Mental Element of Crimes Under International Criminal Law

‘Unless Otherwise Provided’:

Article 30 of the ICC Statute and the MentalElement of Crimes under InternationalCriminal Law

GerhardWerle* and Florian Jessberger**

AbstractFor the first time in international criminal law, Article 30 of the International CriminalCourt (ICC) Statute (ICCSt.) codifies a mental element as a general requirement for individualcriminal responsibility. Moreover, Article 30 seeks to set a uniform standard � intent andknowledge � for the mental element, applicable to all crimes under international criminallaw. The authors show that Article 30 establishes subjective conditions of liability whichdepart significantly from the ones that can be found in other provisions of the ICC Statute,the Elements of Crimes and customary international law. The authors argue that the ‘unlessotherwise provided’ clause included in Article 30(1) ICCSt. plays a vital role for a consistentand coherent application of international criminal law. They conclude that Article 30 ICCSt.should be interpreted as a default rule that is applied only in the few cases where thereare no specific rules on the mental element in either the other provisions of the ICC Statute,the Elements of Crimes or in customary international law.

1. IntroductionIn the Rome Statute of the International Criminal Court, provision is made forthe requisite state of mind necessary for establishing the offender’s criminalresponsibility. Article 30(1) ICCSt. stipulates that ‘a person shall be criminallyresponsible and liable for punishment for a crime within the jurisdiction ofthe Court only if the material elements are committed with intent and knowl-edge’. Thus, as a condition for criminal liability, mens rea must accompanythe physical act of the crime. At least as a rule, proof of mens rea or, asthe ICC Statute calls it, ‘the mental element’ is required to establish criminalresponsibility for any of the crimes defined in Articles 6^8 ICCSt.By making a certain state of mind on the part of the perpetrator a

precondition for his or her punishment, the ICC Statute builds on the firm

* Professor, Humboldt University Berlin; Member of theAdvisory Board.** Senior Research Fellow, Humboldt University Berlin.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Journal of International Criminal Justice 3 (2005),35^55 doi:10.1093/jicj/mqi009� Oxford University Press, 2005, All rights reserved. For permissions please email [email protected]

ground of customary international law.1 The idea that criminal liability shouldbe imposed only on persons who are sufficiently aware of what they are doingand of the consequences that their actions may have is generally recognizedin domestic and international criminal-justice systems.2 The InternationalCriminal Tribunal for the Former Yugoslavia (ICTY) made the followingrelevant statement in the Mucic¤ trial judgment, in relation to this pointof view: ‘It is apparent that it is a general principle of law that the establish-ment of criminal culpability requires an analysis of two aspects. The firstof these may be termed the actus reus � the physical act necessary for theoffence . . .. The second aspect . . . relates to the necessary mental element,or mens rea.’3

But Article 30 ICCSt. goes beyond simply confirming the mens rea as ageneral requirement of culpability. Article 30 codifies the mental elementas a general requirement of individual criminal responsibility for the firsttime in international criminal law. Neither the Nuremberg Charter nor theStatutes of the Yugoslavia Tribunal or the International Criminal Tribunalfor Rwanda (ICTR) include general provisions on the mental element. In theCharter and in both Statutes, the subjective requirements for criminal liabilityare fragmentary; if at all there, they are embedded in the definitions of thecrimes.4 As a result, international jurisprudence has so far had to developthe mental element for each crime separately.5 In doing so, the Tribunals

1 For details, see G. Werle, Principles of International Criminal Law (The Hague: TMC AsserPress, 2005), marginal no. 295.

2 The concept of strict liability which can be found in some domestic systems (see, e.g. A. Ashworth,Principles of Criminal Law (5th edn, Cambridge: Cambridge University Press, 2003), 125) isunknown to international criminal law.

3 ICTY, Judgment, Mucic¤ et al. (IT-96^21-T), Trial Chamber, 16 November 1998, xx424 et seq.See also Nuremberg Tribunal, Judgment of 1 October 1946, in The Trial of German Major WarCriminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany(London: HM State Office, 1950), Part 22, at 506. The defendant, Schacht, was acquitted bythe Nuremberg Tribunal because the ‘necessary inference [that Schacht had knowledge ofthe plans of the attack] has not been established beyond a reasonable doubt’; US MilitaryTribunal Nuremberg, Judgment of 10 April 1948 (Otto Ohlendorf et al., so-called EinsatzgruppenTrial), in Trials of War Criminals before the Nuremberg Military Tribunals under Control CouncilLaw No. 10, Vol. IV (Nuremberg, 1949), 470 (‘intent is a basic prerequisite for crime(s)’); see alsoA. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003),159 et seq.

4 Notable examples are the definitions of genocide (‘intent . . . to destroy . . .a group’, Art. 4(2)ICTYSt.) and of certain war crimes (‘wilful killing’ or ‘wilfully causing great suffering’, Art. 2(a)and (c) ICTYSt.).

5 See R. Clark, ‘The Mental Element in the International Criminal Law: The Rome Statute ofthe International Criminal Court and the Elements of Offences’, 12 Criminal Law Forum (2001),291^334, at 295; A. Eser, ‘Mental Elements: Mistake of Fact and Mistake of Law’, in A. Cassese,P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court:A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 889^948, at 893 et seq.;W. Schabas, ‘General Principles of Criminal Law in the International Criminal Court Statute’,4 European Journal of Crime, Criminal Justice and Criminal Law (1998), 400^428, at 419; E. vanSliedregt, The Criminal Responsibility of Individuals for Violations of International HumanitarianLaw (The Hague:TMCAsser Press, 2003), 48 et seq.;Werle, supra note1, marginal no. 295. See also

36 JICJ 3 (2005), 35^55

employ a broad spectrum of various mental elements.6 According to caselaw, some crimes require purpose on the part of the perpetrator; for others,recklessness is sufficient.7 Negligence only as an exception forms a basisfor criminal responsibility.8 Article 30 ICCSt. claims to do away with thatfragmentary approach and endeavors to give the mental element a uniformand consistent foundation. Thus, Article 30 does not only codify but seeksto standardize the mens rea requirement for crimes under international law.It establishes � or at least appears to establish � a common mental elementapplicable to all crimes within the jurisdiction of the ICC, which are in factall crimes under international law.9

There can be no doubt that both codification and standardization of themental element, if carried out in a proper and consistent manner, would addto the process of consolidation of international criminal law and push inter-national criminal law closer to becoming a fully developed legal order. Fromthat perspective, the efforts of the drafters of the ICC Statute deserve credit.But they are not to be applauded too soon. In fact, a more detailed analysisof Article 30 ICCSt. shows that it raises more questions than answers.10 Thisopinion is based on a number of inconsistencies which make it difficultto apply Article 30 ICCSt. or to have a proper understanding of the ‘generalprinciple’ codified in it.11 Some of these inconsistencies are rooted directly

the detailed analysis of the Nuremberg judgment and the Nuremberg follow-up trials inH.-H. Jescheck, Die Verantwortlichkeit der Staatsorgane nach Vo« lkerstrafrecht (Bonn: LudwigRo« hrscheid Verlag, 1952), 375 et seq. and K. Ambos, Der Allgemeine Teil des Vo« lkerstrafrechts(Berlin: Duncker & Humblot, 2002),107 et seq.; Cassese, supra note 3, at159 et seq.

6 Practice and scholarly contributions typically rely on the categories of Anglo^American law.According to that (and notwithstanding that the use of language varies greatly), it is possibleto distinguish between four levels of culpability: purpose; knowledge; recklessness; and negli-gence. See s. 2.02(1) of the Model Penal Code (Philadelphia: American Law Institute, 1985); fordetails on these categories of fault, see Ashworth, supra note 2, at 173. In this article, we alsouse the corresponding civil-law concepts of fault (Vorsatz): dolus directus of a first degree (pur-pose), dolus directus of a second degree (knowledge), dolus eventualis (recklessness); for a com-parative view on fault principles in civil law and common law, seeT.Weigend,‘ZwischenVorsatzund Fahrla« ssigkeit’,93 Zeitschrift fu« r die gesamte Strafrechtswissenschaft (1981) 657^700, at 673 etseq. See also Cassese, supra note 3, at161, and Eser, ibid., at 905 et seq.

