¹ Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.

² Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (adopted 8 August 1945) 82 UNTS 279 (Nuremberg Charter); Charter of the International Military Tribunal for the Far East (adopted 19 January 1946, amended 26 April 1946) TIAS 1589, 4 Bevans 20 (Tokyo Charter).

³ Control Council Law No 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (adopted 20 December 1945) in Official Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946, 50–5 (Control Council Law No 10).

⁴ Statute of the International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993, annexed to UNSC Res 827 (25 May 1993) UN Doc S/RES/827 (ICTY Statute); Statute of the International Criminal Tribunal for Rwanda, adopted 8 November 1994, annexed to UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (ICTR Statute).

⁵ See, eg, International Law Commission, ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ in ‘Report of the International Law Commission to the General Assembly on the Work of its Forty-eighth Session’ (6 May–26 July 1996) UN Doc A/51/10.

⁶ N Pisani, ‘The Mental Element in International Crime’ in F Lattanzi and WA Schabas (eds), Essays on the Rome Statute of the International Criminal Court (Il Sirente 2004) 125.

⁷ Cassese, A, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’ (2003) 37 New England LR 1015Google Scholar, 1025.

⁸ Werle, G and Jessberger, F, ‘ “Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law’ (2005) 3 J Int'l Crim Justice 35CrossRefGoogle Scholar, 37.

⁹ Satzger, H, ‘German Criminal Law and the Rome Statute: A Critical Analysis of the New German Code of Crimes against International Law’ (2002) 2 Int'l Crim LR 261CrossRefGoogle Scholar, 269.

¹⁰ A Eser, ‘Mental Elements: Mistake of Fact and Mistake of Law’ in A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (OUP 2002) 907.

¹¹ Despite the US not being a State Party to the Rome Statute, it has nevertheless had a great influence on the drafting of the statute, and on the development of international criminal law more generally. The US made a significant contribution to the early development of international criminal law through its influence on the Nuremberg and Tokyo Trials, and the trials before the US Nuremberg Military Tribunals. With respect to the Rome Statute specifically, the Model Penal Code prepared by the American Law Institute had considerable impact on the drafting of Article 30 of the Rome Statute and on the ‘purposive’ element of aiding and abetting under Article 25(3)(c). This article also draws on domestic criminal law principles derived from the United Kingdom and Australia, as the text of Article 30 bears striking resemblance to the equivalent provisions of the English Law Commission's Draft Criminal Code Bill and the Australian Commonwealth Criminal Code.

¹² Like US law, German law has had a great influence on the development of international criminal law, with a number of German criminal law professors establishing themselves in the field, and acting as judges of international courts or tribunals (for example, Albin Eser and Hans-Peter Kaul). More importantly, German criminal law theory ‘enjoys widespread influence in the civil law world’: Dubber, M, ‘Theories of Crime and Punishment in German Criminal Law’ (2005) 53 Amer J Comp L 679CrossRefGoogle Scholar, 679. Dubber notes, however, that criminal law in common law countries has, until fairly recently, developed largely independently of German influence (ibid). German law therefore provides a good example against which to compare general principles of law that are recognized across common law systems.

¹³ M Kelt and H von Hebel, ‘General Principles of Criminal Law and the Elements of Crimes’ in Roy S Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 22.

¹⁴ The term ‘intent’ is used here in the broad sense, to refer to any mental state that is higher than negligence. Negligence is excluded from the concept of ‘intent’ in this context, because it is characterized by the absence of any volitional or cognitive component (see Table 1 below). On this point, see Williams, G, Criminal Law: The General Part (2nd edn, Stevens & Sons 1961) 31Google Scholar. See also Fletcher, GP, Rethinking Criminal Law (OUP 2000) 508–10Google Scholar.

¹⁵ See, eg, Prosecutor v Bemba Gombo (Confirmation Decision) ICC-01/05-01/08, PT Ch II (15 June 2009) para 357 (Bemba Confirmation). See also Eser (n 10) 905; Schabas, William A, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 475CrossRefGoogle Scholar.

¹⁶ The concept of special or additional intent is discussed below in Part IV.

¹⁷ I have not been able to find any similar visual representation of the differences between the gradations recognized in common law and civil law countries. The hope is that a visual representation will assist the reader in understanding how the different gradations in these two systems roughly compare.

