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.
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’. Continue reading