The International Court of Justice (ICJ) will soon issue a judgment in the case brought by the Gambia against Myanmar involving serious allegations of genocide committed against the Rohingya group. This article revisits a technical issue that the ICJ may wish to clarify in its final judgment. Genocide involves the commission of an underlying act both with the general intent to commit the underlying act itself and with the specific intent to thereby contribute to the destruction of a group in whole or in part. This article concerns the general intent involved in the underlying act of “killing members of the group” under article 2(a) of the Genocide Convention.
In a previous article, I argued that general intent to kill is a broad concept that includes direct intent (dolus directus in the first degree), oblique intent (dolus directus in the second degree), and extreme recklessness (dolus eventualis). In other words, general intent to kill includes the aim or purpose to cause death, awareness that death will result in the ordinary course of events, as well as conscious disregard of a serious risk of death manifesting extreme indifference to human life. This interpretation is well-established in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). This somewhat technical point of law may be practically important when leaders intend to destroy a substantial part of a group by steering soldiers toward committing indiscriminate or disproportionate attacks. In such cases, soldiers may act with extreme indifference to life rather than with direct intent to kill.
In their written submissions and oral arguments, the Gambia and Myanmar approach the issue of general intent to kill from a different direction. Myanmar put forward two propositions. First, Myanmar writes that “an act will not fall within Article II (a) unless the killing is unlawful” and rejects the view “that Article II (a) of the Convention includes any killing of any civilian in an armed conflict, even when lawful under international humanitarian law (for instance, in the case of legitimate collateral civilian casualties in an armed conflict).” Second, Myanmar writes that article 2(a) “does not extend to civilian deaths caused by a military attack, if the military attack was exclusively directed at military targets, and the civilian casualties were not caused deliberately.” The Gambia does not dispute these two propositions (see here, here, and here). Instead, the Gambia argues that “Myanmar’s attacks were not exclusively directed at military targets and were undertaken with knowledge and intent that they would cause serious civilian casualties among the Rohingya.”
This article revisits the Court’s caselaw on general intent to kill in the context of armed conflict. It confirms that general intent to kill is a broad concept which applies to attacks committed with direct intent to kill civilians, oblique intent to kill civilians, or reckless disregard for civilian life. It shows that attacks which violate international humanitarian law typically involve general intent to kill, while attacks which conform to international humanitarian law typically do not involve general intent to kill. Importantly, it clarifies that article 2(a) does not typically extend to attacks which are both “exclusively directed at military targets” and otherwise consistent with international humanitarian law. In contrast, attacks which are directed at military targets but which violate other rules of international humanitarian law, and which consciously disregard grave risk of avoidable or excessive civilian harm, typically fall under article 2(a). Some exceptional cases will be discussed later. First, the Court’s caselaw will be revisited and explained.
The Caselaw
In Bosnia v. Serbia, the Court held that
“Killing” must be intentional … The acts, in the words of the [International Law Commission], are by their very nature conscious, intentional or volitional acts.
Here are the words of the International Law Commission, cited by the Court:
The prohibited acts … are by their very nature conscious, intentional or volitional acts which an individual could not usually commit without knowing that certain consequences were likely to result. These are not the type of acts that would normally occur by accident or even as a result of mere negligence. However, a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited act…. an individual incurs responsibility for the crime of genocide only when one of the prohibited acts is “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such”.
The first half of this passage establishes that general intent is a broad concept. At a minimum, general intent includes intentionally engaging in conduct (such as shooting or shelling) with knowledge or awareness of the likely or probable consequences (death) but excludes accident and negligence. The second half of the passage clarifies that the breadth of the general intent requirement is offset by the narrowness of the specific intent requirement. General awareness of the probable consequences for immediate victims must be shown to co-exist with the specific intent to destroy their group in whole or in part. The Court presumably intended to adopt the ILC’s broad notion of general intent.
