WINFRED WANJIRU.

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INTRODUCTION

Mens Rea is the criminal intent(mental element or guilty mind) and it refers to the state of mind
required in order to convict a particular defendant .Mens Rea can take four
forms :purpose .knowledge ,recklessness and negligence.1

International Criminal Law has not put together solid law on mens rea. The Nuremberg and
Tokyo Tribunals did not elaborate on mens rea in relation to crime .The issue that arose during
the trial proceedings at the Tokyo Tribunals were the interrelations between mens rea and the
defense and the concept of intent .Since there was no solid law ,individuals were being charged,
prosecuted and convicted based on the partly laid down law on mens rea,

LAWS ON MENS REA IN AD HOC TRIBUNALS.

Both the ICTY and ICTR Statutes do not provide for a general definition of mens rea (mental
element) which has now been left to judicial interpretation.

Intent in Ad Hoc Tribunals

No general definition of intent has been laid down in Ad Hoc tribunals .Its interpretation is
brought up with respect to individual crimes .Principles such as Dolus directus ,dolus
eventualis ,recklessness and willfulness have been laid down but are really not elements of mens
rea standards but a list of technical terms used.

In relation to crime of murder in Common Law jurisdictions there has been lack of uniform
interpretation of intent .The general understanding is that intention exists once it is demonstrated
that the accused intended to cause death or bodily injury likely to lead to death .The ICTY
Celebici Chamber lowered the threshold “…necessary intent meaning mens rea required to
establish the crimes of willful killing and murder recognized in the Geneva Convention ,is
present where there is demonstrated an intention on the part of the accused to kill or inflict
serious injury in regard to human life”.

It is important to note the inclusion of recklessness reduces the threshold for mens rea in murder
for internal crimes

In the Brdanin Trial Judgement the Chambers failed to distinguish between dolus eventualis
and recklessness and treated them as the same .In Common Law and Continental Law
Jurisdiction to provide that Recklessness is less than intent whereas dolus eventualis is a form of
intent in its weakest form.

1
https://lawshelf.com/coursewarecontentview/model-penal-codes-mens-rea

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International Courts and Tribunals have faced challenges in proving the existence of intent in
cases where a person was not physically involved in the commission of a crime and this was
seen in the Tadic case where the court questioned whether the appellant can be held criminally
liable for the killing of five men though there was no evidence that he personally killed them.

In conclusion mens rea in ad hoc tribunals is an ill-defined construction of overlapping terms that
undermine the principle of culpability.

MENS REA IN THE ROME STATUTE

The drafters of the Rome Statute put square brackets on Article 30(c) of the statute to include a
lower mens rea standard. The concept of Recklessness and dolus eventualis were considered in
the view of seriousness of the crimes in question.

Recklessness was meant to be used where the statute explicitly provides that a specific crime or
element may be committed recklessly with a general rule that crimes must be committed
intentionally and knowingly .2

Article 30 requires both intent and knowledge as a general rule. Intent takes three forms:

a. Dolus directus- the event of illegality was foreseen and desired by the perpetrator
b. Dolus indirectus – in which event certain(secondary) consequences in addition to those
desired by the perpetrator as a certainity and although the perpetrator did no desire the
secondary consequences he /she committed act and the consequences set in.
c. Dolus eventualis-the perpetrator foresees consequences other than those desired as a
possibility and went ahead with the act. 3

Jean –Pierre Case

The Prosecutor v. Jean-Pierre Bemba Gombo

The background of the case is that Bemba was a militia leader in the Democratic Republic of
Congo and was charged in the ICC with two counts of crimes against humanity :murder and
rape and three counts of war crimes: murder ,rape and pillaging .The first ICC case was greatly
focused on sex crimes against women ,children and men which were reportedly used at a “tool”
to terrorize the civilian population in Central African Republic during the conflict .4

In examining Bemba’s mental state ,mens rea ,the articles argue that the finding of the Pre-Trial
Chamber of the ICC appears to be less persuasive. The Chamber committed intent in relation to
mens rea and this was as a result of misconception of command responsibility .The chamber
viewed command as vicarious liability for omission .

2
The fundamental concept of crime in international criminal law
3
The international criminal court and the concept of mens rea in international criminal law.
4
https://www.icc-cpi.int/car/bemba

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In relation to knowledge the chamber had to distinguish between the ‘prior knowledge ‘ which
means Bemba knew that by keeping his force in the Central African Republic it would result in
commissions of crime and the retro-active knowledge which means Bemba was aware his forces
committed crime in the Central African Republic.5

Lubanga Case

The Prosecutor v. Thomas Lubanga Dyilo

ICC-01/04-01/06
The mental element in Article 8(2)of the Rome Statute requires that the defendant to have known
or should have known that the persons recruited into the armed forces were under the age of
fifteen .The question of mens rea is more complex .Two questions arise: first what are the mens
rea requirements and second is there provision for negligence.

Article 30 provides that “unless otherwise provided ”perpetrators are liable if they committed a
crime with both intent and knowledge .In relation to child recruitment the statutes
supplementary elements of crimes requires that a perpetrator “knew or should have known ”that
the child or children were aged less than 15 years old.This situation creates two competing mens
rea standards with the elements allowing for negligence liability.

The ICC pre-trial chamber in resolving the inconsistency between these two mens rea. Standards
have a role a play with the intent and knowledge of Article 30 applicable to the existence of an
armed conflict and the connection between the acts charged and armed conflict .A recruitment
strategy that is implemented in a reckless manner with little regard for age verification attracts
criminal responsibility. 6

5
https://www.globalpolicy.org/component/content/article/163/28306.html
6
https://www.icc-cpi.int/drc/lubanga

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BIBLIOGRAPHY.

1. The Rome Statute

2. The International Criminal Court and the concept of Mens Rea in International Criminal
Law-John D Van der Vyver.
3. The Fundamental Concept of Crime in International Criminal law