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Case Concerning Application of The INTERNATIONAL COURT OF JUSTICE CASE CONCERNING APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (UKRAINE V. RUSSIAN FEDERATION) VOLUME III OF THE ANNEXES TO THE WRITTEN STATEMENT OF OBSERVATIONS AND SUBMISSIONS ON THE PRELIMINARY OBJECTIONS OF THE RUSSIAN FEDERATION SUBMITTED BY UKRAINE 14 JANUARY 2019 TABLE OF CONTENTS Albin Eser, Mental Elements, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Antonio Cassese et al. eds., OUP 2002) Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, Northwestern Journal of International Human Rights, Vol. 6 (2008) Antonio Vallini, Mens Rea: Mistake of Fact and Mistake of Law, in THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE (Antonio Cassese ed., 2009) Kai Ambos, Treatise on International Criminal Law, Vol. I: Foundations and General Part (2013) William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2d ed., OUP, 2016) Richard Gardiner, TREATY INTERPRETATION (2d ed., 2015) Lee Jarvis & Tim Legrand, The Proscription or Listing of Terrorist Organisations: Understanding, Assessment, and International Comparisons, Terrorism and Political Violence, Vol. 30 (2018) CBS News, “Multiple Kidnappings for Ransom” Funding ISIS, Source Says (21 August 2014) Lingvo Universal Russian-to-English Dictionary, направлять (software ed., 2018) Lingvo Universal Russian-to-English Dictionary, умышленно (software ed., 2018) OHCHR, Report On the Human Rights Situation in Ukraine (16 August to 15 November 2018) U.N. General Assembly Resolution No. 71/205, U.N. Doc. A/RES/71/205, Situation of Human Rights in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine (19 December 2017) 1 U.N. Economic and Social Council, Draft International Convention on the Elimination of All Forms of Racial Discrimination, Mr. Ingles: Proposed Measures of Implementation, U.N. Doc. E/CN.4/Sub.2/L.321 (17 January 1964) U.N. Economic and Social Council, Draft International Convention on the Elimination of All Forms of Racial Discrimination, Suggestions for Final Clauses submitted by Officers of the Third Committee, U.N. Doc. A/C.3/L.1237 (15 October 1965) U.N. Economic and Social Council, Draft International Convention on the Elimination of All Forms of Racial Discrimination, Poland: Amendments to the Suggestions for Final Clauses Submitted by the Officers of the Third Committee (A/C.3/L.1237), U.N. Doc. A/C.3/L.1272 (1 November 1965) U.N. General Assembly, Draft International Convention on the Elimination of All Forms of Racial Discrimination, Ghana: Revised Amendments to Document A/C.3/L.1221, U.N. Doc. A/C.3/L.1274/REV.1 (12 November 1965) U.N. General Assembly, Ghana, Mauritania and Philippines: Articles Relating to Measures of Implementation to be added to the Provisions of the Draft International Convention on the Elimination of All Forms of Racial Discrimination Adopted by the Commission on Human Rights, U.N. Doc, A/C.3/L.1291 (18 November 1965) U.N. Economic and Social Council, Draft International Convention on the Elimination of All Forms of Racial Discrimination, Ghana, Mauritania, and Philippines: Amendments to the Suggestions for Final Clauses Submitted by the Officers of the Third Committee (A/C.3/L.1237), U.N. Doc. A/C.3/L.1313 (30 November 1965) U.N. General Assembly, Official Record of the Third Committee, 1367th Meeting, U.N. Doc. A/C.3/SR.1367 (7 December 1965) Ukrainian Note Verbale No. 72/22-620-2403 to the Russian Federation Ministry of Foreign Affairs (23 September 2014) Russian Federation Note Verbale No. 14279 to the Embassy of Ukraine in Moscow (16 October 2014) Russian Federation Note Verbale No. 3962 to the Embassy of Ukraine in Moscow (16 October 2014) Ukrainian Note Verbale No. 72/23-620-2673 to the Russian Federation Ministry of Foreign Affairs (29 October 2014) Russian Federation Note Verbale No. 15642 to the Embassy of Ukraine in Moscow (27 November 2014) Ukrainian Note Verbale No. 72/22-620-3069 to the Russian Federation Ministry of Foreign Affairs (15 December 2014) Ukrainian Note Verbale No.72/22-620-3070 to the Russian Federation Ministry of Foreign Affairs (15 December 2014) Russian Federation Note Verbale No. 2697 to the Embassy of Ukraine in Moscow (11 March 2015) Ukrainian Note Verbale No. 72/22-620-705 to Russian Federation Ministry of Foreign Affairs (30 March 2015) Russian Federation Note Verbale No. 8761 to the Embassy of Ukraine in Moscow (9 July 2015) Ukrainian Note Verbale No. 72/22-194/510-2006 to the Russian Federation Ministry of Foreign Affairs (17 August 2015) Russian Federation Note Verbale No. 11812 to the Embassy of Ukraine in Moscow (28 September 2015) Ukrainian Note Verbale No. 72/22-194/510-839 to the Russian Federation Ministry of Foreign Affairs (5 April 2016) Ukrainian Note Verbale No. 72/22-194/510-1023 to the Russian Federation Ministry of Foreign Affairs (26 April 2016) Ukrainian Note Verbale No. 72/22-194/510-1116 to the Russian Federation Ministry