This chapter discusses the elements of international crimes. In general, a crime is conceived as having two components: prohibited conduct (which may be called the objective, material, or ‘real’ element of the crime or its actus reus) and a culpable mental state (which may be called the subjective, or mental element of the crime or its mens rea). In addition to material and mental elements, certain international crimes may also require a contextual element. That is, some international crimes may require that the prohibited act occurs in or has a relationship to a particular set of circumstances: for example, a war crime must be closely connected with an armed conflict. This contextual element is sometimes also called a nexus requirement.
This chapter focuses on the crime of genocide. The prohibition against genocide is now found in treaty and customary law, and is universally accepted as being an international crime ‘whether committed in time of peace or in time of war’. Genocide requires that a prohibited act is committed against a member of one of the protected groups, being a ‘national, ethnical, racial, or religious group’. The chapter first considers the definition of the protected groups. It then outlines the legal definitions of the prohibited acts; considers whether there is a ‘contextual element’ required as part of the crime of genocide; and examines the mental element of the crime of genocide and the role of the ‘special intent’ requirement.
This chapter focuses on the crime of aggression. It first traces the historical development crime of aggression. It then addresses the question of who can be considered a perpetrator of the crime; outlines the manner in which the crime can be committed; examines the controversial question of how ‘aggression’ is to be defined for the purposes of the offence; and distinguishes between aggression and lawful uses of military force in international law. The remainder of the chapter discusses some controversial cases of the use of force and whether they might constitute aggression; outlines the mental element required; explains the applicable law before the International Criminal Court (ICC); and explores the possibility of prosecuting acts of aggression before national courts.
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter begins with a discussion of the two main features that characterize international crime. It then explains the objective structure of international crime, which divides these crimes into conduct; consequences; and circumstances. This is followed by discussions of the mental element of international criminal law; intent; special intent (dolus specialis) recklessness or indirect intent, knowledge, culpable or gross negligence, the mental element in the International Criminal Court Statute, and judicial determination of the mental element.