7 E.g. the crime against humanity of killing under Art. 5(a) ICTYSt. requires either ‘intent tokill’ or at least ‘intent to inflict serious injury in reckless disregard of human life’, ICTY,Judgment, Kupres� kic¤ et al. (IT-95^16), Trial Chamber, 14 January 2000, x561. According toArt. 2(b) ICTYSt., among others, the war crime of torture presumes that the injury was caused‘intentionally’, ICTY, Judgment,Mucic¤ et al. (IT-96^21-T),Trial Chamber,16 November1998, x494.See alsoWerle, supra note1, at marginal no.334.

8 But seeWerle, supra note1, marginal nos 381et seq.9 For the notion of ‘crimes under international law’ and the distinction between crimes under

international law and (other) international crimes, such as terrorism and torture, see Werle,supra note1, marginal nos 72 et seq.

10 See T. Weigend, ‘The Harmonization of General Principles of Criminal Law: The Statutesand Jurisprudence of the ICTY, ICTR and ICC: An Overview’, 19 Nouvelles E¤ tudes Pe¤ nales (2004)319^335, at 326 (‘dismal failure’).

11 See alsoWeigend, ibid., at 326 et seq.

‘Unless Otherwise Provided’: 37

in the wording of the Article. Others stem from the fact that Article 30 doesnot adequately reflect subjective requirements of liability in other provisionsof the ICC Statute, in customary international law and in domestic legalsystems.12 The mental element of crimes under international law thus remainsa source of controversy.Starting with Article 30 ICCSt., we will explore the mental element of

crimes under international law. The confusing structure of Article 30 initiallywill be analysed.We will examine what subjective requirements are laid downas a uniform standard for all crimes, and we show under which conditions,to what extent and in which directions Article 30 allows for departuresfrom this standard. Finally, two specific issues which are both highly relevantand controversial will be discussed: the question of whether and how thecontextual elements of the crimes, such as the attack on a civilian popula-tion or the armed conflict, have to be mirrored in the offender’s mind; andthe question of whether and to what extent a mens rea less than intention13

or dolus directus could meet the requirements of the mental element.

2. The Structure of Article 30 ICCSt.Article 30 ICCSt. consists of three subsections. Subsection 1 contains thegeneral principle that individual criminal responsibility requires that thematerial elements of the crime are committed with intent and knowledge,unless it is otherwise provided. The ‘intent and knowledge’ elements distin-guish cognitive from voluntative conditions of criminal responsibility; theircumulative presence at the time of the conduct14 is necessary for liability.The points of reference for both elements � intent and knowledge � are thematerial elements of the crime. Subsections 2 and 3 further elaborate onthe elements of this principle, in particular by defining what is meant byintent and knowledge. Three crucial points can be made if Article 30(1) isread together with Article 30(2) and (3) ICCSt.First, Article 30(1) ICCSt. cannot be interpreted as requiring that all material

elements have to be committed with intent and knowledge. This follows fromsubsections (2) and (3); under these provisions, the intent requirement relatesto conduct and consequences only, while the knowledge requirement relatesto circumstances and consequences only. Therefore, the intent of the perpetra-tor need not cover the circumstances of the crime, while his or her knowledgeneed not cover the criminal conduct. The only material element which hasto be covered by both intent and knowledge is the consequence of a crime.

12 But see infra notes 47 et seq. and accompanying text.13 The term ‘intention’ is used here as including both purpose (dolus directus of a first degree)

and knowledge (dolus directus of a second degree); see alsoAshworth, supra note 2, at173 et seq.14 Both conditions must be present at the time of the act’s commission; dolus antecedens or

subsequens is insufficient, see Eser, supra note 5, at 930.

38 JICJ 3 (2005), 35^55

This interpretation is in line with the Introduction to the Elements of Crimes,which states that where ‘no reference is made in the Elements of Crimes toa mental element for any particular conduct, consequence or circumstancelisted, it is understood that the relevant mental element, i.e. intent, knowledgeor both, set out in article 30 applies’ (emphasis added). Together withArticle 30(1) ICCSt., this wording can only be understood to mean thatArticle 30 ICCSt. demands either intent or knowledge or both, depending onthe material element. In addition, our interpretation does not conflict with thefact that the wording of Article 30(1) was changed at the last moment from‘intent or knowledge’ to ‘intent and knowledge’.15 While the ‘or’ would havesuggested two alternative standards of mens rea,16 the ‘and’ appears to refer toa meaning of intent and knowledge as recognized under civil-law systems; thisis the distinction between a voluntative and a cognitive element. It fully corre-sponds to our understanding that the perpetrator in fact needs both intent andknowledge.Secondly, intent and knowledge have differing meanings depending on

the material element in question. This requires a careful distinction betweenthe various material elements,17 i.e. the conduct, its consequences and anycircumstances.18 Objectively, every international crime presumes some con-duct19 that is more precisely delineated in the definition of the crime.This can consist of an action or � to the extent that this is provided for inthe definition20 � an omission.21 Most crimes under international law

15 The wording ‘intent and knowledge’ was a subject of intense disagreement right up to the endof the negotiations in Rome; see D. Piragoff, ‘Article 30 � Mental Element’, in O. Triffterer (ed.),Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos,1999), at marginal no. 10; P. Saland, ‘International Criminal Law Principles’, in R. Lee (ed.),The International Criminal Court, The Making of the Rome Statute (The Hague: Kluwer LawInternational, 1999) 189^216, at 205. It was mainly at France’s instigation that the word‘and’ was accepted in place of the word ‘or’ included in the draft; see Clark, supra note 5, at 302.On the drafting history of the rule, see generally Clark, supra note 5, at 296; Eser, supra note 5,at 894 et seq.

16 For the doctrine ofmens rea in common-law systems, see the references, supra note 6.17 See for the distinction of material elements Ambos, supra note 5, at 764 et seq.; Clark, supra

note 5, at 306; M. Kelt and H. von Hebel, ‘What are Elements of Crimes?’, in R. Lee (ed.), TheInternational Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Ardsley:Transnational Publishers, 2001) 13^40, at 14 and 26; Piragoff, supra note 15, at marginal no. 6;Werle, supra note 1, at marginal nos 299 et seq. The distinction between conduct, consequencesand circumstances arises from common-law doctrine (see Eser, supra note 5, at 911et seq.).

18 Thus, for example, in shooting someone to death, which constitutes the crime againsthumanity of killing, the conduct required under Art. 30(2)(a) ICCSt. occurs (only) in pullingthe weapon’s trigger, while the fact that the victim was hit by the bullet and dies as a result isa‘consequence’, to which different subjective requirements apply; see Clark, supra note 5, at 306.

19 The preliminary drafts still spoke of ‘act or omission’ (Art. 28 Draft-ICCSt.); see Saland, supra note15, at 212.

20 SeeWerle, supra note 1, at marginal nos 502 et seq. Examples include Art. 28 ICCSt. (commandresponsibility) and Art. 8(2)(b)(xxv) ICCSt. (‘intentionally using starvation of civilians as amethod of warfare by depriving them of objects indispensable to their survival.’).