of Foreign Affairs (11 May 2016) Russian Federation Note Verbale No. 5774 to the Embassy of Ukraine in Moscow (27 May 2016) Russian Federation Note Verbale No. 5787 to the Embassy of Ukraine in Moscow (27 May 2016) Ukrainian Note Verbale No. 72/22-194/510-1973 to the Russian Federation Ministry of Foreign Affairs (18 August 2016) Ukrainian Note Verbale No. 72/22-194/510-2188 to the Russian Federation Ministry of Foreign Affairs (26 September 2016) Ukrainian Note Verbale No. 72/22-633-2302 to the Russian Federation Ministry of Foreign Affairs (7 October 2016) Ukrainian Note Verbale No. 72/6111-194/510-2474 to the Russian Federation Ministry of Foreign Affairs (28 October 2016) Russian Federation Note Verbale No. 13091 to the Embassy of Ukraine in Moscow (28 November 2016) Russian Federation Note Verbale No. 14453 to the Embassy of Ukraine in Moscow (29 December 2016) Russian Federation Note Verbale No. 14500 to the Embassy of Ukraine in Moscow (30 December 2016) Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (Supreme Court of the United States, 2018) Theodor Meron, The Incidence of the Rule of Exhaustion of Local Remedies, British Yearbook of International Law, Vol. 35 (1959) A.A. Cançado Trindade, Origin and Historical Development of the Rule of Exhaustion of Local Remedies in International Law, Belgian Review of International Law, Vol. 12 (1976) Dinah Shelton, Remedies In International Human Rights Law (3rd ed., 2015) The Explanatory Dictionary of the Russian Language, или (Sergey Ivanovich Ozhegov ed., 2011) Xinhua Dictionary of the Chinese Language, 或 (11th ed., 2011) Royal Spanish Academy Dictionary of the Spanish Language, o (online ed., 2018) Annex 80 Albin Eser, Mental Elements, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Antonio Cassese et al. eds., OUP 2002) Pursuant to Rules of the Court Article 50(2), this annex is comprised of such extracts of the whole document as are necessary for the purpose of the pleading. A copy of the whole document has been deposited with the Registry. Volume I, s.4 General Principles of International Criminal Law, 23 Mental Elements–Mistake of Fact and Mistake of Law Albin Eser From: The Rome Statute of the International Criminal Court Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones Content type: Book content Product: Oxford Scholarly Authorities on Published in print: 25 July 2002 International Law [OSAIL] ISBN: 9780198298625 Subject(s): Mens rea — International criminal law, victims — Individual criminal responsibility — War crimes — Armed conflict, international (p. 889) 23 Mental Elements–Mistake of Fact and Mistake of Law I. Introduction: Progress on Misconceived Propositions 890 II. Development prior to the Rome Statute 892 A. Taking Notice of mens rea 892 B. Propositions of the Mental Element 893 C. Opening the Door to Mistake of Fact and Mistake of Law 896 III. Variety of Mental States in the Rome Statute 898 A. Mental Requirements Less Strong than Intention: Negligence— Wantonness—Recklessness 898 B. Stricter Requirements than Intention: Wilful—Purposeful— Treacherous 899 C. Specific Intent 900 IV. The Mental Element according to Article 30 of the ICC Statute 902 A. Underlying Basic Concepts 902 1. The Exclusion of ‘strict liability’ 902 2. No Full Comprehension of Guilt (in terms of ‘culpability’ or ‘blameworthiness’) 903 B. Intention, Intent and/or Knowledge: Relations in Need of Clarification 904 C. The Object of Intention: The ‘material elements’ 908 D. Reference Points of ‘intent’: Conduct-Consequences 911 1. The Distinction between Conduct, Consequences, and Circumstances 911 2. Intent in Relation to ‘conduct’ 912 3. Intent in Relation to a ‘consequence’ 913 E. ‘Knowledge’ with Regard to Circumstances and Consequences 916 1. The Role of Knowledge for the Mental Element 916 2. With Regard to ‘consequences’ 917 3. With Regard to ‘circumstances’ 919 4. With Regard to Aggravating or Mitigating Consequences or Circumstances 920 F. Requisites or ‘awareness’ 920 1. Factual Knowledge 921 2. Normative Evaluation 921 3. Special Issues of ‘referential norms’ 925 G. The Relevant Time of Knowledge 930 H. ‘Wilful blindness’ 931 I. ‘Dolus eventualis’ and ‘recklessness’ 932 J. Mental Element and Complicity 933 V. Mistake of Fact and Mistake of Law according to Article 32 of the ICC Statute 934 A. Main Approaches 934 B. Conceivable Objects and Ways of Misperceptions 935 C. Recognized Mistakes 937 1. With Regard to Facts (Article 32(1) of the ICC Statute) 937 (p. 890) 2. With Regard to Law (Article 32(2) of the ICC Statute) 940 D. Non-recognized or Disregarded Errors 943 E. Possible Solutions 944 VI. Concluding Assessment 946 Select Bibliography 947 I. Introduction: Progress on Misconceived Propositions The Rome Statute’s Article 30 on ‘Mental element’ and Article 32 on ‘Mistake of fact or mistake of law’, if read together as their substantive interrelations necessitate,1 create an ambivalent impression.
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