Elements Of International Crime

4. The elements of international crimes

Although the jurisprudence of the ICTR and ICTY are indispensable in the development of individual criminal responsibility, it does not provide for a system of criminal law and doctrine. The ICC Statute explicitly establishes this ‘general part’, i.e. substantive international criminal law. The ICC Statute lays down in article 25, which persons can be held criminally liable. Prior to discussing who may be held criminally liable, the objective and subjective elements are considered in relation to international (criminal) law. Like Paola Gaeta states, ‘every crime consists of a prohibited act (actus reus), committed by a person with a culpable mind (mens rea)’. Whilst the founding documents of the ad hoc

These elements are crucial for the functioning of the law for these are the yardsticks by which criminality may be measured. First, the mens rea or mental element required for genocide is dolus specialis, i.e. special intention to ‘destroy, in whole or in part, a national, ethnical, racial or religious group’. For the prosecution of a person for genocide it must thence be established that s/he had the special intention to take part in the crime of genocide. Regardless, the volitional element of the dolus specialis appears less prominent in the Tribunals’ case law than the cognitive component of genocidal intent. Second, the mens rea required for crimes against humanity includes both recklessness and intent. The ICTY Trial Chamber established in Blaškić Judgment that it suffices that ‘he [Blaškić] knowingly took the risk of participating in the implementation of the ideology, policy or plan’. Thus, the Tribunal considers the mens rea for war crimes to include both (i) recklessness as well as (ii) intent. It remains uncertain how recklessness must be understood in context of the Tribunal, thence the finding of the Appeals Chamber in Tadić are considered authoritative in this regard. The findings of the Appeals Chamber state that more than negligence is required, namely a state of mind in which a person was aware that the actions would most

This strict wording of the provision has two undesirable results. First, the article excludes dolus eventualis for whilst this article requires that the person be ‘aware that the consequence will occur’, dolus eventualis merely demands that the person be aware of the risk of his conduct. Second, the article stipulates intent to be a necessity, meaning that recklessness does not fall within the scope of this article and the Court does not have jurisdiction over recklessly committed war crimes. The undesirability of these limitations is balanced out by the wording ‘unless otherwise provided’. Thereby the article leaves leeway for articles 8 (war crimes) and 28 (responsibility of commanders and other superiors) of the ICC Statute, although these are merely exceptions to the rule laid down in article 30 of the ICC Statute. This also means that there is a higher mental standard for prosecution before the ICC than there was before the ad hoc Tribunals. To conclude the ICC Statute lays intent (both general and specific), knowledge and dolus directus down in article 30 and dolus eventualis and advertent recklessness in the articles 8 and 28. The ad hoc Tribunals considered all the aforementioned in their case law, including negligence- a type