Lecture 11

Question 1

Actus reus and mensa rea

Answer 1

• The commission of an international crime requires both the actus reus (guilty act)
  and the mens rea (guilty mind)

Question 2

Article 30 of the Rome statute (mental element)

Answer 2

“a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court only if the material elements are committed
with intent and knowledge.”
In other words, the person must have intended to commit an act, and must
have known (or should have reasonably known) of the consequences

Question 3

Command responsibility

Answer 3

Command responsibility: officers and civilian superiors are responsible for the
crimes committed by those under their command if they:
Knew or should have known that they were being committed, and
Failed to take all reasonable measures to prevent their occurrence; or to
submit the matter for investigation and prosecution

Question 4

Superior orders (also known as Nuremberg defence)

Answer 4

Article 33 of the Rome Statute: having been ordered by a superior officer to
commit a criminal act is no defence unless:
The person was under a legal obligation to obey;
The person did not know that the order was unlawful; and
The order was not manifestly unlawful
Orders to commit genocide/crimes against humanity are always unlawful

Question 5

Creation of genocide

Answer 5

Genocide is the most infamous international crime, and generally considered the
gravest
* Conceived during WWII by Raphael Lemkin to describe the particular nature of the
Holocaust, which was not being captured by existing international criminal law

Question 6

Genocide convention 1948

Answer 6

Under the Genocide Convention of 1948, a genocide is:
The commission any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnic, racial or religious
group
There has to be intent to destroy and the group targeted has to fall within one
of the enumerated categories

Question 7

Acts that can be constitutive of genocide are

Answer 7

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Question 8

Genocide in whole or in part

Answer 8

*
“In whole or in part”: has to be both a sizeable number and a sizeable portion of
the population in question—as the targets of genocide are groups, not individuals

Question 9

Genocide actus reus/mensa rea

Answer 9

Actus reus/mens rea: both the overt act (e.g. killing) and the genocidal intent
(to destroy a group) have to be present. Mere killing is not sufficient to constitute
genocide

Question 10

Genocide protected groups

Answer 10

• Protected groups: does not include, e.g. the killing of members of a political or
  socio-economic group

Question 11

What constitutes a genocide can be controversial

Answer 11

• Because of these requirements and their inherent nature, what constitutes a
  genocide can be controversial
• E.g. whether the Holodomor, Chinese imprisonment of the Uighurs, etc constitute
  genocide is hotly debated
• Some countries criminalize denying that certain historical killings constitute
  genocide

Question 12

Crimes against humanity

Answer 12

• An eclectic group of acts which “constitute a serious attack on human dignity or
  grave humiliation or a degradation of one or more human beings”
• Have to be “part of a widespread or systematic practice” against a civilian
  population—individual acts of murder, e.g., however odious, will not constitute a
  crime against humanity in and of themselves

Question 13

Constitutive acts crimes against humanity

Answer 13

• The constitutive acts have to be either (a) part of government policy or (b) tolerated
  or condoned by a government or a de facto authority—but perpetrators do not need
  to belong to such an authority
• Many of the actus reus overlap with those of genocide/war crimes—the distinction
  lies in the mens rea

Question 14

Difference of opinion crimes against humanity

Answer 14

• There is some difference of opinion as to what acts can be constitutive of crimes
  against humanity
• Article 7 of the Rome Statute is probably the most comprehensive in existence

Question 14

What are these crimes against humanity? a-g

Answer 14

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of
population;
(e) Imprisonment or other severe deprivation
of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence of comparable gravity;

Question 15

What are these crimes against humanity? h-k

Answer 15

(h) Persecution against any identifiable group
or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined
in paragraph 3, or other grounds that are
universally recognized as impermissible
under international law, in connection with
any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character
intentionally causing great suffering, or
serious injury to body or to mental or physical
health;

Question 16

(i) enforced disappearance

Answer 16

(i) enforced disappearance: the (almost always) murder of dissidents, etc., but
where there is no body nor evidence of what happened to the person

Question 17

(j) crime of apartheid

Answer 17

(j) crime of Apartheid: “inhuman acts committed for the purpose of establishing
and maintaining domination by one racial group of persons over any other racial
group of persons and systematically oppressing them”
The mere existence of racial discrimination in law e.g. will not be Apartheid
unless the other criteria are met

Question 18

Points to take home

Answer 18

• The same actus reus (e.g. murder) can be constitutive of several different
  international crimes, depending on the mens rea involved—or indeed not be an
  international crime at all
• In the context of genocide and crime against humanity, international law is
  generally interested in systemic, or at least widespread conduct
• Contra, individual acts can and are constitutive of war crimes