MENS REA IN INTERNATIONAL LAW: NUREMBERG TO THE INTERNATIONAL CRIMINAL COURT

Abstract

Mens Rea is a foundational concept, intrinsic to the dynamic field of international criminal law which is yet to consolidate its theoretical contours. Criminal responsibility and personal guilt are central to all criminal law and date far back. International law is inherently political and is a fertile ground for political struggles. When comparing Crimes against Humanity to the crime of crimes, Genocide, the ideological differences are exceedingly clear especially in terms of criminal intent. Criminal intent or Mens Rea takes inspiration from the laws and jurisprudence of common and continental law jurisdictions. The complexity of core international crimes imposes an obligation to carefully consider how various mens rea standards are applied and construed in the international law making it harder to prove. The absence of mens rea on the part of a perpetrator while committing a crime precludes the attribution of criminal responsibility. This paper attempts to trace the evolution of the concept of mens rea from Nuremberg trials through various tribunals to the International Criminal Court. It tries to understand how degrees of intent varied through different courts and tribunals including the Nuremberg trials, the International Military Tribunal, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and the International Criminal Court while studying their charters. This paper uses a document-based research method to study presently available material on Mens Rea.