¹⁸ As Clark has put it, ‘the civil law is not a monolith; the common law is not a monolith’: Clark, RS, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Crim L Forum 291CrossRefGoogle Scholar, 294.

¹⁹ For example, according to van Sliedregt, France does not recognize dolus eventualis as a form of intent: van Sliedregt, E, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (TMC Asser Press 2003) 46CrossRefGoogle Scholar. See also Badar, ME, ‘Dolus Eventualis and the Rome Statute Without It?’ (2009) 12 New Crim LR 433Google Scholar, 455–6; C Elliott, ‘France’ in K Heller and M Dubber (eds), The Handbook of Comparative Criminal Law (Stanford Law Books 2010) 218.

²⁰ This is particularly the case for dolus eventualis, where even scholars within some countries hotly debate the definition of this gradation of intent (eg in Germany).

²¹ Bohlander, M, Principles of German Criminal Law (Hart Publishing 2009) 63–4Google Scholar. See also Pisani (n 6) 126 (‘The accused must have acted with the precise scope or desire to bring about that particular result …’).

²² Bohlander (n 21) 64.

²³ ibid. See also Badar, ME, ‘Mens Rea: Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 Int'l Crim LR 203Google Scholar, 222. See also Pisani (n 6) 126–7, 128.

²⁴ US Model Penal Code § 2.02(2)(a)(i).

²⁵ Criminal Code Act 1995 (Australia) s 5.2(1).

²⁶ See Ashworth, A, Principles of Criminal Law (6th edn, OUP 2009) 171–2Google Scholar.

²⁷ See, eg, Law Commission (England), A Criminal Code for England and Wales: Volume 1, Report and Draft Criminal Code Bill (Report No 177, 1989) 192.

²⁸ Badar, ‘Mens Rea’ (n 23) 224.

²⁹ Van der Vyver describes this form of intent as ‘dolus indirectus’, rather than ‘direct intent in the second degree’: Van der Vyver, J, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 Univ Miami Int'l & Comp LR 57Google Scholar, 63. I would submit, however, that he is referring to the same concept.

³⁰ Badar, ‘Mens Rea’ (n 23) 224.

³¹ Badar, ME, ‘The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective’ (2008) 19 Crim L Forum 473CrossRefGoogle Scholar, 486 (emphasis in original).

³² While civil law systems make a clear distinction between the two degrees of direct intent (direct intent in the first degree and direct intent in the second degree), this distinction is not as clear when it comes to common law systems. Generally, the first two gradations are referred to simply as ‘intention’, a category that covers two possible instances: where an individual acts purposely (direct intent) and where an individual acts knowingly (oblique intent). It is for this reason that the dividing line between the two concepts on the common law side of Table 1 is indicated with a dotted line.

³³ US Model Penal Code § 2.02(2)(b)(ii).

³⁴ See Ashworth (n 26) 174, discussing the House of Lords decision in R v Woolin [1999] AC 82.

³⁵ G Williams, ‘Oblique Intention’ (1987) 46 CLJ 417, 421.

³⁶ Criminal Code Act 1995 (Australia) s 5.2(3).

³⁷ Criminal Law Officers Committee of the Standing Committee of Attorneys-General (Australia), Model Criminal Code: Chapters 1 and 2, General Principles of Criminal Responsibility: Report (December 1992) 25.

³⁸ See Law Commission (England), Criminal Code, Volume 1 (n 27). Clause 18(b)(ii) provided that a person acts intentionally with respect to a result ‘when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events’ (emphasis added). This Draft Bill was never enacted into law.

³⁹ See Law Commission (England), A Criminal Code for England and Wales: Volume 2, Commentary on Draft Criminal Code Bill (Report No 177, 1989) 192.

⁴⁰ ibid 193.

⁴¹ Fletcher, Rethinking Criminal Law (n 14) 445–6; Bohlander (n 21) 64. For example, Weigend states that ‘[w]ords such as dolus eventualis have, at different times and in different legal systems, acquired different connotations, and it is thus far from clear that speakers from different backgrounds mean the same thing when they use the same Latin expression’: Weigend, T, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 J Int'l Crim Justice 471CrossRefGoogle Scholar, 482.

⁴² Werle and Jessberger (n 8) 51–2.

⁴³ Bohlander (n 21) 64.