21 SeeAmbos, supra note 5, at 765; Eser, supra note 5, at 913; Kelt and von Hebel, supra note17, at 26.


require not only incriminating action, but also that such an action has aspecific consequence. Consequences in this sense are all effects of the pun-ishable conduct.22 The consequence can consist of harm that has actuallyoccurred,23 or of merely endangering protected interests.24 In addition toconduct and consequences, crimes under international law normally requirethe presence of additional circumstances.25 Objective circumstances can beof a factual nature, such as the fact that the victim is younger than 15years,26 or they can concern normative characteristics, such as the factthat the victim is a person protected under the Geneva Conventions.27 Inclassifying conduct as a crime under international law, circumstances playa key role in crimes against humanity and war crimes.28 Here, so-calledcontextual circumstances,29 or even more precisely, contextual elements,30

form the objective requirement that gives individual acts an internationallegal dimension.31

And, finally, Article 30 ICCSt. explicitly allows differing or supplementaryrules (‘unless otherwise provided’), which take precedence over the mentalelement as established in Article 30 itself. It follows that the standard of mensrea established by Article 30(1)^(3) ICCSt. has to be distinguished from themens rea requirements that arise from other provisions within the meaningof Article 30(1).

3. Standard Requirements:‘Intent and Knowledge’

Article 30 ICCSt. sets a standard for the mental element of crimes underinternational law which is applicable in all cases where there are no rulesspecifically regulating the mens rea.

22 See Eser, supra note 5, at 914 (‘all definitional effects which may ensue from the prohibitedconduct’).

23 Article 8(2)(a)(ii) ICCSt. (causing great physical suffering to the victim).24 Article 8(2)(b)(x) ICCSt. (seriously endangering the health of the victim); see Kelt and

von Hebel, supra note17, at15.25 In common law, ‘circumstances’ are normally understood to mean facts arising from legally

established factual requirements and do not describe the conduct itself or the consequencesof the act; see Ambos, supra note 5, at 766.

26 Article 8(2)(b)(xxvi) ICCSt.27 Article 8(2)(a) ICCSt.; see Kelt and von Hebel, supra note17, at15 and 27.28 On the dispute over the classification of the contextual elements at the Rome conference,

seeWerle, supra note1, at marginal nos 325 et seq.29 See Elements of Crimes, General Introduction, no.7.30 See Kelt and von Hebel, supra note17, at15.31 For details, seeWerle, supra note1, at marginal no. 278.

40 JICJ 3 (2005), 35^55

A. Intent as Regards the Criminal Conduct

Under Article 30(1) and (2)(a) ICCSt., a person is criminally liable only ifhe or she ‘means to engage in the conduct’ described in the definition of thecrime. Thus, the conduct must be the result of a voluntary action on thepart of the perpetrator.32 Automatism, such as the behaviour following anattack by a swarm of bees, prevents criminal responsibility for crimes underinternational law.

B. Intent and Knowledge as Regards the Consequences of the Conduct

If the definition of the crime requires that the perpetrator’s conduct causea specific consequence, such as the death of the victim, the perpetrator musteither ‘mean to cause that consequence’33 or at least, in committing theact, must be ‘aware that it will occur in the ordinary course of events’.This follows from Article 30(1), (2)(b) and (3) ICCSt. Under this definition,the minimum requirement for criminal liability is awareness of the prob-able occurrence of the consequence.34 That means that in the perpetrator’sperception at the time of the act, carrying out the conduct would cause theconsequence, unless extraordinary circumstances intervened. Thus, it is notenough for the perpetrator to merely anticipate the possibility that his orher conduct would cause the consequence. This follows from the words ‘willoccur’; after all, it does not say ‘may occur’.35

This interpretation of Article 30(2)(b) and (3) ICCSt., which appears to beshared by most commentators,36 results in the establishment of a standardof mens rea apparently stricter than that usually applied by both domestic andinternational courts.37 In such courts, under the concepts of recklessness ordolus eventualis, the perpetrator’s awareness of the mere risk that a particular

32 See Eser, supra note 5, at 913; Piragoff, supra note 15, at marginal no. 19; contra Ambos, supranote 5, at 767.

33 Contra Ambos, supra note 5, at 770, who argues that the perpetrator must mean to causethe consequence and be aware that it will occur.

34 E.g. a soldier who aims at destroying a building while not wishing to kill civilians whomhe knows are in the building may be liable for a war crime under Art. 8(2)(a)(i) ICCSt. if thebuilding is in fact destroyed and the civilians are killed.

35 In fact, the wording of Art. 30(2)(b) ICCSt. corresponds to the text in the English DraftCriminal Code Bill, which was presented to the Parliament by the Law Commission in1989, but has never been implemented. Under clause 18(b)(ii) of that Draft Bill, a person acts‘intentionally’ � as distinguished from ‘recklessly’ � with respect to a result when he actseither in order to bring it about or being aware that it will occur in the ordinary course ofevents; see The Law Commission, A Criminal Code for England and Wales, Vol 1: Report anddraft Criminal Code Bill (London: HMSO,1989).

36 See infra note 95. Remarkably, the few commentators who advocate the inclusion of recklessnessand dolus eventualis in the standard set by Art. 30 ICCSt. hardly ever give any reasons fortheir position.

37 For details, see infra note 92 and accompanying text.


consequence may occur is generally sufficient to establish criminal responsi-bility.38 In fact, domestic legislation implementing the provisions of the ICCStatute usually extends the standard of mens rea that is applicable to ‘ordinary’crimes, which generally includes recklessness or dolus eventualis, also to geno-cide, crimes against humanity and war crimes.39 And why should the standardof mens rea under the ICC Statute be stricter than the one applied by theYugoslavia or the Rwanda Tribunals or national courts prosecuting crimesunder international law? One possibility of solving this tension could be amore extensive interpretation of Article 30 ICCSt.; here, the point of departurecould be the wording ‘in the ordinary course of events’ (emphasis added).However, such a broad interpretation of Article 30(2)(b) and (3) ICCSt., whichmight easily conflict with the principle of strict construction,40 may not benecessary, if � as we will demonstrate shortly41 � there is an easier andmore appropriate way of bringing the law under the ICC Statute in line withcustomary international law and domestic application of crimes under inter-national law.

C. Knowledge as Regards the Circumstances of the Crime

To the extent that the crime presumes additional objective elements asidefrom conduct and specific consequences, it suffices for liability if the perpetra-tor has ‘awareness that a circumstance exists’.42

Where Article 30 ICCSt. requires knowledge of a material element, be ita consequence or a circumstance, a distinction must be made. In regard tothe descriptive criteria of a crime, knowledge means the perpetrator’s sensoryperceptions. In regard to the normative criteria � i.e. those whose presencepresumes a value judgment � it is sufficient in principle if the perpetratorknows of the fundamental factual circumstances and comprehends the signif-icance of the incriminating conduct that is described by those criteria.43

It is immaterial, in principle, whether the perpetrator’s legal assessment is

38 For details, see infra note 92 and accompanying text.39 See, e.g. s. 2 of the German Code of Crimes against International Law; for discussion, see

G.Werle and F. Jessberger, ‘International Criminal Justice is Coming Home: The New GermanCode of Crimes Against International Law’,13 Criminal Law Forum (2002) 191^223, at 202.

40 SeeArt. 22(2) ICCSt.41 See infra notes 91et seq. and accompanying text.42 Article 30(3) ICCSt.43 See also Elements of Crimes, Introduction, no. 4: ‘With respect to mental elements associated

with elements involving value judgment, such as those using the terms ‘‘inhumane’’or ‘‘severe’’,it is not necessary that the perpetrator personally completed a particular value judgment, unlessotherwise indicated.’; see Kelt and von Hebel, supra note 17, at 34. See also Ambos, supra note 5,at 786 et seq.; Eser, supra note 5, at 925; O. Triffterer, ‘Article 32: Mistake of Fact or Mistakeof Law’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court(Baden-Baden: Nomos,1999), marginal nos16 and 32.

