Translating Intent and the Concept of Desire in International Criminal Law

By Henry Off

I – INTRODUCTION

There exists a gap between the ordinary meaning of intention in its everyday use and its legal meaning.¹ The ordinary meaning connotes desire for a particular occurrence. Yet, what one does while knowing they are doing it need not require intention for this ordinary desire-based meaning of the term. In law, it is often required that the meaning of intention extends to situations lacking desire or purpose: where actors are aware that a consequence in the future is certain to result from their conduct, though it is undesired. This is a mental element often referred to as “oblique intent,” “indirect intent,” “dolus directus of the second degree,” “dolus indirectus,” or simply “knowledge.” For the purposes of convenience, I refer to this concept as knowledge-based intent.²

This extension and departure in law from the ordinary meaning of intent is present in almost every legal system. Yet, its status is not as clear as its definition. The House of Lords, for instance, is reluctant to consider this mental element as part of the definition of intent, and instead deems it a mere fact as a matter of evidence from which intent is inferred.³ Nonetheless, most states make a clear distinction between desire-based and knowledge-based intent, especially in respect of specific and serious offences. However, the basis of this article lies in a legal realm where this application is not so distinct. International criminal courts and tribunals, due to their wide nets of liability and the complex structural crimes under their jurisdiction, struggle with the concept of knowledge-based intent and have often applied it in inappropriate circumstances. I argue that this constitutes a slippage in the meaning of intent in international criminal law.

Why does this slippage occur and what does it mean? This article seeks to answer both these questions. To do so, it begins by providing a brief overview of the way that domestic jurisdictions define and distinguish mentes reae, particularly in respect of desire-based and knowledge-based intent. Second, it analyzes how the jurisprudence of international criminal courts and tribunals have situated desire-based and knowledge-based intent. Accordingly, it demonstrates that there exists a slippage in the distinction between desire-based and knowledge-based intent in the application of the law, particularly in respect of joint criminal enterprise liability and Article 30 of the Rome Statute. Third, it questions whether the reason for this slippage lies in the nature of international crimes themselves. Indeed, while international criminal law jurisprudence has often relied on the rules found in domestic jurisdictions to interpret statutes and fill gaps in the law, this domestic legal influence has brought with it conceptions that fail to appropriately translate to the realm of international crimes. In this regard, the article unpacks the conception of desire in the context of international crimes, demonstrating the social, structural, and practical realities for why and how its idiosyncratic nature cannot be captured by our traditional understanding of desire-based intent. Finally, I draw several conclusions from the article’s findings on both the slippage and the complex nature of desire.

By exposing these issues, it not only becomes clear that there is a legal and moral inadequacy of determining “desire” for international crimes, but also that the slippage and nature of desire reveals more fundamental enlightenments on the conceptions of knowledge and culpability in international criminal law, as well as the purpose of this field of law in general. It shows us that that there are unmentioned emphases at play in the determination of intent: dynamics that may involve the volitional mental element of acceptance and place undue stress on the importance of membership. Furthermore, it indicates that the high standards of culpability that we would expect from the most serious crimes known to humankind are morally inconsistent with one another when they equate desire to knowledge or acceptance. Finally, it reflects that international criminal law pursues evil conduct as opposed to evil individuals, legal simplicity as opposed to factual realities, and moral expressivism as opposed to ultimate blameworthiness.

II. THE DISTINCT LEVELS OF INTENT IN DOMESTIC CRIMINAL LAW

A. INTRODUCTION

Most jurisdictions make a distinction between situations where the perpetrator desires to cause the result of the offence and situations where the perpetrator is aware of the probability or possibility of that result and causes it nonetheless.⁴ It follows that the latter is insufficient for the convictions of certain crimes that require the level of intent found in the former. A common justification for this is that a person who intends to cause the result is more blameworthy than one who acts without intention per se, or with recklessness.⁵

Where then, do we situate knowledge-based intent, where the actor foresees the prohibited consequence as a virtually certain result (knowledge), and carries out the requisite conduct nonetheless? This section seeks to explain how different countries have approached the concept of intent, and particularly knowledge-based intent, as a requisite mens rea in criminal law. It illustrates the various terminology often encompassing these notions and highlights that most jurisdictions maintain a distinction between offences committed with and without desire for the consequence.

B. COMPARING DOMESTIC CONCEPTIONS OF INTENT

i. United States

Under § 2.02 of the Model Penal Code of the United States, culpability for a crime is only established if the perpetrator acted “purposely, knowingly, recklessly, or negligently…with respect to each material element of the offence.”⁶ First, this provision means that the United States subscribes to an element analysis approach, meaning that mental culpability must be proved for each material element of the offence; proving one state of mind for the entire offence is insufficient. It follows that the Model Penal Code distinguishes between the mental element related to the conduct or circumstances of an offence and the result of an offence.⁷

Furthermore, the provision demonstrates that depending on the specific offence alleged to be committed, different levels of culpability are required. What then, do these levels of culpability mean? First, “purposively” requires that the perpetrator consciously desired the result of the offence, regardless of the likelihood of it happening. Accordingly, a perpetrator cannot be culpable for causing the consequence if he foresees it, but it is not his conscious object or desire.⁸ This remains the same meaning when faced with purpose toward the conduct or circumstances of the offence. In the context of accomplice liability, the US takes the approach that the accomplice must have a “purpose” towards the proscribed conduct or result.⁹ Second, the distinction between “purpose” and “knowledge” is extremely narrow under the Model Penal Code, separated only by the presence or absence of desire to cause the result of an offence.¹⁰ Knowledge requires the perpetrator’s awareness that it is practically certain that his conduct will cause the result in question, whereas purpose requires culpability beyond knowledge of a near certain result. This requirement of high certainty is extended later in the Code to knowledge of “high probability.”¹¹ Notably, “knowledge” here does not require any volitional element with respect to the conduct or result. Third, the Model Penal Code places recklessness between “knowledge” and “negligence.” It requires the conscious disregard of a risk that the material elements of the offence exist or will result from his conduct.¹² This awareness need not be certainty, but rather a level of probability below it. The actor must subjectively be aware of the risk and consciously disregard it, distinguishing it from negligence, which requires that the actor fail to perceive the risk that he ought to have, an objective standard. Finally, it is worth noting that the term “wilfully” is generally excluded from the Model Penal Code’s levels of culpability, as it simply has far too many meanings. However, it is considered to encompass situations where the individual acted knowingly, unless stated otherwise.¹³

It is apparent from the Code that intent stricto sensu, in the form of “purpose,” has been distinguished from “knowledge.”¹⁴ However, while liability for crimes is often imposed based on either purpose or knowledge,¹⁵ there are multiple serious crimes that specify that knowledge is insufficient, such as in the highest degree of homicide or treason.¹⁶ Therefore, as knowledge can be equated to knowledge-based intent and purpose is desire-based intent, it is clear that US law does indeed divide them when faced with certain serious offences requiring a mental element beyond mere knowledge.

ii. UK and Canada

In the UK, intention is where the actor foresees and wills the criminal consequences of his conduct.¹⁷ However, the House of Lords determined in the infamous case of R v Woollin that intention covers both situations where the actor intends the result (direct intent) and where there is proof of foresight of virtual certainty (indirect intent).¹⁸ The Law Commission of England further specified that intention in situations where a “judge believes that justice may not be done unless an expanded understanding of intention is given,” can be found where the actor was aware that the result was a virtually certain consequence of her actions.¹⁹ This point must be nuanced by the determination in R v Jogee that foresight of a consequence is merely evidence from which an inference to the requisite intent can be drawn; it is not intention in and of itself.²⁰ Concerning accomplice liability, nothing short of an intention to assist or encourage the crime is sufficient for criminal liability.²¹ Recklessness, however, where the result is not virtually certain, cannot be sufficient for most serious crimes, including murder.²² It follows that the UK’s interpretation of recklessness is similar to that of the US, requiring the subjectively conscious taking of an unjustifiable risk.

