VII The Subjective Requirements of International Crimes

This chapter reviews first Article 30 of the International Criminal Court (ICC) Statute that contains the general mens rea rule for crimes under the Statute (Articles 5-8bis) on the basis of a thorough comparative law inquiry. . After some terminological clarifications (e.g. regarding the meaning of the term ‘intent’), it examines the objects of reference of Article 30 (material elements as well as conduct, consequence and circumstance) in order to be able to apply them to the crimes of the Statute; also, the standard or degrees of the mental element are analysed. In the second section it is inquired whether there are additional or different subjective requirements provided for by the crime definitions, such as most prominently the specific intent (dolus specialis) requirement in genocide; further, the modes of participation (Article 25(3)) going beyond Article 30 are explored.

Murderous intent—The attitude of a murderer?

There is a controversy in the definition of murder in England and Wales. This relates to ‘intention’ in the mental element, which can include the defendant’s foresight of death or grievous bodily harm (GBH) as ‘virtually certain’. This ‘oblique’ intent is criticised as morally under-inclusive. In this article, it is argued the crime can better capture those killings that should be categorised as murder by rejecting oblique intent. It is accepted that GBH ought to be a part of the mental element. However, the article proposes murder should capture heinous forms of risk-taking through knowledge of likely death or GBH which, if it were to occur, might be useful in contributing to the defendant’s purpose. This cognitive approach supports a murderous attitude called reconciliation. That attitude is contrasted with the dictionary definition of intention in which death or GBH can be used in pursuit of, or is, the defendant’s purpose.

2. The elements of a crime: actus reus

The chapter begins the exploration of the elements of criminal offences. Two factors are crucial: the event, behaviour or state of affairs known as the external element or actus reus, and the state of mind known as the mental element or mens rea. This chapter discusses the principle of actus reus, proof and the elements of the offence, how to identify elements of actus reus and mens rea, coincidence of actus reus and mens rea, the effect of penalty provisions in determining the elements of the actus reus, actus reus and justification or excuse, the problematic case of Dadson with regard to actus reus, physical involuntariness, a ‘state of affairs’ as an actus reus, general liability for omissions, offences of mere omission, causation, the ‘but for’ principle, the connection between fault and result and negligible causes.

Vai Krimināllikuma norādes par noziedzīgo nodarījumu vainas formām ir pietiekoši skaidras?

The article deals with the flaws of the Criminal Law in determination of the particular form of mental element (mens rea) which is required for the specific criminal offense. Taking into account that the majority of legal provisions does not contain such indications, one of the elements of criminal offense is not described by the law. Such legislator`s approach raises doubts about the compliance of the Criminal Law with the principle of legal certainty. The article also criticizes opinions expressed in legal theory that attempt to fill the gaps allowed by the legislator, as well as offers amendments to the Criminal Law aiming to improve its coherence.

The Mental Element of The Crime of Fault in The Performance of The Official Jobs: Article (341) of The Iraqi Law

Faulty execution of official duties is regarded as one of the main offences that endangers elected authorities, a well-ordered public regulation, and utility that causes harm to public property and public interests. Since it is done by an individual who is performing an official work, this offence is committed by one of the workers violating the boundaries of their employment. This is enshrined in Iraqi penalty Law No. 111 of 1969 in article 341 and is deemed one of the financial and administrative corruption offences stipulated in the honesty Commission Act No. 30 of 2011 due to its extreme and significant danger and leaving traces and impacts. The consequences of this major crime and its effect on the state and community is expressed in the legal, democratic, administrative, fiscal, and social structures of the state. It is described as accidental offenses committed without criminal purpose. In this form of crime, neither initiating nor participating is possible, but both of the perpetrators are simple owners. In certain ways, this offence is analogous to the crime of willful injury to public property and interests, in addition to all other general criteria for any crime.

Auditors’ Negligence and Professional Misconduct in India: A Struggle for a Consistent Legal Standard

Gross negligence is a severe form of negligence. Its severity has been characterized using the presence of a mental element or mens rea accompanying the negligent act. Within the context of professional negligence, gross negligence is important as it constitutes professional misconduct. For auditors, a finding of professional misconduct through disciplinary proceedings can result in suspension or expulsion from the profession. In India, gross negligence is regularly used in disciplinary proceedings against auditors and also by the Securities and Exchange Board to determine whether an auditor has violated any securities regulations. Given the implications of a finding of gross negligence on the practice of an auditor, this paper seeks to discuss this Indian legal standard in detail. Using the statutory framework that governs auditors as a backdrop, this paper examines all reported High Court decisions from the 1950s till 2019 along with decisions of the Securities and Exchange Board with regards to an auditor’s duties. We find that the approach used to discern the existence of gross negligence across these decisions has been inconsistent. In the absence of any precedent from the Supreme Court of India that details what comprises gross negligence in the context of auditors, this inconsistent approach poses a problem. This paper offers a starting point for a discussion to minimize the uncertainty currently associated with auditors’ liability for professional misconduct, especially hoping to assist the newly established National Financial Reporting Authority in its decision-making process.

3. Mens rea

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. Mens rea refers to the mental element necessary for a particular crime. This may differ from one crime to another and the definition of each crime must be examined to determine what state of mind is required. This chapter discusses the meaning of intention, knowledge, recklessness, wilfulness, direct intent, oblique intent, ulterior intent, transferred malice, and mistake. These mens rea topics raise important questions about the extent to which a person is responsible and therefore deserving of blame and punishment. A revised and updated ‘The law in context’ feature examines critically the debates between those who favour subjectivist and objectivist approaches to mens rea, with particular reference to reform of the offence of unlawful act manslaughter.

Rethinking the Mental Element in Involuntary Manslaughter

In this article, it is argued that the mental element for gross negligence manslaughter requires subjective fault. It is argued that the negligent conduct is evaluated objectively but does not mean a person cannot be subjectively aware of the fact that he or she is engaging in such conduct. Wilful negligence is not contradictory, because the noun refers to the conduct while the adjective refers to the fault of the wrongdoer. It is submitted the ancient authorities strongly support the theory of that grossness in negligence required subjective fault—and was not referring to the noun.

Problems of determining the mental element in crime under article 264 of the Criminal Code of the Russian Federation

It should be mentioned that any particular traffic accident is most often a concurrence of a number of causes and factors associated with any of the subsystems “Driver – Car – Road – Environment”. As evidenced by judicial practice, crimes under Article 264 of the Criminal Code of the Russian Federation are traditionally qualified by courts as committed in a careless form of guilt in the form of criminal flippancy. However, there may exist doubts about the correct assessment of the mental element in these crimes. The main question is if these crimes were intentional. The relevance of the study is conditional upon the need to develop a system of prevention of road traffic injuries and improve the effectiveness of measures to prevent them. The purpose of the study is to analyze theoretical problems and the results of empirical observation for road safety. This article is devoted to the relevant problem of accurate determination of the form of guilt in violation by the person driving the vehicle of road traffic regulations on the example of the analysis of the crime under Article 264 of the Criminal Code of the Russian Federation “Violation of road traffic regulations and the rules of operation of vehicles.” In the preparation of the article, general scientific methods (dialectical, logical, socio-scientific method, method of system analysis) and interdisciplinary methods (sociological, statistical, method of the research of specific facts) were used. The novelty of the study is in an attempt to deeply analyze and interpret the practical application of the provisions of Article 264 of the Criminal Code of the Russian Federation, identify the problem of accurate determination of the form of the guilt of the mentioned act committed by the person driving the vehicle when violating road traffic regulations or the rules operation of vehicles.