Book contents
- Frontmatter
- Contents
- Preface to the first edition
- Preface to the second edition
- Acknowledgments
- List of abbreviations
- Introduction
- 1 Origins of the legal prohibition of genocide
- 2 Drafting of the Convention and subsequent normative developments
- 3 Groups protected by the Convention
- 4 The physical element or actus reus of genocide
- 5 The mental element or mens rea of genocide
- 6 ‘Other acts’ of genocide
- 7 Defences to genocide
- 8 Prosecution of genocide by international and domestic tribunals
- 9 State responsibility and the role of the International Court of Justice
- 10 Prevention of genocide
- 11 Treaty law questions and the Convention
- Conclusions
- Appendix: The three principal drafts of the Convention
- Bibliography
- Index
5 - The mental element or mens rea of genocide
Published online by Cambridge University Press: 07 July 2009
- Frontmatter
- Contents
- Preface to the first edition
- Preface to the second edition
- Acknowledgments
- List of abbreviations
- Introduction
- 1 Origins of the legal prohibition of genocide
- 2 Drafting of the Convention and subsequent normative developments
- 3 Groups protected by the Convention
- 4 The physical element or actus reus of genocide
- 5 The mental element or mens rea of genocide
- 6 ‘Other acts’ of genocide
- 7 Defences to genocide
- 8 Prosecution of genocide by international and domestic tribunals
- 9 State responsibility and the role of the International Court of Justice
- 10 Prevention of genocide
- 11 Treaty law questions and the Convention
- Conclusions
- Appendix: The three principal drafts of the Convention
- Bibliography
- Index
Summary
Genocide is one of the five ‘acts’ of the subparagraphs of article II of the Convention, committed with the ‘intent’ defined in the chapeau. Even where an act itself appears criminal, if it was purely accidental, or committed in the absence of intent to do harm or knowledge of the circumstances, then the accused is innocent. According to Lord Goddard, ‘the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’. But, in cases that cannot be described as purely accidental, the accused's mental state may be far from totally innocent and yet not egregiously evil. To quote Racine, ‘[a]insi que la vertu, le crime a ses degrés’. Criminal law systems establish levels of culpability based more or less entirely on the mental element, even when the underlying act is identical. Homicide is a classic example, because virtually all legal regimes recognize degrees of the crime based on differences in the mental element alone. For instance, involuntary homicide or manslaughter is a form of homicide that is not completely accidental and is attributable to the gross negligence of the offender. Homicide that is truly intentional, on the other hand, qualifies as murder. Even within murder, criminal law systems may make further distinctions, defining particularly reprehensible forms such as planned and premeditated murder, patricide, multiple murder, murder associated with other crimes such as sexual assault, and contract killing.
- Type
- Chapter
- Information
- Genocide in International LawThe Crime of Crimes, pp. 241 - 306Publisher: Cambridge University PressPrint publication year: 2009