Canada expands conceptions of intention further to include recklessness. Indeed, the courts have affirmed this in R v Vaillancourt, where it was not required that intention to cause death was present, but merely that the defendant was reckless as to whether death ensued.²³ The judgment of R v Martineau added that subjective foresight of death is the minimum mens rea fault requirement for culpable homicide.²⁴ While knowledge-based intention is largely undiscussed in Canadian criminal jurisprudence on the mens rea for murder, it has been acknowledged as sufficient for the wilful promotion of hatred in the judgment of R v Buzzanga and Durocher. Here, “wilful promotion” required proof of conscious purpose or proof that the actor foresaw the promotion of hatred as morally certain to result.²⁵

It is important to note how the UK and Canada conceptualize the “knowledge” as to circumstances or consequences, which is, in part, the mental element for aiding and abetting a crime. Both states deem that actual knowledge can be substituted by wilful blindness. The former requires that the actor is aware that the circumstance exists or the consequence will exist. The latter covers situations where the actor is on the verge of knowing but avoids taking steps that might confirm his belief that the circumstance exists or the consequence will exist.²⁶

iii. Germany

German criminal law recognizes two mentes reae: intent and negligence. There is no equivalent to recklessness.²⁷ Intent is made up of both a cognitive and volitional component.²⁸ Accordingly, intention (vorsatz) consists of actual knowledge of the material legal elements of the offence, combined with various levels of volition required for the crime.²⁹ German criminal law considers three levels of intent: dolus directus of the first degree, dolus directus of the second degree or dolus indirectus, and dolus eventualis.³⁰ First, dolus directus of the first degree is virtually equivalent to “purpose” in the US.³¹ It encompasses situations where the actor desires to bring about the result. It is considered to have a low cognitive component and a high volitional component.³² Next, dolus indirectus encompasses situations where the actor foresees the consequences of her conduct with certainty or high probability, a mental element akin to knowledge-based intent. Here, the cognitive element is high while the volitional element is seemingly constructed. Finally, dolus eventualis differs from recklessness in thatit is considered a level of intent and lacks any risk acceptance component. It consists of knowledge of a possible consequence of the actor’s conduct combined with a positive mental volition toward it, or in other words, approval or reconciliation with that possible outcome.³³ Accomplice liability, noted as secondary participation in German criminal law, includes an isolated liability mode for aiding. For aiding, the actor must have intent to both aid the perpetrator to commit the offence and he must intend the consummation of the main offence. The lesser forms of intent are sufficient in this regard.³⁴

For some offences, German courts interpret dolus directus of the first degree as knowledge-based intention.³⁵ However, courts exclude dolus directus in the second degree, the equivalent to knowledge-based intention, as a sufficient mental state for certain crimes requiring an ulterior intent, as well as for crimes where dolus directus of the first degree gives the offence its characteristic nature, such as murder. Accordingly, the Federal Supreme Court requires that intent must be interpreted according to the nature of the offence and the level of deterrence that the offence requires.³⁶

iv. France

Intention (dol) in France is made up of two main types: dol général and dol spécial. Dol means deliberate intention to commit a crime with knowledge of the certain conduct being prohibited combined with a willingness to carry it out. However, like Germany, these forms of intent are distinguished by the varying levels of awareness (cognitive element) and desire (volitional element). For dol général, the actor is aware (generally) that her conduct is unlawful and she possesses the desire to carry out the conduct but not achieve the result.³⁷ For dol spécial, the actor has the desire to achieve the result of the crime.³⁸ For instance, murder requires that the actor means for the death to result.³⁹ French commenters also recognize dol éventuel, where the actor foresees the possible criminal result without desire for its realization. However, this form cannot be used for most serious crimes such as murder, whether it is simple or aggravé.⁴⁰ Accordingly, although France lacks a definite conception of intent, it is clear that forms related to knowledge-based intent are insufficient for certain crimes requiring a dol spécial, such as murder.

French law also distinguishes between dol déterminé and dol indéterminé. The former requires the will of the actor for the unlawful consequence to occur. The latter encompasses situations where the actor “recherche un résultat délictueux sans toutefois être capable d’évaluer avec exactitude toutes les conséquences de son acte.”⁴¹ In other words, he does not realize the gravity or the extent of the consequences of his act.

v. China and Russia

China and Russia conceive of the various mentes reae in relation to the social dangerousness of the actus reus and the consequences of the crime.⁴² Both Russian and Chinese law, like common law, recognize two broad categories of guilt: intent and negligence. According to the 1997 Chinese Criminal Code, intention requires both a cognitive and volitional element, which legal theory on intent further divides into direct intent and indirect intent.⁴³ Similarly, the Criminal Code of the Russian Federation explicitly distinguishes the classification of intent into direct and indirect forms.⁴⁴ In both countries, direct intent refers to situations where the actor foresees that her conduct will inevitably or possibly cause a harmful consequence and she wishes for that consequence to come to fruition.⁴⁵ Thus, there is both a high cognitive and volitional element. Indirect intent only requires knowledge of a possibility that a harmful consequence will occur, and that the actor consciously accepts this. In China, for jointly committed crimes, the joint perpetrator must know that their actions lead to harmful consequences and must either desire or merely allow for those consequences to occur.⁴⁶ Conversely, in Russia, the accomplice, who is a co-executor of the crime, must intend and desire the commission of the acts committed by the executor.⁴⁷ In Russia, for certain crimes, such as murder, indirect intent is never a sufficient mens rea.⁴⁸

vi. Islamic-influenced Criminal Law

Islamic-influenced criminal law has a developing influence in several states, such as Egypt, Sudan, Libya, Pakistan, and Iraq.⁴⁹ Criminal responsibility in Islamic law emphasizes the importance of intent as a basis of fault.⁵⁰ Similar to France, it makes a distinction between general and specific intent.⁵¹ General intent requires the actor to intend to carry out the unlawful conduct but not to actually desire the resultant consequences of the conduct. Special intent requires that the actor intend a definite result of his conduct. As with other legal traditions, general intent is often a sufficient mens rea but is insufficient for certain crimes, such as murder.⁵² However, concerning the crime of murder, a unique hierarchy of intent is brought to the forefront. Deliberate homicide, according to several scholars, requires that the actor wills the death of the victim and also usually requires the use of a lethal instrument or method, where the latter component acts as an evidentiary inference indicating the absence or presence of the former component.⁵³ Then, quasi-deliberate murder involves an intended act without the intention for death to ensure, and some scholars believe that using a non-mortal instrument forms part of this determination.⁵⁴ Nonetheless, most of these matters are debated among the various schools of law and scholars. For instance, the Maliki school recognizes no difference between intending to kill and not intending it in the sense of quasi-deliberate murder.⁵⁵

vii. South Africa

South African criminal law, similar to several civilian jurisdictions, distinguishes broadly between intention and negligence, where intention is divided into dolus directus, dolus indirectus, dolus eventualis and dolus indeterminatus.⁵⁶ Here, dolus eventualis, where the actor foresees the possibility of the consequence of his conduct and reconciles himself to this, is a sufficient mental state for all crimes based on intention,⁵⁷ even murder.⁵⁸ However, there remain some offences which strictly require dolus directus, where the actor desires the result to occur.⁵⁹