42 JICJ 3 (2005), 35^55

correct.44 For the criterion ‘protected persons’ in Article 8(2)(a) ICCSt., thismeans the following: it is not necessary for the perpetrator to have correctlyassessed the protected status of a person (e.g. a ‘civilian’ or ‘wounded com-batant’) under international humanitarian law; it suffices for him or herto have been aware of the factual circumstances upon which the legallyprotected status is based (e.g. non-participation in combat (for civilians) orinability to continue participating in combat (for wounded combatants)).45

Nor does the perpetrator need to have correctly classified the armed conflictas international or non-international.46

4. Departures from the Standard RequirementsArticle 30 ICCSt. establishes the requirements of the subjective elements only‘unless otherwise provided’. ‘Otherwise provided’, in terms of Article 30(1)ICCSt., may encompass provisions arising from the Statute itself, and �although this is controversial � from the Elements of Crimes and othersources of international law under Article 21 ICCSt. (customary internationallaw in particular). This category of provisions on the mental element maywork in various directions.47 They may confirm or clarify the subjectiverequirements as established in Article 30 ICCSt. for a specific crime, butthey may also bring about a departure from the standard requirements bybroadening or narrowing criminal responsibility.

A. Sources of Other ProvisionsWithin the Meaning of Article 30(1) ICC St.

1. ‘Otherwise Provided’ in the ICC Statute

The ICC Statute itself contains elements that concern the perpetrator’s per-ceptions, especially in its definitions of crimes. The terms ‘intent’, ‘intentional’

44 However, there are exceptions to this principle; e.g. under Art. 8(2)(b)(iv) ICCSt., it is requiredthat the perpetrator realizes that the harm caused by his or her attack was unmistakably outof proportion to the expected military advantage. On this point, the Elements of Crimes state:‘As opposed to the general rule set forth in paragraph 4 of the General Introduction, thisknowledge element requires that the perpetrator make the value judgment as described therein’;seeArt.8(2)(b)(iv), no.3, footnote 37, Elements of Crimes.

45 This is confirmed in the Elements of Crimes: ‘The perpetrator was aware of the factual circum-stances that established the protected status of the person’; see Art. 8(2)(a)(i), no. 3, Elementsof Crimes.

46 See Kelt and von Hebel, supra note 17, at 35. For a critical assessment, see Ambos, supra note 5,at 788.

47 See also Ambos, supra note 5, at 805; Clark, supra note 5, at 321; Eser, supra note 5, at 898;Piragoff, supra note15, at marginal no.14.


and ‘intentionally’,48 ‘wilful’, ‘wilfully’49 and ‘wantonly’50 are frequentlyemployed.51 It is necessary to examine the definitions on a case-by-casebasis to determine whether the different wordings involve a departure fromthe standard laid down in Article 30 ICCSt.52

The multiplicity of special rules is not so much a result of a consciouslydifferentiated assessment of the subjective requirements for criminality bythe creators of the Statute, but rather a consequence of the literal adoptionof the Statute’s ‘parent norms’. In the area of war crimes, the frequent useof such additional elements arises from the fact that the ICC Statute hasabsorbed the corresponding rules of international humanitarian law. Inprinciple, this regulatory technique cannot be faulted. It avoids levellingand leaves room for differentiated treatment as well as recourse to ‘parentnorms’ such as the Geneva Conventions. Occasionally, however, noteworthytextual differences may emerge; for example, when ‘causing great suffering’must occur ‘wilfully’ as a war crime (Article 8(2)(a)(iii) ICCSt.), but ‘intention-ally’ as a crime against humanity (Article 7(1)(k) ICCSt.). Another reason forthe variety of subjective elements in the ICC Statute might be, as ProfessorClark53 points out, that the general principles, including Article 30 ICCSt.,on the one hand and the definitions of crimes on the other were formulated

48 ‘[I]ntent to destroy’ (genocide, Art. 6 ICCSt.); ‘intentionally causing great suffering’ (crimeagainst humanity of inhuman treatment, Art. 7(1)(k) ICCSt.); ‘intentional infliction ofconditions of life’ (crime against humanity of extermination, Art. 7(2)(b) ICCSt.); ‘intentionalinfliction of severe pain’ (crime against humanity of torture, Art. 7(2)(e) ICCSt.); ‘intent ofaffecting the ethnic population’ (crime against humanity of forced pregnancy, Art. 7(2)(f)ICCSt.); ‘intention of maintaining that regime’ (crime against humanity of apartheid,Art. 7(2)(h) ICCSt.); ‘intention of removing them from the protection of law’ (crime againsthumanity of enforced disappearance, Art. 7(2)(i) ICCSt.); ‘intentionally directing attacks’ (warcrime of attack on civilian population, civilian objects, protected buildings and humanitarianmissions, Art. 8(2)(b)(i), (ii), (iii), (ix), (xxiv) and (e)(i), (ii), (iii), (iv) ICCSt.); ‘intentionally launchingan attack’ (war crime of disproportionate damage, Art. 8(2)(b)(iv) ICCSt.); ‘intentionally usingstarvation’ (war crime of starvation of civilians, Art. 8(2)(b)(xxv) ICCSt.).

49 ‘[W]ilful killing’ (war crime of killing, Art. 8(2)(a)(i) ICCSt.); ‘wilfully causing great suffering’(war crime of causing great suffering, Art. 8(2)(a)(iii) ICCSt.); ‘wilfully depriving a . . .protectedperson of the rights of a fair and regular trial’ (war crime of deprivation of the right to a fairtrial, Art. 8(2)(a)(vi) ICCSt.); ‘wilfully impeding relief supplies’ (war crime of starvation ofcivilians, Art. 8(2)(b)(xxv) ICCSt.).

50 ‘[D]estruction . . . carried out unlawfully and wantonly’ (war crime of destruction and appro-priation of property, Art. 8(2)(a)(iv) ICCSt.).

51 Additional examples of subjective characteristics in the ICC Statute are: ‘should have known’,Art. 28(a)(i) ICCSt.; ‘for the purpose of’, Art. 25(3)(c) ICCSt.; ‘killing or wounding treacherously’,Art. 8(2)(b)(xi) and (e)(ix) ICCSt.

52 Similarly, see Ambos, supra note 5, at 797 et seq.; Eser, supra note 5, at 901. It would be toogeneral to see the use of ‘intentional(ly)’ in the Statute as merely a declaratory confirmationof the general requirement of intent, but see, in this sense, Piragoff, supra note 15, at marginalno. 12; T. Weigend, ‘Zur Frage eines ‘‘internationalen’’ Allgemeinen Teils’, in B. Schu« nemannet al. (eds), Festschrift fu« r Claus Roxin (Berlin: de Gruyter, 2001) 1375^1399, at 1389, footnote 57;see also Kelt and von Hebel, supra note17, at 33.

53 Clark, supra note 5, at 313 et seq.

44 JICJ 3 (2005), 35^55

by different working groups, between which the necessary communication didnot always take place.

2. ‘Otherwise Provided’ in the Elements of Crimes and in CustomaryInternational Law

In the Elements of Crimes, too, there are numerous provisions concerningthe offender’s state of mind. Among others, the following wordings are used:‘knew or should have known’,54 ‘was aware of’,55 ‘intended’56 and ‘in order to’.57

In addition, rules on the mental element are also found in customary inter-national law, particularly as applied by theYugoslavia and Rwanda Tribunals.58

Whether these rules are other provisions within the meaning of Article 30(1)ICCSt., however, is a matter of controversy.59

According to Article 21(1) ICCSt., the Court shall apply the Statute andthe Elements of Crimes, but also, secondarily, customary international law.60

Taking Article 21(1) ICCSt. into account, one thus would correctly come tothe conclusion that the ‘unless-otherwise-provided’ clause allows modificationof the subjective requirements laid out in Article 30 ICCSt. through both theElements of Crimes and customary international law. It cannot be gatheredfrom Article 30 ICCSt. that only provisions of the Statute itself can be ‘otherprovisions’. On the contrary, comparison with other wording in the Statutesuggests that the range of norms referred to in this case is much wider.

