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Mens Rea at the International Criminal Court

Mens Rea at the International Criminal Court

Author: Geert-Jan Alexander Knoops
Publisher: Brill Nijhoff
ISBN: 9789004307872
Published In: December 2016
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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This Volume offers an overview of all aspects of mens rea that may surface before the International Criminal Court (ICC).

The book commences with an introduction of the concept of mens rea and controversies concerning this concept before national courts and ad hoc tribunals. This is followed by an examination of the definitional elements of mens rea at the ad hoc tribunals.

The mens rea requirements for the specific liability modes applied at the ad hoc tribunals will be examined. Subsequently, definitional aspects of mens rea at the ICC will be discussed, and in particular the mens rea requirements for the specific liability modes as provided for in the Rome Statute. Separate chapters will address the mens rea requirements for the crimes listed in the Rome Statute: war crimes, genocide, crimes against humanity and the crime of aggression, respectively.

An analysis of customary international law or the standards promulgated by the ad hoc tribunals will be used as examples where the ICC case law is scarce. A specific chapter will be devoted to mens rea requirements for political speeches. In some cases, certain speeches have been said to be catalysts of international crimes. Therefore, it is relevant to examine how the accused’s intent was construed.

The book will conclude with mens rea defenses in international criminal law, which will be specifically applied to the defenses listed in the Rome Statute.

Excerpt of table of contents:

Foreword Judge O-Gon Kwon

Foreword G.J. Alexander Knoops

I. Introduction

1.1. Rationale of mens rea in international criminal law

1.2. Contemporary mens rea controversies

1.3. Composition of research

II. Definitional elements of mens rea at the ad hoc tribunals.

2.1. Introduction

2.2. Levels of mens rea

2.3. Mens rea within the ad hoc tribunals

2.4. Conclusion

III. Definitional elements of at the ICC.

3.1. Introduction

3.2. Intent and knowledge

3.3. Mens rea for the different liability modes under article 25 of the Rome Statute.

3.4. Conclusion

IV. Mens rea and war crimes

4.1. Introduction

4.2. Applicable legal framework

4.3. Case study: Operation Allied Force

4.4. The Rome Statute on war crimes

4.5. ICC case law on war crimes

4.6. War crimes at the ad hoc tribunals

4.7. Conclusion

V. Mens rea and genocide

5.1. Introduction

5.2. Acts of genocide

5.3. Genocide at the International Court of Justice

5.4. Genocide at the ad hoc tribunals

5.5. ICC evidentiary standards vis-à-vis genocide

5.6. Conclusion

VI. Mens rea and crimes against humanity

6.1. Introduction

6.2. Contextual elements of an “attack”

6.3. Mens rea requirements: knowledge of the attack

6.4. Mens rea for the underlying crimes

6.5. Crimes against humanity at the ICC

6.6. Concluding remarks and overview

VII. Mens rea and the crime of aggression

7.1. Introduction

7.2. Mens rea for crimes against peace at the IMT

7.3. General constitutive elements of the ICC crime of aggression

7.4. Elements of aggression within the ambit of the Rome Statute

7.5. Mens rea defenses concerning aggression

7.6. Self-defense, humanitarian intervention, protection of nationals abroad or aggression

7.7. Conclusion

VIII. Mens rea for the criminalization of political speeches

8.1.Introduction

8.2. The potential criminal nature of political speeches subjected to international criminal trials

8.3. Hate speech, incitement, or freedom of expression?

8.4. The rudiment of the criminalization of hate speeches

8.5. Criminalization of hate speeches by the ICTR

8.6. Criminalization of hate speeches by the ICTY

8.7. Criminalization of speeches before the ICC

8.8. The level of mens rea required for the criminalization of political speeches

IX. Defenses against mens rea

9.1. Introduction

9.2. Mental disease or defect

9.3. Intoxication

9.4. Self-defense or defense of others

9.5. Duress and necessity

9.6. Military necessity in a situation vs. necessity in a case

9.7. Mistake of fact or mistake of law

9.8. Superior orders

9.9. Conclusions

X. Bibliography

XI. Table of Cases

XII. Acknowledgements

Index.

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