C. CONCLUSION

As a result, it becomes clear that there are notable themes concerning the conception of intent and how it is extended away from the ordinary meaning of intent used in everyday life. First, some states extend the notion of intent even further beyond desire-based and knowledge-based intent; they may include notions such as recklessness or dolus eventualis. Second, there are varying levels of foresight required for the knowledge component of intent requirements. Should the actor foresee the criminal consequence as “morally certain” “probable” “possible” “virtually certain” or “certain?” Third, some legal systems place significant emphasis on the necessity of both a cognitive and volitional element for any mens rea, and the meanings of these elements vary significantly, particularly concerning the volitional element, which can potentially require “positive attitudes” or constructive acceptance based on the level of cognition toward criminal results. Finally, several jurisdictions maintain clear distinctions between desire-based and knowledge-based intent for specific and serious crimes. Yet, concerning the crime of murder, legal systems differ on what degree of intent is required for the most culpable type of murder; some employ more expansive concepts of intent as sufficient for murder while others accept nothing less than desiring the death.

III. THE SLIPPAGE OF DESIRE AND KNOWLEDGE IN INTERNATIONAL CRIMINAL LAW

A. THE DOMESTIC LEGAL INFLUENCE ON INTERNATIONAL CRIMINAL LAW

International criminal courts and tribunals often look to domestic rules and principles to fill gaps. The judicial processes at the International Military Tribunal (IMT), the International Military Tribunal for the Far East (IMTFE), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and other tribunals all consisted of determining and applying general principles of laws, as found in the domestic law of all civilized nations.⁶⁰ The various statutes of these tribunals were insufficient for comprehensive application⁶¹ and accordingly, judges had to innovate⁶² by employing general principles to fill gaps, interpret rules, and confirm decisions.⁶³

The processes of determining such general principles were often uncertain and unpredictable; judges relied on precedents and concepts native to their own domestic legal backgrounds, often monolingually.⁶⁴ Common lawyers, for the most part, had almost no training or familiarity with civilian traditions, and vice versa, let alone other legal traditions.⁶⁵ It is important to note that employing domestic rules is often used for interpretation of a rule rather than enquiring into the validity of it. The domestic norm need not be determined to be customary international law nor a general principle of law.⁶⁶ Such practices stem from the belief that international criminal law should and must answer the question, whether for reasons of aspiring to be a comprehensive body of law⁶⁷ or for reasons of uniformity, fairness, and the principle of legality.⁶⁸

In light of this, it is no surprise that the general incoherence on a standard definition of intent, or even mens rea in general, has extended from the domestic to the international sphere. The same variety of common law and civilian law terms, such as “direct intent,” “oblique intent,” “dolus directus,” and “dolus eventualis” were and are often used without regard to their different meanings in different legal systems. With particular regard to knowledge-based intent, this section provides an overview of how international tribunals have approached and blurred the distinction between desire-based and knowledge-based intent and reconciled with their diverse domestic influences.

B. GUILTY KNOWLEDGE IN THE NUREMBERG ERA

It is broadly accepted that the procedural safeguards and legal concepts of the IMT, IMTFE, and other trials conducted under Control Council Law 10 were often deeply flawed and not developed to the standards we would expect in strong democratic legal institutions today.⁶⁹ This is indeed reflected in the approach of these tribunals to the requisite mens rea for most crimes and modes of liability.

Several judgments from the post-World War II tribunals demonstrate that mere knowledge of crimes being committed, usually combined with participation, was decisive for determining criminal responsibility of several crimes. For example, the IMT convicted Julius Streicher for persecution as a crime against humanity because he had “knowledge of the extermination of the Jews in the Occupied Eastern Territory” and continued in his role nonetheless.⁷⁰ Where the defendant’s knowledge of the crimes was not established, the defendant was acquitted, such as demonstrated in the IG Farben case against Hjalmar Schacht.⁷¹ Even mere membership in a criminal organization entailed criminal responsibility if the defendant participated in the organization’s acts and knew about their criminal character.⁷²

For several modes of liability employed in particular, actual knowledge was sufficient to be convicted. To be convicted under the mode of liability of conspiracy, judgments held that knowledge of concrete Nazi plans to wage aggressive war was required for conviction.⁷³ The mens rea for command responsibility also held actual knowledge of the crimes to be sufficient.

Conversely, common plan liability in the post-WWII judgments has often been interpreted to require that the accused intended the commission of crimes forming part of common criminal plan among multiple individuals, a predecessor to the basic form of joint criminal enterprise (JCE I).⁷⁴ Indeed, the prevailing view today is that this form of liability requires all participants to share desire-based intent toward the core crimes of the common plan. Héctor Olásolo explains that this stringent intent requirement compensates for the low level of contribution required from a senior leader to be considered a member of the JCE.⁷⁵ However, a second reading of the common liability post-WWII judgments clearly demonstrates the sufficiency of determining knowledge of the core crimes as the requisite mens rea. For example, the Justice Case concluded that “the essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offense charged in the indictment and established by the evidence, and that he was connected with the commission of that offense.”⁷⁶ Likewise, the Einsatzgruppen Case determined that “[a]ny member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit.”⁷⁷ Finally, the judgment of the Medical Case convicted Ruff, Romberg, and Weltz for the high-altitude experiments at Dachau as part of a common plan. It was sufficient that “it was known to all concerned that the proposed experiments were certain to result in deaths.”⁷⁸ There was no suggestion that murder was an intended purpose of the plan, nor the means of achieving its purpose, but it was an inevitably known consequence.⁷⁹ The sufficiency of knowledge for common plan liability is demonstrated in a number of other post-WWII judgments.⁸⁰

Although, the issue of intent was sometimes raised, particularly by defence counsel,⁸¹ it was largely absent in the jurisprudence of Nuremberg-era tribunals, whether in the form of desire-based or knowledge-based. The cognitive element of the mens rea, knowledge of the criminal activities, was largely sufficient and overshadowed any volitional element, if any.

C. THE INTERNATIONAL CRIMINAL TRIBUNALS

“Justice was the Cold War’s casualty.”⁸² During the Cold War, there were several conflicts for which no international criminal tribunals were created. However, in the early 1990s, in the wake of conflict in the former Yugoslavia and Rwanda, the United Nations Security Council provided for the establishment of the ICTY and ICTR, respectively.⁸³ Not long after, the Rome Statute, establishing the ICC was adopted,⁸⁴ and several hybrid and special domestic courts were created for the purpose of pursuing criminal responsibility for individuals who committed war crimes, crimes against humanity, and genocide.⁸⁵

How do these courts and tribunals approach intent requirements of criminal responsibility? The answer is not simple; there is no general agreement on mens rea. Like the assessment on comparative domestic conceptions of intent, judges have employed a number of standards to trigger criminal responsibility, as well as a number of terms, including those found in both common law and continental jurisdictions.⁸⁶

i. Intent in the Jurisprudence of the ICTY and ICTR

Like domestic law, the required mens rea or level of intent for crimes at the ICTY and ICTR supposedly varied based on its nature and gravity. While most crimes seemed to allow either desire-based and knowledge-based intent as a sufficient level of intent, some extended the concept of intent to encompass situations of recklessness and dolus eventualis.⁸⁷ In a problematic way, the ad hoc tribunals have even, at multiple times, equated “indirect intent” with advertant recklessness and dolus eventualis.⁸⁸ On the other hand, some crimes have been treated to require desire-based and/or special intent. The role of intent in special intent crimes, other crimes, and modes of liability is addressed below.

