Clare Brown joins JiC for this post on how justice and accountability might be achieved for those responsible for the devastation caused by recent explosions in Beirut, Lebanon. Clare is an Australian lawyer based in Beirut and the Deputy Director of Victim Advocates International. 

(Photo: Reuters)

On 4 August 2020, an explosion decimated the Port of Beirut, along with a large part of the city. The death toll, currently at 220, has continued to rise as medics and volunteers comb through the remains of buildings across Beirut. Over 6,000 civilians were injured. 300,000 were instantly made homeless. It is agreed by all actors that the blast was the preventable result of government negligence. Over the weekend, protests broke out across the city, and on Monday, the entire Cabinet resigned, citing lack of public confidence in the administration.

International criminal law does not recognise negligence as a mental element giving rise to criminal responsibility. Whether it recognises recklessness, or its civil law equivalent ‘dolus eventualis’, is controversial. This article makes three arguments. The first is that current jurisprudence does support the recognition of a strict form of dolus eventualis as a mental element of international crimes. The second is that continuing to recognise some form of dolus eventualis in international criminal law is important to ensuring victim-centred justice. Finally, it argues that that the Lebanese context necessitates the adoption of laws that go further than international criminal law standards in recognising recklessness and negligence as forms of criminal intent for international crimes.

The crimes committed at the Port of Beirut

The blast ripped through the city at 6:15pm last Tuesday evening. Beirut Whatsapp groups rapidly filled with alerts of an attack in, it seemed, Gemmayze. Ashrafieh. Geitawi. Hamra, and Downtown. Quickly, people realised, it was everywhere. After several minutes, it was confirmed that the explosion started in the Port of Beirut, which, in a few seconds, had ceased to exist. Windows blew in as far away as the airport, 13km away. Initial warnings in the Whatsapp groups were quickly replaced with calls for help, people trying to find families, friends and pets, as well as photos of destroyed houses and bloodied faces.

Several more minutes passed, and the speculation began. The spectre of an Israeli airstrike is ever-present in Beirut, and early guesses included theories of Hezbollah arms caches stored at the port being targeted by Lebanon’s southern neighbour. If this had been an Israeli attack, it would have been a war crime: a mass targeting of civilians and civilian property. It would also have been a crime against humanity.

Lebanon is not currently a state party to the Rome Statute, and does not have domestic legislation in place criminalising international crimes. General rules of international law, arguably including international customary law, are recognised by the country’s constitution, and there has been a recent trend of activist judges directly applying international law domestically. But there are no laws to ensure perpetrators of crimes against humanity will be punished, and until now, no political will for the adoption of such legislation.

Applying the rules of international criminal law, murder as a crime against humanity requires the perpetrator to kill one or more people as part of a widespread or systematic attack against a civilian population. Last Tuesday’s attack was widespread, with victims scattered from the port to the airport. Extermination as a crime against humanity requires the perpetrator to kill one or more people as part of a mass killing of members of a civilian population, as part of a widespread or systematic attack. If this had been an attack by a foreign power, it therefore would have at least constituted the crime against humanity of murder, and likely also of extermination.

But the explosion at the port was not the result of an attack by a foreign power. It was, according to Lebanon’s Prime Minster, the result of a fire breaking out near 2,750 metric tons of highly explosive ammonium nitrate that had been sitting in the Port for seven years. The Lebanese government impounded the ship carrying the highly explosive cargo in 2013. Despite numerous warnings that it was a powder keg about to explode, including a team who warned six months ago that it could “blow up all of Beirut” if not removed, the government failed take any action to dispose of the material.

Direct perpetration of a crime through recklessness or negligence

Direct perpetration of a crime in international criminal law requires that the accused him or herself either physically perpetrated the criminal act or ‘omitted to act when required to do so under law’ (Blagojević and Jokić Appeals Judgment). Clearly, the Lebanese government has a duty of care towards the Lebanese people. To be guilty of direct perpetration of a crime against humanity by omission, however, they would also need to have the necessary mens rea. In civil law jurisdictions, mens rea requires criminal intent (dolus). In most common law systems, it requires either criminal intent or criminal negligence (culpa). Civil law jurisdictions generally recognise three forms of dolus: dolus directus, dolus indirectus, and dolus eventualis.

Dolus directus means the perpetrator knew the consequence of their actions would occur and wanted it to; dolus indirectus means they knew the consequence would occur, even if they did not want it to; and dolus eventualis means that they foresaw, without knowing with certainty, that the consequence would occur. The closest common law equivalent to dolus eventualis is recklessness. The rules around mens rea in international criminal law are primarily borrowed from civil rather than common law standards.

The recognition of dolus eventualis in international criminal law

With a few minor exceptions (such as the Blaskic judgment, which recognised ‘serious criminal negligence’ as a form of criminal intent), international criminal law jurisprudence is generally clear that negligence/ culpa alone will not support a finding of criminal liability. Decisions around dolus eventualis, or recklessness, are less consistent.

Many Trial and Appeals Chambers at the ICTY considered recognition of dolus eventualis to be uncontroversial: Blaskic; Galic; Kordić & Čerkez; Strugar. The test applied by these cases was often wide and flexible: the Galic Trial Chamber, in a decision upheld on appeal, found that criminal intent includes circumstances in which a perpetrator ‘acts without having his mind on the act or its consequences’. Blaskic found recklessness was sufficient. Strugar required that the perpetrator knew the consequence of their action was ‘probable’.

