The Elements of Crimes75 further clarify that ‘where no reference is made in the Elements … to a mental

element for any particular conduct, consequence or circumstance listed, it is understood that the
relevant mental element, i.e., intent, knowledge or both, set out in Article 30 applies.’76 By requiring
intent for the offences listed in the Rome Statute, ‘unless otherwise provided’, the Statute adopts as
default a highly culpable form of mens rea. This may have important effects in relation to the offences
for which customary international law and many domestic systems differ from the provision in the
Statute and the ICC Elements of Crimes as to the mens rea required.77 This issue will be discussed below
in Section 6. For example, in customary international law recklessness is enough to establish the mens
rea for the war crime of intentionally attacking civilians.78 However, as a result of the Rome Statute and
the Elements of Crimes, the same crime, in Article 8(2)(b)(i), requires the higher mens rea of intention.
The Rome Statute thus requires a higher level of culpability on the part of the defendant than customary
international law.79

75 The Elements of Crimes is a document separate from the Rome Statute intended to assist the ICC in
the interpretation and application of Articles 6, 7, and 8 on genocide, crimes against humanity, and war
crimes. The document contains more detailed definitions of the offences and is intended to be used
together with the Rome Statute.

76 Elements of Crimes, 2013, General introduction, para. 2.

77 Cryer et al., 2019, p. 367.

78 Regarding the issue of attacks on civilians and mens rea, Ohlin, 2013.

79 Cryer et al., 2019, p. 367.

80 Prosecutor v. Bemba Gombo, ICC PT. Ch. I, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15
June 2009, para. 357. See also Prosecutor v. Lubanga Dyilo, ICC PT. Ch. I, Decision on the Confirmation of
Charges, ICC-01/04-01/06, 29 January 2007, para. 351; Prosecutor v. Katanga and Ngudjolo Chui, ICC PT.
Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07, 30 September 2008, para. 529.

81 See e.g. Lubanga Dyilo, ICC PT. Ch. I, ICC-01/04-01/06, 29 January 2007, paras 351-352; Katanga and

Pre-Trial Chambers at the ICC have stated that the requirements of “intent and knowledge” in Article 30
‘reflect the concept of dolus, which requires the existence of a volitional as well as a cognitive
element.’80 It is generally acknowledged that the concept of dolus (i.e. intent) in Article 30 includes at
least two categories: (1) dolus directus, interpreted as direct intent, and (2) dolus indirectus, interpreted
as indirect intent.81

According to ICC jurisprudence, dolus directus means that the defendant (1) ‘knows that his or her acts
of omissions will bring about the material elements of the crime’, and (2) ‘carries out these acts or
omissions with the purposeful