First, there are certain crimes in the ICTY and ICTR Statutes that require proof of a specific intent in the mind of the accused. These include such crimes as torture, genocide, persecution as a crime against humanity, and the crime of terror against a civilian population.⁸⁹ For instance, to be convicted of genocide, the prosecution must establish that, in addition to the requisite mens rea for the underlying genocidal acts, such as killing or forcefully transferring a population, the accused must have, as a primary goal, to destroy in whole or in part, the protected group, as such.⁹⁰ However, there is significant debate as to whether a lower standard than desire-based intent (dolus directus of the first degree) is encompassed by this special intent (dolus specialis). Proponents of the “knowledge-based approach” argue that it is less relevant whether the accused acted with the special intent; instead, acting in support of the genocidal campaign which the accused knows to have a genocidal intent is sufficient to attribute criminal responsibility.⁹¹ Others place a strong emphasis on the need to determine direct intent (i.e., the accused must desire to destroy the group in whole or in part, as such).⁹² It is also evidenced in other special intent crimes, such as taking civilians as hostages, where the actor must detain hostages with desire-based intent, must threaten to kill, injure, or continue the detention of those hostages with desire-based intent, and must have as a primary purpose, the specific intent to obtain an advantage from a third party.⁹³

A further issue, however, arises when certain modes of liability allow for convictions of complicity or joint perpetration in genocide, and other special intent crimes, with a lower-level intent. Indeed, this has been the subject of much debate, particularly in respect of the third form of joint criminal enterprise (JCE III) and command responsibility liabilities.⁹⁴ For instance, the latter holds commanders directly liable for the conduct and mentes reae of others,⁹⁵ which has attracted criticism as a violation of the principle of culpability.⁹⁶ Similarly, the former does not require desire-based, or even knowledge-based intent for a collateral offence, such as genocide, of the core crimes of a joint criminal enterprise of which he is a part.⁹⁷ Its applicability to special intent crimes has been criticized as violating the principle of culpability, as well as connoting a logical impossibility, since the meaning and purpose of the “special intent” would be rendered useless.⁹⁸ Accordingly, JCE III liability for specific intent crimes was rejected, particularly for the crime of terrorism at the Special Tribunal for Lebanon, yet it remains available for other tribunals, including the recent and hybrid Kosovo Specialist Chambers.⁹⁹

Second, however, there are certain crimes within the jurisdiction of the ICTY and ICTR that have been argued as requiring desire-based or direct intent, and nothing lower than that. For instance, rape as a war crime or crime against humanity has been argued to require direct intent with regard to effect sexual penetration, as well as knowledge that the act was perpetrated without the consent of the victim.¹⁰⁰ However, as discussed below, where the ad hoc tribunals require direct intent or dolus directus of the first degree, it has not always been treated as such, particularly for co-perpetrators.

For most crimes, various levels of intent are sufficient. For the crime of wilful killing or murder, there is a general consensus that desire-based intent or knowledge that the death of the victim is the probable consequence of the perpetrator’s actions are both sufficient mentes reae.¹⁰¹ Elsewhere, the Stakic Trial Chamber found that convicting an accused for extermination requires the determination of either dolus directus or dolus eventualis, where the accused knew that extermination would be the probable outcome of his actions and accepts this.¹⁰²

Two significant issues arise from this expanded sufficiency of intent. First, it is often unclear how to determine the foresight of “probability” or “likelihood” or what level of clarity in foresight is required. Advertant recklessness and dolus eventualis are treated indifferently. They both require this indeterminate level of foresight, as well as an assessment of the probability of the risk that the consequence may occur. How this risk assessment is to be analyzed is also unsettled. Second, the ad hoc tribunals often refer to advertant recklessness and dolus eventualis as “indirect intent,”¹⁰³ a term often used elsewhere to describe knowledge-based intent, where the foresight is practically certain and not just probable. It follows that the Tribunal may often collapse the narrow distinction between desire-based and knowledge-based intent into the same level of dolus. It is also important to note that even where a high level of intent is required for the nature of the prohibited conduct, there may be a lower mental state required toward the actual result of the prohibited conduct, such as in the case of outrage upon personal dignity.¹⁰⁴

Finally, as expanded on below, international crimes are often committed on a massive scale or in the context of a larger incident. Tribunals thus takes a broad approach to how these crimes can be committed (i.e., through various forms of joint criminal enterprise liability) and how they can be aided, abetted, or otherwise assisted by an accomplice.¹⁰⁵

ii. Intent in Practice: Joint Criminal Enterprise

It has become clearer that through poorly translated domestic legal norms, unspecified intent requirements, and the application of far-reaching modes of liability, international criminal jurisprudence has produced a slippage in the distinction between desire-based intent and lower levels of intent, particularly concerning knowledge-based intent. The most revealing example of this slippage is found in the forms of co-perpetration liability, where co-perpetrators have been found to be guilty of crimes with a lower mental element, regardless of the fact that the crimes themselves require desire-based intent. Even if we reject JCE III altogether, as some tribunals have done,¹⁰⁶ the slippage still remains within more widely accepted modes of co-perpetration liability.

To illustrate, the basic form of joint criminal enterprise (JCE I) has been widely used and accepted by the various international criminal tribunals to prosecute individuals involved in all crimes. The actus reus components are comprised of three elements: First, it requires a plurality of persons.¹⁰⁷ Second, that plurality must have between them a common purpose that amounts to or involves the commission of a crime within the tribunal’s jurisdiction.¹⁰⁸ Third, the accused must participate and contribute to the execution of the common purpose.¹⁰⁹ The mens rea of JCE I requires that the accused must share a desire-based intent to commit the core crimes within the common purpose and the intent to participate in a common plan aimed at their commission.¹¹⁰ It follows that the requisite desire-based intent can be inferred from the accused’s knowledge and his/her continued participation.¹¹¹ However, this must be the only reasonable inference.¹¹²

While the language in the jurisprudence purports a requirement of desire-based intent for JCE I, this standard has not been applied in practice. Often, the jurisprudence has focused on deriving intent from knowledge and continued participation but abstains from clarifying if it is desire-based or not. For example, the Trial Chamber in Krajišnik stated that, “[w]ith acceptance of the actual commission of new types of crime and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.”¹¹³ Therefore, further crimes came to redefine the criminal means of the JCE’s common objective during the course of the indictment period, and the accused signalled an intent to continue pursuing the common objective. However, the mens rea requirements of these new crimes were assessed as dolus directus in the second degree. The Trial Chamber stated that the accused “wanted the Muslims and Croats moved out of the Bosnian-Serb territories in large numbers, and if suffering, death, and destruction were necessary to achieve Serb domination and a viable statehood, he accepted that many Muslims and Croats of all ages would pay a heavy price. He therefore had the mens rea required for the commission of the crimes…”¹¹⁴ This begins to resemble a situation where “the agent did not deliberately seek the outcome but knew that it would be the result”.¹¹⁵ In fact, several cases at the ICTY fail to articulate an intent. The Dordevic and Prlić et al cases failed to assess the mens rea of the accused in relation to the underlying crimes of a JCE I. Knowledge and participation in the crimes in pursuit of the common purpose were treated as covering the intent for each crime.¹¹⁶

