The International Criminal Court and the Concept of Mens Rea in International Criminal Law
94 Pages Posted: 7 Oct 2011 Last revised: 18 Apr 2012
Date Written: June 15, 2004
The concept of mens rea defined in Article 30 of the Statute of the International Criminal Court is not founded on the typical Anglo-American perceptions of fault, and concepts such as “malice aforethought” and “recklessness” are not part of the ICC’s vocabulary. Mens rea for purposes of prosecutions in the ICC is based on the civil law distinction between dolus directus (the perpetrator foresees the harmful consequences of the criminal act and wants to bring about those consequences), dolus indirectus (the perpetrator foresees certain consequences of the criminal act as a certainty and bring about those consequences even though that is not what he wanted or desired to bring about), and dolus eventualis (the perpetrator foresees certain additional consequences of the criminal act as a likelihood or merely a possibility and bring about those consequences even though that is not what he wanted or desired to bring about). Negligence denotes the mindset of a perpetrator who did not foresee the consequences of the act but as a reasonable person should have known that those consequences may result from the criminal act. Article 30 of the ICC Statute, which applies unless otherwise provided, includes dolus directus and dolus indirectus only (to the exclusion of dolus eventualis and negligence).
The essay explains, among other things, the difference between general intent and specific intent crimes, the notion of willful blindness, and the impact on sentencing of reduced culpability based on, for example, superior orders. It deals quite elaborately with the required manifestations of fault in the case of genocide, crimes against humanity, and war crimes. It distinguishes between (objective) grounds of justification which renders an unlawful act to become lawful, and grounds of exculpation, which excludes the element of mens rea. Included in the list of grounds of exculpation are mental disorder, intoxication, tender age, and mistake that affect the capacity of a person to intentionally break the law. It notes that guilty knowledge is an essential component of criminal intent and that ignorance of the law is an excuse in international law. Superior order is not an excuse for criminal conduct but can serve in mitigation of sentence.
In elaborating on these principles of international criminal law, reference is made to jurisprudence of the Nuremberg tribunals, judgments of the ad hoc tribunals, prosecution of the “Shooters at the Wall” in East Berlin, the British case involving a man who invited his drinking pals to have sex with his wife, and several other interesting cases.
The article was cited with approval by the ICC in Prosecutor v. Jean-Pierre Bemba Gambo, Case No. IT-01/05-01/08-14-424 (15 June 2009).
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