54 E.g. Art.6(e), no.6, Elements of Crimes (genocide by forcible transfer of children); Art.8(2)(b)(vii),Sp.1, 2,4, no.3, Elements of Crimes (war crime of improper use of insignia); Art.8(2)(e)(vii), no.3,Elements of Crimes (war crime of use of child soldiers).

55 Here, the wording is often used: ‘The perpetrator was aware of the factual circumstancesthat established . . .’, e.g. referring to ‘the gravity of the conduct’ (Art. 7(1)(e), no. 3, Elements ofCrimes; crime against humanity of deprivation of liberty); ‘the character of the act’ (Art.7(1)(k),no. 3, Elements of Crimes; crime against humanity of inhumane treatment); ‘[the] protectedstatus [of the victim]’ and ‘the existence of an armed conflict’ (Art. 8(2)(a)(i), nos 3 and 5,Elements of Crimes; war crime of killing. A large number of other Elements of Crimes forwar crimes are consistent with this).

56 E.g. Art. 8(2)(b)(i), (ii) and (iii), Elements of Crimes, in each case, no. 3 (war crimes throughattack on nonmilitary targets); Art.8(2)(b)(xvi), no. 2, Elements of Crimes (war crime of plunder-ing); Art. 8(2)(b)(xxiii), no. 2, Elements of Crimes (war crime of using human shields).

57 E.g. Art. 8(2)(b)(vii), Sp. 1, no. 2, Elements of Crimes (war crime of improper use of a flag oftruce); Art.8 (2)(b)(xii), no. 2, Elements of Crimes (giving no quarter).

58 See the examples inWerle, supra note 1, at marginal nos 322, 334, 613, 676 and 878, and infranotes100 et seq. and accompanying text.

59 Pro, see Cassese, supra note 3, at 176; Clark, supra note 5, at 321; Kelt and von Hebel, supranote 17, at 29 et seq.; Piragoff, supra note 15, at marginal no. 14; M. Politi, ‘Elements of Crimes’,in A. Cassese, P. Gaeta and J. R.W. D. Jones (eds),The Rome Statute of the International CriminalCourt: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 443^473, at 461. Contra,see Ambos, supra note 5, at 789 (‘deviations from Art. 30 can only arise directly from Art.6^8’);Eser, supra note 5, at 898 and 933;Weigend, supra note10, at 326 et seq.

60 For details and for the status of Art. 21 as the authoritative rule on the sources ofinternational criminal law, seeWerle, supra note1, at marginal nos164 et seq.


When other provisions in the Statute itself are referenced, the reference isgenerally made explicit; thus, a comparable clause in Article 31(1) ICCSt. onthe grounds for exclusion from punishment explicitly refers to ‘other groundsfor excluding criminal responsibility provided for in this Statute’.61

Admittedly, it might be argued that the principle of legality requires thatany expansions of the definition of the mental element in Article 30 ICCSt.would have to be found in the Statute itself and not in outside sources.62 Butwhat might be a cherished and fundamental principle in a domestic contextshould not necessarily be literally transferred to international criminal law.There can be no doubt that customary international law is a source of inter-national criminal law.63 And there is no reason why this should not holdtrue in principle in relation to the mental element of crimes under inter-national law. In addition, there is a strong argument in favour of a uniforminterpretation and application of the ICC Statute and customary internationallaw.64 This warrants an interpretation of the provisions of the ICC Statutewhich is as far as possible in line with customary international law. As aresult, customary international law may often be relevant in the course ofinterpretation of other provisions on the mental element in the ICC Statute.For example, in determining what mens rea is required for a ‘wilful killing’under Article 8(2)(a)(i) ICCSt., the corresponding rules of internationalhumanitarian law, such as Article 147 of the Fourth Geneva Convention, andtheir interpretation by international jurisprudence play a key role.Finally, our reasoning is not altered by the fact that Article 9 ICCSt. requires

the Elements of Crimes to be compatible with the Statute. What is importantunder this provision is the compatibility of the Elements of Crimes withthe definitions of the crimes. But Article 30 ICCSt. explicitly permits differingprovisions. From the point of view of Article 30 ICCSt., therefore, differingprovisions in the Elements of Crimes are to be treated just like differing provi-sions in the Statute itself. The question of compatibility is thus posed only ifthe definition of a crime in the Statute contains a subjective element that ismodified in the Elements of Crimes.

B. E¡ects of Other ProvisionsWithin the Meaning of Article 30(1) ICCSt.

Other provisions within the meaning of Article 30(1) ICCSt. may work invarious directions in relation to the mental element.65 Each provision mustbe examined separately in order to determine whether it in fact causes a

61 Editor’s emphasis.62 SeeWeigend, supra note10, at 327.63 SeeWerle, supra note1, at marginal nos128 et seq.64 SeeWerle, supra note1, at marginal no.127.65 See alsoWeigend, supra note10, at 327.

46 JICJ 3 (2005), 35^55

departure from the general standard of mens rea established under Article 30ICCSt.

1. Affirmation and Clarification

The effect of ‘otherwise provided’ can first of all be affirmation of the subjec-tive elements established in Article 30 ICCSt. For example, Article 7(1) ICCSt.explicitly provides, in the case of crimes against humanity, that the perpetratormust act ‘with knowledge of the attack’ on the civilian population; withoutthis addition to the definition of the crime, the requirement of knowledgeof the attack would arise from Article 30 (3) ICCSt.66

2. Expansion of Criminal Liability

According to some other provisions within the meaning of Article 30(1) ICCSt.,the requirements of the mental element are lowered in comparison to thestandard of Article 30 ICCSt. The spectrum reaches from recklessness anddolus eventualis to negligence.A significant lessening of the standard requirements for the mental element

as laid down in Article 30 ICCSt. is created by Article 28 ICCSt. in relationto command responsibility.67 Under Article 28 (a)(i), sufficient grounds exist tofind criminal liability of a military commander for the crimes of a subordinateif he or she, ‘owing to the circumstances at the time, should have known’that the subordinate was committing or was about to commit the crime.The frequently used term ‘wanton’ also reduces the level of the requiredmental state; for example, for the war crime of destruction of property underArticle 8 (2)(a)(iv) ICCSt., recklessness is sufficient.68 The same can be pre-sumed for ‘wilfulness’, which is often required for war crimes as well; to thisextent, reckless conduct is usually enough.69

66 See Ambos, supra note 5, at 774; Weigend, supra note 51, at 1389, footnote 57; Werle, supranote1, at marginal no.326.

67 See Kelt and von Hebel, supra note 17, at 21. On the customary international-law standardof the mens rea of superior responsibility, see ICTY, Judgment, Mucic¤ et al. (IT-96^21-A), AppealsChamber, 20 February 2001, x241 and K. Keith, ‘The Mens Rea of Superior Responsibility asDeveloped by the ICTY Jurisprudence’,14 LeidenJournal of International Law (2001) 617^634.

68 See J. Allain and J. R. W. D. Jones, ‘A Patchwork of Norms: A Commentary on the 1996 DraftCode of Crimes against Peace and Security of Mankind’, 8 European Journal of InternationalLaw (1997) 100^117, at 106; Eser, supra note 5, at 899. For more on recklessness, see infra note94 and accompanying text, andWerle, supra note1, at marginal no.330.