Slippage from the requirements of desire-based intent have been significantly enhanced in the jurisprudence of the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL). The ECCC has found that lower levels of intent for the core crimes of a JCE I are sufficient, regardless of what is required for that crime.¹¹⁷ Similarly, the SCSL re-interpreted the requirement for a common criminal purpose at the core of the JCE, causing a breakdown of the distinction between the mens rea for JCE I and JCE III. A new set of language appeared at the SCSL, whereby a common plan must either have a criminal goal or “contemplate” that crimes might be committed in its execution.¹¹⁸ This formulation does not require that the accused agreed to commit a certain crime as the means or end. As a result, in Sesay et al, Augustine Gbao was found guilty under JCE I liability for crimes which he did not directly intend but merely “contemplated.”¹¹⁹

D. ARTICLE 30 AND THE INTERNATIONAL CRIMINAL COURT

In comparison, the ICC has been more open to the slippage of desire-based and knowledge-based intent. The ICC deconstructs the crimes under its jurisdiction into material elements that the Prosecutor must establish. Concerning the mens rea, most crimes require intent in relation to both conduct and a consequence and knowledge of the context. Such intent, according to the plain meaning of the chapeau element of Article 30 of the ICC Statute, requires proof of both cognitive and volitional elements in order to establish individual criminal responsibility for serious crimes.¹²⁰ However, Article 30(2)(b) states that even if the perpetrator does not intend the result to occur, he is considered to intend that result if he is aware that the consequence will occur in the ordinary course of events.¹²¹ Indeed, this is the language of knowledge-based intent or dolus directus of the second degree. For instance, a perpetrator who means to destroy a building, without the desire to kill the civilians who he knows are inside, is considered to intend the killing of civilians if he does so.¹²²

Such an interpretation may be contrary to the requirement of both a volitional and cognitive element, as the plain meaning of Article 30(2)(b) is akin to knowledge. Nonetheless, while excluding dolus eventualis, the ICC has affirmed that either desire-based or the knowledge-based dolus direcus of the second degree are encompassed within Article 30.¹²³ Thus, it has become apparent that this lower level of intent is sufficient to establish individual criminal responsibility for serious violations of international humanitarian law.¹²⁴

This slippage is reflected in the treatment of co-perpetration liability at the ICC as well. Concerning the doctrine of co-perpetration based on joint control, it is sufficient that the perpetrators and their associates are mutually aware and mutually accept the risk that executing the common plan will, in the ordinary course of events, result in the impugned crime.¹²⁵

E. CONCLUSION

In the end, it becomes clear that international criminal law jurisprudence has often blurred the distinctions between desire-based intent and its knowledge-based inferior. The post-WWII trials have had little to contribute to our understandings of intent, yet they maintained that knowledge was sufficient to establish international criminal responsibility. Likewise, while the ad hoc and other tribunals have often purported to impose desire-based intent for certain crimes and modes of liability, they have failed to live up to this standard in practice. Finally, the ICC has similarly accepted a level of intent akin to knowledge to establish international criminal responsibility for the most serious crimes known to humankind. While much of the uncertainty surrounding desire-based intent can be rooted in domestic law’s influence, it is nonetheless reflective of the sheer complexity and distinct nature of desire in the context of international crimes.

IV. THE NATURE OF DESIRE IN INTERNATIONAL CRIMINAL LAW

A. INTRODUCTION

If the difference between desire-based and knowledge-based intent is the presence or absence of desire for the result of the prohibited act, then what does this slippage in the distinction illustrate about the nature of international criminal law and those who it seeks to hold accountable? It is not merely a doctrinal phenomenon; it both affects and enlightens how we perceive intent. This section illuminates the distinct nature of international crimes, as well as its distinct conception of desire. Throughout, it reflects that international criminal law is not about holding criminal masterminds and evil zealots of the world accountable, but rather it is about dealing with the banality of evil and reducing complex collective crimes to individualized conceptions of guilt.

B. DISTINCT NATURE OF INTERNATIONAL CRIMES

International criminal law operates at the intersection of domestic criminal forms and concepts on one side and international criminal contexts and objectives on the other.¹²⁶ Yet, what are these international contexts and objectives that make it distinct from mere domestic crimes?

Although there is no uniform or fully coherent theory of international crimes, we often assume that what makes international crimes distinct is their particular heinousness, as well as the notion that they affect the international community as a whole.¹²⁷ Yet, some international crimes, like rape and murder, can be just as heinous or even less so that their domestic criminal law counterparts.¹²⁸ Accordingly, some refer to two main theories explaining the conceptual and distinct nature of international crimes. The first theory draws from the concept of malum in se, which essentially purports that international crimes are distinguished because of their inherent evil nature, independent of regulations governing the conduct.¹²⁹ The inherent evil nature is made up of the evil intent for these crimes against the fundamental values of humanity and dignity, their mass scale and gravity, and the shocking nature of these crimes against the conscience of humanity.¹³⁰ Indeed, this is what makes up the subject matter jurisdiction of international criminal courts and tribunals: genocide, crimes against humanity, war crimes, and aggression.¹³¹ Yet, who gets to decide what is and is not evil? For instance, international criminal courts and tribunals have considered environmental harm, for the most part indirectly, though its impact on humanity, its potential scale, and its shocking nature against conscience may be of much greater strength.¹³² Further, the malum in se theory fails to take into account that ‘evil’ crimes are not always committed by ‘evil’ individuals. As addressed below, they entail complex social and anthropological pressures that do not entail the evil and heinous intentions or motivations we might expect.¹³³

The second theory follows the malum prohibitum concept that international crimes are acts that are criminalized by international law, such as under the Genocide Convention or the Rome Statute.¹³⁴ Essentially, international crimes are distinct simply because they entail acts which give rise to criminal responsibility under international law rather than just domestic law. However, an act, under the malum prohibitum theory is often only considered a crime if is it labelled as such via codification.¹³⁵ Yet, some crimes in international criminal law are crimes without being codified in international treaties, such as several crimes against humanity. Accordingly, neither malum in se nor malum prohibitum, on their own, account for a coherent theory of international crimes.

Even without a coherent theory, international crimes can be distinguished by their structure. It is this structure that lends international criminal law its unique conceptions of desire, and the distinguishing structural features of international crimes are the contexts in which they are perpetrated, such as an armed conflict or a widespread or systematic attack.