⁴⁴ For a detailed discussion of the various schools of thought, see Badar, ‘Mens Rea’ (n 23) 228–32; Badar, ‘Dolus Eventualis’ (n 19) 458–62. See generally Taylor, G, ‘The Intention Debate in German Criminal Law’ (2004) 17(3) Ratio Juris 346CrossRefGoogle Scholar. For an analysis of the concept of dolus eventualis in Egypt, France, Italy and South Africa and under Islamic law, see Badar, ‘Dolus Eventualis’ (n 19) 452–64.

⁴⁵ Bohlander (n 21) 65.

⁴⁶ ibid. See also Taylor (n 44) 348; Badar, ‘The Mental Element’ (n 31) 490.

⁴⁷ See Law Commission (England), Criminal Code, Volume 2 (n 39) 194.

⁴⁸ Criminal Law Officers Committee (Australia) (n 37) 27. The US Model Penal Code provides in § 2.02(2)(c): ‘A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.’ The Australian Model Criminal Code (which became the Commonwealth Criminal Code) did not adopt the requirement of a ‘gross deviation’.

⁴⁹ Criminal Code Act 1995 (Australia) s 5.4(2).

⁵⁰ Criminal Law Officers Committee (Australia) (n 37) 27. For a discussion of the law relating to recklessness in England, Canada and the US, see Badar, ‘The Mental Element’ (n 31) 488–9.

⁵¹ This is the position taken by Ambos, who situates recklessness somewhere between dolus eventualis and conscious negligence: Ambos, K, ‘General Principles of Criminal Law in the Rome Statute’ (1999) 10 Crim L Forum 1CrossRefGoogle Scholar, 21. Similarly, Triffterer situates recklessness between dolus eventualis and negligence: O Triffterer, ‘The New International Criminal Law: Its General Principles Establishing Individual Criminal Responsibility’ in K Koufa (ed), The New International Criminal Law (Sakkoulas Publications 2003) 709. This is also the position taken by Eser, who views recklessness as being more the equivalent of conscious negligence. In his view, the volitional element in recklessness is entirely lacking: Eser (n 10) 906. Van Sliedregt (n 19) 46 views recklessness as being ‘broader’ than dolus eventualis. See also Wise, who states that ‘dolus eventualis demands that the accused have a particular subjective posture toward the possible consequences of his conduct, where common law terminology minimizes the relevance of the accused's desires, wishes, or wants’: E Wise, ‘General Principles of Criminal Law’ (1998) 13 Nouvelles Études Pénales: Model Draft Statute for the International Criminal Court Based on the Preparatory Committee's Text to the Diplomatic Conference, Rome, June 15–July 17 1998 39, 53.

⁵² As Badar notes, the ICTY Trial Chamber has held that the common law concept of recklessness is not equivalent to the civil law concept of dolus eventualis, because of the lack of any volitional component for recklessness. Badar states that the trial judgment in the Stakić case ‘clearly shows that mere common law recklessness is not equivalent to the continental law dolus eventualis. The latter requires a cognitive element of awareness and a volitional element of acceptance of the risk, whereas mere recklessness lacks such a volitional element’: Badar, ME, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2006) 6 Int'l Crim LR 313CrossRefGoogle Scholar, 332, citing Prosecutor v Stakić (Judgment) IT-97-24-T, T Ch II (31 July 2003) para 642. While I do not agree that there is no volitional component required for the gradation of recklessness, I do consider that this volitional component is lower than that which exists in cases of dolus eventualis.

⁵³ See Prosecutor v Lubanga Dyilo (Confirmation Decision) ICC/01/04-01/06, PT Ch I (29 January 2007) at fn 438 (Lubanga Confirmation).

⁵⁴ Cassese seems to take this view, as he equates the two concepts and also states that recklessness requires a volitional act: A Cassese, International Criminal Law (2nd edn, OUP 2008) 66–7.

⁵⁵ Werle, G, Principles of International Criminal Law (2nd edn, TMC Asser Press 2009) 153CrossRefGoogle Scholar (fn 90). See also Taylor (n 44) 348 (who describes dolus eventualis as ‘tak[ing] the place of the missing concept of recklessness’ in German criminal law) and Wise (n 51) 53 (who states that ‘[r]ecklessness and dolus eventualis are not identical, although, as a practical matter, they are likely to produce similar results in most cases’).

⁵⁶ D Piragoff and D Robinson, ‘Article 30: Mental Element’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, Beck 2008) 854. See also Eser (n 10) 905.

