Abstract

The present analysis deals with the question of whether and to what extent mental attitudes that, at the level of cognition, do not attain the factual threshold of awareness of the criminal outcome as a practical certainty can lead to the establishment of criminal responsibility for the so-called core crimes, i.e. genocide, crimes against humanity and war crimes.The answer to this issue depends on whether and how far a given system of criminal law views the mental element applicable to the offences in question as encompassing forms of risk-taking. Seeking to comprehensively investigate the current legal situation, the present study examines the types of mental element applicable under two domestic legislations on core crimes, namely the German Völkerstrafgesetzbuch and the U.S. Federal Criminal Code, on the one hand, and in customary international law and under the ICC Statute, on the other hand. The survey turns then to whether in any of the legal systems at stake a standard of mental element has been consolidated such that it would be generally applicable unless otherwise provided. It also explores the extent to which mental attitudes departing from the threshold of awareness of the criminal outcome as a practical certainty may establish criminal responsibility for specific crimes and modes of liability. The rules thereby identified are applied to model cases describing various situations where an individual accomplishes an act of relevance to the criminal law but does not clearly perceive the consequence that will ensue from her behaviour.From the present study it emerges that there appear to exist more divergences than commonalities in the current legal landscape, regarding whether and to what extent the sphere of criminal responsibility for core crimes may be linked to attitudes of risk-taking. This outcome seems to derive first and foremost from the differing definitions of intent as they have developed in the regulatory frameworks analysed in this work. The conscious adoption of a behaviour that might lead to the realisation of an offence that is not aimed at, can under certain conditions be covered by the notion of intent found in German criminal law and in the jurisprudence of the ICTY and ICTR applying customary international law. On the other hand, it is excluded from the definition of the intent in U.S. federal criminal law and in the ICC Statute. Furthermore, in all the legal systems considered in the present study, there exist significant exceptions to the application of intent, both widening and narrowing the scope of criminal responsibility. Considering that in a decentralized system of international justice the intervention of the ICC should be an extrema ratio, the present analysis suggests establishing a regulation to be applied by the International Criminal Court on the mental element, which reflects the gravity of cases this tribunal is called upon to adjudicate. At the same time lesser degrees of mens rea would remain applicable under national laws on core crimes.