The concept of Mens Rea in international criminal law

Foreword
William A Schabas

Preface
Preface to Hardback Edition, 2013
Table of Cases
1. Introduction
I The Mens Rea Enigma

II General Principles of Law
A The Determination of General Principles of Law
B The Process of Establishing a General Principle
C Abstracting a Legal Principle from National Laws
D Verifying whether the Principle is ‘Generally Recognised’
E Adapting the General Principle to the International Sphere
F The Role of General Principles

III The Study
2. From Vengeance to Mens Rea to Mentes Reae
I The Mental Requisites for Criminality in the Early Law
II The Babylonians – The Code of Hammurabi
III Ancient Hebrew Law
IV The Athenians – The Epic Period
V Plato and Aristotle
VI Roman Law – ‘The Twelve Tables’: Cicero
VII The Irish – St Patrick’s Time: Brehon Law
VIII Islamic Legal Tradition
IX Early Medieval Period
X Old Dutch Statutes
XI Leges Henrici Primi
XII Bracton
XIII Dolus and Culpa
XIV Early Critiques of Mens Rea in the Criminal Law of England
XV General Remarks
3. Mens Rea in the Common Law of England and Wales, Australia and Canada
I Introduction
A The Sources of Criminal Law: Common Law versus Statute
II Mens Rea Standards in Common Law Systems
III Intention
A Smith – The ‘Objective’ Test
B Hyam –The ‘Probability’ Test
C Moloney – The ‘Natural Consequence’ Test
D Hancock and Shankland –The ‘High Probability’ Test
E Nedrick –The ‘Virtual Certainty’ Test
F Woollin –Adhering to the ‘Virtual Certainty’ Test
G The Meaning of Intention in the Criminal Law of Ireland
H The Meaning of Intention in the Criminal Law of Australia
I The Meaning of Intention in the Criminal Law of Canada
J A Schematic Review of the Meaning of Intention in Common
Law Jurisdictions
IV Recklessness
A Cunningham – Subjective Recklessness
B Caldwell/Lawrence – Objective Recklessness
C R v G and Another –The Fall of Objective Recklessness
D A Schematic Review of the Meaning of Recklessness in
Common Law Jurisdictions
V Knowledge or Awareness as to Circumstances
A Does ‘Knowledge’ have a Precise Definition in the Criminal
Law of England?
B The Doctrine of ‘Wilful Blindness’ in England and Canada
C A Schematic Review of the Meaning of Knowledge in Common
Law Jurisdictions
VI Further Principles of Mens Rea
A Specific Intent versus Ulterior Intent
VII Negligence
A Are there Degrees of Negligence?
VIII Accessorial Liability
A Parties to the Commission of Crimes – Principal and
Accessory
B Secondary Participation – Aiding, Abetting, Counselling or Procuring
C Joint Enterprise
IX Mistake as Denial of Mens Rea
X Conclusion

4. Mens Rea in the American Law Institute’s Model Penal Code
I Introduction
II Background of the Code
III The Culpability Provisions of the Model Penal Code: In General
IV Degrees of Culpability under the Model Penal Code
A ‘Purposely’
B ‘Knowingly’
C ‘Recklessly’
D Negligence
V The Model Penal Code Element Analysis
VI Mistake of Fact and Mistake of Law
A Ignorance or Mistake vis-à-vis Culpability Requirement
B Belief that One is Committing a Different Crime
C Belief in Legality of Conduct
VII Mens Rea of Accomplice Liability
A The Full Mens Rea Approach
B Liability for Crimes of Recklessness and Negligence
C Liability of the Accomplice vis-à-vis the Principal Perpetrator
VIII Conclusion and General Remarks

5. Mens Rea in German and French Criminal Law
I Introduction
II The German Three-stage Structure of Criminal Offences
A Straftatbestand – The Legal Elements of the Offence
B Rechtswidrigkeit – Unlawfulness, Wrongfulness or Illegality
C Schuld – Culpability/Guilt
III Vorsatz or Dolus in German Criminal Law
A Absicht or Dolus Directus of the First Degree
B Dolus Directus of the Second Degree or Dolus Indirectus
C Bedingter Vorsatz or Dolus Eventualis
IV Fahrlässigkeit or Negligence
V Grounds of Excluding Vorsatz or Schuld
A The Basic Distinction between Mistake of Fact and Mistake of Law
B Tatbestandsirrtum or Mistake of Fact
C Mistake of Law
VI Täterschaft und Teilnahme (Perpetration and Participation)
A Täterschaft (Perpetration)
B Teilnahme (Secondary Participation)
VII Mens Rea in French Criminal Law and other Romano Legal Systems
A Intention (le dol)
VIII Negligence (la faute pénale)
IX Complicity
A The Requirement of a Principle Offence
B The Act of Complicity (l’élément matériel)
C Mens Rea of Complicity (l’élément moral)
X Conclusion and General Observations

6. Mens Rea in Chinese and Russian Criminal Law
I Introduction
II Sources of Chinese Criminal Law
III Crimes and Criminal Responsibility in Chinese Criminal Law
A Categories of Crimes in Chinese Criminal Law
B Criminal Responsibility
IV Negligence
A Negligence by being Over Confident
B Careless and Inadvertent Negligence
V Cognition Error
A Mistake of Law
B Mistake of Fact
C Responsibility for a Crime Committed with Two Forms of
Guilt in Russian Law
VI Mens Rea of Joint Crimes under Chinese Criminal Law
A The Intention of Enforcement
B The Intention of Organisation
C The Intention of Instigation
D The Intention of Aiding a Crime
VII Conclusion