⁵⁷ Pisani (n 6) 129; Eser (n 10) 905, 907. However, the terms ‘intent’ and ‘knowledge’ as used in Article 30 do not themselves equate to ‘volition’ and ‘cognition’. Rather, they are legal terms defined in paragraphs (2) and (3) of Article 30 respectively, while the terms ‘volition’ (ie desire) and ‘cognition’ (ie awareness) are the two components that must both be present in each of the gradations of ‘intent’/‘knowledge’.

⁵⁸ See, eg, Bemba Confirmation (n 15) para 355. This ‘element analysis’ approach was designed by the drafters of the US Model Penal Code: see US Model Penal Code § 1.13(9); Robinson, P and Grall, J, ‘Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond’ (1983) 35 Stanford LR 681CrossRefGoogle Scholar. In fact, Heller states that Article 30's element analysis approach ‘is similar to, and almost certainly based on, the approach taken by the Model Penal Code’: KJ Heller, ‘The Rome Statute of the International Criminal Court’ in KJ Heller and MD Dubber (eds), The Handbook of Comparative Criminal Law (Stanford Law Books 2010) 603. See also Badar, ‘The Mental Element’ (n 31) 476. The element analysis approach has also been adopted by a number of model or draft criminal codes prepared in common law countries, for example, the English Law Commission's Draft Criminal Code Bill and the Australian Commonwealth Criminal Code: Law Commission (England), Criminal Code, Volume 1 (n 27) 51–2 (clause 18); Criminal Code Act 1995 (Australia) Div 5.

⁵⁹ M Kelt and H von Hebel, ‘What Are Elements of Crimes?’ in RS Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 14.

⁶⁰ Fletcher, GP, The Grammar of Criminal Law (OUP 2007) 43Google Scholar.

⁶¹ Badar, ‘The Mental Element’ (n 31) 476. See also Robinson and Grall (n 58) which states (at 683) that under an ‘offence analysis’ ‘one spoke of intentional offenses, reckless offenses, and negligent offenses … [whereas an ‘element analysis’] recognize[s] that a single offense definition may require a different culpable state of mind for each objective element of the offense’.

⁶² This follows the approach of the US Model Penal Code, which recognizes ‘conduct’, ‘result[s] of conduct’ and ‘attendant circumstances’ as the possible elements of a crime: see US Model Penal Code § 2.02.

⁶³ The US Model Penal Code similarly did not provide any usable definitions for these terms, an omission that Robinson and Grall have described as having ‘severely undercut’ the usefulness of the defined mental elements: Robinson and Grall (n 58) 707.

⁶⁴ Piragoff and Robinson (n 56) 852. See also Kelt and von Hebel, ‘What Are Elements of Crimes?’ (n 59) 14. Similarly, Heller describes a conduct element as ‘the positive act or omission prohibited by the crime in question’: Heller (n 58) 602. According to Cassese, ‘[t]he conduct is described by the international rule that imposes a certain behaviour … and therefore criminalizes any act or omission contrary to such a rule’: Cassese, International Criminal Law (n 54) 55.

⁶⁵ Werle (n 55) 144.

⁶⁶ Piragoff and Robinson (n 56) 852. Similarly, Heller describes a consequence element as ‘the required result of the prohibited conduct’ (which may involve ‘either actual harm … or simply the possibility of harm’): Heller (n 58) 602. Werle describes a consequence as including ‘all effects of the criminal conduct’ and explains that they can consist of ‘harm that has actually occurred … or merely of danger to a protected right’: Werle (n 55) 144. See also Kelt and von Hebel, ‘What Are Elements of Crimes?’ (n 59) 15.

⁶⁷ Piragoff and Robinson (n 56) 852.

⁶⁸ Heller (n 58) 602. Werle explains that ‘[o]bjective circumstances can be of a factual nature … or they can concern normative characteristics’: Werle (n 55) 145. See also Eser, who defines circumstances as ‘any objective or subjective facts, qualities, or motives with regard to the subject of the crime (such as the perpetrator and any accomplices), the object of the crime (such as the victim or other impaired interests) or any other modalities of the crime (such as means or time and place of commission)’: Eser (n 10) 919. See also Kelt and von Hebel, ‘What Are Elements of Crimes?’ (n 59) 15.

⁶⁹ Robinson and Grall (n 58) 707.

