An Introduction To The International Criminal Court - Institute for ...

108 introduction to the international criminal court
Mens rea or mental element
Criminal law sets itself apart from other areas of law in that, as a general rule,
it is concerned with intentional and knowing behaviour. An individual who
causes accidental harm to another may be liable before some other body
but will by and large not be held responsible before the criminal courts.
Intent is often described using the Latin expression mens rea (‘guilty mind’),
taken from the phrase actus non facit reum nisi mens sit rea.But,evenifitis
understood that a criminal act must be intentional and knowing, there are
degrees of intention ranging from mere negligence to recklessness and fullblown
intent with premeditation. 68 In keeping with the seriousness of the
offences over which the Court has jurisdiction, the Rome Statute sets a high
standard for the mental element, requiring in paragraph (1) of Article 30 that
‘[u]nless otherwise provided’ the material elements of the offence must be
committed ‘with intent and knowledge’. 69 In two subsequent paragraphs, the
Statute defines these concepts. A person has intent with respect to conduct
when that person means to engage in the conduct. A person has intent with
respect to a consequence when that person means to cause that consequence
or is aware that it will occur in the ordinary course of events. Knowledge is
defined as ‘awareness that a circumstance exists or a consequence will occur
in the ordinary course of events’. Article 30 defines ‘knowledge’, adding that
‘know and knowingly’ shall be construed accordingly. 70
The general rule requiring intent or knowledge is hardly necessary for
most of the crimes listed in the Rome Statute, because the definitions have
their own built-in mens rea requirement. Thus, genocide is defined as a
punishable act committed ‘with the intent to destroy’ a protected group. 71
Crimes against humanity involve a widespread or systematic attack directed
against a civilian population ‘with knowledge of the attack’. 72 Many of the
war crimes listed in Article 8 include the adjectives ‘wilfully’, ‘wantonly’
or ‘treacherously’. Indeed, it is at least partly for this reason that Article 30
begins with the words ‘[u]nless otherwise provided’. 73 During drafting of the
Statute, difficulties arose when attempting to lower the mens rea threshold to
68 Jean Pradel, Droit pénal comparé, Paris: Dalloz, 1995, p. 251.
69 UN Doc. A/CONF.183/C.1/L.76/Add.3, p. 4.
70 But ‘know’ and ‘knowingly’ are not used in either Art. 30 or, for that matter, elsewhere in the
Rome Statute. The word ‘known’ appears in the command responsibility provision (Art. 28).
Theword‘knowledge’isinthechapeau of Art. 7, crimes against humanity.
71 Rome Statute, Art. 6. 72 Ibid.,Art.7.
73 Donald K. Piragoff, ‘Article 30’, in Triffterer, Commentary, pp. 527–35 at pp. 531–2.