Cross-posted at Opinio Juris.
I read with interest the debate between Kevin Heller and Bob Chesney on allegations that recent drone attacks have caused civilian casualties under disturbing circumstances.
My views are too extensive for the comments section, so I am taking the liberty of outlining them here — guest-blogger’s prerogative. Essentially, I think the issue boils down to intent — which the discussion in the comments section eventually worked its way around to – which is far more complex and thorny than some commentators realize. Suppose that the object of the attack is a combatant (or DPHer or CCFer), but that the attacker realizes that civilians might be killed as well.
It’s black-letter ICL that it is a war crime to intentionally direct an attack against civilians. Incidental killing of civilians is permissible if the civilian casualties are not “excessive in relation to the concrete and direct military advantage anticipated” in the words of the Additional Protocol, or “clearly excessive” in the language of the Rome Statute – i.e. a proportionality analysis.
The problem is the deep ambiguity over what is meant here by the concept of intent. The tension is compounded by the fact that the ambiguity stretches along two axes: across legal cultures and across bodies of law. Let me explain.
First, not every jurisdiction understands intent in the same way in its criminal law. The word is notoriously vague and can capture situations where the defendant desires a particular outcome as well as situations where the defendant is aware of the practical certainty of the outcome but is indifferent to the result. This is precisely why, for instance, the Model Penal Code abandoned the ambiguous language of intent in favor of the more precise categories of purpose and knowledge to capture these differences. (Dolus directus and dolus indirectus cover the same conceptual territory). So far, this is all U.S. Criminal Law 101.
On top of this ambiguity, there is the further issue of whether dolus eventualis qualifies as a form of intent. To a criminal lawyer trained in a civil law jurisdiction that uses dolus eventualis, it is fairly uncontroversial to consider dolus eventualis as a subcategory of intent. It is, after all, a form of dolus. But to a U.S. criminal lawyer, the idea that dolus eventualis is a form of “intent” is rather nonsensical. There are two positions on what dolus eventualis means. Either it accords with the common law concept of recklessness, or it is a distinct mental state that resides above recklessness (but below knowledge or dolus indirectus). If it is the former, it can’t be a form of intent, because acting recklessly is not the same thing as acting intentionally. If it is the latter, then it is an utter mystery because there’s no analogous U.S. criminal law concept that matches its exact contours.
It’s therefore no surprise that there’s substantial disagreement in both the case law and the scholarly literature over whether dolus eventualis is covered by Article 30 of the Rome Statute and its default rule on mens rea.
Now here’s the added complication. In addition to asking and answering these questions, a satisfactory theory of “intentionally attacking civilians” must also contend with the origins of this norm in International Humanitarian Law, in particular the Additional Protocol and the relevant customary norms. International criminal law borrows the norm from IHL and then adds an additional aspect: individual criminal responsibility for violations of the norm. But the norm itself comes from IHL.
So the relevant question is how the concept of intent, or the idea of “directing an attack” against civilians, is understood by IHL lawyers, and in particular how the concept was understood by the negotiators of the Additional Protocol and any other relevant treaty or convention. More specifically, were there differences between common law and civil law trained lawyers involved in these negotiations? This is a complicated question, especially since the preceding analysis, if it teaches us anything, teaches us that one cannot assume that each reference to the term “intent” – or any similar term – means the same thing. Different people mean different things when they talk the language of intent.
Ironically, comparative analysis because more difficult, not less difficult, when the participants are using the same terms. When they are using different terms, one can safely assume that they are referring to different concepts. But when they are using the same terms, one is often lulled into assuming that they are referring to the same concepts. Not so.
One might object that the reference to IHL is misplaced and irrelevant, because whatever the contours of the IHL norm, the Rome Statute drafters changed the norm when they crafted the relevant provisions of the Rome Statute. I think this is an unsatisfactory response. First, IHL remains an applicable body of law, and whatever the Rome Statute did, I do not think it changed IHL per se – it simply criminalized it. Second, it is fine if the contours of the ICL norm and the IHL norm diverge, but the usual pattern is for the ICL crime to be narrower, on the assumption that the prosecutor should meet additional requirements before punishment is warranted. In other words, its fine if ICL exculpates individuals whose conduct violates the norm as it exists in another body of law. But the opposite result would be curious. If ICL inculpates individuals who did not violate the norm as it exists in IHL, this would be an odd and uncomfortable result indeed.
I’ve tried to scrupulously avoid taking a stand on the final issue here. Rather, my point is to set the guideposts that a successful analysis should cover. It’s a daunting task in my view.