‘co-perpetrator.’^[34] The Pre-Trial Chamber found it necessary to traverse the elements of the crimes charged. In what seems to be a lapse into the Judges’ national modes of thinking, the Chamber assumes, in significant parts of the argument, that a crime can be described in terms of ‘objective’ and ‘subjective’ elements.^[35] I think that ‘objective’ elements are what the Statute describes as ‘material’ and ‘subjective’ ones are those the Statute terms ‘mental,’ but the Chamber does not explain its assumptions and they may, in fact, be different ones.^[36]
Going fairly directly to The Elements, the Pre-Trial Chamber, after discussing some preliminary and procedural matters, has a lengthy part of its judgment (Part IV) devoted to what it calls ‘Material Elements of the Crime.’^[37] The Chamber does not explain in this part of the Decision what it means by ‘material’ in this Part, but the usage is not inconsistent with the usage in Article 30 of the Statute – later in the decision, the Chamber lost track of the usage,^[38] as it did again in the Katanga/Ngudjolo decision.^[39] Here, the Chamber first discusses the existence and nature of the armed conflict (international or non-international) in the area involved, turns to an examination of the ‘existence of the offence’ under the two relevant provisions of the Statute, analyzes the elements of the crimes, using precisely the language of The Elements. It then concludes the Part with a discussion of the nexus between the armed conflict and the alleged crimes.^[40] The Elements, in short, are well in the foreground of the reasoning.
It is when it moves to another part of its judgment, Part VI on ‘Criminal Responsibility’, that the Chamber moves away from the structure of the Statute. I deal later in this note with the question of the liability of different participants in criminal activities; here the focus is on mental elements. The discussion of what the Chamber calls ‘subjective’ elements of the ‘crime in question’ (which the Chamber believes must be shared with other co-perpetrators)^[41] is interesting but contains some doubtful assumptions. Apparently meaning to offer an interpretation of Article 30’s references to intent and knowledge, the Chamber says that this entails a ‘volitional element.’^[42] This ‘encompasses, first and foremost, those situations in which the suspect (i) knows that his or her actions or omissions will bring about the objective elements of the crime, and (ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree).’^[43] This must be the classic situation of intent (or intent and knowledge) of which Article 30 speaks. The Chamber adds that the ‘volitional’ element also encompasses other forms of the concept of dolus’ which it says ‘have already been resorted to by the jurisprudence of the ad hoc tribunals.’^[44] These are:

i. situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree), and

ii. situations in which the suspect (a) is aware of the risk that the objective elements in the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).^[45]

These categories are hardly what emerges from the literal language of the Statute, nor, if my analysis of the history is correct, from the travaux préparatoires. The first of these (dolus directus of the second degree) comes close to one of the definitions of knowledge in Article 30 (‘awareness that ... a consequence will occur in the ordinary course of events’) and may thus pass muster. But dolus eventualis and its common law cousin, recklessness, suffered banishment by consensus. If it is to be read into the Statute, it is in the teeth of the language and history.
In one other respect, the Chamber was faithful to the intentions of the drafters, in this case the drafters of The Elements. The Court notes that,^[46] in respect of the war crimes of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities, the third element is that, concerning the age of the victims,^[47] ‘[t]he perpetrator knew or should have known that such person or persons were under the age of 15 years.’^[48] This was a compromise on the part of the drafters, and controversial among them in view of the general exclusion of negligence.^[49] Charles Garraway, British representative in the drafting, describes the provision on children as a compromise between those who thought strict liability appropriate (and thus that anyone who engaged young soldiers did so at the risk they would turn out to be under age) and those who wanted the default rule to apply. He adds that ‘[t]hose with reservations as to the vires of this provision were reassured by article 9 (3) of the Statute providing that elements ‘shall be consistent’ with the Statute. Any inconsistent element would be struck down by the judges.’^[50] The Chamber, in this instance, refers to the ‘unless otherwise provided’ language in Article 30 and describes the element as ‘an exception.’^[51] The relevant passage of the Chamber’s opinion shows that it clearly understood the approach of the drafters of The Elements in addressing separately the mental element for each of the material elements of a particular crime (although the Chamber uses the term ‘objective’ instead of ‘material’).^[52] The passage is worth quoting in full:

As a result, the ‘should have known’ requirement as provided for in the Elements of Crimes in relation to articles 8(2)(b)(xxvi) and 8(2)(e)(vii) is an exception to the ‘intent and knowledge’ requirement embodied in article 30 of the Statute. Accordingly, as provided for in article 30(1) of the Statute, it will apply in determining the age of the victims, whereas the general ‘intent and knowledge’ requirement will apply to the other objective elements of the war crimes set forth in articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, including the existence of an armed conflict and the nexus between the acts charged and the armed conflict.^[53]

At this stage of the proceedings, the Chamber was prepared to accept the position of The Elements uncritically. Whether the negligence exception is consistent with the Statute, as understood in Article 9(3), is a question that will no doubt be argued by the defence at a later stage.
In Katanga and Ngudjolo Chui,^[54] the Chamber was faced with a much more complex set of allegations. The defendants were said to have committed both war crimes and crimes against humanity. The war crimes included using children under the age of fifteen to participate actively in hostilities, directing an attack against the civilian population, wilful killing, destruction of property, pillaging, sexual slavery and rape, inhuman treatment and outrages upon personal dignity. As crimes against humanity, murder, sexual slavery, rape and other inhumane acts were alleged.
In its discussion of these various offences, the Chamber makes copious and useful references to the elements of each of the crimes as defined in the product of the Preparatory Commission. The Judgment starts with a section labeled ‘I. Introduction,’ followed by another entitled ‘II. Preliminary Evidentiary Matters.’ Then comes a long section entitled ‘III. Material Elements of the Crimes.’ Again, the Chamber does not explain how it is using the term ‘Material’^[55]. This time, however, it is clear in context that it is not using it the way the Statute does to describe the physical elements of an offence. Instead it discusses the existence and nature of the armed conflict in question,^[56] the existence of appropriate offences under the Statute (and their elements – broken into ‘subjective’ and ‘objective’ elements), the existence of a nexus between the armed conflict and the alleged crime and the perpetrators’ awareness of the factual circumstances that establish the existence of such armed conflict. It then makes a similar analysis of crimes against humanity, starting with the necessary widespread or systematic attack directed against a civilian population^[57] and continuing with an analysis of the particular offences. As in the case of its previous decision in Lubanga Dyilo, the Pre-Trial Chamber uses the terms ‘objective’ and ‘subjective’ to describe (I think) what the Statute calls ‘material’ and ‘mental’.
On one significant matter, there is some difference of opinion touched upon among the judges. Speaking in the context of the war crime of using children in hostilities, the Chamber says that:

In respect of the subjective elements of this war crime, the perpetrator must satisfy the intent and knowledge requirement of article 30 (1) and (2) of the Statute as well as a negligence standard set out in the phrase ‘should have known’ with regard to the requirement that the victim be under the age of fifteen. Therefore this offence encompasses, first and foremost, cases of dolus directus of the first or second degrees.^[58]

The Chamber does not say to what element of the crime the ‘first and foremost’ requirement of Article 30 applies, but in context it seems to be the element that the soldiers were ‘used’.^[59] At all events, the paragraph quoted is followed by an interesting footnote which is also worth quoting in full:

The definition of the concept of dolus directus of the first and second degrees, and of dolus eventualis, can be found in ICC-01/04-01/06-803-tEn, para. 351. In the Lubanga decision, the Chamber found that article 30(1) of the Statute encompasses also dolus eventualis. The majority of the Chamber endorses this previous finding. For the purposes of the present charges in the present Decision, it is not necessary to determine whether situations of dolus eventualis could also be covered by this offence, since, as shown later, there are substantial grounds to believe that the crimes were committed with dolus directus. Judge Anita Usacka disagrees with the position of the majority with respect to the application of dolus eventualis. Judge Usacka finds that, at this time, it is unnecessary for her to provide reasons, since the issue of whether article 30 of the Statute also encompasses cases of dolus eventualis is not addressed in the present Decision.^[60]

Some of the reasoning by the judges reads like a lapse into national modes of thinking rather than an effort to come to grips with the language of the Statute itself. It is apparent that the question of dolus eventualis merits further consideration. Again, defence counsel can be expected to return to the fray on that.
On the other hand, the discussion by Pre-Trial Chamber II in the Bemba Gombo confirmation decision^[61] tracks closely the analysis that I believe is required by the language of the Statute and the preparatory work which has been outlined above.^[62] Bemba Gombo was charged in respect of a number of crimes against humanity and war crimes committed in the Central African Republic. The Prosecutor sought to connect him to the crimes either as a principal, pursuant to Article 25(3)(a) of the Statute, or as a commander responsible under Article 28.^[63]
In its judgment, the Chamber makes copious references to the Elements of Crimes and the discussion is based on a structure of mental and material elements. It analysis of both crimes against humanity and war crimes begins with an examination of the relevant ‘contextual circumstances’ – a ‘widespread or systematic attack on a civilian population’ in the case of crimes against humanity and an ‘armed conflict not of an international character’ in the case of the war crimes in question.^[64] The discussion of specific instances of the two crimes also tracks closely the structure of The Elements. Particularly interesting is a later section of the judgment that addresses the Chamber’s understanding of Article 30 and of the general structure of offences.^[65]
The Chamber notes, for instance, that in its opinion, ‘the Statute is constructed on the basis of an element analysis approach – as opposed to a crime analysis approach, according to which different degrees of mental element are assigned to each of the material elements of the specific crime under consideration.’^[66] It then recalls the ‘intent’ and ‘knowledge’ language of Article 30 and continues in language obviously intended to bridge the common law and civil law modes of characterizing culpability. This part of the Judgment is important enough to warrant extended quotation:

357. The Chamber stresses that the terms ‘intent’ and ‘knowledge’ as referred to in article 30(2) and (3) of the Statute reflect the concept of dolus, which requires the existence of a volitional as well as a cognitive element. Generally, dolus can take one of three forms depending on the strength of the volitional element vis-à-vis the cognitive element – namely, (1) dolus directus of the first degree or direct intent, (2) dolus directus of the second degree – also known as oblique intention, and (3) dolus eventualis – commonly referred to as subjective or advertent recklessness.

358. In the view of the Chamber, article 30(2) and (3) of the Statute embraces two degrees of dolus. Dolus directus in the first degree (direct intent) requires that the suspect knows that his or her acts or omissions will bring about the material elements of the crime and carries out these acts or omissions with the purposeful will (intent) or desire to bring about those material elements of the crime. According to the dolus directus in the first degree, the volitional element is prevalent as the suspect purposefully wills or desires to attain the prohibited result.

359. Dolus directus in the second degree does not require that the suspect has the actual intent or will to bring about the material elements of the crime, but that he or she is aware that those elements will be the almost inevitable outcome of his acts or omissions, i.e., the suspect ‘is aware that [...] [the consequence] will occur in the ordinary course of events’ (article 30(2)(b) of the Statute). In this context, the volitional element decreases substantially and is overridden by the cognitive element, i.e. the awareness that his or her acts or omissions ‘will’ cause the undesired proscribed consequence.

360. With respect to dolus eventualis as the third form of dolus, recklessness or any lower form of culpability, the Chamber is of the view that such concepts are not captured by article 30 of the Statute. This conclusion is supported by the express language of the phrase ‘will occur in the ordinary course of events’, which does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention). . . . ^[67]

Common law analysis does not come to grips with the various relationships between cognitive and volitional aspects that are such a feature of civil law analysis of culpability.^[68] Thus some of this discussion is, at first sight, a little strange to the common law mind. Nevertheless, thoughtful common lawyers and civil lawyers alike ought to be able to embrace this discussion as finding common ground to bring together their own working constructs, in order to elucidate the unique provisions of the Statute that provide the building blocks for this part of international criminal law.

B. ‘Secondary’ Parties, and Modes of Participation

By and large, the drafting of penal codes proceeds on the basis that the actor whose deeds are described in the special part is what we think of as a ‘principal’ – the one who does it himself.^[69] Other participants are linked through a provision in the general part. The Rome Statute is no exception, although, in Article 25(3), it devotes a little more attention to the principal than do some codes. It also contains provisions on command responsibility as an alternative theory of liability for certain superiors in Article 28.
The responsibility of a ‘co-perpetrator’ as principal was the focus of the Lubanga Dyilo and Katanga/Ngudjolo Chui decisions.
Article 25 (3) of the Statute provides in relevant part, that a person^[70] shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime.

Subparagraph (a) covers principals and co-principals and the people who act through those who are not criminally responsible, such as children or the insane (perhaps even the un-knowing and the mistaken). Subparagraph (b) is also aimed at the big fry, perhaps those ‘most responsible’ for what occurs even though they do not personally do the evil deeds. As Professor Schabas has noted, to describe such persons as ‘secondary’ parties in respect of genocide is to miss the point.^[71] The same must be true of those involved in crimes against humanity and war crimes. Subparagraph (c) deals with more obviously ‘secondary’ parties like aiders and abettors. Subparagraph (d) was characterized by the Chair of the Working Group on General Principles in Rome as related to the ‘very divisive issue’ of ‘conspiracy, a concept strongly advocated by common law countries, but unknown in some civil law systems.’^[72] It was also closely related to the doctrine of joint criminal enterprise that had found a substantial toehold in decisions of the Ad Hoc Tribunals.^[73] Ambassador Saland comments:

We were helped by the successful negotiation in 1997 of the Convention for the Suppression of Terrorist Bombings,^[74] which had been adopted by consensus. In Rome, it was easy to reach agreement to incorporate, with slight modifications, the text from that Convention which we now find in paragraph 3(d) of Article 25 of the Rome Statute.^[75]

