Chapter 17 the Mens Rea Enigma in the Jurisprudence of the International Criminal Court

Chapter 17 The Mens Rea Enigma in the Jurisprudence of the International Criminal Court

Mohamed Elewa Badar*

1. Introduction1 In January 2007, in the Lubanga case,2 Pre-Trial Chamber I (PTC I) of the Inter- national Criminal Court ruled that Article 30 of the ICC Statute encompasses the three degrees of dolus, namely, dolus directus of the ﬁ rst and second degrees and dolus eventualis. In September 2008, in the Katanga and Ngudjolo Chui case,3 the defence of the ﬁ rst accused contended that the Statute does not include the notion of dolus eventualis.4 Th e defence relied heavily on scholarly opinions in support of its

* Lecturer in International Criminal Law and Islamic Law, Co-Director, Centre for International & Public Law (CIPL) Brunel Law School, Brunel University, London, UK; Former Judge, Egyptian Ministry of Justice (2002-2007); Former Senior Public Prosecutor, Egyptian Ministry of Justice (1997-2002). PhD & LLM, National Univer- sity of Ireland, Galway; Dip. in International Legal Relations (Ain-Shams University, Cairo); Bachelors of Law & Police Sciences (Cairo), Egypt. mohamed.badar@brunel. ac.uk. 1 A slightly diff erent version of this chapter has been published under the title ‘Dolus Eventualis and the Rome Statute Without It?’, (2009) 12 New Criminal Law Review 433-67. For more information on Article 30 of the ICC Statute see M. Elewa Badar, ‘Th e Mental Element in the Rome Statute of the International Criminal Court: A Commentary From a Comparative Criminal Law Perspective’, (2008) 19 Criminal Law Forum 473-518. 2 Prosecutor v. Th omas Lubanga Dyilo, Decision on the Confi rmation of Charges, Case No. ICC-01/04-01/06-803, PTC I, 29 January 2009 (‘Lubanga Decision on the Confi rmation of Charges’). 3 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Con- fi rmation of Charges, Case No. ICC-01/04-1/07, PTC I, , 30 September 2008 (‘Ka- tanga and Ngudjolo Chui Decision on the Confi rmation of Charges’). 4 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Defence Written Ob- servations Addressing Matters that Were Discussed at the Confi rmation Hearing Case No. ICC-01/04-1/07, 28 July 2008, para. 31. Van den Herik and Stahn (eds.), Th e Diversifi cation and Fragmentation of International Criminal Law © 2012 Koninklijke Brill nv. Printed in Th e Netherlands. isbn 978 9004 21459 0. pp. 503-534. 504 Mohamed Elewa Badar Part II

submission. Faced by such a legal dilemma, PTC I, in the Katanga and Ngudjolo Chui case, refrained from relying on the elusive concept of dolus eventualis for the mental element in relation to the crimes charged. Accordingly, the decision lacks any discussion on whether the concept of dolus eventualis has a place within the framework of Article 30 of the ICC Statute.5 In June 2009, in the Bemba case, the ICC’s Pre-Trial Chamber II (PTC II) ruled that Article 30 encompasses two degrees of dolus, namely dolus directus of the fi rst and second degree and that other forms of culpability such as dolus eventualis and recklessness have no place within the framework of Article 30.6 On the face of its position, PTC II ensured that it is ‘not substituting the concept of de lege lata with the concept of de lege ferenda only for the sake of widening the scope of Article 30 of the Statute and capturing a broader range of perpetrators’.7 Evidently, the Bemba decision deviates from the approach and line of reason- ing embraced by PTC I in the Lubanga case.8 At present, the Lubanga, Katanga and Bemba decisions are the only guidance given by the ICC as to the forms of culpability under Article 30.9 Th is paper examines the diff erent degrees of intentionality under Article 30 of the ICC Statute; it draws a fi rm distinction between dolus directus of the second degree and dolus eventualis; and attempts to answer the question of whether the notion of ‘intent’ as provided for in Article 30 encompasses the triplet forms of dolus, namely, dolus directus of the fi rst and second degree and dolus eventualis. Th e chapter concludes that dolus eventualis is one of the genuine and indepen- dent pillars of criminal responsibility which forms, on its own, the basis of in- tentional crimes and suggests its inclusion in the legal standard of Article 30 of the ICC Statute.

2. Background on the Lubanga, Katanga and Bemba Decisions On 29 January 2007, PTC I of the ICC rendered its decision conﬁ rming the charges against Th omas Lubanga Dyilo.10 According to the prosecution, Lubanga

5 Katanga and Ngudjolo Chui Decision on the Confi rmation of Charges, supra note 3, para. 531. 6 Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Confi rmation of Charges, 15 June 2009, Case No. ICC- 1/05-01/08, PTC II, para. 369. 7 Ibid. 8 Lubanga Decision on the Confi rmation of Charges, supra note 2. 9 Most notably in September 2008, in the Germain Katanga and Ngudjolo Chui case, PTC I refrained from relying on the elusive concept of dolus eventualis for the mental element in relation to the crimes charged and accordingly the decision lacks any discussion on whether the concept of dolus eventualis has a place within the framework of Article 30 of the ICC Statute. See Katanga and Ngudjolo Chui Decision on the Confi rmation of Charges, supra note 3. 10 Lubanga Decision on the Confi rmation of Charges, supra note 2.