In the remainder of its judgment, the Court did not expressly analyze general intent to kill. No doubt, the execution-style killings committed in Srebrenica and other localities were committed with general intent to kill on any understanding. Importantly, the Court found that the shelling of Sarajevo resulted in the killing of many Bosnian Muslim civilians. The Court cited the ICTY Trial Chamber’s finding in Prosecutor v. Galić that civilians were “directly or indiscriminately attacked.” In that case, the ICTY understood “indiscriminate attacks” primarily as “attacks which strike civilians or civilian objects and military objectives without distinction” (Galić, para. 57), referring at times to “indiscriminate or random shelling” (Galić, para. 584) with “inaccurate weapons” (Galić, para. 644). The ICTY found that indiscriminate shelling satisfied the elements of the war crime of attacks on civilians. As the ICTY explained, “these acts were wilfully directed against civilians, that is, either deliberately against civilians or through recklessness” (Galić, para. 596). Direct intent was not required, and recklessness was enough. In two cases, an attack was found to be “indiscriminate as to its target (which nevertheless was primarily if not entirely a residential neighborhood), and was carried out recklessly, resulting in civilian casualties” (Galić, paras. 345, 410). The simplest explanation for the Court’s reliance on Galić is that the Court considered that “killing” members of a group under the Genocide Convention involves substantially the same mental state as the war crime of attacks on civilians, namely wilfullness (direct intent and recklessness).
The Court also found that “the shelling which hit the Markale market on 5 February 1994, resulting in 60 persons killed and over 140 injured, came from behind Bosnian Serb lines, and was deliberately aimed at civilians,” again citing Galić. In that case, the ICTY noted that a nearby building had “manufactured uniforms for the police and the army” but concluded that “in any case it is not reasonable to consider that the employees of such a manufacturing plant would be considered legitimate targets” (Galić, para. 495). In other words, even if the attackers aimed at the building, not the market, they would still be guilty of the war crime of attack on civilians because they would have been reckless in disregarding the risk that the employees were civilians. As the ICTY repeatedly found, wilful attacks on civilians include sniper attacks directed at individuals in reckless disregard of the possibility that the individuals are civilians (see Galić, paras. 317, 355, 523, 543, 743). The Court’s repeated reliance on Galić indicates that such wilful attacks are committed with general intent to kill.
To sum up, the Court in Bosnia v. Serbia appeared to endorse the broad concept of general intent to kill of the ILC and the ICTY, one which includes recklessness while excluding negligence and accident.
In Croatia v. Serbia, the Court found that article 2(a) involves “intentionally killing members of the group,” citing the passage of Bosnia v. Serbia discussed above as well as the ICTY Trial Chamber’s judgment in Prosecutor v. Blagojević and Jokić. As I discussed in my previous article, the ICTY found that “killing” as an element of genocide means the same thing as “murder” as an element of crimes against humanity. Murder, in turn, can be committed with either dolus directus or dolus eventualis. Presumably, the Court intended to adopt the ICTY’s broad concept of general intent.
In its consideration of Croatia’s claims against Serbia, the Court made no express findings of general intent. The many execution-style killings of Croat civilians were committed with general intent on any plausible interpretation. The Court also found that the shelling of Vukovar resulted in the killing of Croat civilians. The Court relied on the ICTY Trial Chamber Judgment in Prosecutor v. Mrkšić et al. to find that “the attack … was not confined to military objectives; it was also directed at the then predominantly Croat civilian population.” It is important to understand that, in Mrkšić, the ICTY found that the siege and shelling of Vukovar, taken as a whole, constituted a widespread or systematic attack against a civilian population within the definition of crimes against humanity. The ICTY accepted that the “system of attack” involved “shelling for several days, mostly aimed at the Croatian parts of the village,” often hitting churches, to pressure the population to turn over any weapons in their possession prior to the entry of ground forces (para. 43). However, the ICTY did not find that specific acts of shelling were committed with the direct intent to kill. On the contrary, the ICTY found that the shelling was carried out “in an indiscriminate way, contrary to international law” (para. 472). This suggests that specific acts of shelling may have been committed with direct intent, oblique intent, or dolus eventualis, combined with knowledge of the broader attack on the civilian population (para. 439). The Court favorably quoted the ICTY’s finding, indicating that indiscriminate shelling that causes death constitutes “killing” under the Genocide Convention.
In its consideration of Serbia’s counter-claims against Croatia, the Court expressly found, for the first time, that general intent to kill had not been established. Serbia’s primary argument was that “Croatian armed forces indiscriminately shelled several towns and villages in the Krajina, an area with a majority Serb population,” and that the shelling “aimed both at military targets — where these existed — and the civilian population, causing a large number of deaths among civilians.” The Court rejected Serbia’s primary argument, writing that it was “unable to find that there was any indiscriminate shelling of the Krajina towns deliberately intended to cause civilian casualties” as Serbia alleged.
Serbia argued in the alternative that, even if the shelling was “not indiscriminate, and thus lawful under international humanitarian law,” it would still fall under the Genocide Convention. In oral proceedings, Serbia framed the issue as follows:
Let us assume, for the sake of argument, that the artillery bombardment of the four towns was entirely consistent with the laws or customs of war. Let us assume that only military objectives were targeted, and that the choice of weapons was proportionate, aimed at minimizing collateral damage, in particular towards non-combatants.