Subparagraph (d) is thus a classic example of a very useful principle of international negotiation, the ‘previously agreed text’ principle – there is a presumption that whoever negotiated it knew what they were doing, so it is safe to use it.
There is, however, more here than meets the eye. United States conspiracy doctrine is twofold. Conspiracy is both an inchoate offense and (in a development that has not gained much traction in the rest of the common law World) a mode of complicity.^[76] As such, it catches people on the fringe of criminal activity who would not meet the aid or abet category, especially those associated recklessly or negligently, rather than intentionally (or even knowingly), with the relevant activities.^[77] Conspiracy as complicity is what was in play here. The preparatory work on the Terrorist Bombing Convention makes it clear that this kind of conspiracy doctrine was what people had in mind in the present context.^[78] But there was the other kind of conspiracy, the inchoate one. That should have been put more forcefully on the Rome agenda by considering the conspiracy provisions in the Genocide Convention.^[79] It got lost in the shuffle, I think because people thought they had solved the whole problem in Subparagraph (d). These problems have not yet emerged as issues in the Pre-trial Chambers but will undoubtedly be relevant in the future.
In the case of Article 25, the Court has not been furnished with Elements to assist it. In fact, the United States introduced a proposal to deal with some aspects of Article 25 (along with Article 28 on command responsibility) at the Preparatory Commission.^[80] It was a useful first draft^[81] but was never taken up by the Preparatory Commission, largely I thought because of drafting fatigue. The judges are, therefore, on their own!
Some valuable first thoughts on how to interpret Article 25(3)(a) appear in the Lubanga confirmation decision.^[82] The Chamber assumed (quite correctly in my opinion) that complicity issues are amenable to the same sorts of element analysis as the provisions of Articles 6, 7 and 8 of the Statute. I part company with its analysis to the extent that it couches the discussion in terms of ‘objective’ and ‘subjective’ elements rather than ‘material’ and ‘mental’ ones, but I thought that it made a very good effort at unscrambling the issues concerned.
The prosecution contended that the theory that ‘best represents the criminal responsibility’ of the accused was under Article 25(3)(a) as a ‘co-perpetrator.’^[83] After examining various theories of what constitutes a co-perpetrator, the Chamber settled for a concept of ‘control over the crime’.^[84] ‘The notion underpinning this ... approach,’ said the Court, ‘is that principals to a crime are not limited to those who physically carry out the objective elements of the offense, but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed.’^[85] According to the Chamber, there are two ‘objective elements’ of co-perpetration ‘based on joint control over the crime.’ These are (i) ‘[e]xistence of an agreement or common plan between two or more persons,’ and (ii) ‘[c]o-ordinated essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime.’^[86] There is some obvious (and perhaps unavoidable) overlap here with the common purpose category in Article 25 (3) (d). The choice of the term ‘objective elements’^[87] is, once again, curious. I think the items the Chamber discusses are examples of ‘conduct’ elements that would fit the category of ‘material’ elements in Article 30 of the Statute.^[88] Describing them as ‘objective’ is probably a lapse into the national thinking of the judges and the word ‘objective’ appears through the remainder of the relevant discussion. Perhaps the habits of a professional lifetime spent thinking in a particular way explain also why the judges go on to discuss the ‘subjective elements’ that must accompany these ‘objective’ ones, rather than the ‘mental’ elements of which Article 30 speaks. The ‘subjective elements’ of co-perpetration are said to be threefold: the suspect must fulfill the subjective elements of the crime in question; the suspect and the other co-perpetrators must all be mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime; and, the suspect must be aware of the factual circumstances enabling him or her to jointly control the crime.^[89]
The Chamber followed a comparable mode of analysis in the Katanga and Ngudjolo confirmation decision. The prosecution argued that the defendants were responsible either pursuant to Article 25(3)(a) as co-perpetrators of a common plan or under Article 25(3)(b) for ordering the commission of war crimes or crimes against humanity. Having found sufficient evidence to establish substantial grounds to believe the defendants were co-perpetrators, the Chamber could treat the prosecution’s alternative theory as moot.^[90]
In its examination of the elements of co-perpetration, the Chamber recalled its discussion in Lubanga Dyilo and insisted that the ‘control over the crime’^[91] approach was the one that best achieved ‘consistency with the Statute, which is the first source of applicable law for this Court under article 21(1)(a) of the Statute.’^[92] ‘Accordingly,’ the Chamber adds a little later, ‘assigning the highest degree of responsibility for commission of a crime – that is, considering him a principal – to a person who uses another, individually responsible person to commit a crime, is not merely a theoretical possibility in scarce legal literature, but has been codified in Article 25(3)(a) of the Statute.’^[93] The Chamber continues:

The most important reason for this Chamber’s deciding for this mode of liability is that it has been incorporated into the framework of the Statute. The crimes falling within the jurisdiction of this Court – those of ‘the most serious [...] concern to the international community as a whole’ [Article 5(1) of the Rome Statute], and which ‘threaten the peace, security, and well-being of the world’ [Preamble to the Rome Statute] – will almost inevitably concern collective or mass criminality. The Chamber finds that by specifically regulating the commission of a crime through another responsible person, the Statute targets the category of cases which involves a perpetrator’s control over the organisation.^[94]

In a strong reference to the need to apply the Statute as written, the Chamber distinguishes the case-law of the ICTY on co-perpetrators. In Prosecutor v. Stakic, the Trial Chamber of the ICTY had ‘relied on the liability theory of co-perpetration of a crime through another person as a way to avoid the inconsistencies of applying the so-called ‘Joint Criminal Enterprise’ theory of criminal liability to senior leaders and commanders.’^[95] This decision was reversed by the Appeals Chamber on the basis that this mode of responsibility did not form part of customary international law.^[96] Referring to this episode, the Pre-Trial Chamber reiterated:

However, under article 21 (1) (a) of the Statute, the first source of applicable law is the Statute. Principles and rules of international law constitute a secondary source applicable only when the statutory material fails to prescribe a legal solution. Therefore, and since the Rome Statute expressly provides for this specific mode of liability, the question as to whether customary law admits or discards the ‘joint commission through another person’ is not relevant for this Court. This is a good example of the need not to transfer the ad hoc tribunals’ case law mechanically to the system of the Court.^[97]

In Bemba Gombo, Pre-Trial Chamber II was prepared to accept the analysis of Pre-Trial Chamber I in respect of Article 25(3)(a) and co-perpetrators, in particular the centrality of ‘control over the crime’.^[98] The difficulty was that it was not persuaded that the Prosecutor had produced sufficient evidence to demonstrate that there were reasonable grounds to believe that the accused was criminally responsible on this theory. In particular, there had not been sufficient proof of intent or knowledge. Accordingly, the Chamber had to examine the alternative prosecution theory of liability via Article 28 as a military commander or one acting as a military commander. The relevant parts of Article 28 provide:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

• (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
• (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.^[99]

The Pre-Trial Chamber had commented earlier in its opinion on Article 28 (a) as an ‘unless otherwise provided’ example for the purposes of Article 30 of the Statute. It remarked that ‘the application of the “should have known” standard pursuant to article 28(a) of the Statute justifies a deviation from the default rule as it requires a lower fault element than that required under article 30 of the Statute.’^[100] Now the Chamber comments on the nature of this standard. It notes that Article 28(a) ‘encompasses two standards of fault element.’ The first, ‘encapsulated by the term “knew”, requires the existence of actual knowledge.’ ‘The second, which is covered by the term “should have known”, is in fact a form of negligence.’^[101]
Much more could be said about this groundbreaking discussion of Article 28 which will no doubt receive the careful attention of commentators. Suffice it for present purposes to note also the discussion of the causal connection required between the commander’s failures and the commission of the offences by subordinates. It cannot be the case that some stringent form of ‘but for’ causation is required. As the Chamber put it:

425. .... However, contrary to the visible and material effect of a positive act, the effect of an omission cannot be empirically determined with certainty. In other words, it would not be practical to predict exactly what would have happened if a commander had fulfilled his obligation to prevent crimes. There is no direct causal link that needs to be established between the superior’s omission and the crime committed by his subordinates. Therefore, the Chamber considers that it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under article 28(a) of the Statute.