7. Mens Rea in Islamic Criminal Law
I Introduction to Islamic Law (Shari’a)
II The Application of Islamic Law in Muslim States Today
III Sources of Islamic Law – Shari’a and Fiqh
A Qurān
B Sunnah
C Consensus by Collective Reasoning (Ijmā)
D Analogical Deduction by Individual Reasoning (Qiyas)
IV Categories of Crimes in Islamic Criminal Law
V The Leading Schools of Law (Madhāhib)
VI Criminal Responsibility under Islamic Law
A The Material Element
B Motive
C Intent
D Different Degrees of Homicide and their Definition
E Standards used for Determining Intention
F Summary of Jurists’ Opinions
VII Mistake
A Mistake of Fact
B Mistake of Law
C Cases Similar to Mistake
D Negligence as an Element of Mistake
VIII Participation in Crime
A Direct Complicity
B Complicity in Indirect Homicide
C Causal Complicity
D Ordering
IX Conclusion

8. Mens Rea in post-World War II Trials, the Travaux Préparatoire of
the Genocide Convention and the Work of the International Law Commission
I Introduction
II Mens Rea – Guilty Knowledge
A Evidence – Facts from which Tribunals Infer Knowledge
III Common Plan or Conspiracy
IV Membership of Criminal Organisations – Presumed Knowledge
V Persons Concerned in the Killing
VI Complicity
VII Responsibility of Commanders
VIII Mistake of Law and Mistake of Fact
IX The Mens Rea of Genocide in the Drafting History of the 1948
Genocide Convention
A The UN General Assembly and the ECOSOC Resolutions
B The UN Secretary-General’s Draft
C The Ad Hoc Committee Draft
D The General Assembly Sixth Committee
E Analysis
X The Developing Law of Mens Rea through the Work of the International Law Commission
A Codification of the Nuremberg Principles by the International Law Commission
B The 1954 Draft Code of Offences against the Peace and Security of Mankind
C The 1991 Draft Code of Crimes against the Peace and Security of Mankind
D The 1996 Draft Code of Crimes against the Peace and Security of Mankind
E Analysis
XI Conclusion and General Remarks

9. Mens Rea of Crimes in the Jurisprudence of the the Former Yugoslavia
and Rwanda
I Introduction
II Special Intent or Primary Purpose Crimes
A The Crime of Terror against the Civilian Population
B Torture
C Persecution as a Crime against Humanity
D Taking Civilians as Hostages
E Genocide
III Direct Intent Crimes, Dolus Eventualis and Gross Negligence Crimes
A Rape – Direct Intent Crime (Intent and Knowledge)
B Outrages upon Personal Dignity – Direct Intent Crime
C Extermination – Direct Intent, Dolus Eventualis or Negligent Crime?
IV Wilful Crimes
A Wilful Killing
B Wilfully Causing Great Suffering or Serious Injury to Body or Health
C Destruction or Wilful Damage to Institutions Dedicated to Religion or Education
V Wanton Crimes
A Unlawful and Wanton Extensive Destruction and Appropriation of Property
B Wanton Destruction of Cities, Towns or Villages, or Devastation not Justified by Military Necessity
VI Premeditated Crimes – Murder under Article 3(a) of the ICTR Statute
VII General Remarks and Conclusion

10. The Mens Rea of Perpetration and Participation in the Jurisprudence of the ICTY and ICTR
I Introduction
II Responsibility under Articles 7(1) and 6(1) of the ICTY and ICTR Statutes
A Planning
B Instigating
C Ordering
D Aiding and Abetting
E Committing
III Responsibility under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes
A General Requirements under Articles 7(3) and 6(3) of the ICTY and ICTR Statutes
IV General Remarks and Observations

11. Mens Rea in the Jurisprudence of the International Criminal Court
I Introduction
II Anatomy of Article 30 of the ICC Statute
A Elements Analysis – Mental Elements and their Objects
B Different Culpability Terms Defined in relation to each Objective Element
III Different Degrees of Mental Elements under Article 30
A The Meaning of Intent
B Intent in relation to Conduct
C Intent in relation to Consequence – The First Alternative of Intent
D Intent in relation to Consequence – The Second Alternative of Intent
E The Meaning of Knowledge
IV The Relationship between Article 30 and other Provisions of the ICC Statute
A Article 30 vis-à-vis the Culpability Requirements stated in an Offence Definition
B Article 30 vis-à-vis the Elements of Crimes
C Article 30 vis-à-vis Individual Criminal Responsibility – Article 25
D Article 30 vis-à-vis Superior Responsibility – Article 28
E Article 30 vis-à-vis Mistake of Law and Mistake of Fact
V Conclusion

12. General Conclusions and Recommendations
I A subjective test should be followed in ascertaining the guilt of the accused
II Culpability terms should be confined to three culpable mental states
III ‘Special intent’, ‘dolus specialis’, ‘ulterior intent’ or ‘primary purpose’ crimes require proof of dolus directus of the first degree on the part of the accused
IV Negligence or gross negligence does not satisfy the mens rea
requirement for international crimes
V Actual knowledge and wilful blindness are blameworthy – constructive knowledge has no place in criminal law and should be abandoned
VI Element analysis versus offence analysis
VII The mens rea of accomplice liability requires proof of cognitive and volitional components
VIII The ‘reasonably foreseeable’ test of the extended form of joint criminal enterprise is fundamentally unjust
Epilogue
Roger Clark
Bibliography
Index