⁷⁰ Kelt and von Hebel, ‘What Are Elements of Crimes?’ (n 59) 15. As Clark notes, there is often overlap between ‘conduct’ and ‘circumstances’, and many of those involved in the drafting of the Rome Statute ‘thought of conduct as including causation and results’: Clark, ‘The Mental Element’ (n 18) 306. The difficulty in drawing the dividing line between ‘conduct’ and ‘circumstances’ was also recognized in the Commentary to the Australian Model Criminal Code: Criminal Law Officers Committee (n 37) 7.

⁷¹ Robinson and Grall (n 58) 719–20.

⁷² See ICC, Elements of Crimes, Article 8(2)(b)(viii), Element 1(a).

⁷³ See ibid, Article 7(1)(k), Element 1.

⁷⁴ Robinson and Grall (n 58) 723.

⁷⁵ ibid 724 (emphasis omitted).

⁷⁶ ibid.

⁷⁷ See ICC, Elements of Crimes, Article 8(2)(b)(xxv), Element 1.

⁷⁸ Robinson and Grall (n 58) 724.

⁷⁹ As is the case with Table 1, Table 2 is my attempt to visually represent the definitions contained in Article 30, arranged with respect to the relevant material element.

⁸⁰ ICC, Elements of Crimes, General Introduction, 2 (emphasis added).

⁸¹ Werle and Jessberger (n 8) 38. See also Werle (n 55) 151.

⁸² See Triffterer (n 51) 704.

⁸³ This is also the position taken by Badar, ‘The Mental Element’ (n 31) 482–3.

⁸⁴ Lubanga Confirmation (n 53) para 351.

⁸⁵ Bemba Confirmation (n 15) para 358.

⁸⁶ Prosecutor v Katanga and Ngudjolo Chui (Confirmation Decision) ICC-01/04-01/07, PT Ch I (30 September 2008) para 529 (Katanga Confirmation).

⁸⁷ See Table 2 above.

⁸⁸ Lubanga Confirmation (n 53) para 351 (emphases added).

⁸⁹ This is the position taken by Eser (n 10) 914–15.

⁹⁰ See Bemba Confirmation (n 15) para 358 (stating that ‘the volitional element decreases substantially and is overridden by the cognitive element’), and para 369 (stating that the standard is that of ‘virtual certain[ty]’).

⁹¹ This was the meaning intended by the English Law Commission, which was the first body to use the phrase: see Law Commission (England), Criminal Code, Volume 2 (n 39) 192.

⁹² Werle and Jessberger (n 8) 41; Badar, ‘The Mental Element’ (n 31) 484–5; Badar, ‘Dolus Eventualis’ (n 15) 440. See also Pisani (n 6) 131.

⁹³ Bemba Confirmation (n 15) para 359 (emphasis added). See also Lubanga Confirmation (n 53) paras 351–2; Katanga Confirmation (n 86) para 530.

⁹⁴ Badar, ‘Dolus Eventualis’ (n 15) 452. Clark similarly states that the 1996 Report of the Preparatory Committee was ‘the last time that the words dolus eventualis appear in any draft’: R Clark, ‘Elements of Crimes in Early Confirmation Decisions of Pre-Trial Chambers of the International Criminal Court’ (2008) 6 NZ YB Int'l L 215.

⁹⁵ Clark, ‘The Mental Element’ (n 18) 301. Clark has stated elsewhere that ‘dolus eventualis and its common law cousin, recklessness, suffered banishment by consensus [at Rome]. If it is to be read into the Statute, it is in the teeth of the language and history’: Clark, R, ‘Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations of the Rome Statute of the International Criminal Court and by the Court's First Substantive Law Discussion in the Lubunga Dyilo Confirmation Proceedings’ (2008) 19 Crim L Forum 519CrossRefGoogle Scholar, 529; Clark, ‘Elements of Crimes’ (n 94) 220.

⁹⁶ The provision defining recklessness was ostensibly dropped because the term did not appear anywhere in the final text of the Statute, so there was no need to define it. See Schabas, W, ‘General Principles of Criminal Law in the International Criminal Court Statute’ (Pt III) (1998) 6 EJ Crime, Crim L & Crim Justice 409Google Scholar, 420; Schabas, W, Introduction to the International Criminal Court (3rd edn, CUP 2007) 224CrossRefGoogle Scholar; Clark, ‘Elements of Crimes’ (n 94) 216; Werle and Jessberger (n 8) 52; Wise (n 55) 52.