426. Accordingly, to find a military commander or a person acting as a military commander responsible for the crimes committed by his forces, the Prosecutor must demonstrate that his failure to exercise his duty to prevent crimes increased the risk that the forces would commit those crimes. ^[102]

This is a very plausible reading of a provision in the Statute which does not appear to have much by way of preparatory history.

IV. CONCLUSION

It is very important, as the Chambers are discovering, that attention be given to the Statute and Elements that the drafters in fact adopted. They do not correspond exactly to any national system of law of which I am aware. But that is the point. For a structure and conceptual framework that is sui generis, it makes sense to try to get rid of one’s own intellectual baggage and come to terms with what was actually drafted.


ANNEX

IN-DEPTH ANALYSIS CHART OF INCRIMINATORY EVIDENCE^[103]

^[∗] Board of Governors Professor, Rutgers University School of Law, Camden, New Jersey. The author represented the Government of Samoa at Rome when the treaty setting up the ICC was finalized and in the drafting of the Elements of Crimes. Any positions expressed here should not be attributed to that Government.
^[1] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, art 9(1) (entered into force 1 July 2002). Paragraph 2 deals with the procedure for amendments. For The Elements see ICC, <http://www.icccpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf> , at 11 December 2009.
^[2] Adopted by consensus in the Preparatory Commission for the Court in 2000, The Elements were approved by consensus and without change at the first meeting of the Court’s Assembly of States Parties in 2002. See Roger S Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Criminal Law Forum 291; Roger S Clark, ‘Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Court’s First Substantive Law Discussion in the Lubanga Dyilo Confirmation Proceedings’ (2008) 19 Criminal Law Forum 519. Some of the material herein is adapted from those articles.
^[3] International Crimes and International Criminal Court Act 2000 (NZ), Section 12(1)(a).
^[4] Ibid Section 12(4)(a). See also Section 8 of the International Criminal Court Act 2007 (Samoa) (‘the court shall take into account any Elements of Crimes adopted and amended under article 9 of the Statute’).
^[5] Prosecutor v Thomas Lubanga Dyilo, ICC No. ICC-01/04-01/06, Pre-Trial Chamber I, Decision on the confirmation of charges, 29 January 2007 (‘Lubanga confirmation decision’).
^[6] Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC No. ICC-01/04-01/07-717, Pre-Trial Chamber I, Decision on the confirmation of charges, 30 September 2008 (‘Katanga and Ngudjolo Chui confirmation decision’).
^[7] Prosecutor v Jean-Pierre Bemba Gombo, ICC No. ICC-01/05-01/08-232, Pre-Trial Chamber III, Decision on the Submission of an Updated, Consolidated Version of the In-Depth Analysis Chart of Incriminatory Evidence, with Annex, 10 November 2008; Prosecutor v Jean-Pierre Bemba Gombo, ICC No. ICC-01/05-01/08-424, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009 (‘Bemba Gombo confirmation decision’). Pre-Trial Chamber III was merged into pre-Trial Chamber II on 19 March 2009, so the later decision was made by Pre-Trial Chamber II.
^[8] Prosecutor v Jean-Pierre Bemba Gombo, ICC No. ICC-01/05-01/08-232, Pre-Trial Chamber III, Decision on the Submission of an Updated, Consolidated Version of the In-Depth Analysis Chart of Incriminatory Evidence, with Annex, 10 November 2008.
^[9] Article 66(3) of the Rome Statute states: ‘In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.’ ‘Guilt’ seems to encompass all the ‘elements’ of the crime. ‘Elements’ are all those matters that the prosecution must prove in order to establish its case for criminal responsibility. See Clark, ‘Mental Element’, above n 2 at 317-9. An examination of Elements is crucial at all stages of the Court’s proceedings. At the stage of issuing a warrant, a Pre-Trial Chamber must be satisfied that there are ‘reasonable grounds to believe’ that the suspects are criminally responsible (art 58). At the confirmation stage, the issue is whether there are ‘substantial grounds to believe’ (art 61). At each stage, significant attention must be given to what the elements are that the prosecution must ultimately establish beyond reasonable doubt. A Trial or Appeals Chamber may ultimately analyze the relevant elements (and especially the evidence pertaining to them) differently, but the practice so far has been for the Pre-Trial Chambers to engage in a very sophisticated analysis of elements at the confirmation stage. In the Katanga and Ngudjolo Chui confirmation decision, above n 6,158-60, there are clear indications that prosecution, defence and counsel for victims reserved the right to make further arguments about the standards of liability at the trial stage. Thus, the discussions in the Pre-Trial Chambers represent, as one would expect, a first round – but a very helpful one. An attentive observer will want to follow developments in the Bashir case where the refusal of Pre-Trial Chamber I, by a majority decision, to issue a warrant for genocide has been appealed by the Prosecutor (a warrant was issued for war crimes and crimes against humanity). While disagreeing on how to assess to evidence, both the majority (Judges Kuenyehia and Steiner) and the dissent (Judge Usacka) make thorough use of The Elements. They differ on the interpretation of the controversial ‘contextual element’ that the relevant acts take place ‘in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.’ Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009.
^[10] Rome Statute, preambular paragraph 4.
^[11] They did not include any express reference to negligence in the Statute. But in Article 28(a) they did include what amounts to a negligence test in respect of the responsibility of military commanders (below n 101). The Elements include examples of a negligence standard as to some circumstance elements (below n 48-50). ‘Manifestly unlawful’ in Article 33 must also be a negligence test (a standard of ‘reasonable soldier in all the circumstances’).
^[12] The word ‘recklessness’ does not appear in the Statute. But in Article 28 (b) the drafters did include a type of recklessness test in respect of the responsibility of other superiors. A draft definition of (subjective) ‘recklessness’ carried forward to Rome was deleted when it was concluded that it was redundant, the term not appearing anywhere in the special part to which the definition could be applied: Per Saland, ‘International Criminal Law Principles,’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (1999) 189, 205. See discussion of recklessness issue below at n 19-25.
^[13] Article 30, headed ‘mental element’, provides:

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.
For a useful account of Article 30 by one of its principal drafters, see Donald K Piragoff & Darryl Robinson, ‘Article 30, Mental Element’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2^nd ed. 2008), 849.
^[14] ‘Unless otherwise provided’ is an enigma. It marks out the article as a default rule. But how is the default over-ridden? Obviously something could be otherwise provided, expressly and perhaps even impliedly, in another part of the Statute. But does the phrase permit reference out via the applicable law provisions in Art. 21 of the Statute to, say, the case-law of other tribunals? Could the Elements of Crimes make free use of such material, or strike out in new directions even in the absence of strong clues within the Statute? The way the committee structure worked in drafting the Statute, the drafters of the special part (mostly Foreign Office and Military lawyers) seemed determined to remain in ignorance of what their counterparts (mostly from Justice Ministries) were doing in the drafting of the general part. To the extent they used other language than that in the general part, it seems hardly to have been in a coherent effort to apply different mental elements in particular cases. For the most part, they tracked language aimed primarily at State responsibility contained in such instruments as the Hague and Geneva Conventions. The drafters of The Elements were reluctant to depart from the default rule of intent and knowledge without a good reason in the Statute or common sense. For a disputed departure, see below n 47-53 and 58 (imposing negligence liability). I believe that Gerhard Werle and Florian Jessberger, ‘‘Unless Otherwise Provided’: Article 30 in the ICC Statute and the Mental Element of Crimes Under International Criminal Law’, (2005) 3 Journal of International Criminal Justice 35, 55, grossly misstate the position of the drafters of both the Statute and the Elements when they conclude that ‘[i]n most cases, the mental element is “otherwise provided”’. They place great reliance on the special part language and on what they believe to be customary international law (found in case-law), and underplay what the drafters thought they were doing, including in removing the reference to recklessness at Rome. See also Otto Triffterer, ‘Can the ‘Elements of Crimes’ narrow or broaden responsibility for criminal behaviour defined in the Rome Statute?’ in Carsten Stahn & Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (2009) 381.
^[15] The negotiation of Article 30 had been concluded in the Working Group of the Whole in Rome using the term ‘physical element’ when someone in the Drafting Committee (apparently France) changed the terminology so that the non-mental elements became described as ‘material’ ones. Nothing substantive seems to turn on it, but the terminology is especially confusing to common lawyers, most of whom are not familiar with the usage. Care has to be used in distinguishing how ‘material’ is used here compared with the way it appears in other contexts. In the Model Penal Code, for example ‘material elements’ can include mental elements, physical elements and matters of justification and excuse. A ‘material element’ is ‘an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct’: Model Penal Code, § 1.13(9) and (10). In the MPC, the prosecution bears the burden of proof as to all elements (including jurisdictional ones,) and as to material elements there is a presumption that culpability of at least recklessness is required. Model Penal Code §§ 1.12 and 2.02(3). Thus, under the MPC as in most places, there can be strict liability as to jurisdictional elements.
^[16] The ‘and’ in ‘intent and knowledge’ was especially important for some civil lawyers. The common lawyers tended to see the concepts as alternative rather than cumulative and ‘knowledge’ as especially useful for thinking about the relationship of an actor and ‘circumstance’ elements. On the concept of a circumstance element, see below n 29.
^[17] Article 30(2).
^[18] Article 30(3). Note the overlap between intention and knowledge as to consequences in these definitions.
^[19] Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50^th sess, Supp. No. 22, 59, UN Doc A/50/22 (1995). General and specific intent were deemed too confusing as concepts and were not pursued. The age of responsibility was dealt with ‘jurisdictionally’ by denying jurisdiction to the Court over anyone under the age of eighteen at the time of the alleged commission of crime (Art 26).
^[20] Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. II, Compilation of Proposals, UN GAOR, 51^st sess, Supp. No. 22, 92, UN Doc A/51/22 (1996).
^[21] Ibid.
^[22] Decisions Taken by the Preparatory Committee at its Session held in New York from 11 to 21 February 1997, 27, UN Doc A/AC.249/1997/L.5 (1997). This version was accompanied by footnotes reading: ‘[f]urther discussion is needed on this paragraph’; ‘[t]he need for this paragraph will be re-examined once a decision has been taken on the definition of crimes’; and ‘[a] view was expressed to the effect that there was no reason for rejecting the concept of commission of an offence also through negligence, in which case the offender shall be liable only when so prescribed by the statute.’ The word negligence does not appear anywhere in the Rome Statute. See also above n 11.
^[23] Preparatory Committee on the Establishment of an International Criminal Court, Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, 59, UN Doc A/AC.249/1998/L.13 (1998). This version included the footnotes on need for further discussion and on retaining the possibility of negligence liability; it also had (in bold type) a note at the end reading ‘N.B. The inclusion of the notion of recklessness should be re-examined in view of the definition of crimes’. The drafters of the Nota Bene believed intent and knowledge to be a strong default rule and that any departure from it must find clear expression in an offence definition.
^[24] Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, 66, UN Doc A/CONF.183/2/Add. 1 (1998) (same as Zutphen with footnotes and Nota Bene as in immediately preceding footnote).
^[25] Saland, above n 12. There were no summary records made of the deliberations of the Working Group on General Principles, chaired by Ambassador Saland, so his account is the best record we have of the preparatory work.
^[26] Above n 24.
^[27] Report of the Preparatory Committee, above n 28.
^[28] Saland, above n 12, 205.
^[29] Circumstance elements are seldom explicated helpfully in legal pedagogy. They are such things as a ‘human being’ in homicide, or ‘property of another’ in theft. International crimes are rife with such circumstances – such as an ethnic group in genocide, a protected person in war crimes, a civilian population in crimes against humanity. See also n 43 below.
^[30] Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court: Addendum: Part II Finalized Draft Text of the Element of Crimes UN Doc PCNICC/2000/1/Add.2 (2000). ‘Contextual circumstances’ is a probably unnecessary separate category of ‘jurisdictional’ or ‘threshold’ circumstance items that give the crimes their ‘international’ character. There appear to be only three examples of the category in The Elements: a manifest pattern of similar conduct, in the case of genocide; a widespread or systematic attack against a civilian population, in the case of crimes against humanity; and an armed conflict (international or non-international) in the case of war crimes. They could just as easily have been lumped with the other circumstance elements. See also n 64 below.
^[31] In the Katanga and Ngudjolo Chui confirmation decision, above n 6,[296], Trial Chamber I asserts that ‘The Chamber also adopts the ICTY conclusion that “the conduct of the accused must be a substantial cause of the death of the victim”’. The Chamber’s authority for this is: ‘Dormann, K., Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge, p. 40, footnote 6 citing ICTY, The Prosecutor v. Delalic, Case No. IT-96-21-T, Trial Judgment, 16 November 1998, para. 4245 and ICTY, The Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Trial Judgment, 26 February 2001, para. 229.’ The statement is made in the context of the killing of protected persons. This view of causation (subject to debate about what constitutes ‘substantial’) probably reflects the position under the Rome Statute, although there is not much textual support one way or the other and the preparatory work is thin. Much of Dormann’s surrounding discussion of the jurisprudence of the ICTY and ICTR, however, (especially when it refers uncritically to recklessness liability) has to be re-evaluated in light of the specific language of the Statute.
^[32] Above n 5.
^[33] The crime is defined, identically for present purposes, in Rome Statute Article 8(2)(b)(xxvi) (in international armed conflict) and Article 8(2)(e)(vii) (in non-international armed conflict.)
^[34] For discussion of this issue, in this case and in the Katanga and Ngudjolo Chui case, see below n 69-97 (discussing ‘modes of liability’).
^[35] Lubanga Dyilo Confirmation decision, above n 5,116-24. The (original) French text of the judgment is to the same effect. It uses the terms ‘subjectif’ and ‘objectif’ rather than the Statute’s ‘psychologique’ and ‘matérial’.
^[36] The terms ‘subjective’ and ‘objective’ were often used during the debates pre- and at Rome, as were ‘physical’ and ‘mental’. Many of the later commentators use the same language. It is often unclear whether the differences in terminology mask quite different ways of thinking about the relevant concepts. The Statute settled for ‘material’ and ‘mental’. The common lawyers have had a hard time getting their collective head around the term ‘material’ and it looks as though some civilians do too. The reluctance to use the language of Article 30 is manifested also in the warrant decision in Bashir, above n 9.
^[37] Lubanga Dyilo Confirmation decision, above n 5, 57-101.
^[38] Below n 82-89.
^[39] Below n 54-57.
^[40] The Elements require that war crimes take place in the context of and be associated with an armed conflict. (‘Contextual circumstance.’)
^[41] Lubanga Confirmation decision, above n 5,118.
^[42] Ibid 119. ‘Volition’ is used here in the sense of an attitude towards the result, not as it is sometimes used in the common law to describe the voluntariness of an act (as opposed to acting, say, in a state of automatism).
^[43] Ibid. Speaking of ‘[bringing] about the objective [material] elements of the offence’ makes sense in respect of conduct or consequence elements. Typically, however, the actor does not ‘bring about’ circumstance elements such as an armed conflict or the age of a child soldier. The actor acts against the background of such circumstances. Article 30 of the Rome Statute itself fails to appreciate this problem; it speaks of the material elements being ‘committed.’ This must have been an oversight in the drafting – something more like ‘accompanied by’ captures the intended meaning better.
^[44] Ibid referencing: ‘The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeal Judgment, 15 July 1999, paras. 219 and 200; The Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Trial Judgment, 31 July 2003, para. 587’.
^[45] Ibid 119-20 (footnotes omitted). Cf. Kai Ambos, ‘General Principles of Criminal Law in the Rome Statute’, (1999) 10 Criminal Law Forum 1, 21-2 who finds no room in the Statute for recklessness or what he describes as the ‘higher threshold of dolus eventualis.’
^[46] Ibid 121.
^[47] Age must be a ‘material’ (‘circumstance’) element in terms of the structure of Article 30 and The Elements.
^[48] Other examples of ‘should have known’ are Elements Article 6(e); genocide by forcibly transferring children (perpetrator ‘knew, or should have known, that the person or persons were under the age of 18 years’); and Article 8(2)(b)(vii)-1, -2 and -4, war crimes of improper use of flags, insignias, emblems, etc. (‘perpetrator knew or should have known of the prohibited nature of such use’). They are all cases where mistake or ignorance is likely to be a defence and perhaps would be hard to refute in some cases.
^[49] Kevin Jon Heller, ‘Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis’ (2008) 6 Journal of International Criminal Justice 419, regards the negligence provisions as ‘almost certainly inconsistent with the Rome Statute’. Thomas Weigend, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 Journal of International Criminal Justice 471, 474 comments that the Chamber, in apparently accepting The Elements on their face, took ‘a far-reaching step that should have been accompanied by at least a modicum of explanation.’ See also next note.
^[50] Charles Garraway, ‘Article 8(2)(b)(xxvi) – Using, Conscripting or Enlisting Children’, in Roy Lee et al (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) 205, 207. For a sceptical view of the consistency of these provisions in The Elements with the Statute, see Matthew Happold, ‘Child recruitment as a Crime under the Rome Statute of the International Criminal Court,’ in José Doria, Hans-Peter Gasser and M Cherif Bassiouni (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (2009) 578, 597-9. See also Otto Triffterer, ‘Can the “Elements of Crimes” Narrow or Broaden Responsibility for Criminal Behaviour Defined in the Rome Statute?’ in Carsten Stahn & Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (2009) 381.
^[51] Lubanga Confirmation decision, above n 5,122.
^[52] Explaining the drafting convention on which The Elements are structured – using article 30 as a default position – paragraph 2 of the General Introduction to The Elements asserts:

As stated in article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below.
^[53] Lubanga Confirmation decision, above n 5,122. An armed conflict and a nexus to it are among the material (‘contextual’) elements contained in all of the war crimes provisions of The Elements. With respect to the existence of an armed conflict, the Chamber noted, ibid., that The Elements require only that ‘[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict,’ without going as far as to require that he or she conclude, on the basis of a legal assessment of the said circumstances, that there was an armed conflict. This is typical of a finesse often used by the drafters of The Elements to avoid the application of Article 32(2) of the Statute (on mistake of law) by characterizing the situation as one of fact. There may ultimately be some challenges based on whether this strategy is consistent with the Statute.
^[54] Katanga and Ngudjolo Chui confirmation decision, above n 6.
^[55] The section of the judgment on ‘Material Elements’ runs from ibid 71 to 155. In context, I think the term ‘material’ is used to describe everything that the prosecution must prove to establish a crime, including the necessary mental element or elements. If that is right, then the word ‘material’ is probably redundant – a ‘material element’ here appears to be what The Elements regards as an ‘element’. See above n 9.
^[56] At 71-5. This is an example of what The Elements call a ‘contextual circumstance’ – but the Chamber does not seem to use this characterization, or any other, simply accepting (correctly) that it is an element to be proved by the prosecution. There was evidence that the conflict could be described as both international and non-international at relevant times; the Chamber was content to accept that there were substantial grounds to believe that there was an international armed conflict going on.
^[57] The sub-heading on the threshold issue of the existence of an attack, ibid 125, is headed ‘Widespread or systematic attack directed against civilian population: contextual, objective and subjective elements.’ (Emphasis added.) This discussion includes an examination of the relevant provisions of the Rome Statute, The Elements, and case-law of the Tribunal for Former Yugoslavia on the question of what is meant by such an attack, plus a brief discussion of the requirement of knowledge on the part of the perpetrator, required in the chapeau to Article 7(1) of the Statute and explained some in The Elements.
^[58] Katanga and Ngudjolo confirmation decision, above n 6, 77, [251].
^[59] A very interesting discussion of Article 30, which makes extensive references to the Lubanga Dyilo confirmation decision, is Mohamed Elewa Badar, ‘The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective,’ (2008) 19 Criminal Law Forum 473, 475. Badar makes the point that the structure of the Statute ‘assigns different levels of mental element to each of the material elements of the crime in question.’ Thus, it is consistent with Article 30 for the mental element on ‘use’ to be some kind of intent, whereas the culpability element in respect of (knowledge of) age could be negligence (assuming the compatibility of negligence with other aspects of the Statute). To the same effect, see Bamba Gombo confirmation decision, below n 66.
^[60] Katanga and Ngudjolo confirmation decision, above n 6, 77 n 329. See also 179-80 and Judge Usacka’s Partially Dissenting Opinion at 217-8, both to the same effect. Judge Usacka replaced Judge Jorda, a member of the Chamber in the earlier decision, after his resignation from the Court.
^[61] Above n 7.
^[62] Above text accompanying n 9-31.
^[63] Below text accompanying n 98-102.
^[64] On this category of material elements, see above n 30. I believed them to be a redundant sub-category of circumstance elements, but given their presence in The Elements, the Chamber’s utilization of the category is entirely appropriate.
^[65] It is contained in Part VI of the judgment which deals with ‘Individual criminal responsibility’ and in particular Article 25(3)(a), but is of fundamental significance to the whole analysis.
^[66] Bemba Gombo confirmation decision, above n 7, [355].
^[67] Ibid [357-60] (footnotes omitted). The Chamber goers on to support the argument both with the plain language of the text and the preparatory work.
^[68] Clark, ‘The Mental Element in International Criminal Law’, above n 2, 302 n 37. ‘Knowledge’ thought of as ‘oblique intent’ is, however, a concept known to common lawyers through a classic article by Professor Glanville Williams cited by the Chamber: Glanville Williams, ‘Oblique Intention’, (1987) 46 Cambridge Law Journal 417.
^[69] The Elements of Crimes follow this drafting convention and use the term ‘perpetrator’ to describe such a person. Paragraph 8 of the General Introduction to The Elements notes:

