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i.
INTRODUCTION
Prior to the Rome Statute of the International Criminal Court (Rome Statute),1 no international statute, code or charter included a general provision on the mental element required before criminal responsibility for an international crime would attach. The Nuremberg and Tokyo Charters,2 which governed the trials of the major German and Japanese war criminals following the Second World War, contained no such provision. Nor did Control Council Law No 10,3 which governed the subsequent trials of war criminals in post-war occupied Germany. The Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR)4 did not contain such a provision, nor did the various Draft Codes of Crimes against the Peace and Security of Mankind prepared by the United Nations International Law Commission.5 This omission was not repeated with the Rome Statute, which includes a specific provision (Article 30) on the mental element required for crimes within the jurisdiction of the International Criminal Court (ICC). This makes Article 30 the first of its kind.
Article 30 of the Rome Statute provides that:
1.
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.
2.
For the purposes of this article, a person has intent where:
(a)
In relation to conduct, that person means to engage in the conduct;
(b)
In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3.
For the purposes of this article, 'knowledge' means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 'Know' and 'knowingly' shall be construed accordingly.
Thus, Article 30 represents an ambitious attempt at codification of the rules relating to the mental element in international criminal law. As Pisani states, it is 'designed to bring some consistency into this area of the law'.6 First, it aims to set a default rule that applies, in principle, to all crimes included in the Rome Statute. It therefore requires that, unless otherwise provided, the material...