For instance, a prohibited act may only qualify as a war crime when it is sufficiently connected to an armed conflict. The crimes must be closely related to the ill-defined “context of hostilities”¹³⁶ in which an international or non-international armed conflict is taking place.¹³⁷ Moreover, it requires multiple mental elements and components of knowledge. In the example of murder as a war crime in a non-international armed conflict, the perpetrator must have killed one or more persons who were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities with the requisite mental element, while being aware of the factual circumstances that established their protected status. Moreover, it must have taken place in the context of hostilities and was associated with a non-international conflict. The perpetrator must have been aware of the factual circumstances that established the existence of an armed conflict.¹³⁸ The Rome Statute, as a matter of policy, has additionally added that the Court “shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”¹³⁹

Similarly, crimes against humanity require contextual elements and awareness components. To be convicted of a crime against humanity: (a) there must be an attack; (b) the attack must be widespread or systematic; (c) the attack must be directed against any civilian population; (d) the acts of the perpetrator must be part of the attack; and (e) the perpetrator must know that his or her acts constitute part of a widespread or systematic attack directed against any civilian population.¹⁴⁰ Thus, the perpetrator must have both knowledge of a broader context in which the crime occurs in addition to the mental element required for the underlying crime.¹⁴¹

In approaching the structures of international crimes, it becomes apparent that these crimes do not result from the acts of single individuals but reflect manifestations of collective criminality.¹⁴² They require networks, where only some physically commit the crimes while others plan and organize the crimes, help facilitate them, or command their commission. Often, the degree of culpability depends on the structural relationship to the crime rather than the physical proximity or perpetration of it.¹⁴³ Further, it entails a number of complex social and power dynamics which both effect and illustrate the commission of these crimes. International criminal law responds to this collective reality by taking a broad view of how international crimes can be committed. It also encompasses a wide variety of secondary and participatory liability in addition to using constructive liability to hold commanders directly liable for crimes committed by their subordinates.¹⁴⁴

However, international criminal law’s image of the individual is often quite simplistic; it tends to downplay the complexity of human behaviour in light of the collective nature of these crimes and risks that individuals are held accountable for violations that transcend them.¹⁴⁵ For instance, to be convicted of a crime against humanity, it is irrelevant whether the accused intended to direct his acts against the civilian population or merely against his victim,¹⁴⁶ yet he is found to be guilty of the acts he commits as part of the attack. His crimes cannot be made sense of without viewing them within the wider context of the collective, yet his guilt is individualized. In other words, there is a thin line between responsibility for the specific act he committed and responsibility for a whole campaign of criminality culminating in crimes against humanity. It is but another perplexity reflecting the ambition of international criminal law to reduce these complex collective and multidimensional events to the normative terms and concepts found in domestic courts.¹⁴⁷

C. THE MEANING OF “DESIRE” IN INTERNATIONAL CRIMINAL LAW

In light of these complex collective and individual dynamics, where does desire come from in international crimes and what does it look like? In the legal sense, desire requires the subjective purpose or wish to perform some sort of conduct or cause some sort of result. Yet, in international criminal law, there are a number of components illustrating that it is not so simple, and our traditional understanding of desire does not match its reality.

i. Is Desire a Multi-Level Determination?

As a note on doctrine, there are several situations in international criminal law where a determination of intent is required for multiple components of the crime. For instance, some crimes against humanity, such as persecution, require general intent for the underlying offence, such as killing, as well as an aggravated criminal intent required by the offence.¹⁴⁸ Most notably, the crime of genocide requires the requisite mens rea to commit the prohibited act, as well as the dolus specialis to commit that act with genocidal intent.¹⁴⁹ If one were to follow the claim that dolus specialis naturally consists of desire-based intent, then the perpetrator’s desire would be assessed in relation to his aim to destroy in whole or in part, as such, an enumerated population. In addition, his intent for the underlying crime may also include an accompanying desire. For instance, imposing measures intended to prevent birth within the group would require desire on both these fronts (the act itself and the destruction of the group).

Accordingly, it is important to keep in mind that desire in international criminal law, like some domestic special intent crimes, often requires an additional desire for a greater goal or aim. Such multiple levels of desire however, become difficult to determine when low-level perpetrators are simply carrying out the genocidal desires of their totalitarian masterminds. This qualm has triggered calls for knowledge-based approaches to the genocidal mens rea. However, this certainly comes at a cost. As it has been seen elsewhere, this issue has come into question concerning the broad modes of liability with which international criminal law operates. In particular, the extended form of joint criminal enterprise tolerates a reduced mens rea for a co-perpetrator and its use has been discouraged by many scholars in the context of specific intent crimes like genocide and persecution.¹⁵⁰ Ultimately, its use risks violating principles of culpability and fair labelling by lumping together quite different levels of blameworthiness.¹⁵¹

ii. Can Desire be Completely Separated from Motive?

Usually, motive has no place in criminal law, but is it possible to isolate it from intent and desire in these situations? First, there is often a very thin line between motive and intent because of the collective context of international crimes and the dual intents required for certain crimes. In some situations, evidence concerning one’s motives serve as indicators of the genocidal intent to destroy.¹⁵² Ratner and Abrams provide an example:

“Where an attacker rapes a victim solely as an act of vengeance or hostility toward the victim, the rape is not genocidal, even if the attacker has selected the victim on the basis of her religion or ethnicity. On the other hand, if evidence suggests that the attacker committed the rape as part of an effort to drive the victim or members of her group into mental states that the attacker hopes will lead to the group’s destruction, a finding of genocide is justifiable…The line between intent, a relevant factor, and motive, an irrelevant one, may thus prove thin in practice.”¹⁵³

Nonetheless, the same motives may entail different intents and vice versa.¹⁵⁴ Accordingly, international criminal law is not concerned with why one commits an act, but rather merely that the act can be attributed to him.

However, while motive is often excluded from playing a role in the law, it plays a strong role in our moral convictions. In other words, motive may be irrelevant to the law’s depiction of an individual who committed wilful murder, but in our moral and humanist conceptions, desire and motive matter a great deal. In turn, our conceptions of the desire of the perpetrator are affected by the collective and power dynamics imposed on them.

Alette Smeulers identified common categories of perpetrators of international crimes, including: the criminal mastermind, the careerist, the profiteer, the fanatic, the devoted warrior, the professional, the criminal and sadist, the follower, and the compromised perpetrator.¹⁵⁵ Others have come up with similar archetypes, and as Michael Mann explains, these characterizations are almost always combined or mixed.¹⁵⁶ Yet, as a matter of human nature, we would not seek to place one, whose desire is founded in the “righteousness of murderous cleansing,”¹⁵⁷ in the same category as one whose desire is built from habitual obedience. Depending on the accused’s motivation or combination thereof, our moral convictions of his desire and guilt will vary even if our legal convictions do not. Despite this, our moral convictions matter very little in the legal realm, if at all.

iii. Is Desire Necessarily Evil?

As an extension of this point, we begin to see that desire to commit international crimes is not necessarily evil, even if the crimes themselves are evil as a whole. While defining the many atrocities that encompass the prohibited acts of international criminal law as crimes, we tend to view international criminal law as a body that deals with particularly evil criminality, where the evil mastermind and his vicious orcs face justice. Yet, as aforementioned, in light of the inherent social complexities and collective pressures found in the commission of international crimes, it is more often the case that the perpetrators lack these evil motives. Hannah Arendt’s famous study based on the Adolf Eichmann trial found that some of the most heinous crimes of the Holocaust were committed by ordinary individuals in pursuance of their orders and duties rather than by evil psychopaths.¹⁵⁸ Known as the “banality of evil,” this phenomenon has been depicted in subsequent mass atrocities and genocides of the world.¹⁵⁹

International criminal law deals with ordinary individuals in extraordinary situations.¹⁶⁰ Extending from the often systematic and collective criminality of these crimes, power and hierarchical dynamics create “crimes of obedience.” To provide a few examples, low-level perpetrators may commit crimes because they are part of a chain of hierarchy and are sanctioned in some way for non-obedience. International criminal law is sometimes criticized as promoting an unrealistic standard where soldiers are expected to constantly question and disobey orders that are manifestly unlawful, even where it may lead to physical harm.¹⁶¹ Conversely, sometimes individuals obey not because of authority but because of a shared identity in that institution, which in turn, affects their perception as to what is right and wrong.¹⁶² It follows that a further way of explaining such behaviour can be that the individual justifies their acts through factors such as dehumanization of the victims, where an entirely different value system is inherited.

iv. Is Desire Necessarily Guilty?