According to Serbia, “’[t]here is nothing inconsistent in the proposition that the law of armed conflict was observed, the jus in bello, and yet that the attack itself was unlawful in that it sought to destroy the Serb population of the Krajina, in whole or in part.” Simply put, Serbia argued that attacks that fully comply with international humanitarian law can nevertheless constitute “killing” under the Genocide Convention.
In response, Croatia agreed that “[t]he issue” before the Court was “whether the artillery attacks were legitimate and thus lawful, or indiscriminate and thus unlawful.” Croatia maintained that “killing” as an element of genocide presupposed that “the death must have resulted from an unlawful act or omission.” Croatia insisted that “[t]he shelling was carried out in compliance with applicable international rules. Artillery was used to engage legitimate and pre-determined military targets” and any munitions that missed their targets fell within an acceptable margin of error.
The Court rejected Serbia’s alternative argument. The Court wrote that “killing” under the Genocide Convention
presupposes the existence of an intentional element … namely the intent to cause death. It follows that, if one takes the view that the attacks were exclusively directed at military targets, and that the civilian casualties were not caused deliberately, one cannot consider those attacks, inasmuch as they caused civilian deaths, as falling within the scope of Article II (a) of the Genocide Convention. (citation omitted)
In context, the meaning of this passage is clear. The Court accepted Croatia’s position that the shelling fully complied with all applicable rules of international humanitarian law. Among other things, this meant that Croatian forces exclusively directed their attacks at specific military objectives, using reasonably accurate weapons. If some munitions missed their targets and struck civilians instead then any civilian deaths were the result of accident, or at most negligence, and not of direct intent, oblique intent, or dolus eventualis. In this light, the passage is consistent with the broad view of general intent shared by the ILC and the ICTY and with the Court’s other findings regarding artillery shelling committed with general intent to kill.
Out of context, the meaning of the passage is ambiguous and easily misunderstood. Is an attack “exclusively directed at military targets” if the attackers use highly inaccurate weapons, forego feasible precautions to minimize civilian harm, or foreseeably cause disproportionate civilian harm? Are civilian casualties “caused deliberately” if the attackers recklessly disregard the possibility that targeted individuals are civilians, or indiscriminately shell a populated area hoping to hit any military targets it may contain (albeit by sheer luck) but foreseeing that civilians will be killed? In such cases, attacking forces may be virtually certain to cause avoidable or excessive civilian death, or may consciously disregard the risk of causing civilian deaths out of indifference to civilian life. There is no evidence that the Court intended to exclude such unlawful attacks, committed with the level of criminal intent the ICTY accepted for war crimes, from the scope of article 2(a). No party argued for such a narrow interpretation, and there is no indication that the Court intended to adopt such a narrow interpretation on its own initiative.
Instead, the Court simply meant that if one accepts Croatia’s version of events and rejects Serbia’s version of events, then the shelling was not committed with general intent to kill. The Court referred to attacks “exclusively directed at military targets” as a shorthand for Croatia’s version of events and referred to civilian casualties “caused deliberately” as a shorthand for Serbia’s version of events. Croatia’s version of events was that the shelling was both exclusively directed at military targets and conducted “in compliance with applicable international rules” in all other respects. Serbia’s version of events was that the shelling was directed at civilians as well as military targets. There was no need for the Court to expressly consider other ways in which attacks might violate international humanitarian law or manifest general intent to kill because none were presented to it by the parties.
In her declaration, Judge Donoghue wrote that:
I have no quarrel with the Court’s conclusion that it is unable to find that the civilian deaths in Knin were the result of indiscriminate shelling. However, I disagree with the suggestion that the term “killing”, as used in subparagraph (a) of Article II [of the Genocide Convention], does not extend to deaths resulting from attacks that are directed exclusively at military targets and that do not deliberately target civilians. It is certainly possible for the deaths resulting from such attacks to be intentional killings, even if the attack did not deliberately target civilians. Depending on the particulars, such killings may or may not be lawful under the law of armed conflict and that distinction could bear on the evaluation of evidence as to genocidal intent. At the stage of examining whether deaths comprise the actus reus of genocide, however, I consider it sufficient for the Court to decide whether the killings were intentional. (citations omitted)
Notably, Judge Donoghue considered that intentional killings include some deaths resulting from attacks that are entirely lawful under the law of armed conflict. On this view, it seems that artillery shelling that carries a substantial risk of striking civilians may amount to intentional killing under the Genocide Convention, whether or not it constitutes an indiscriminate attack under international humanitarian law. At the same time, Judge Donoghue notes that her broad understanding of general intent to kill is offset by the narrow requirement of specific intent to destroy a group. While an attack that is entirely lawful under the law of armed conflict may result in intentional killing, it is unlikely to be committed with genocidal intent.
