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Title Page
ABSTRACTS
Contents
Chapter One: Introduction 12
Chapter Two: the Historical Background of the Rome Statute 13
2-1. The Creating of the Nuremberg Tribunal 14
2-2. The ad hoc International Criminal Tribunals 18
2-3. The creating of the ICC and the Rome Statute 20
Chapter Three: Mens Rea in the Rome Statute of the International Criminal Court 24
3-1. The drafting of the Rome Statute 24
3-2. Mens Rea in Article 30 26
3-2-1. Intent 30
3-2-2. Knowledge 32
3-2-3. Recklessness 36
3-2-4. Negligence 40
Chapter Four: Mens Rea in Domestic Criminal Law 42
4-1. Mens Rea in English Criminal Law 42
4-1-1. Intent 43
4-1-2. Recklessness 51
4-1-3. Negligence 54
4-2. Mens Rea in German Criminal Law 55
4-2-1. Intent 59
4-2-2. Negligence 65
4-2-3. Recklessness 68
4-3. Mens Rea in the Chinese Criminal Law 69
4-3-1. Intent 70
4-3-2. Negligence 71
Chapter Five: Comparison of Mens Rea in an International Criminal Law View 73
Chapter Six: The Comments on Article 30 of the Rome Statute in Comparative Perspective 84
6-1. The Limitation of Article 30 of the Rome Statue 85
6-1-1. Textual Vagueness: "intent and knowledge" or "intent or knowledge" 86
6-1-2. Structural Vagueness I : knowledge within intent, or knowledge without intent 90
6-1-3. Structural Vagueness II : including recklessness, or excluding recklessness 95
The Possible Solution 99
Chapter Seven: Conclusion 101
Reference 106
초록보기 더보기
In 2002, the Rome Statute of International Criminal Court has entered into force, which asserts to establish an independent permanent International Criminal Court with jurisdiction over the most serious crimes of concern to the international community as a whole. As the first criminal code to integrate the international criminal law, the Rome Statute of ICC has showed us there is some probability to establish common standard in the field of International Criminal Law. And the birth of the Rome Statute of ICC has special historical background. On one hand, the Rome Statute is the result of internationalization of criminal law which focuses on protect world peace and humanity. One the other hand, the Rome Statute came out in the post-cold-war period, which makes it a result of the negotiation and compromise of many strong countries, and among them influence of US negotiators is especially strong. These special historical background makes the Rome Statute progressive but also limited. Article 30 - Mens Rea, as a very important article of the Rome Statute, has also inherited these special historical characteristics of the Rome Statue.
In order to have a deep and comprehensive understanding of Article 30, the author will first comb the history progress of international criminal law and the historical background of the Rome Statue in Chapter Two, and then anatomize Article 30 in Chapter Three, and then introduce the mens rea structures of some domestic criminal law in Chapter Four, and then make some comparison between the mens rea structure in Article 30 and the mens rea structure in domestic criminal law in Chapter Five, and then the author will give some comments about Article 30 in Chapter Six, and finally get the conclusion in Chapter Seven.
With a deep and comprehensive understanding of Article 30, the author find some textual vagueness and structure vagueness in Article 30 of the Rome Statute. In Chapter Six, the author these problems.
The first problem is about the conjunction between words "intent" and "knowledge". In the draft of Article 30, there are two conjunctions "and" and "or" between the words "intent" and "knowledge". And the symbol "[ ]" shows that these two conjunctions are alternative for the final version. But Article 30 chose the conjunction "and" instead of "or" putted between the words "intent" and "knowledge".
There is a big difference between these two conjunctions. Textually, the sentence "only if the material elements are committed with intent and knowledge" are much different with the sentence "only if the material elements are committed with intent or knowledge". The former emphasizes that the crime should be committed with intent and knowledge together, in other words, neither of the two mental elements here is an independent mens rea category; while the latter emphasizes that the crime can be committed with either intent or knowledge, in other words, both of the two mental elements here are an independent mens rea categories, or we can say, they are alternative. However, the drafters choose the the conjunction "and", while stipulate intent and knowledge as two independent mens rea categories. This textual vagueness may cause misunderstanding and misinterpretation among people from different legal systems.
The second problem is The pivotal problem behind textual vagueness is structural vagueness. When we are talking about the textual problem between "intent and knowledge" and "intent or knowledge", we are facing two different structures of mens rea: knowledge within intent, and knowledge without intent. Because they present two different structures of mens rea: the English Criminal Law structure and the US Model Panel Code structure.
Even though both of UK and US are common law countries and English countries, the English Criminal Law and the US Model Panel Code use different ways to deal with the meaning of the legal term intent. After analysis, we can see that the US Model Panel Code mothed easily cause misunderstanding and misinterpretation in the circumstance of English linguistics. On the contrary, the English Criminal Law method is basing on two important reasons: 1. To be harmonious with the linguistic meaning of the word intent; 2. it is more meaning for to distinguish indirect intent and recklessness, rather than intent and knowledge.
The third problem is corning a highly debatable issue: whether recklessness is included in Article 30 or not. After analysis, the author found the recklessness is excluded in Article 30, though the text of Article 30 makes people easily confusing of this issue. However, there is a necessity to include the mens rea recklessness in Article 30. On one hand, mens rea has no relationship with the serious degree of the consequence caused by the perpetrator. On the other hand, according to the judgments of former international tribunals, many serious war crimes were committed with recklessness, which should be under the jurisdiction of ICC.
The author think that the internationalization is no simply stacking several things together, but choose a best one and do some amendments according to specific circumstance. As a possible solution to these limitations of Article 30, the author suggest to use the mens rea structure of the English Criminal Law as the basic structure of Article 30 to combine intent and knowledge into the mens rea intent, and stipulate the mens rea recklessness. Because the mens rea structure of the English Criminal is easier to understand and operate comparing to the German Criminal Law, and more rigorous and effective comparing to the US Model Panel Code.
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