69 Whether this reduction affects all violations of international humanitarian law punishableas grave breaches has not yet been definitively determined; for discussion, see Werle, supranote 1, at marginal nos 857 et seq.; from the inconsistent jurisprudence of the YugoslaviaTribunal, see ontheonehand ICTY, Judgment,Blas� kic¤ (IT-95^14-T),TrialChamber,3March2000,


In addition, in the Elements of Crimes, numerous provisions may be foundthat expand liability under Article 30 ICCSt. into the realm of negligenceliability. For instance, when applying Article 30(3) ICCSt., the perpetrator ofthe war crime of using child soldiers must, according to Article 8(2)(b)(xxvi)ICCSt., have positive knowledge (‘knowledge means awareness that a circum-stance exists’) of the soldier’s minor status; under the Elements of Crimes,however, it is enough that he or she ‘should have known’ that they wereminors. In the same way, it is sufficient under the Elements of Crimes if theperpetrator of a war crime under Article 8(2)(b)(vii) ICCSt. (making improperuse of a flag of truce or of the flag of the enemy or of the United Nations)‘should have known’ that this use of the flag is not permitted.Finally, important deviations from the mens rea established by Article 30

ICCSt. emerge under customary international law.70 This is mainly true ofkillings, to the extent that they fulfil the requirements of a crime under inter-national law. Here, it is sufficient if the perpetrator, with reckless disregard forhuman life, consciously causes harm.71 We will deal with this crucial pointsubsequently.72

3. Narrowing of Criminal Liability

‘Otherwise provided’can also have a liability-limiting effect, by either strength-ening subjective elements or adding further subjective requirements.Numerous provisions of the ICC Statute include additional subjective

requirements that, unlike ‘intent and knowledge’ under Article 30 ICCSt., donot necessarily refer to a material element of the crime, such as conduct,consequence or circumstance.73 The most important example concerns the‘intent to destroy’element of genocide pursuant to Article 6 ICCSt. The elementmandates that the perpetrator must not only act with intent and knowledgein relation to the material elements of the crime, such as the killing of amember of a protected group, but he or she also must aim at destroying

x152 (‘the mens rea constituting all the violations of Article 2 of the Statute includes bothguilty intent and recklessness which may be likened to serious criminal negligence’), and x181;(but note that the decision of the Trial Chamber has been overruled in significant parts by theJudgment of the Appeals Chamber (IT-95^14-A), 29 July 2004, xx34 et seq.); on the other hand,ICTY, Judgment, Aleksovski (IT-95^14/1-T), Trial Chamber, 25 June 1999, x56 (‘Recklessnesscannot suffice’) and ICTY, Judgment,Vasiljevic¤ (IT-98^32-T),Trial Chamber, 29 November 2002,x194. But Eser, supra note 5, at 899, is incorrect when he states that the addition of ‘wilful’ issupposed to constantly increase the subjective requirements.

70 For details, see infra notes100 et seq. and accompanying text.71 For details, see infra notes 100 and 101 and accompanying text, and Werle, supra note 1,

at marginal nos 334,613,676 and 878.72 See infra notes100 et seq. and accompanying text.73 See alsoAmbos, supra note 5, at 789 et seq.

48 JICJ 3 (2005), 35^55

the group as such.74 The requirement of specific discriminatory grounds forthe crime against humanity of persecution pursuant to Article 7(1)(h) ICCSt.can also narrow liability.75 Additional examples include the intent of affectingthe ethnic composition of any population, required for the crime againsthumanity of forced pregnancy pursuant to Article 7(1)(g) and (2)(f) ICCSt., aswell as the treacherous killing or wounding of hostile forces pursuant toArticle 8(2)(b)(xi) and (e)(ix) ICCSt. Other cases include the intent of facilitatingthe commission of a crime under Article 25(3)(c) ICCSt. (‘for the purpose offacilitating’). Limitations on liability also arise from the Elements of Crimes.Thus, for example, under the Elements of Crimes for Article 8(2)(a)(viii) and(c)(iii), the war crime of hostage-taking requires a coercive intent that is not(explicitly) provided for in the text of the Statute, i.e. that the perpetrator‘intended to compel a State . . . to act or refrain from acting . . ..’76

5. The Context of the Crime and the Mental ElementOne critical and controversial issue relates to whether and to what extentthe specific circumstances77 that elevate the crime to the international level,such as ‘widespread or systematic attack’ or ‘armed conflict’, must be reflectedin the offender’s state of mind.At the Rome Conference, this question was controversial in relation to

the chapeau of Article 7 (crimes against humanity) and the requirementof an armed conflict for war crimes.78 The view that these characteristicswere merely so-called jurisdictional elements,79 which involved only theCourt’s jurisdiction and did not refer to any knowledge required on the partof the perpetrators, was advocated. However, this view cannot be reconciled

74 See K. Ambos, ‘Some Preliminary Reflections on the Mens Rea Requirements of the Crimes ofthe ICCSt. and of the Elements of Crimes’, in L. C.Vohrah et al. (eds), Man’s Inhumanity to Man,Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International,2003) 11^40, at 18 et seq.; J. van der Vyver, ‘Prosecution and Punishment of the Crime ofGenocide’, 23 Fordham International Law Journal (1999) 286^356, at 308. This is also clearlywarranted by the jurisprudence of the Tribunals, summarized by C. Aptel, ‘The Intent toCommit Genocide in the Case Law of The International Criminal Tribunal for Rwanda’,13 Criminal Law Forum (2002) 273^291, at 277 et seq.; R. Arnold, ‘The Mens Rea of GenocideUnder the Statute of the International Criminal Court’, 14 Criminal Law Forum (2003) 127^151,at 138 et seq. But see O. Triffterer, ‘Genocide: Its Particular Intent to Destroy inWhole or in Partthe Group as Such’,14 LeidenJournal of International Law (2001) 399^408, at 404 et seq.

75 For the ‘specific intent to discriminate’, see ICTY, Judgment, Blas� kic¤ (IT-95^14-A), AppealsChamber, 29 July 2004, x164; see alsoWerle, supra note1, at marginal nos 745 et seq.

76 Additional examples in Kelt and von Hebel, supra note17, at 32.77 For the context element, see supra notes 28 et seq. and accompanying text and Werle, supra

note1, at marginal no. 278.78 For details, seeAmbos, supra note 5, at 774 et seq.; Kelt and von Hebel, supra note17, at 34 et seq.79 See, e.g. L. Sadat, The International Criminal Court and the Transformation of International Law

(Ardsley:Transnational Publishers, 2002) 208, footnote140 (‘jurisdictional requirements’).


with the principles of individual responsibility and culpability. Therefore, onewould correctly have to assume that the contextual elements of crimes againsthumanity and war crimes involve ‘circumstances’ that are, within the scopeof Article 30 ICCSt., in principle, subjects of the mental element.80 After longdiscussion, a nuanced solution prevailed in Rome. Technically, this solutionwas made possible by adopting separate provisions for each crime in theElements.81

For crimes against humanity, Article 7(1) ICCSt. explicitly provides thatthe perpetrator must act ‘with knowledge of the attack’ against the civilianpopulation.82 This involves a clarification and confirmation of the mens reaalready required under Article 30 ICCSt.83 It suffices that the offender wasaware of the relevant factual background (the context) of the crime; it isnot required that he or she made the normative conclusion that the attackwas indeed widespread or systematic.84 For war crimes, unlike crimes againsthumanity, there is no reference in the ICC Statute itself to the idea that theperpetrator’s perceptions must include the context of organized violence,i.e. the presence of an armed conflict. Here, however, it follows from Article30 ICCSt. that the perpetrator must recognize that an armed conflict is pre-sent.85 This result is confirmed by the Elements of Crimes; they demand acrossthe board that the perpetrator ‘was aware of factual circumstances that estab-lished the existence of an armed conflict’.86 In contrast, the so-called thresholdclause in Article 8(1) ICCSt. involves only a requirement for jurisdiction,

80 See alsoWeigend, supra note 51, at1389, footnote 57.81 SeeWeigend, supra note10, at 327 et seq.82 In the Elements of Crimes for the different subcategories of crimes, this requirement is

consistently clarified such that ‘the perpetrator knew that the conduct was part of or intendedthe conduct to be part of a widespread or systematic attack against a civilian population’.This requirement, however, is immediately qualified by underlining that the requirement‘should not be interpreted as requiring proof that the perpetrator had knowledge of allcharacteristics of the attack or the precise details of the plan or policy of the State or organiza-tion. In the case of an emerging widespread or systematic attack against a civilian population,the intent clause of the last element indicates that this mental element is satisfied if theperpetrator intended to further such an attack’. See Art. 7, Introduction, Elements of Crimes.The legal situation under the Statute corresponds to the customary law; see ICTY, Judgment,Tadic¤ (IT-94^1-T),Trial Chamber,7 May1997, x656 (‘perpetrator must know of the broader con-text’); see also H.Vest, ‘Humanita« tsverbrechen: Herausforderung fu« r das Individualstrafrecht?’,113 Zeitschrift fu« r die gesamte Strafrechtswissenschaft (2001) 457^498, at 475.