⁹⁷ Clark, ‘Drafting a General Part’ (n 95) 525. See also Clark, ‘Elements of Crimes’ (n 94) 212, 216.

⁹⁸ Pisani (n 6) 132 (emphasis added).

⁹⁹ ibid. However, note that, in other places, Pisani seems to suggest that Article 30 includes dolus eventualis and recklessness (ibid 125, 134).

¹⁰⁰ Werle and Jessberger (n 8) 52.

¹⁰¹ Ambos, ‘General Principles’ (n 51) 21.

¹⁰² See, eg, Piragoff and Robinson (n 56) 860 (fn 67). See also Eser (n 10) 906. Despite this recognition, some academics clearly view the failure to allow for recklessness as a standard gradation of mental element in Article 30 as ‘questionable’, given its status under customary international law (and, in particular, the heavy reliance on recklessness as a sufficient gradation of mental element for serious crimes in the jurisprudence of the ad hoc Tribunals): see, eg, Cassese, A, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 158Google Scholar, 153.

¹⁰³ Lubanga Confirmation (n 53) fn 438.

¹⁰⁴ ibid.

¹⁰⁵ Bemba Confirmation (n 15) para 360.

¹⁰⁶ Werle and Jessberger (n 8) 41, 53.

¹⁰⁷ Eser (n 10) 932–3 (and see also 915).

¹⁰⁸ Ambos, ‘General Principles’ (n 51) 21–2. See also K Ambos, ‘Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes’ in LC Vohrah and others (eds), Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 20–1. However, note Ambos’ more recent statement below, which seems to contradict this position: see text accompanying n 118.

¹⁰⁹ Heller (n 58) 604.

¹¹⁰ Van Sliedregt (n 19) 51–2.

¹¹¹ Werle and Jessberger (n 8) 41 (fn 36).

¹¹² Jescheck, H-H, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’ (2004) 2 J Int'l Crim Justice 38CrossRefGoogle Scholar, 45.

¹¹³ Mantovani, F, ‘The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer’ (2003) 1 J Int'l Crim Justice 26CrossRefGoogle Scholar, 32.

¹¹⁴ Knoops, G-J, Defenses in Contemporary International Criminal Law (2nd edn, Martinus Nijhoff 2007) 5Google Scholar.

¹¹⁵ Triffterer (n 51) 706.

¹¹⁶ Cassese, International Criminal Law (n 54) 73.

¹¹⁷ Piragoff and Robinson (n 56) 860.

¹¹⁸ Ambos, K, ‘Critical Issues in the Bemba Confirmation Decision’ (2009) 22 Leiden J Int'l L 715, 718CrossRefGoogle Scholar. However, Ambos also states that he concurs with the exclusion of dolus eventualis from Article 30.

¹¹⁹ Werle and Jessberger (n 8) 42. The ‘principle of strict construction’ refers to Article 22(2), which provides that ‘[t]he definition of a crime shall be strictly construed and shall not be extended by analogy’. See also Weigend, T, ‘The Harmonization of General Principles of Criminal Law: The Statutes and Jurisprudence of the ICTY, ICTR and the ICC: An Overview’ (2004) 19 Nouvelles Études Pénales: Quo Vadis? 319Google Scholar, 327 (fn 19).

¹²⁰ Lubanga Confirmation (n 53) para 352.

¹²¹ ibid paras 353–5.

¹²² Weigend, ‘Lubanga Decision’ (n 41) 482–3.

¹²³ See Werle and Jessberger (n 8) 42, 53–4.

¹²⁴ In the Katanga Confirmation, which was handed down between the Lubanga Confirmation and the Bemba Confirmation, Pre-Trial Chamber I stated that the majority of the Chamber (Judge Ušacka dissenting) ‘endorse[d]’ the previous finding in the Lubanga Confirmation that Article 30 incorporates dolus eventualis: Katanga Confirmation (n 86) fn 329. It stated, however, that ‘[f]or the purpose of the present charges in the present Decision, it is not necessary to determine whether situations of dolus eventualis could also be covered by this offence, since, as shown later, there are substantial grounds to believe that the crimes were committed with dolus directus’: ibid, fn 329. See also at para 531, where the Chamber stated that it need not take a position on ‘whether the concept of dolus eventualis has a place within the framework of article 30’, because it did not intend to rely on this concept for the mental element in relation to the crimes charged.

