The International Criminal Court currently has jurisdiction over the territory and nationals of 124 States Parties to the Court, plus Darfur and Libya, where jurisdiction was conferred by the UN Security Council. As to current conflicts in Afghanistan, Libya, Syria, and Yemen, the Court could assert jurisdiction either over the territory and nationals of the State in question (Afghanistan and Libya), or over individual actors from State Parties participating in the conflict or aiding and abetting crimes committed in the course of hostilities (Syria and Yemen). Because the UN Security Council could, in the future, refer additional situations to the Court, and in addition countries can accede to retrospective ICC jurisdiction (at least back to 1 July 2002), the ICC currently has potential jurisdiction over the entire world, including all ongoing conflicts.

When conducting risk assessments during the planning of military strikes, any fighting force in the world should consider the risk of subsequent ICC scrutiny. One would hope that, if any incentive were needed, even a small risk of a future ICC investigation might persuade an armed force to abide carefully by the laws of war. But how far should militaries go to ensure such compliance? More specifically, when might a failure to ensure fidelity to the laws of war result in individual criminal liability?

One answer flows from the responsibility of military commanders and civilian leaders to prevent or punish international crimes committed by subordinates, or risk prosecution themselves. The conviction of Jean Pierre Bemba at the ICC for this exact failure should motivate commanders and other senior leaders to be proactive in ensuring that their subordinates are not committing crimes.

We want to focus here on another step that military forces engaged in hostilities should undertake: institute a robust and thorough lessons-learned process with respect to military strikes resulting in what we will term “unjustified civilian casualties,” that is civilian casualties that violate either the principle of distinction (in all conflicts) or proportionality (in the case of international armed conflict). Commanders assessing the risk of ICC intervention might take solace in the unusually high intent, or mens rea, standard apparently imposed by the ICC Statute. International law generally considers civilian casualties that result from recklessness a war crime. The ICC Statute, however, appears to require more. Article 30 (“Mental element”) of the ICC treaty establishes a default rule for all crimes within the jurisdiction of the Court “unless otherwise provided.” That provision states that “intent” is established in the commission of a crime only when: 

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.

Under this framework, military commanders might conclude that the risk of an ICC investigation, let alone prosecution, is virtually non-existent as long as they or their subordinates do not mean to target civilians. That would be a mistake. In cases where military forces follow targeting practices that repeatedly result in unjustified civilian casualties, the second part of the intent definition above – “or is aware that it will occur in the ordinary course of events” – could provide a hook for prosecution.

The precise meaning of that phrase has been disputed, with judges on different Pre-Trial and Trial Chambers reaching various results. The ICC Appeals Chamber, however, recently silenced those disagreements in the case of Congolese warlord Thomas Lubanga. The Court held that the phrase requires “virtual certainty” that the consequence would occur, meaning in this case that unjustified civilian casualties would occur as a result of a military strike.

How might this play out for military forces engaged in repeated military strikes resulting in unjustified civilian casualties? The Office of the Prosecutor has indicated that it might argue that failing to correct a process that results in repeated unjustified civilian casualties could satisfy the intent requirement in the Statute. Granted the Office of the Prosecutor made this claim while contending that the Statute requires only “awareness of a high risk” rather than “virtual certainty,” but the argument it made might, depending on the specific circumstances, satisfy either test. Here is the important passage:

If the civilian deaths, injury, and property damage were the result of carelessness, poor equipment, or mistaken targeting information and DPRK military continue to launch attacks using this equipment and information—with knowledge of the prior civilian deaths and injury— persisting in that conduct in the face of such knowledge may well rise to the level required to meet the intent standard under Article 30(2)(b) and Articles 8(2)(b)(i) and (ii).

And this makes sense. If a particular military force sees that its process of selecting and striking targets repeatedly results in unjustified civilian casualties, a point is reached when it can be persuasively argued that it is “virtually certain” that such consequences will continue to occur.

Let us conclude with two bottom lines:

First, close observers of the ICC are correct that its Statute does not extend jurisdiction to crimes of recklessness per se. As the Office of the Prosecutor explained, however, “a pattern of indifference and recklessness” with regard to civilian casualties should eventually satisfy the standard for criminal intent set out in the ICC Statute.

Second, military forces that have any concern about ICC scrutiny should take steps to investigate and repair procedures that result in unjustified civilian casualties. In this respect, the United States is to be commended for some of its actions following the “painful lessons” learned in the Kunduz hospital strike—including the response by the Secretary of Defense to help prevent the recurrence of such mistakes in the future.