83 See also Clark, supra note 5, at 315; andWerle, supra note1, at marginal no.669.84 SeeWeigend, supra note10, at 328.85 SeeAmbos, supra note 5, at 778 et seq.; Eser, supra note 5, at 928 et seq.86 This requirement is further clarified in three ways:‘There is no requirement for a legal evaluation

by the perpetrator as to the existence of an armed conflict or its character as international ornon-international; in that context there is no requirement for awareness by the perpetrator ofthe facts that established the character of the conflict as international or non-international;there is only a requirement for the awareness of the factual circumstances that establishedthe existence of an armed conflict that is implicit in the terms, took place in the context of andwas associated with.’; see Art.8, Elements of Crimes.

50 JICJ 3 (2005), 35^55

which need not be an element of the perpetrator’s mental state.87 Under thisprovision, the court has jurisdiction over war crimes ‘in particular whencommitted as part of a plan or policy or as part of a large-scale commission ofsuch crimes’. Here, a particular aspect of war crimes is made a requirementfor jurisdiction of and prosecution by the International Criminal Court. Thethreshold clause, however, is not a limitation of the substantive requirementsfor liability.Unlike crimes against humanity and war crimes, the crime of genocide

does not require that the single act objectively takes places within a broadercontext of organized violence.88 Instead, the perpetrator must act with theintent (purpose) to destroy a group, according to Article 6 ICCSt.89 Wherethe Elements of Crimes provide that the individual act of genocide musthave occurred within a context of comparable acts (‘took place in the contextof a manifest pattern of similar conduct’), we are not speaking of a character-istic of the crime of genocide. This requirement only affects the Court’sjurisdiction and is thus not subject to the mental element.90

6. Recklessness and Dolus EventualisIn many, if not most, domestic systems, a mens rea below dolus directus orintention91 warrants full criminal responsibility of the offender. Commonstandards are recklessness and dolus eventualis.92 A person acts with doluseventualis � as distinguished from dolus directus on the one hand and negli-gence on the other � if he or she is aware that a material element includedin the definition of a crime (such as the death of a person) may result from his

87 See alsoAmbos, supra note 73, at 32.88 For details, seeWerle, supra note1, at marginal nos 606 et seq.89 The Elements of Crimes state explicitly: ‘Notwithstanding the normal requirement for a mental

element provided for in article 30, and recognizing that knowledge of the circumstanceswill usually be addressed in proving genocidal intent, the appropriate requirement, if any, fora mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.’

90 See also Clark, supra note 5, at 326 andWerle, supra note1, at marginal no.609.91 For the meaning of the term‘intention’, see supra note13.92 On the similarities and differences between dolus eventualis and recklessness, seeWeigend, supra

note 6, at 688 et seq. Some authors place recklessness and dolus eventualis on the same levelof culpability; see, e.g. B. Huber, ‘Alleinhandeln und Zusammenwirken aus englischer Sicht’,in A. Eser et al. (eds), Einzelverantwortung und Mitverantwortung im Strafrecht (Freiburg i.Br.:Ed. iuscrim, 1998) 79^91, at 80; D. Neressian, ‘The Contours of Genocidal Intent’, 37 TexasInternational Law Journal (2002) 231^276, at 263; see also ICTY, Judgment, Stakic¤ (IT-97^24-T),Trial Chamber, 31 July 2003, x587. Others locate recklessness closer to an aggravated modalityof negligence common to civil-law systems (‘bewusste Fahrla« ssigkeit’); see, e.g. G. Fletcher,Rethinking Criminal Law (Oxford: Oxford University Press, 2000) 443; for a similar view, seeICTY, Judgment, Blas� kic¤ (IT-95^14), Trial Chamber, 3 March 2000, x152 (‘recklessness whichmay be likened to serious criminal negligence’).


conduct and ‘reconciles himself’or ‘makes peace’ with this fact.93 Recklessness,particular to the common-law tradition, is also located somewhere betweenintention and negligence. Under the concept of recklessness, an offenderis held liable for consciously creating a risk that is realized through thecommission of the crime.94

Whether and to what extent recklessness or dolus eventualis is sufficientto establish criminal responsibility under the provisions of the ICC Statuteis subject to dispute.95 In any event, the fact that a definition of recklessnessprovided for in the Draft Statute96 was removed during the negotiations inRome does not militate against including recklessness as a basis for criminalresponsibility under the ICC Statute.97 The simple reason for the removal ofthe definition was that the concept did not appear in the provisions definingcrimes in the final text of the Statute; thus, adopting a definition of reckless-ness would have made no sense.98

93 For discussion of the various requirements of dolus eventualis, see H.-H. Jescheck andT.Weigend,Lehrbuch des Strafrechts, AllgemeinerTeil (5th edn, Berlin: Duncker & Humblot,1996) 299 et seq.

94 See, e.g. s. 2.02(2)(c) MPC: ‘A person acts recklessly . . .when he consciously disregards a sub-stantial and unjustifiable risk that the material element [of the offense] exists or will resultfrom his conduct. The risk must be of such a nature and degree that, considering the natureand purpose of the actor’s conduct and the circumstances known to him, its disregard involvesa gross deviation from the standard of conduct that a law-abiding person would observe inthe actor’s situation.’; see W. LaFave, Criminal Law (3rd edn, St Paul: West, 2000) 246 et seq.,at 254. See also s. 18(c) of the Draft Criminal Code Bill (1989): ‘A person acts ‘‘recklessly’’ withrespect to (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a resultwhen he is aware of a risk that it will occur; and it is in the circumstances known to him,unreasonable to take the risk.’

95 For advocates of inclusion of dolus eventualis, see H.-H. Jescheck, ‘The General Principles ofInternational Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’, 2 Journalof International Criminal Justice (2004) 38^55, at 45; G.-J. Knoops, Defenses in ContemporaryInternational Criminal Law (Ardsley: Transnational Publishers, 2001) 11 et seq.; F. Mantovani,‘The General Principles of International Criminal Law: The Viewpoint of a National CriminalLawyer’, 1 Journal of International Criminal Justice (2003) 26^38, at 32; Piragoff, supra note 22,at marginal no. 22; for a more nuanced view, see Eser, supra note 5, at 932 et seq.; againstinclusion, see Ambos, supra note 5, at 804; C. Kre�, ‘Ro« misches Statut des InternationalenStrafgerichtshofes’, in H. Gru« tzner and P. Po« tz (eds), Internationaler Rechtshilfeverkehr inStrafsachen, Vol. 4 (2nd edn, Heidelberg: R.v. Decker, 2002), Vor III 26, marginal no. 52; Sadat,supra note 78, at 208 et seq.; W. Schabas, Introduction to the International Criminal Court(Cambridge: Cambridge University Press, 2001) 86;Weigend, supra note 51, at1390, footnote 58.