¹²⁵ Bemba Confirmation (n 15) para 360.

¹²⁶ ibid paras 362–3.

¹²⁷ ibid paras 364–8.

¹²⁸ As Piragoff and Robinson explain, in domestic legal systems that recognize the concept of ‘wilful blindness’, it is treated as tantamount to actual knowledge: Piragoff and Robinson (n 56) 861.

¹²⁹ See, eg, Law Commission (England), Criminal Code, Volume 2 (n 39) 191–2. See also Piragoff and Robinson (n 56) 861.

¹³⁰ Piragoff and Robinson (n 56) 861.

¹³¹ A proposal for a draft provision on mental elements submitted to the Preparatory Committee in 1996 provided that: ‘For the purposes of this Statute and unless otherwise provided, “know”, “knowingly” or “knowledge” means: … (b) [To be aware that there is a substantial likelihood that a circumstance exists and deliberately to avoid taking steps to confirm whether that circumstance exists] [to be wilfully blind to the fact that a circumstance exists or that a consequence will occur]’: Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc A/51/22 (13 September 1996) Volume II: Compilation of Proposals, art H(3)(b). This paragraph did not appear in any later draft provisions on the mental element.

¹³² Eser (n 10) 931–2.

¹³³ Badar, ‘The Mental Element’ (n 31) 496.

¹³⁴ ibid.

¹³⁵ ibid (emphasis added).

¹³⁶ ibid, citing Williams, Criminal Law (n 14) 159.

¹³⁷ See, eg, Bemba Confirmation (n 15) paras 136, 353 (describing the language of Article 30(1) as establishing a ‘default rule’).

¹³⁸ Weigend, ‘Harmonization’ (n 119) 327.

¹³⁹ Eser (n 10) 898. Triffterer also appears to favour this line of reasoning: Triffterer (n 51) 699–700.

¹⁴⁰ K Ambos, Der Allgemeine Teil des Völkerstrafrechts (2002) 789, cited in Werle and Jessberger (n 8) 43.

¹⁴¹ Schabas, Introduction (n 96) 225. In light of the recent jurisprudence of the Court (see below n 152), Schabas appears to have changed his position in his more recent book, where he states that ‘article 21 lists [the Elements] as a source of applicable law, and to the extent that [alternative mental elements] are “provided” by such a source, they may be deemed “otherwise provided” ’: Schabas, Commentary (n 15) 475.

¹⁴² Kreβ, C, ‘The Crime of Genocide under International Law’ (2006) 6 Int'l Crim LR 461Google Scholar, 485 (emphasis in original).

¹⁴³ See, eg, Clark, ‘The Mental Element’ (n 18) 321 (submitting that an alternative mental element ‘might be based on the general law, and in particular applicable treaties, customary law and general principles of law’); Badar, ‘The Mental Element’ (n 31) 500 (stating that Article 30(1) ‘enables the Statute to absorb the corresponding rules of international humanitarian law’); Cassese, International Criminal Law (n 54) 74. For an explanation of the approach taken by the Preparatory Commission in the Elements of Crimes, see Mauro Politi, ‘Elements of Crimes’ in Cassese, Gaeta and Jones (n 10) 461; Kelt and von Hebel, ‘General Principles’ (n 13) 29.

¹⁴⁴ Werle and Jessberger (n 8) 45.

¹⁴⁵ ibid 46 (emphasis in original).

¹⁴⁶ ibid.

¹⁴⁷ See Piragoff and Robinson (n 56) 856.

¹⁴⁸ ibid.

¹⁴⁹ Elements of Crimes, General Introduction, 2 (emphasis added).

¹⁵⁰ See Piragoff and Robinson (n 56) 856.

¹⁵¹ Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31(3).

¹⁵² See Lubanga Confirmation (n 53) paras 356–9, where Pre-Trial Chamber I of the ICC accepted that the Elements of Crimes—which required only negligence with respect to the age of the victims in the case of Article 8(2)(b)(xxvi) (War crime of using, conscripting or enlisting children)—represented ‘an exception to the “intent and knowledge” requirement embodied in article 30 of the Statute’: at para 359. However, as Clark notes, ‘[w]hether the negligence exception is consistent with the Statute, as understood in Article 9(3), is a question that will no doubt be argued by the defence [in the Lubanga case] at a later stage’: Clark, ‘Elements of Crimes’ (n 94) 222. See also Bemba Confirmation (n 15) paras 136, 353, where Pre-Trial Chamber II stated that ‘it must be established that the material elements of the respective crime were committed with “intent and knowledge”, unless the Statute or the Elements of Crimes require a different standard of fault’ (emphasis added).