When it came time to draft the Rome Statute, its architects sought to make this set of criteria more stringent. Clearly, there is a wide spectrum between a person who knows with certainty that a certain consequence will occur as result of their actions, and one who ‘acts without having his mind on the act or its consequences’. An early draft of the Rome Statute, which required only that the perpetrator be ‘aware of a risk’ and ‘indifferent to the possibility’ that it would occur, was abandoned for failing to strike the right balance. Article 30 of the final draft provides that the perpetrator must be aware that the consequence of their actions ‘will occur in the ordinary course of events’.

Article 30 was immediately put to the test in Lubanga, the ICC’s first case. Initially, the Pre-Trial Chamber held that dolus eventualis was recognised under the Statute. While the Trial Chamber purported to overturn this finding, it effectively confirmed the position of the Pre-Trial Chamber that there are different thresholds of dolus eventualis: a lower threshold, in which the accused simply recognises that a consequence may occur, and a higher threshold, in which the accused knows there is a ‘high risk’ that it will. The Trial Chamber found that the acceptance of this high risk would be enough to meet the standards of ‘intent’ required under Article 30.

The Pre-Trial Chamber in Bemba disagreed, holding that Article 30 required the accused to know that the consequence would occur with ‘relative certainty’. This was later upheld by the Trial Chamber. The issue was again considered in Kenyatta, where the Pre-Trial Chamber claimed to follow the ‘relative certainty’ approach laid down in Bemba. In reality, however, the standard adopted by the court was one of high risk. The relevant question was whether Kenyatta knew that members of a criminal syndicate he allegedly funded and supported were going carry out rapes and sexual violence. The Court found that because Kenyatta directed the group to commit attacks against people from certain tribes, with knowledge of their ‘ethnic hatred’ towards those tribes, he ‘knew that rape was a virtually certain consequence’ of his actions. But given that the Court did not rely on any evidence that Kenyatta planned or even discussed the use of sexual violence with this group, it is not accurate to say that the Court could conclude that that he knew, with relative certainty, that rapes would occur. He simply accepted the high risk that they would.

The jurisprudence, on balance, therefore supports the position that a strict version of dolus eventualis is recognised in international criminal law, one which requires a ‘high risk’ of a certain consequence occurring. It is a test in between requiring awareness of a mere possibility and requiring knowledge of a ‘relative certainty’.

Victim-centred approach

It is important that dolus eventualis retains a place in international criminal law. Over the last two decades, practitioners have placed a focus on moving towards a ‘victim centred’ approach to justice. True victim-centred justice requires seeing international crimes from the perspective of the victims, rather than the perpetrators. To victims, there is little difference between an attack in which people are exterminated because the government intends them to be exterminated, and one in which the government knows there is a high risk they will be exterminated and goes ahead anyway. Allowing impunity for this second category of perpetrator would leave many victims globally without any recourse to justice.

Recognising dolus eventualis allows international criminal law to define crimes against humanity more broadly. The idea of a crime against humanity has acquired enormous resonance in the legal and moral imaginations of the post-World War II world. It describes the commission of a crime not only against another person, or the state, but against, as Hannah Arendt described it, ‘the human status, or against the very nature of mankind’. If the explosion in Beirut had been the result of a bomb purposefully planted, it would be considered an afront to the human status. When taken from the perspective of the victims, it is difficult to see why, if the result of recklessness, it should not be seen by the law in the same way.

Recognising recklessness as a mental state a person may have when committing an international crime also allows international criminal law to better protect victims who are poor and marginalised. While purposeful attacks by governments are likely to be committed against populations the state has deemed the ‘enemy’, reckless attacks are more likely to be committed against people who are considered politically expendable. On Tuesday in Lebanon, it was the dock workers, underpaid in the rapidly declining Lebanese currency and working in the sun in the middle of a heatwave, whose lives were first and instantaneously snuffed out. The failure of international criminal law to recognise the inherent criminality of this scale of disregard for human life is another example of the ways in which the international justice system fails the poor.

An opportunity for Lebanon

In Lebanon, on the streets and across social media, citizens are making it clear that they do not distinguish between purposeful attacks and attacks borne out of recklessness, negligence and indifference. “You are the war, the looters, the collapse before the explosion,” writes novelist Sahar Mandour, addressing the political class. “You are more of the catastrophe. You are the reason behind the catastrophe. You killed us premeditatively and you will pay the price for it.”

Laws are needed in Lebanon to hold members of the government accountable for gross negligence. Laws are also needed to criminalise international crimes. Lawyers and activists may seize this moment to propose a law that not only criminalises war crimes and crimes against humanity, but which recognises recklessness/ dolus eventualis as a mental element of these crimes. Lebanese legislation domesticating international criminal law could contain more flexible provisions on mens rea than the Rome Statute does, recognising a lower threshold of dolus eventualis and even negligence/culpa as mental elements giving rise to criminal liability. Such a law would respond to the reality of the situation in Lebanon, where political leaders are more likely to cause death and mass destruction through reckless indifference than specific intent. There will never be more public support for such legislation than there is right now.