Last Friday, the US military announced that it was disciplining 16 service members involved in the bombing of the Médicins Sans Frontières hospital in Kunduz, Afghanistan that killed 42 people, for violations of the laws of war and the rules of engagement. However, because the military concluded that the violations were not committed intentionally, it determined that criminal charges were not warranted. Some commentators have criticized this conclusion, arguing that recklessness can be sufficient for war crimes, and that the limited facts presented by the military either indicate that the soldiers acted recklessly, or fail to exclude the possibility that they did so.

Is recklessness sufficient for war crimes, and if it is, how should prosecutors think about whether the standard has been met in a case like this? And what do these questions suggest about the limitations of international criminal law to address some of the horrific consequences of war?

As argued by Sarah Knuckey, Anjli Parrin and Keerthana Nimmala, there is support for a recklessness standard in customary international law. Some war crimes cases brought at Nuremberg and by the ad hoc international criminal tribunals established in the 1990s — such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) — relied on a recklessness standard to convict defendants of war crimes. At the ICTY, the Appeals Chamber embraced the approach in the Blaškić case, finding that:

A person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime. (Para 42.)

But when States came together at Rome in 1998 to conclude a treaty to establish the permanent International Criminal Court (ICC), they took a different approach. They excluded recklessness and its civil law counterpart (dolus eventualis) as a basis for criminal liability, requiring instead an intent to engage in criminal conduct. Article 30 of the Rome Statute provides that:

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
a. In relation to conduct, that person means to engage in the conduct;
b. In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

Commentators and one Pre-Trial Chamber at the ICC have concluded that “will occur in the ordinary course of events” means near certainty, and that therefore the mere “substantial likelihood” of a criminal consequence would not be sufficient. Moreover, the specific ICC crimes potentially applicable to this case both explicitly require proof that attacks were “intentionally directed” at either civilians or hospitals.

The Rome Statute does not necessarily limit the scope of customary international law, and States could choose to proceed on a recklessness theory, or in this case the US military could prosecute for so-called ordinary crimes under the Uniform Code of Military Justice requiring only culpable negligence, such as manslaughter or dereliction of duty. It is nonetheless striking that the ICC, now joined by 124 States (though not the US), requires intentionality. While some States may have embraced this higher mens rea of intentionality as a limitation on the reach of the ICC rather than as a statement of what the law should be, other States likely embrace the Statute as a more normative statement of the law. A number of States have incorporated the Rome Statute wholesale into their domestic legislation.

Moreover, the ICC’s approach is pertinent in this case because it has jurisdiction in Afghanistan as a result of that country’s decision to join the Court in 2003. The ICC has had a preliminary examination open in Afghanistan since 2007, and will likely open a full investigation there sooner rather than later. If the US military is correct in its conclusion that the soldiers’ violations were unintended, and few seem to dispute this proposition, then it is almost certain that the ICC will follow the US’s lead and decline to bring charges for the bombing of the MSF hospital.

Now what if a recklessness standard were applied? How should prosecutors think about it in a case like this one? Some have argued that the fact that 42 civilians were killed requires criminal punishment. Others have suggested that the failure to follow all ordinary targeting procedures and the crew’s confusion about the identity of the target show recklessness.

Applying the articulation of the criminal recklessness standard in Blaškić, prosecutors would need to focus on awareness of a substantial risk of a criminal outcome. The paradigmatic case might be the very circumstance described by the Blaškić court itself, when a commander orders an action by soldiers he or she knows will likely engage in criminality. In a conduct of hostilities case involving questions of distinction and proportionality, the quintessential case might be the commander who had time to reflect but was simply indifferent to whether targets were military or civilian. Prosecutors in conduct of hostilities cases also look to see if there is a pattern of targeting civilians is assessing whether there has been criminality.

In this case, the disastrous result of 42 civilian deaths and destruction of the hospital would certainly be relevant to evaluating recklessness, but could not be the sole factor. Prosecutors would also consider the soldiers’ motivations, whether they were genuinely seeking to identify a legitimate military target, the information available to them, whether that information was held by diffuse actors, and how decision-making was structured. The element of awareness would also require consideration of the time-frame in which decisions were made, the perceived threats faced by the soldiers, and to what extent those circumstances were within the control of the soldiers themselves. In analyzing these factors, the prosecutors would have to bear in mind that they should initiate charges only if they have reasonable confidence that they could be proven beyond a reasonable doubt at trial. A recklessness standard that is under-inclusive will be perceived by victims and interested observers as lacking credibility. But one that is over-inclusive will risk being considered illegitimate by soldiers themselves, the very group that international criminal law seeks to regulate.

If in the end the bombing of the hospital is deemed not criminal, either because intentionality is required or the standard of criminal recklessness is not met, it should be a reminder of the limitations of international criminal law, and the horrors of war that will invariably fall outside its scope. Although technology offers the possibility of more precise targeting, the chaos and unpredictability of combat will always create risks of breakdown and unintended consequences. Moreover, the laws of war directly permit civilian casualties under some circumstances, as long as they are proportional to the military objective. Accordingly, it is inevitable that civilians will be killed or will suffer catastrophic consequences as a result of war, and in many instances there will be no crime. Often, that is less a problem with international criminal law than it is with war itself.