¹⁵³ Although it is heavily criticized by Clark: Clark, ‘Drafting a General Part’ (n 95) 525 (fn 18); Clark, ‘Elements of Crimes’ (n 94) 214 (fn 14).

¹⁵⁴ Werle and Jessberger (n 8) 44, 46–7. See also Eser (n 10) 901.

¹⁵⁵ For an example of recklessness, see, eg, Article 8(2)(a)(iv), where the use of the term ‘wantonly’ reduces the level of the required mental state to recklessness. For an example of negligence, see, eg, Article 28(a)(i), which provides that a commander shall be criminally responsible for crimes committed by forces under his or her command not only when that military commander knew but also where the commander ‘should have known’ that such crimes were being committed. See also the Elements of Crimes for Article 8(2)(b)(xxvi) (the war crime of using child soldiers), which provides that the Prosecution need only prove that an accused ‘should have known’ that a soldier was a minor.

¹⁵⁶ See the example of Article 28 cited in n 155 above.

¹⁵⁷ See above n 155.

¹⁵⁸ Pre-Trial Chamber I has accepted such an example in Lubanga Confirmation (n 53) paras 356–9 (concerning the war crime of using child soldiers).

¹⁵⁹ Eser (n 10) 899, 900.

¹⁶⁰ Werle and Jessberger (n 8) 48.

¹⁶¹ Piragoff and Robinson (n 56) 856–8.

¹⁶² ibid 857. See also Cassese, International Criminal Law (n 54) 65.

¹⁶³ Piragoff and Robinson (n 56) 858. Kelt and von Hebel also agree that such additional mental elements have no particular material element connected to them: ‘General Principles’ (n 13) 31, 32. See also Triffterer (n 51) 703.

¹⁶⁴ Werle and Jessberger (n 8) 48. On the concept of additional mental elements, see Commonwealth Attorney-General's Department (Australia), The Commonwealth Criminal Code: A Guide for Practitioners (March 2002) 61. The Guide refers to these additional mental elements as ‘ulterior intentions’, and explains that they ‘characteristically take the form of a prohibition against engaging in conduct with intention to achieve some further objective’ (emphasis in original). It further explains that while liability in these crimes ‘is determined by the offender's objective, the achievement of that objective is not itself a physical element of the offence.’

¹⁶⁵ However, as noted above, given that Article 30 imposes such a demanding test for both intent and knowledge, it is unlikely that there is any room left for this category.

¹⁶⁶ Badar, ‘The Mental Element’ (n 31) 484; Cassese, International Criminal Law (n 54) 66.

¹⁶⁷ Triffterer (n 51) 703.

¹⁶⁸ This was identified as a ‘specific intent’ requirement in Bemba Confirmation (n 15) paras 293–4.

¹⁶⁹ This was identified as an ‘additional subjective element’, ‘specific intent’ or ‘dolus specialis’ requirement in Prosecutor v Al Bashir (Decision on Application for an Arrest Warrant) ICC-02/05-01/09, PT Ch I (4 March 2009) para 139.

¹⁷⁰ This was identified as a ‘specific intent’ or ‘dolus specialis’ requirement in ibid para 141.

¹⁷¹ This was identified as a ‘dolus specialis’ requirement in Katanga Confirmation (n 86) para 332, and a ‘specific intent’ or ‘additional special intent’ requirement in Bemba Confirmation (n 15) paras 320, 331.

¹⁷² For an example of the approach taken by a domestic legal system on this point, see Commonwealth Attorney-General's Department (Australia), The Commonwealth Criminal Code: A Guide for Practitioners (March 2002) 61. The Guide explains that, since ‘ulterior intentions’ are not defined in the Code, the content of the mental element in these contexts ‘is determined by ordinary usage and common law’. The Guide notes, however, that the definition of ‘intent’ provided in the Code, while not directly applicable, would provide a ‘persuasive analogy’ (at 63).

¹⁷³ Satzger (n 9) 269.

¹⁷⁴ Cassese, ‘Mens Rea’ (n 7) 1025.

¹⁷⁵ Werle and Jessberger (n 8) 37.

¹⁷⁶ Eser (n 10) 907.