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Part IV The ICC and its Applicable Law, 26 Rethinking the Mental Elements in the Jurisprudence of the ICC

Mohamed Elewa Badar, Sara Porro

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 March 2023

Geneva Conventions 1949 — Armed conflict, international — Crimes against humanity

Mental elements have played a key role in ICC jurisprudence. This chapter provides a comprehensive analysis of the default rule of Article 30 of the ICC Statute, tackling the issues of dolus eventualis, recklessness, and wilful blindness. The chapter then deals with the disputed meaning of the opening clause ‘Unless otherwise provided’ in Article 30 of the Statute, before investigating the mental elements applicable to attacks affecting civilians. It argues that the ICC regime departs significantly from the broad concept of intent developed in the jurisprudence of the ad hoc Tribunals and applied by the ICTY to the war crime of attacks against civilians. It shows that the exclusion of dolus eventualis from the realm of Article 30 provides challenges for future practice.

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