Accordingly, the banality of evil in situations such as the latter affects desire in the sense that one cannot be said to subjectively intend a wrong if they do not understand that their acts in and of themselves constitute a wrong at all. Malicious intent or desire is then judged by another value system, instead of the one in which the perpetrator acts, and thus, it depicts a maliciousness where there in fact was none. Is complete indifference toward a result truly malicious desire, in both a legal and moral sense?

Our moral values are produced from the social and cultural interactions in which we are immersed, and these interactions are the very objects of law.¹⁶³ Deviating from social norms constitutes wrongful or socially deviant behaviour, which is, in theory, reflected in governing legal relations. Criminal law then, is a formal or informal system of maintaining control over the social order of values.¹⁶⁴ It both signals and reflects what society deems to be wrongful behaviour. Yet, when a collective’s values have been swayed to a certain extent, the boundaries of wrongful behaviour may become incomprehensible to outsiders. Essentially, certain crimes may not be perceived as criminal conduct to the collectives involved in international crimes, as this behaviour is part of everyday life. As Arendt wrote, “where all, or almost all, are guilty, nobody is.”¹⁶⁵

The line between right and wrong deviates immensely in the context of international crimes for several reasons. First, the aforementioned power structure and assimilatory relations in an institution affect one’s moral values.¹⁶⁶ Second, this is often, in turn, brought on by the context of armed conflict. Armed conflict follows its own internal logic and tradition,¹⁶⁷ where killing is not merely permitted, but socially expected and often encouraged. It has often been found that the alternative normative order of war affects individuals’ abilities to appreciate what constitutes wrongful behaviour.¹⁶⁸ Third, international crimes often arise during epochs of significant change within states and regions. Periods of decolonization, regime changes, and revolutions often bring with them a stated and implemented set of norms and values that challenge the moral convictions once embodying everyday life.¹⁶⁹ The state often has a role to play in these value changes, reflected in law and institutions. Fourth, it follows that the state, and quasi-state structures, play a large role in signalling what criminal offences and wrongdoing looks like. In the context of international crimes, states and quasi-states are often involved in the criminal behaviour itself, or they might condone it.¹⁷⁰ In doing so, they legitimize behaviour that was once considered to be wrongful.¹⁷¹

Accordingly, both the legal and social norms governing the behaviour of those involved in international crimes can be swayed immensely to the point where murder is not perceived to be criminal. Desiring to kill civilians in such a world thus does not necessarily constitute subjective guilt.

v. Can Desire be Collective?

Does desire mean to commit a particular crime, or the ultimate goal of the mass atrocity? We often cannot make sense of an individual’s crime without the wider context of systemic or collective criminality. As illuminated in Section III, courts find it difficult, and often unnecessary, to determine desire-based intent or any level of intent beyond committing certain actions. Yet, these actions are perceived as exponentially more heinous if they are part of the broader wrongdoing, instead of taken alone.¹⁷²

Even the way that individual intent is inferred for international crimes comes from the actions and words of the larger group. The Akayesu Trial Chamber considered that intent is inferred from factors such as “the general context of the perpetration of other culpable acts systematically directed against that same group, whether… committed by the same offender or by others,” “the general political doctrine which gave rise to the acts,” and the “general nature” of the atrocities committed “in a region or a country,” etc.¹⁷³ Moreover, the fundamental functioning of joint criminal enterprise liability depends on the existence of a “common purpose,” whether it is a greater (motive-based) aim dependant on committing international crimes, or more narrowly, toward committing international crimes themselves.

This leaves us with the question: can desire itself be collective? On one hand, some commentators maintain that “collective intention” does not capture the collective nature of genocide; the collective acts of genocide exist only of individual intents and contributions.¹⁷⁴ Thus, “collective intent” serves only as a theoretical tool to grasp the complexity of international crimes; the individual intent is merely contextualized.¹⁷⁵

On the other hand, some believe that there is indeed such thing as collective intent. Individual decisions are informed by the group, creating a collective phenomenon where an entire mass is engaged as a perpetrator with an overarching intent.¹⁷⁶ Kai Ambos, however, points out the issue that international crimes do not always manifest in the same way.¹⁷⁷ Where Nazis perpetrated genocide through military hierarchical structures, Hutus perpetrated genocide through the masses.

E. CONCLUSION

It is impossible to ignore the collective’s influence on desire for international crimes. As demonstrated, desire is both informed by and reflective of the collective structures in which international crimes are mostly perpetrated. Desire is a multi-layered and complex component in international crimes, where motive cannot be separated, “evil” often cannot be found, and the perception of guilt or wrongdoing is only often generated from the outside. These determinations inform us of the role that knowledge plays in international criminal law, where these complex dynamics of desire are ignored in order to hold one’s conduct and membership accountable rather than one’s mind.

V. DISCERNING THE MEANING OF THE SLIPPAGE AND NATURE OF DESIRE FOR INTERNATIONAL CRIMINAL LAW

A. QUESTIONS MOVING FORWARD

Keeping in mind the idiosyncratic nature of desire in international criminal law, as well as what we know about the distinctions that domestic law draws between desire-based and knowledge-based intent and the slippage between these concepts to which international criminal law has contributed, we must now ask what it all means for this field of law in general. What does this tell us about the role of knowledge, the net of culpability, the purpose of international criminal law, and the appositeness of legal devices within this field of law?

B. TOWARD AN ACCEPTANCE-BASED UNDERSTANDING OF KNOWLEDGE?

What does unpacking the slippage and the nature of desire tell us about knowledge? Primarily, it becomes clear that replacing desire with knowledge to find individual criminal responsibility avoids the complexity of the nature of international crimes, as well as the unique conception of desire in this field. International criminal tribunals and courts reduce such convolutions to narrow and manageable structures in order to signal what behaviour is criminal. It follows that international criminal law may be more concerned with the element of cognition rather than volition. While many civil and international criminal jurisdictions maintain that the forms of intent require a cognitive and volitional component,¹⁷⁸ it looks as though knowledge-based intent lacks this volitional component on its own.¹⁷⁹

However, the dynamics of desire for international crimes tell us that perhaps what the tribunals and courts are really looking for when it comes to knowledge is “acceptance.” Evidence of knowledge and participation at the very least shows knowledge-based intent. Evidence of knowledge and participation at the very most shows desire-based intent. Perhaps, however, where the slippage converges, there is a constructed notion of acceptance. The notion of acceptance more adequately captures the range of desire found within international crimes: an actor can be said to accept a result whether he prefers it to happen, has no preference toward it, or actually resents its occurrence.¹⁸⁰ At the same time, acceptance is often considered a component of recklessness, but it is rarely stated in definitions of knowledge-based intent. This is because acting with knowledge-based intent, by its nature, necessarily includes acceptance (and not vice versa); being aware that a circumstance exists or that a result is practically certain, and continuing to act, constitutes acceptance.¹⁸¹ Therefore, if knowledge entails acceptance, and international criminal proceedings ignore a strict determination of desire in light of the collective and structural dynamics it encompasses, my proposition is that the slippage of desire-based and knowledge-based intent may converge at the (low) volitional element of acceptance for international crimes. Acceptance constitutes the crucial element of culpability in intent, whether as knowledge-based or desire-based.