96 Article 29(4) Draft ICCSt. (1998) states: ‘For the purposes of this Statute and unless otherwiseprovided, where this Statute provides that a crime may be committed recklessly, a person isreckless with respect to a circumstance or a consequence if: (a) the person is aware of arisk that the circumstance exists or that the consequence will occur; (b) the person is awarethat the risk is highly unreasonable to take; [and] [(c) the person is indifferent to the possibilitythat the circumstance exists or that the consequence will occur.]’ The concept of dolus eventualisdisappeared from the written documents even before the start of the Rome conference; seeClark, supra note 5, at 301.

97 Though this is apparently the view of K. Ambos, ‘General Principles of Criminal Law in theRome Statute’,10 Criminal Law Forum (1999) 1^32, at 21.

98 See also Schabas, supra note 5, at 420.

52 JICJ 3 (2005), 35^55

To resolve this dispute, a distinction must be made. As far as it is nototherwise provided, Article 30 ICCSt. leaves no room for dolus eventualis orrecklessness. As already mentioned, the requirements of the perpetrator’sbeing aware that the consequence will occur in the ordinary course of eventsor of the perpetrator’s meaning to cause that consequence (Article 30(2)(b)ICCSt.) excludes both forms of subjective accountability.99 It thus followsfrom the wording of Article 30(2)(b) that recklessness and dolus eventualisdo not meet the requirements.As far as it is otherwise provided for the mental element, however, dolus

eventualis or recklessness may legitimately be made the basis for culpability.Whether dolus eventualis or recklessness applies must be decided for eachother provision within the meaning of Article 30(1) separately. Appropriateprovisions can be found in the Statute and in the Elements of Crimes; but,as we argued above, ‘other provisions’ in customary international law mustalso be considered. A main source of subjective conditions of liability undercustomary international law is the jurisprudence of the Yugoslavia andthe Rwanda Tribunals. According to their case law, recklessness and doluseventualis may be sufficient to meet the requirements of the mental elementof several crimes.The Tribunals have frequently referred to the concept of recklessness,

sometimes explicitly and sometimes not. For example, the subjective require-ments of the war crime of killing are fulfilled if a person causes considerableinjury to the victim with ‘reckless disregard of human life’.100 The same istrue of killing as a crime against humanity.101 This consideration, developedwith respect to intentional killing in the course of an armed conflict ora widespread or systematic attack on the civilian population, can sensiblybe transferred by way of interpretation of customary international law toother types of intentional killing, such as similar individual acts in thecourse of genocide. Another example is liability for complicity in the courseof participation in a criminal enterprise. This presumes that it was predict-able that a member of the group would commit the crime and that theperpetrator ‘willingly took that risk’.102 Most recently, the Blaskic¤ appealsjudgment extensively discussed the question with reference to the mens rearequired for ordering a crime under Article 7(1) ICTYSt.103 After a comparative

99 See alsoWeigend, supra note10, at 326 et seq.; Eser, supra note 5, at 945 et seq.100 See ICTY, Judgment, Mucic¤ et al. (IT-96^21-T), Trial Chamber, 16 November 1998, x439; see

alsoWerle, supra note1, at marginal no.878.101 See ICTY, Judgment, Kupres� kic¤ et al. (IT-95^16-T), Trial Chamber, 14 January 2000, x561;

ICTR, Judgment, Musema (ICTR-96^13-T), Trial Chamber, 27 January 2000, x215 (‘At thetime of the killing the Accused or a subordinate had the intention to kill or inflict grievousbodily harm on the deceased having known that such bodily harm is likely to cause thevictim’s death, and is reckless as to whether or not death ensues’). See alsoWerle, supra note1,at marginal no.676.

102 See ICTY, Judgment,Tadic¤ (IT-94^1-A), Appeals Chamber, 15 July 1999, xx227 et seq.; Cassese,supra note 3, at169.

103 ICTY, Judgment, Blas� kic¤ (IT-95^14-A), Appeals Chamber, 29 July 2004, xx34 et seq.


analysis as to the standards of mens rea in some common-law and civil-lawsystems, the Chamber concluded that the requisite mens rea for establishingliability pursuant to Article 7(1) ICTYSt. requires that the ‘person who ordersan act or omission’ has ‘the awareness of a substantial likelihood that a crimewill be committed in the execution of that order’, adding that ‘ordering withsuch awareness has to be regarded as accepting the crime’.104

The concept of dolus eventualis has been referred to for the first timein international criminal-law jurisprudence in the Stakic¤ trial judgment. TheChamber held that ‘both a dolus directus and a dolus eventualis are sufficientto establish the crime of murder under Article 3’105 ICTYSt. The Chamberexplicitly referred to the standard of mens rea required for homicide underGerman law. The Chamber also noted that ‘large scale killings that wouldbe classified as reckless murder in the United States would meet the continen-tal criteria of dolus eventualis.’106 However, the Chamber emphasized thatnegligence on the part of the perpetrator does not suffice to meet the require-ments of the mental element of the war crime of murder. The Chamber setthe same standard � dolus eventualis as a minimum requirement � for thecrime against humanity of extermination.107 Here, it concurred with theopinion held in the Kayishema trial judgment. In that case, the RwandaTribunal stipulated that ‘the act(s) or omission(s) may be done with intention,recklessness, or gross negligence’.108

It is apparent that international jurisprudence has not yet developedconsistent and general guidelines for what the requirements of the mentalelement are under customary international law. However, taking the above-mentioned decisions into account, it seems safe to say that internationaltribunals frequently apply a standard of mens rea that is lower than theone established in Article 30 ICCSt. � be it recklessness or dolus eventualis.109

Through the ‘unless-otherwise-provided’ clause, this case law also determinesthe subjective requirements of crimes under Articles 6^8 ICCSt.

7. ConclusionMens rea is a main prerequisite for individual criminal responsibility andthe mental element is a core characteristic of a crime. This holds true alsofor criminal responsibility and crimes under international law. Regrettably,there are no clear and consistent guidelines for what the requirements ofthe mental element are under international criminal law. Article 30 ICCSt.

104 ICTY, Judgment, Blas� kic¤ (IT-95^14-A), Appeals Chamber, 29 July 2004, x42.105 ICTY, Judgment, Stakic¤ (IT-97^24-T),Trial Chamber,31 July 2003, x587.106 ICTY, Judgment, Stakic¤ (IT-97^24-T),Trial Chamber,31 July 2003, x587.107 ICTY, Judgment, Stakic¤ (IT-97^24-T),Trial Chamber,31 July 2003, x642.108 ICTR, Judgment, Kayishema and Ruzindana (ICTR-95^1-T),Trial Chamber, x146.109 See also van Sliedregt, supra note 5, at 49.

54 JICJ 3 (2005), 35^55

seeks to set a uniform standard for the mental element for the first timein international criminal law, but, in fact, fails to do so. Instead, Article 30ICCSt. challenges the consistency and coherence of international criminallaw as a whole by establishing subjective conditions of liability which departfrom the rules on the mental element that can be found in other provi-sions of the ICC Statute, in the Elements of Crimes and in customaryinternational law.Fortunately, however, Article 30 ICCSt. leaves the door open for a consistent

understanding of mens rea. Through the ‘unless-otherwise-provided’ clause,the Statute can be interpreted to coincide with the rules on the mental elementin the Elements of Crimes and in customary international law. In our view,Article 30 ICCSt. should be interpreted as a default rule that is applied onlyif there are no specific rules on the mental element at all in either theother provisions of the ICC Statute, the Elements of Crimes or customaryinternational law. This understanding limits the scope of the subjectiverequirements defined in Article 30 ICCSt. significantly. Given the considerablenumber of ‘other provisions’ in customary international law in particular,the rule^exception relationship envisaged by Article 30 ICCSt. is in factreversed. In most cases, the mental element is ‘otherwise provided’.


Mental Element of Crimes Under International Criminal Law

Documents

Transcript of Mental Element of Crimes Under International Criminal Law