New War Crimes Research Office Report Examines the International Criminal Court's Early Jurisprudence on Individual Criminal Responsibility and the Mental Element

Washington, DC October 15, 2010 —A new report by the War Crimes Research Office (WCRO), Modes of Liability and the Mental Element: Analyzing the Early Jurisprudence of the International Criminal Court, examines the International Criminal Court’s (ICC) approach to individual criminal responsibility. The Rome Statute of the ICC, unlike the statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, contains detailed provisions relating to the general part of criminal law, including articles distinguishing various modes of direct liability and superior responsibility, and specifying the mental element required for crimes within the jurisdiction of the Court. Importantly, these provisions represent an attempt by the drafters to create truly international principles of criminal law, and thus none is drawn directly from any single domestic legal tradition.

While the Rome Statute has been praised for its provisions setting forth the rules of general criminal law applicable to the crimes within the jurisdiction of the ICC, the unique nature of the provisions has raised a number of questions regarding their appropriate interpretation. Two of the Court’s Pre-Trial Chambers have attempted to answer some of these questions in the context of the confirmation decisions in the first three cases to go to trial before the ICC. The WCRO report examines the holdings in these first decisions regarding individual criminal responsibility and the mental element under the Rome Statute, not for purposes of analyzing the application of the law to the facts in any given case, but rather to look at some of the issues raised by the Chambers’ initial interpretations of the Rome Statute’s provisions on criminal law and offer recommendations regarding matters that are likely to arise again in the future.

The report is the thirteenth in the WCRO’s ICC Legal Analysis and Education Project, an initiative aimed at producing public, impartial, legal analyses of critical issues raised by the ICC’s early decisions. The ICC Legal Analysis and Education Project benefits from the insights of an Advisory Committee comprised of the following experts in international criminal law:

Judge Mary McGowan Davis, former Acting New York State Supreme Court Judge and Board Member of the International Judicial Academy and the American Association for the International Commission of Jurists;
Justice Unity Dow, Commissioner of the International Commission of Jurists (ICJ), member of the ICJ's Executive Committee and former judge of the Botswana High Court;
Siri Frigaard, Chief Public Prosecutor for the Norwegian National Authority for Prosecution of Organized and Other Serious Crimes and former Deputy General Prosecutor for Serious Crimes in East Timor;
Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR); and
Chief Justice Phillip Rapoza of the Massachusetts Appeals Court and former Chief International Judge serving as Coordinator of the Special Panels for Serious Crimes in East Timor.

For a hard copy of the report or more information, contact the War Crimes Research Office at warcrimes@wcl.american.edu, or +1 (202) 274-4067. The reports are also available on the website at http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm.

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