To sum up, the Court in Croatia v. Serbia appeared to endorse the broad notion of general intent to kill of the ICTY, which includes dolus eventualis. Lawful attacks are presumptively not committed with general intent to kill (though Judge Donoghue disagreed). These include attacks directed at military objectives with reasonably accurate weapons that unexpectedly miss and kill civilians. Unlawful attacks are presumptively committed with general intent to kill. These include attacks directed at civilians, indiscriminate attacks likely to strike civilians or military objectives without distinction, and attacks directed at individuals in reckless disregard of the possibility that they are civilians. In such cases, an inference of direct intent to kill civilians is not necessary; dolus eventualis is sufficient.
General Intent and “Incidental” Deaths
In its prior cases, the Court examined artillery shelling that struck civilians rather than military targets, as well as sniper fire directed at individuals with reckless disregard for the possibility that the individuals are civilians. The Court did not examine attacks that struck military targets and also caused the deaths of civilians inside or nearby. Such attacks violate international humanitarian law when they are expected to cause civilian harm which would be excessive in relation to the concrete and direct military advantage anticipated, or when feasible precautions could have been taken to avoid or minimize civilian harm. Logically, such unlawful attacks also fall under article 2(a) of the Genocide Convention when they are committed with the general intent to kill, which includes recklessness or dolus eventualis.
As we have seen, when the Court wrote that attacks “exclusively directed at military targets” which do not “deliberately” cause civilian casualties fall outside the scope of article 2(a), it had in mind attacks that are in all other respects fully compliant with international humanitarian law. The Court did not mean to exclude attacks that are both unlawful and reflect a conscious choice to kill civilian members of a group. In addition, the Court wrote that “the fact that […] attacks are said to have caused casualties and damage far in excess of what was justified by military necessity” can be an important indicator of genocidal intent. It is implausible that the Court viewed such attacks as potential evidence of genocidal intent but not as predicate acts of killing under the Genocide Convention.
At the same time, Judge Donoghue’s view that even lawful attacks may result in intentional killings should not be lightly dismissed. Consider an attacker who takes feasible precautions to minimize civilian harm and makes a reasonable judgment that the remaining risk to civilians is proportionate given the important military advantage anticipated. If the attacker views civilian deaths as a matter of substantial but justifiable risk, then it is possible to argue that the attacker does not act with dolus eventualis or the corresponding common law concepts of implied malice or recklessness manifesting extreme indifference to life. However, if the attacker views civilian deaths as virtually certain to occur in the ordinary course of events, then the attacker arguably acts with oblique intent to kill. On Judge Donoghue’s view, such attacks are committed with general intent to kill, but not with the specific intent to destroy a group. This approach has the virtue of simplicity.
To exclude lawful attacks which are certain to cause civilian deaths from the scope of article 2(a), the Court would have to find that general intent to kill always involves a volitional, emotional, or normative element, even when death is virtually certain to result. On this view, an attacker acts with general intent to kill only if they manifest indifference for civilian life, including by choosing not to take feasible precautions in attack or by choosing to kill civilians out of proportion to the military advantage anticipated. This approach harmonizes article 2(a) with other relevant rules of international law, and ensures that only morally culpable acts fall under the Genocide Convention.
In closing, it is important to emphasize that the Court has never found that the unlawfulness of an attack is a legal element of general intent to kill or an independent legal requirement of article 2(a). Instead, the Court has consistently found that the facts that render an attack unlawful will typically also establish general intent to kill and bring an attack within the scope of article 2(a). The Court’s approach is correct. International humanitarian law has evolved since the Genocide Convention was adopted, expanding and refining its protections in both international and non-international armed conflict. It continues to evolve today, responding to gaps in protection that persist. It remains logically possible that a lawful attack could fall within the scope of article 2(a) or that an unlawful attack could fall outside the scope of article 2(a). Whether such cases exist in practice, and how many such cases exist in practice, depends on the correct interpretation of contemporary international humanitarian law, which is a large topic for another day. For now, it is enough to say that attacks that violate international humanitarian law will typically involve general intent to kill, while attacks that fully comply with international humanitarian law will typically not involve general intent to kill. To this extent, Myanmar’s submissions are not entirely wrong.
