The Mental Element In The Rome Statute Of The International Criminal Court: A Commentary From A Comparative Criminal Law Perspective

Abstract

For the first time in the sphere of international criminal law, and unlike the Nuremberg and Tokyo Charters or the Statutes of the Yugoslavia and Rwanda Tribunals, Article 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. The first paragraph of Article 30 stresses that unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the ratione materiae of the International Criminal Court „only if the material elements are committed with intent and knowledge‟. The second paragraph identifies the exact meaning of intent, whereas the third paragraph defines the meaning of knowledge. At first sight, it appears that the explicit words of Article 30 are sufficient to put an end to a long lasting debate regarding the mens rea enigma which has confronted the jurisprudence of the two ad hoc Tribunals for the last decade, but this is not true. Scholars disagree regarding the exact meaning of intent under Article 30. Some view Article 30 as encompassing the three categories of dolus, namely, dolus directus of the first and second degree and dolus eventualis. Others hold the opinion that the plain meaning of Article 30 is confined to dolus directus of the first degree (intent in stricto sensu) and dolus directus of the second degree (indirect or oblique intent).