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The purpose of the research is to explore the latest developments of mens rea concept applicable to war crimes and crimes against humanity enumerated in international criminal law codifications, inter alia the Statute of the International Criminal Tribunal for the Former Yugoslavia, Statute of the International Criminal Tribunal for Rwanda, Statute of the Special Court for Sierra Leone and Rome Statute of the International Criminal Court. The research is specifically focused on the concept of intent applicable to war crimes and crimes against humanity penalized under aforesaid legal instruments. The study is an attempt to clarify on specific terms employed to demonstrate intent (dolus directus of the first degree, dolus directus of the second degree, dolus eventualis, ‘wilfulness', ‘deliberation', ‘wantonness' etc) with regard to war crimes and crimes against humanity in the light of various modes of criminal responsibility and to draw a demarcating line between intent and other mental states due to the absence of unified approach towards said concept in international criminal law.
The crime as a perilous illegal to society act is an organic combination of interrelated and interdependent elements of a crime (actus reus and mens rea). Intentional crimes require that the actus reus (or objective element) be supported by the necessary mens rea. International criminal law is a unique construction, for it has incorporated criminal law concepts of both common and continental legal systems. Though differences towards understanding of various concepts regarding mens rea in domestic jurisdictions could be explained by diverse long-term legal traditions, legal environment etc., international criminal law aims to unify different legal jurisdictions bringing the best developed and defined legal doctrines together. However, there is a potent risk of confusion should these concepts be embedded as they are (without any alteration) into the context of international law, without introduction of their exact meaning. The problem arose at the ad hoc tribunals and International Criminal Court (hereinafter - ICC) in their application of the concept of mens rea to war crimes and crimes against humanity.
Regrettably, the ICTY, ICTR and SCSL Statutes do not address the issue of the mental element and thus the discretion of the interpretation has been left to judicial interpretation. How should the intent be regarded in international criminal law? Do cognitive element of knowledge and a volitional element of acceptance suffice the requisite mental state? Is foreseeability (this belongs to knowledge) of harmful consequences (for the perpetrator) sufficient to qualify the criminal responsibility for the intentional crimes committed? Those questions have been argued many times before chambers of the ad hoc tribunals. However, instead of a clear interpretation of the concept of ‘intent' in international criminal law, much confusion has been created when different terms were used to connote the same concept or the constituent elements of the mens rea have been interpreted radically different in various judgments. Though the Rome Statute incorporated the provision on mens rea, there are no clear criteria of defining the categories of ‘knowledge' and ‘intent'. The way article 30 of the Rome Statute was construed is not only ambiguous in delineating the threshold of ‘knowledge' in mens rea but also superfluous leaving a ground for inconsistent judicial interpretation currently observed in the latest ICC Pre-Trial Chambers' jurisprudence.
The research aims to serve as an alarming indicator of the significant developments of mens rea concept in the international criminal law theory. In the light of the latest grotesque human right abuses worldwide, it is of vital importance (apart from actus reus) to prove the mental element (mens rea) for war crimes and crimes against humanity. Most worlds' wanted criminals do not necessarily physically or directly carry out any of the crimes alleged, however, they commit crimes through members of state apparatus, army, and rebel groups. To prove that these criminals are one should prove the lowest mens rea threshold required for intentional crimes on the side of the perpetrator. As soon as clear categories of mens rea are deployed within international criminal law, none of Karadzics, Mladics, Taylors and many other infamous world criminals would go unpunished for the horrendous intentional crimes committed on a large scale.
The cornerstone of the criminal responsibility is the principle of ‘culpability' and defects in defining mens rea of the crime would therefore contribute to the violation of the principle nullum poena sine culpa.
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