Dolus eventualis and the Rome statute without it?

Copyright @ 2009 University of California PressArticle 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. At first sight, it appears that the explicit words of Article 30 are sufficient to put an end to a long-lasting debate regarding the mens rea enigma that has confronted the jurisprudence of the two ad hoc Tribunals for the last decade, but this is not true. Recent decisions rendered by the International Criminal Court evidence the discrepancy among the ICC Pre-Trial Chambers in interpreting the exact meaning of Article 30 of the ICC Statute. The paper challenges that dolus eventualis is one of the genuine and independent pillars of criminal responsibility that forms, on its own, the basis of intentional crimes, and suggests its inclusion in the legal standard of Article 30 of the ICC Statute

Genocide at the safe area of srebrenica: A search for a new strategy for protecting civilians in contemporary armed conflict

Copyright @ 2001 HeinOnlin

Some reflections on article 30 of the Rome Statute in Light of the Lubanga & Katanga decisions on the confirmation of charges

Reproduced with the permission of Kluwer Law International from Triffterer, O; Vogel, C; Burchard, C (Ed(s)), The Review Conference and the Future of the International Criminal Court: 109 - 130, 2010. The official published version can be accessed from www.kluwerlaw.co

Drawing the boundaries of mens rea in the jurisprudence of the international criminal tribunal for the former Yugoslavia

Even though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea - remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms “specific intent”, “special intent”, “dolus specialis”, or “surplus intent”? Similarly, what are the precise meanings of the terms “deliberately”, “intention”, “intent”, “intentionally”, “wilful or wilfully”, “knowledge”, and “wanton” as provided for in the ICTY Statute or as employed by the Chambers within its judgments

'Just convict everyone!' Joint perpetration: From tadic to stakic and back again

On 22 March 2006, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rendered its Judgment in the Stakić case. One of the issues which the Appeals Chamber addressed propio motu was the mode of liability attributed to the Appellant by the Trial Chamber. In examining the criminal responsibility of Dr. Milomir Stakić for the crimes alleged, the Trial Chamber applied a mode of liability which it termed ‘co-perpetratorship’ (committing ‘jointly with another person’), in lieu of ‘joint criminal enterprise’ (JCE). In so doing, the Stakić Trial Chamber avoided “the misleading impression that a new crime [membership in a criminal organization] not foreseen in the Statute of this Tribunal has been introduced through the backdoor.” However, “[t]he introduction of new modes of liability [co-perpetratorship] into the jurisprudence of the Tribunal”, the Appeals Chamber stressed, “may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers.” Most notably, some ICTY judges have welcomed and fully approved the JCE doctrine “as an effective tool for overcoming the problems of ascribing individual criminal responsibility for international crimes.” Others hold the opinion that the concept of ‘joint criminal enterprise’, since its foundation and integration into the jurisprudence of the ICTY by the Tadić Appeals Chamber, “has caused confusion and a waste of time” and has been considered as a doctrine “of no benefit to the work of the Tribunal or the development of international criminal law.” This note will examine, therefore, both modes of liability (‘joint criminal enterprise’ and ‘co-perpetratorship’) in light of the Stakić Appeals and Trial Judgments

Mens rea - Mistake of law & mistake of fact in German criminal law: A survey for international criminal tribunals

More than a decade has passed since the establishment of the two ad hoc Tribunals, however, the jurisprudence of both Tribunals evidence the inconsistency regarding the requisite mens rea standards for serious violations of international humanitarian law. Hence, a survey of the attitude taken towards the definition of the major facets of mens rea by the world major legal systems is of great significance with regard to the establishment of a unified concept for mens rea in international criminal law. Section I of this study examines some of the major judgments of the two ad hoc Tribunals where both Tribunals refers to national jurisdictions in order to clarify the mens rea required for the imposition of criminal responsibility for serious violations of international humanitarian law. Section II is a brief outline of the structure of the criminal offence in German criminal law. This is necessary since German criminal law does not follow the “offence analysis” scheme known in common law countries, but is based upon a three stage structure of the criminal offence. In Section III, the concept of intention (Vorsatz) in German criminal law is thoroughly discussed and analysed. This includes the discussion of dolus directus (first and second degree) as well as of dolus eventualis. Emphasis is put on the differentiation between dolus eventualis and negligence, since it reflects a highly debated issue in German criminal law. The concept of negligence will be outlined in Section IV. Given the fact that the German criminal law recognizes that mistake of law and mistake of fact (Tatbestandsirrtum, Verbotsirrtum) is not a separate doctrine, but part and parcel of the basic analysis of mens rea, these two basic types of mistake will be addressed in Section V. This includes the discussion of error in persona vel obiecto and aberratio ictus. Finally, the conclusion will be supported by some remarks and recommendations regarding the German law of intent and its influence on the development of international criminal law

The mental element in the Rome statute of the international criminal court: A commentary from a comparative criminal law perspective

This is the post-print version of the Article - Copyright @ 2008 Springer VerlagThis article has been made available through the Brunel Open Access Publishing Fund

Participation in crimes in the jurisprudence of the ICTY and ICTR

This Article is placed here with Permission From Routledge - Copyrights @ 2010 Routledg

From the Nuremberg charter to the Rome statute: Defining the elements of crimes against humanity

The absence of a specialized convention for "crimes against humanity," and its consideration as a category of international crimes whose specific contents consist of a number of crimes contained in the laws of most national legal systems, required an exhaustive study to distinguish such a category of crimes from "ordinary" municipal crimes (i.e., murder, assault, torture, etc.). The purpose of this study is to examine the past and present contours of the prohibition of "crimes against humanity", analyzing and scrutinizing the essential elements of this crime, with a view to obtaining and drawing together basic criteria that could eventually guide the adjudication of this offence. Furthermore, this clarification of "crimes against humanity" is particularly timely with respect to the soon functioning International Criminal Court (ICC)