Dolus Eventualis and the Rome Statute without it?

In January 2007, in the Lubanga case, Pre-Trial Chamber I of the International Criminal Court ruled that Article 30 of the ICC Statute encompasses the three degrees of dolus, namely, dolus directus of the first and second degrees and dolus eventualis. Recently, in September 2008, in Katanga and Ngudjolo Chui case, the Defence of the first accused contended that the Statute does not include the notion of dolus eventualis. The Defence relied heavily on scholarly opinions in support of its submission. Faced by such a legal dilemma, Pre-Trial Chamber I, in the present case, refrained from relying on the elusive concept of dolus eventualis for the mental element in relation to the crimes charged and accordingly the decision lacks any discussion on whether the concept of dolus eventualis has a place within the framework of Article 30 of the ICC Statute. Whether Pre-Trial Chamber III of the ICC, in its coming decision on the confirmation of charges in the Bemba case (June 2009), will adhere to the interpretation given to Article 30 by the PTC I in the Lubanga case or will it rule out the notion of dolus eventualis from the ambit of Article 30 is still to be seen. This paper examines the different degrees of intentionality under Article 30 of the ICC Statute and whether the mental element as provided for in this provision encompasses the triplet forms of dolus, namely, dolus directus of the first and second degree and dolus eventualis. The paper concludes that dolus eventualis is one of the genuine and independent pillars of criminal responsibility which forms, on its own, the basis of intentional crimes and suggests its inclusion in the legal standard of Article 30 of the ICC Statute.