The Mental Element In The Rome Statute Of The International Criminal Court: A Commentary From A Comparative Criminal Law Perspective

Criminal Law Forum (2008) 19:473518 Springer 2008

DOI 10.1007/s10609-008-9085-6

MOHAMED ELEWA BADAR*

THE MENTAL ELEMENT IN THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT:

A COMMENTARY FROM A COMPARATIVE CRIMINAL LAW PERSPECTIVE

For the rst time in the sphere of international criminal law, and unlike the Nuremberg and Tokyo Charters or the Statutes of the Yugoslavia and Rwanda Tribunals, Article 30 of the Rome Statute of the International Criminal Court provides a general denition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. The rst paragraph of Article 30 stresses that unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the ratione materiae of the International Criminal Court only if the material elements are committed with intent and knowledge. The second paragraph identies the exact meaning of intent, whereas the third paragraph denes the meaning of knowledge.

At rst sight, it appears that the explicit words of Article 30 are sucient to put an end to a long lasting debate regarding the mens rea enigma which has confronted the jurisprudence of the two ad hoc Tribunals for the last decade, but this is not true. Scholars disagree

* Lecturer in Law, Brunel Law School, Brunel University, London; Judge, Egyptian Ministry of Justice (20022007); Senior Public Prosecutor, Egyptian Ministry of Justice (19972002). PhD (Irish Centre for Human-NUI Galway, Ireland); LLM (Irish Centre for Human Rights-NUI Galway, Ireland); Dip. in International Legal Relations (Ain-Shams University, Cairo); LLB & Bachelors of Police Sciences (Cairo). My own thinking on this work has been signicantly inuenced by Roger Clarks inuential article on The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Oences,12CRIM L. FORUM 291 (2001). The author would like to thank Prof. William Schabas and Prof. Michael Bohlander for their valuable comments on an early draft of this work. Special thanks for Dr. Nora Karsten of the ICTY and Dr. Noelle Higgins of the Dublin City University for their comments on the nal draft.

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MOHAMED ELEWA BADAR

regarding the exact meaning of intent under Article 30. Some view Article 30 as encompassing the three categories of dolus, namely, dolus directus...