Definitional Elements of Mens Rea at The International Criminal Court

chapter 3
Definitional Elements of Mens Rea at the

International Criminal Court
3.1 Introduction
As noted, the Rome Statute of the icc adopted a seemingly uniform definition
of mens rea in article 30. This provision comprises two key elements of mens
rea: intent and knowledge.
The drafters formulated the mental element as follows:
Unless otherwise provided, a person shall be criminally responsible and

liable for punishment for a crime within the jurisdiction of the Court
only if the material elements are committed with intent and knowledge.1
In paragraph 2 and 3 of Article 30, these two elements – intent and knowledge –
are refined:
For the purposes of this article, a person has intent where:

a) In relation to the conduct, that person means to engage in the
conduct;
b) In relation to a consequence, that person means to cause that con-
sequence or is aware that it will occur in the ordinary course of
events.2
For the purposes of this article, “knowledge” means awareness that a cir-
cumstance exists or a consequence will occur in the ordinary course of
events. “Know” and “knowingly” shall be construed accordingly.3
This chapter determines these constitutive parts of mens rea, as interpreted

by the icc judges. In its case law, the icc uses the terminology “objective el-
ements”, which corresponds with the actus reus of a crime, and “subjective
1 Article 30(1) ICCSt.

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36 chapter 3
elements”, which corresponds with the mens rea of a crime. Article 30(2) and
(2) is constructed in such a way that the accused’s mens rea must be estab-
lished for “each of the material elements of the specific crime under consid-
eration”, which encompasses an element analysis approach, as opposed to a
crime analysis approach.4 An element analysis approach has also been adopt-
ed in many icty judgments.5
3.2 Intent and Knowledge
Until 1996, the Draft Statute for an International Criminal Court did not con-
tain provisions on mens rea.6 Within the Statute of the Nuremberg Tribunal
and the Statutes of the ad hoc tribunals a definition of mens rea was absent.
The Rome Statute’s definition did not provide the expected clarity as differ-
ent legal systems have competing interpretations of the word “intent” under
article 30 ICCSt.7 The accused must have had the intent to commit a crime,
because if a “relevant circumstance is not known to a person, the person’s
act is not intentional in the context of that circumstance”.8 The question re-
mains, however, how such intent is to be construed. Article 30(2)(b) provides
that the person must have had intent in relation to a consequence, which is
defined as the awareness that the result “will occur in the ordinary course of
4 Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)
(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba
Gombo, 15 June 2009, para. 355, referring to, inter alia, Maria Kelt and Herman von Hebel,
“General Principles of Criminal Law and the Elements of Crimes,” in The International Crimi-
nal Court, Elements of Crimes and Rules of Procedure and Evidence, eds. Roy S. Lee and Hakan
Friman (Transnational Publishers, 2001), 28; Mohamed Elewa Badar, “The Mental Element in
the Rome Statute of the International Criminal Court: A Commentary from a Comparative
Law Perspective,” Criminal Law Forum 19 (2008): 475–476.
5 See Mohamed Elewa Badar, “Drawing the Boundaries of Mens rea in the Jurisprudence of
the International Criminal Tribunal for the Former Yugoslavia,” International Criminal Law
Review 6 (2006): 315.
6 See Donald K. Piragoff, “Article 30 Mental element,” in Commentary on the Rome Statute of the
International Criminal Court, ed. Otto Triffterer (Baden-Baden: Nomos Verlagsgesellschaft,
1999), 527; Report of the International Law Commission on the Work of its Forty-Sixth Ses-
sion, u.n. gaor, 49th Sess., Supp. No. 10, u.n. Doc. A/49/10 (1994).
7 Mohamed Elewa Badar and Sara Porro, “Article 30,” Case Matrix Network, accessed 23
April 2015, http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/
commentary-rome-statute/commentary-rome-statute-part-3/.
8 Piragoff, “Article 30 Mental element,” 530.

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