In This Article Mens Rea, International Crimes

  • Introduction

International Law Mens Rea, International Crimes
by
Mohamed Elewa Badar, Iryna Marchuk, Sara Porro
  • LAST MODIFIED: 10 March 2015
  • DOI: 10.1093/obo/9780199796953-0122

Introduction

The relatively young, albeit dynamic, field of international criminal law, spawned by the proliferation of international criminal courts and tribunals over the last two decades, has yet to consolidate its theoretical contours, in particular with respect to the clarification of major substantive law concepts. The doctrine of mens rea is among the fundamental concepts that ought to be clearly defined and construed for core international crimes such as genocide, war crimes, and crimes against humanity. With no general definition of mens rea in either the Charter of the International Military Tribunal (known as the Nuremberg Charter), the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), or the International Criminal Tribunal for Rwanda (ICTR), only the Rome Statute of the International Criminal Court (ICC) introduced a comprehensive legal provision on the mental element of a crime. The judges of the Court breathed life in Article 30 of the Statute in its early jurisprudence. In broad terms, mens rea is a state of guilty mind that a person entertains while committing a crime. It is the one of the most fundamental doctrines in criminal law, be it national or international, since the absence of mens rea on the part of a perpetrator while committing a crime precludes the attribution of criminal responsibility. Although the law on mens rea in international criminal law takes inspiration from the laws and jurisprudence of common and continental law jurisdictions, the gravity, magnitude, and complexity of core international crimes impose an obligation to carefully consider how various mens rea standards are applied and construed in the international law context.

Introductory Overviews

Academic writings on the law of mens rea in international criminal law are not particularly abundant. To a great extent, this can be linked to the novelty of the discipline of international criminal law, on the one hand, and to the conciseness of substantive criminal provisions in major international legal instruments, on the other hand. A few specialized books and articles were published by scholars on the jurisprudential development in the ad hoc tribunals established nearly fifty years after the International Military Tribunal and the International Military Tribunal for the Far East, following the end of the “cold war” (see Schabas 2003 and Badar 2006, both cited under Books and Articles and Porro 2014, cited under Introductory Overviews: Books). The law on mens rea has attracted more attention in scholarly circles following the adoption of the Rome Statute, the first international law instrument to provide for a general definition of the mental element of a crime.

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