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Mental and material elements of genocide

100%
Gagro S. F.
The Lawyer Quarterly
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2021
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vol. 11
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issue 1
1-18
EN
The crime of genocide is one of the most severe crimes. Its commission always takes time, requires planning, and results in substantial human sacrifices. It is never a single or accidental act but always conscious and deliberate. The commitment of genocide requires performing one of the acts (actus reus) enumerated in the 1948 Genocide Convention and perpetrated specifically against the members of a protected group, which represents the material element of the crime. However, the element that makes genocide one of the worst crimes ever known to humankind is the perpetrator’s special intention of destroying a protected group – the mental element of the crime, i.e., dolus specialis, whose complexity and severity has been confirmed before the international criminal ad hoc tribunals and the ICJ.
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Zagadnienia strony podmiotowej w Statucie Międzynarodowego Trybunału Karnego w świetle poglądów przedstawicieli doktryny prawa i praktyki

67%
Dróżdż D.
Studia Prawno-Ekonomiczne
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2014
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vol. XCIII (93)
57-68
EN
In conclusion, the desire to commit an act would not change the ascertainment that the act should be committed with direct intent will, however, impact the intent and the burden of the act by satisfying additional subjective elements. Only art. 30 of the ICC Statute is an exception presenting the definition of “mental element”, though it is perceived differently by the doctrine representatives from different countries. The concept by O. Triffterer has not won worldwide recognition among the supporters of the theory that there should be applied the provision stipulating otherwise than art. 30 of the ICC Statute and those who do not recognise the difference between “Tatbestand” and “mens rea”. It seems that the Triffterer’s concept has not been approved as, allegedly, the principles of criminal responsibility should be distinguished from the crime definitions within the ICC jurisdiction. Taking into account the ICC experience, a conclusion may be drawn that art. 30 is applied when there are no other specific provisions relating to mental element in the regulations of the ICC Statute, the Elements of Crime or customary law.
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