CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ANIMUS AGGRESSIONIS: THE ROLE OF INTENT IN THE ANALYSIS OF ARMED … a prerequisite for criminal responsibility for crimes under the RS. Thus, for liability under the RS, it is necessary that the act be committed “with intent and knowledge”, while in relation to the consequence, the perpetrator “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Thus, according to RS, there are only two culpable mental states, namely intent and knowledge, while recklessness and negligence are excluded. 54 The question is whether the same or a different standard of mens rea should be applied to determine whether the subjective element of armed attack has been satisfied. Recklessness and negligence seem to be too low a threshold, for several reasons. First, the ICJ in Oil Platforms speaks of “intent to harm”. 55 A state acting recklessly or negligently has no direct or indirect intent to harm; the harm is merely an unintended product of its actions. Second, the example of the bombing of the Chinese embassy in Belgrade was given above. NATO undoubtedly at least “should have been aware of the risk” of this building being hit, as it must undoubtedly have had knowledge of its existence in that location. One could even argue that it had foreseen the risk of hitting this building but “consciously disregarded a substantial and unjustified risk”. 56 Nevertheless, this operation was not perceived by the Chinese side as an armed attack. Finally, if the “recklessly” or “negligently” standard suffices, then a flood caused by the breach of a dam in another state should also be considered an armed attack if the breach was the result of recklessness or negligence on the part of the state on whose territory the dam was located (e.g., inadequate maintenance of the dam, inadequately trained personnel). Thus, the infliction of consequences corresponding to an armed attack due to recklessness or negligence are not sufficient to satisfy the subjective element of an armed attack. 57 According to the RS, intent (“means to”) or knowledge (“is aware that it will occur in the ordinary course of events”) is sufficient to establish criminal liability of a natural person for an international crime. This mens rea standard, approved by international law, seems to be an appropriate threshold also for the assessment of the subjective element of an armed attack, since its scope corresponds precisely to those cyber operations that require the victim state to have the possibility to use force in self-defense, for the simple reason that if the attacking state was not aware of the consequences of the operation, at least at a general level (could not have foreseen them), it could hardly have wanted to cause them, and the possible use of force in self-defense would thus only be an unnecessary escalation of the conflict, contrary to the purposes and objectives of the UN. A similar standard can then be read, for example, from New Zealand’s 2020 national position, which states that states “may take into account … the intended or reasonably expected consequential impacts”. 58 It can therefore be concluded that it is appropriate to apply the mens rea standard at the level of intent or knowledge to assess the subjective element of armed attack ( animus aggressionis ). 54 WEISBORD: 2013, p. 491, see supra note 51; Rome Statute of the International Criminal Court, art. 32 para. 2, subpara. (b); PIGAROFF, ROBINSON, 2016, p. 1122, see supra note 50. 55 Oil Platforms, p. 35, para. 64. 56 Legal Information Institute, see supra note 52. 57 McDOUGAL, C. The Crime of Aggression under the Rome Statute of the International Criminal Court . 2nd ed. Cambridge: Cambridge University Press, 2021, p. 247. 58 Department of the Prime Minister and Cabinet, New Zealand. The Application of International Law to State Activity in Cyberspace [online]. Dpmc.govt.nz, 1 December 2020 [cited 14 March 2022]. Available at .

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