Dolus Specialis Research Articles

Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

AbstractEven though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea – remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms "specific intent", "special intent", "dolus specialis", or "surplus intent"? Similarly, what are the precise meanings of the terms "deliberately", "intention", "intent", "intentionally", "wilful or wilfully", "knowledge", and "wanton" as provided for in the ICTY Statute or as employed by the Chambers within its judgments.

The Crime of Genocide in the ICTR Jurisprudence

The jurisprudence of the International Criminal Tribunal for Rwanda (ICTR) has properly focused on the special intent (dolus specialis) to destroy a group as the distinguishing characteristic of genocide and differentiated it from result-oriented crimes. Although the ICTR has crowned genocide as `the crime of crimes`, it has simultaneously dethroned it by holding that it attracts the same sentence as other humanitarian law violations. Nonetheless, ICTR jurisprudence attaches considerable importance to characterizing the destruction of the Tutsi as genocide as distinct from crimes against humanity. Because the Tutsi cannot be readily distinguished as one of the protected groups under the Genocide Convention, Trial Chambers have gone to great lengths to characterize them as an `ethnic` group in order to justify the label of genocide.