As used in the Elements of Crimes, the term ‘perpetrator’ is neutral as to guilt or innocence. The elements, including the appropriate mental elements, apply, mutatis mutandis, to all those whose criminal responsibility may fall under articles 25 and 28 of the Statute.
For an excellent summary of the multifarious ways in which international tribunals have approached these issues of connecting various parties with ‘the crime’, see Steffen Wirth, ‘Committing liability in international criminal law,’ in Carsten Stahn & Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (2009) 329.
^[70] The Rome Statute applies only to natural persons. Some legal systems still have hang-ups about the liability of legal persons and an effort to include them in the Statute failed: Saland, above n 12,199. There are some obvious practical problems with dealing with corporations in an international court, such as who will ‘surrender’ them and how to punish them, but these are not insuperable. Among the NGO community, those who pushed hardest for responsibility of legal persons were those most concerned with finding ways to compensate victims of international crimes. The same was true of France and Solomon Islands which made the final unsuccessful efforts in Rome to include at least corporate responsibility. See generally, Joanna Kyriakakis, ‘Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare’, (2008) 19 Criminal Law Forum 115.
^[71] See William A Schabas, Genocide in International Law (Cambridge, 2000) 286:

Complicity is sometimes described as secondary participation, but when applied to genocide, there is nothing ‘secondary’ about it. The ‘accomplice’ is often the real villain, and the ‘principal offender’ a small cog in the machine. Hitler did not, apparently, physically murder or brutalize anybody; technically, he was ‘only’ an accomplice to the crime of genocide.
My impression is that many common law participants in the ICC negotiations did not appreciate the sharp way in which some, but not all, civil law systems tend to distinguish between principals and those who are linked by complicity. Such distinctions typically result in clear differences in the penalties to be imposed. The common law tends to treat them all as equally guilty, at most mitigating the penalty for peripheral participants as a matter of discretion at the penalty stage. See generally, Joshua Dressler, ‘Reforming Complicity Law: Trivial Assistance as a Lesser Offence?’ (2008) 5 Ohio State Journal of Criminal Law 427. For example, the New Zealand Crimes Act 1961, Section 66, treats everyone as ‘party to and guilty of an offence’ who actually commits, or who aids, abets, incites, counsels or procures another to do so. Similarly, the federal United States complicity statute, 18 U.S.C. Section 2, provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Many U.S. State statutes are to the same effect. See also, below n 76 and 77 for related complicity doctrines. While everyone is a ‘principal’ and liable to the same penalty in such ‘unitary’ jurisdictions, the categories are still significant for proof purposes – the prosecution must fit the accused into one or more of them. Indeed, in a jury trial it may be possible to leave the jury with alternative theories that are supported by the evidence. The Rome Statute has nothing in its substantive or sentencing provisions to indicate that the appropriate penalty turns on whether the actor is a primary or secondary party. Article 78 merely requires, in very general terms, that in determining the sentence, the Court shall ‘take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.’ At this stage of the development of the Court’s jurisprudence, the obvious question is what has to be proved to obtain a conviction. For sentencing purposes, the Court may later choose to create distinctions based on party status.
^[72] Saland, above n 12,199.
^[73] See generally, Shane Darcy, Collective Responsibility and Accountability under International Law (2007), Chapter IV (Conspiracy, Common Plan and Joint Criminal Enterprise Liability); Marja Lehto, International Responsibility for Terrorist Acts: A Shift Towards More Indirect Forms of Responsibility (2008) 216-32 (Joint Criminal Enterprise). See also the Tokyo Judgment which comes close to conflating this version of conspiracy and joint enterprise, Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008) 221-27; Wirth, above n 69, 332-4. In a very thoughtful discussion of the Pre-Trial Chamber decision in Lubanga Dyilo, Héctor Olásolo considers joint criminal enterprise to be a ‘principal’ theory and Article 25 (3) (d) a ‘residual form of accessory liability’. See Héctor Olásolo, ‘Developments in the distinction between principal and accessorial liability in light of the first case-law of the International Criminal Court’, in Carsten Stahn & Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (2009) 339, 349, 352. See also, Hector Olàsolo, ‘Joint Criminal Enterprise and its Extended Form: A Theory of Co-perpetration Giving Rise to Principal Liability, a Notion of Accessorial Liability, or a Form of Partnership in Crime?’ (2009) 20 Criminal Law Forum 263, 279 (discussing the branch of joint criminal enterprise (‘JCE III’) developed in the tribunals that extends liability to ‘those crimes (i) committed beyond the scope of the common criminal plan because they are not an integral part of it; but (ii) are, nevertheless, a natural and foreseeable consequence of its implementation’).
^[74] International Convention for the Suppression of Terrorist Bombings, opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001). Adopted by GA Res 52/164, UN GAOR, 52^nd sess, 72^nd plen mtg, A/RES/52/164 (1997).
^[75] Saland, above n 12,199-200.
^[76] Recognized as federal common law in Pinkerton v. U.S.[1946] USSC 113; , 328 US 640 (1946) and law in some states of the United States. It is rejected by the Model Penal Code and most state statutes based on that Code. See Wayne R. LaFave, Criminal Law (4^th ed. 2003) 684-86.
^[77] The nearest New Zealand equivalent, Section 66(2) of the Crimes Act 1961, casts a smaller net:

Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
The Samoan counterpart, Crimes Ordinance 1961, Section 23(2), is identical except that the words ‘was or ought to have been known’ replace ‘was known’ in the New Zealand section. Based on earlier New Zealand legislation, the Samoan negligence standard is potentially as broad in its effect as the Pinkerton doctrine in the U.S. The New Zealand and Samoan Acts do not use the term ‘conspiracy’ but the careful reader will notice the words ‘common purpose’ which turn up again in Article 25(3)(d) of the Rome Statute. Some versions of the common law felony-murder doctrine (in jurisdictions that have not abolished it) deal with the common purpose of say burglars and robbers as rendering secondary parties liable for homicide, even if that was the furthest thing from their minds. It is, in effect, strict liability as to the mental element of intent to kill. The intent to rob or burgle suffices, the prosecution not being required to show knowledge, recklessness or even negligence in respect of the intentions of the co-felon to kill or risk killing.
^[78] See Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN GAOR, 52^nd Sess, Supp. No. 37, 20, UN Doc A/52/37 (1997) (preliminary working document from Group of Seven major industrialized countries and Russian Federation) (word ‘conspiracy’ appears), 38 (proposal by United States) (concept but not word ‘conspiracy’), 39 (proposal by Italy) (closer to final version). The Terrorist Bombing provision (Article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombing, G.A. Res. 164, U.N. GAOR, 52nd Sess., Supp. No. 49, at 389, U.N. Doc. A/52/49 (1998), entered into force May 23, 2001) was in turn based on the Convention Relating to Extradition between Member States of the European Union, 27 September 1996, 1996 O.J. (C 313) 12 which represented some recognition of conspiracy by European States. Kai Ambos argues forcefully that, to the extent that JCE III (supra note 73) relies on a mens rea element of recklessness or dolus eventualis, it is incompatible with Article 25(3)(d) of the Rome Statute and its ‘knowledge’ standard. Kai Ambos, ‘Amicus Curiae Brief in the Matter of the Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav ‘Duch’ Dated 8 August 2008’, (2009) 20 Criminal Law Forum 353, 369.
^[79] Article III of the Genocide Convention requires the criminalization of two inchoate, or preparatory, offences, conspiracy to commit genocide and direct and public incitement to commit genocide. Direct and public incitement to commit genocide got carried forward into Article 25(3)(e) of the Rome Statute but conspiracy was lost. I think the explanation is that many participants were confused between conspiracy as inchoate offence and conspiracy as complicity and thought they had solved all the problems in Article 25(3)(d). See Clark, ‘Drafting a General Part to a Penal Code’, above n 2, 550-1.
^[80] Proposal Submitted by the United States of America: Draft elements of Crimes, U.N. Doc. PCNICC/1999/DP.4/Add.3 (1999). The Rome Statute, Article 9, required the drafting of Elements in respect of Article 6, 7 and 8. It is not unreasonable to believe that understanding those articles could be enhanced by spelling out the effects of Article 25 on them.
^[81] Entitled ‘Inchoate offences’, it actually dealt not only with the inchoate or preparatory offences of attempt (applicable to all treaty offences) and incitement to commit genocide, contained in paragraphs (3)(f) and (e) of Article 25 respectively, but also ‘solicitation’ and ‘aiding and abetting’ as modes of complicity (subparagraphs (b), (c) and (d)). It seemed to misunderstand the distinction between inchoate offences and complicity issues in general. It also treated incitement to genocide not as the inchoate offence that it is but as a mode of complicity. It did not deal with the problems of individual and joint responsibility contained in Article 25(3)(a) which have been the focus of the Lubanga Dyilo and Katanga/Ngudjolo Chui confirmation decisions. Perhaps it would be useful for the Assembly of States Parties to return to the subject at some point and create a working group to draft appropriate elements for Article 25(3).
^[82] Above n 5. There is a very rich discussion of this aspect of the Lubanga Confirmation decision in Weigend, above n 49, 476-487.
^[83] Ibid 110. At one point the Prosecutor had a ‘common purpose’ theory under Article 25(3)(d), but apparently abandoned it in favor of what was thought to be a stronger case. Ibid 109 n 406. Distinguishing between principals and accessories is much more significant for civil lawyers than for common lawyers. Above n 71. I think this helps explain why there is a heavy reliance on civil law jurisprudence and commentators in the Pre-Trial Chamber’s discussion. See below n 94. The Pre-Trial Chamber notes that Article 25(3)(a) ‘covers the notions of direct perpetration (commission of a crime in person), co-perpetration (commission of a crime jointly with another person) and indirect perpetration (commission of a crime through another person, regardless of whether that person is criminally responsible.’ Ibid 109. The Statute does not actually use the terms ‘perpetrator,’ ‘co-perpetrator’ or even ‘principal’; it speaks of one who ‘commits’ individually or jointly. Note the way The Elements define ‘perpetrator’, above n 69. The Chamber is here grappling (very thoughtfully) with what is there described as the mutatis mutandis issue – the retreat into Latin signifying that the drafters were not sure where they were going at this point.
^[84] Ibid 113.
^[85] Ibid. There is some obvious overlap here with those who order, solicit or induce (subparagraph (b)). It is typical of parties provisions at the domestic level such as those statutes in n 71, 76 and 77 above that they give prosecutors alternative theories to pursue.
^[86] Ibid 116-7.
^[87] I think the word ‘elements’ is used here the way it is used in arts 9 and 30 of the Statute, but it is possible that the judges have some other conceptual framework; certainly they are treating these items as matters that must be proved ultimately by the prosecution.
^[88] In examining the material elements of the offense as it would be carried out by a single perpetrator, the Chamber looks to The Elements and treats them as definitive. When it comes to the corresponding material elements that must be proved in respect of other parties, its instincts are surely right: there must be some mental and material (or objective and subjective) elements ‘out there’ that can be found in the language or the jurisprudence.
^[89] Lubanga Dyilo confirmation decision, above n 5, 118-24.
^[90] Katanga and Ngudjolo Chui confirmation decision, above n 6, 156-7.
^[91] In discussing the nature of ‘control’ involved, the Chamber invokes what may be regarded as three ‘circumstance’ elements – ‘control over the organisation’ (ibid 168-73), ‘organized and hierarchical apparatus of power’ (ibid 173-4) and ‘execution of the crimes secured by almost automatic compliance with orders’ (ibid 174-5). There is also a ‘conduct’ element: ‘The leader must use his control over the apparatus to execute crimes, which means that the leader, as the perpetrator behind the perpetrator, mobilizes his authority and power within the organisation to secure compliance with his orders. Compliance must include the commission of any of the crimes under the jurisdiction of this Court’ (Ibid at 174). These seem to be additional to the material/objective elements discussed in Lubanga Dyilo, above n 78, and discussed in Katanga and Ngudjolo 177-8, namely: existence of an agreement or common plan between two or more persons, and coordinated essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime. The mental/subjective elements that accompany these, as discussed in Lubanga Dyilo, above n 89, are reiterated here at 178-82.
^[92] Katanga and Ngudjolo Chui confirmation decision, above n 6, 161.
^[93] Ibid168. ‘Codified’ is perhaps a little too strong to describe the effects of the words ‘[c]ommits such a crime ... jointly with another or through another person’ – the words cry out for further exegesis and the preparatory work on them is rather sparse.
^[94] Ibid 169. In an omitted footnote to this paragraph and in a footnote that follows shortly after, the Chamber refers mostly to German scholars and to supportive decisions of the courts in Germany, Argentina, Peru, Chile and Spain. I am not aware of any common law decisions that articulate these principles. My hunch is that, given the way in which Anglo-American legislation has long treated the accessory like a principal, above n 71, there has simply been no need for the common lawyers to focus too precisely on who is a principal. The civil law doctrine that finds a way to class major participants as principals is the civil law’s way of arriving at the same end.
^[95] Prosecutor v Stakic, Case No. IT-97-24-T, Trial Judgment, 31 July 2003. Quote is from the Katanga and Ngudjolo Chui confirmation decision, above n 6, 171.
^[96] Prosecutor v. Stakic, Case No. IT-97-24-A, Appeals Judgment, 22 March 2006.
^[97] Katanga and Ngudjolo confirmation decision, above n 6, 171-2.
^[98] Bemba Gombo confirmation decision, above n 7, 116-8. (The Chamber here does, however, follow Pre-Trial Chamber I down the confusing path of speaking of ‘subjective’ and ‘objective’ elements, rather than ‘mental’ and ‘material’ ones.)
^[99] Rome Statute, Article 28(a). Article 28(b) deals with ‘superior and subordinate relationships not described in paragraph (a)’. Here the standard of responsibility is one of recklessness or dolus eventualis, as opposed to the negligence standard in paragraph (a).
^[100] Bemba Gombo confirmation decision [354]. On Article 30 as a default rule see also n 14 above.
^[101] Ibid [429]. Later the Chamber notes that it ‘is mindful of the fact that the ‘had reason to know’ criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the ‘should have known’ standard under Article 28 (a) of the Statute’ and raises the question whether the indicia developed by the ad hoc tribunals for assessing whether an accused ‘had reason to know’ are helpful in the present context. Ibid [434].
^[102] Ibid [425-6].
^[103] From the Annex of Prosecutor v Jean-Pierre Bemba Gombo, Decision on the Submission of an Updated, Consolidated Version of the In-Depth Analysis Chart of Incriminatory Evidence, 10 November 2008, above n 7. Note that ultimately the Chamber went beyond this Chart to consider the material also in the light of Article 28 of the Rome Statute.