However, determining knowledge and desire is based on membership – whether formal or operational – in international crimes. Does one’s acceptance of membership in an international crime, with full knowledge of the circumstances and result, constitute the level of intent required by international criminal tribunals and courts? Indeed, the main factors of evidence to determine knowledge and participation, and thus acceptance, are often found within narratives of membership in a joint criminal enterprise or other mode of liability. As is evident from the jurisprudence of the international criminal courts and tribunals, it is nearly impossible to escape criminal responsibility once one is a participating and aware member of a group that commits international crimes. Unpacking the importance of subjective and/or objective membership in determining guilt is perhaps deserving of its own essay, but it is important to note that such an element forms our understanding of desire-based and knowledge-based intent, and thus the acceptance that we are looking for.

C. CULPABILITY AND THE SHADES OF GUILT

What does bypassing the complex dynamics of desire in international crimes to rely on knowledge instead mean for our understandings of individual culpability? First, it functionally assumes that there is no difference in the culpability of those who desire a criminal consequence and those who are aware that the criminal consequence will occur with practical certainty yet proceed nonetheless. However, there are both legal and moral caveats to this equivalence.

Legally, the principle of culpability embraces the notion that the most severe crimes require the strictest requirements for convictions. The punishments, stigma, and labelling of a finding of individual criminal responsibility are so extreme given the nature of these crimes that labelling someone guilty should be done with the utmost care and certainty. The balance between international criminal law’s goals of deterring international criminal conduct and ensuring that no one is convicted for the most serious crimes known to humankind is a difficult one to strike.¹⁸² Yet, it is often the case in international criminal law that the logic of domestic culpability works backwards; because the crimes are so heinous, their vagueness and lack of strictness are excused. The slippage thus demonstrates not only the resentment of complex dynamics of mental elements, but of the faltering balance between the principle of culpability and the particular magnitude of international crimes. After all, the jurisdiction of the ICC concerns “the most serious crimes of concern to the international community as a whole,” and thus, some deem that “it is reasonable to accept that crimes committed without the highest degree of dolus ought as a general rule not to be prosecuted in the ICC.”¹⁸³ However, if one were to emphasize the importance of “acceptance” as the crucial element of what makes knowledge culpable, then does legally equating it to desire meet this aim?

Morally, is there a distinction between these two levels of intent? Generally, the answer depends on the nature of the crime at issue. Yet, for the serious and specific intent crimes found within the jurisdiction of international courts and tribunals, there is indeed a moral distinction, especially in light of the complex dynamics of desire and knowledge found in the contexts of international crimes. How can we legally equate the culpability of those who desire the consequence and those who merely know about it when these clearly consist of morally different levels of intent? Some scholars have attempted to unpack the moral distinctions between desire-based and knowledge-based intent using theory. For instance, Itzhak Kugler has used the doctrine of double effect developed from Catholic theology to emphasize a moral differentiation. This doctrine points to the notion of aiming for a morally good result; it is forbidden to kill someone with desire-based intention, but it is justified to act in order to achieve a good result, with the knowledge that the act will certainly cause the death of someone collaterally.¹⁸⁴ Of course, however, what is good is in the mind of the beholder and is especially fraught when one’s values system has changed.

Second, this moral distinction points toward the challenges of fair labelling and guilt in international criminal law. There are many shades of guilt, where one can be an evil mastermind and another just someone following orders, yet they can be charged with the same crime and convicted of it with the same liability. Of course, aggravating factors, including evidence of heightened desire, may make differences at the sentencing stage, but the label of a crime matches the accused’s guilt regardless of the number of years behind bars,¹⁸⁵ and who is to say that the sentencing court will consider the complex dynamics of desire? Lumping together these different levels of blameworthiness in a JCE I thus equates them into one. This equation may also come to light if the knowledge-based approach¹⁸⁶ to determining responsibility for genocide replaces the intent-based approach that fits its purpose, specificity, and magnitude. The slippage thus may reflect the potential of breaching the obligations of criminal processes to defendants in properly labelling their criminal conduct – an obligation based in human rights.¹⁸⁷

D. REFLECTING THE BROADER PURPOSES OF INTERNATIONAL CRIMINAL LAW

“International law is constantly about something else than what it seems.”¹⁸⁸ In this regard, what does the slippage of desire-based and knowledge-based intent tell us about the greater goal ambiguities of international criminal law? First, international criminal law struggles immensely with, on one hand, the concepts of individual criminal responsibility within a collective and contextual system of social pressures, norm evolutions, and social identification, and on the other hand, determining what constitutes international criminal behaviour. Blurring the definition of intent, however, demonstrates that within these dynamics, international criminal law is not so much about holding to account evil masterminds and fanatical zealots, but rather members of social and political interactions in which one’s knowledge tells us everything we need to know about them. Individual criminal responsibility flows not from an evil mind, but from the evil knowledge and conduct, reflecting the banality of evil in its legal form. It follows that the convictions that come with this understanding are more about signalling and deterring international criminal conduct rather than about holding accountable those who are legally and morally guilty of it.

Second, the slippage and complex dynamics of desire reflect that international criminal law is concerned more with capturing the dynamics of an international crime in law rather than in its factual reality. International criminal courts and tribunals attempt to construct an individualization of roles and responsibility through reducing complexity to manageable and tangible narratives.¹⁸⁹ In doing so, they lose track of determining the true collective and multilateral nature of the mens rea in international crimes. This non-legal route would allow greater leeway to analyze complexity and demonstrate more factually realistic conceptions. Yet, international criminal tribunals have chosen the former path.

Finally, however, if the societies in which international crimes are perpetrated possess a system of values altered by conflict, change, social identification, and authority, international criminal law represents a mechanism meant to refine the system of values that was lost. By disregarding the dynamics of desire and knowledge in the context of international crimes, international criminal law strengthens the conceptions of what conduct is right or wrong as an untouchable system of moral values. In other words, the expressivism of moral values within international criminal trials are more important than the culpability and responsibility of the individuals that they convict.¹⁹⁰

VI. CONCLUSION

The ultimate revelation that this article has attempted to indicate is that our domestic and international legal devices cannot truly capture the complexity and idiosyncratic nature of intent for international crimes. Payam Akhavan has written at length about reducing the reality and moral implications of genocide in the non-legal sense to the technical terminology of the crime of genocide in the legal sense.¹⁹¹ The same reasoning can be applied here. Using terms such as intent, knowledge, and desire are complicated by multilateral determinations, collective dynamics, inseparable motives, changing values systems, and the diminished role of the individual. These differences are so much so that both our ordinary and legal conceptions of these terms cannot capture the dynamics at work. If any reconciliation should occur, it must account for these dynamics in the very law that defines them.

Simply put, what has also been revealed is a greater understanding of international criminal law in general. First, there are unmentioned emphases at play in the determination of intent: dynamics that may involve the volitional mental element of acceptance and place undue stress on the importance of membership. Second, the high standards of culpability that we would expect from the most serious crimes known to humankind are morally inconsistent with one another when they equate desire to knowledge or acceptance. Finally, international criminal law pursues evil conduct as opposed to evil individuals, legal simplicity as opposed to factual realities, and moral expressivism as opposed to ultimate blameworthiness.

Endnotes