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Unimaginable AtrocitiesJustice, Politics, and Rights at the War Crimes Tribunals$
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William Schabas

Print publication date: 2012

Print ISBN-13: 9780199653072

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199653072.001.0001

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MENS REA, ACTUS REUS, AND THE ROLE OF THE STATE

MENS REA, ACTUS REUS, AND THE ROLE OF THE STATE

Chapter:
(p.125) 5 MENS REA, ACTUS REUS, AND THE ROLE OF THE STATE
Source:
Unimaginable Atrocities
Author(s):

William Schabas

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199653072.003.0006

Criminal law classically describes offences as being composed of two elements: the mens rea and the actus reus. The mens rea is the guilty mind and the actus reus is the guilty act. The words come from a Latin maxim that holds there to be no punishable act that is not the result of a guilty mind. It is not a crime merely to think guilty thoughts. Guilty thoughts must be linked to an act. An act that is not the result of a guilty mind is not a crime. Criminal justice systems occasionally recognize offences that may be committed in the absence of a guilty mind, although such crimes are very much the exception and they are rarely particularly serious. At the level of international criminal law, this low end of the intent spectrum rarely arises. The closest that international law comes to acts that are punishable without a guilty mind is the prosecution of commanders for the acts of their subordinates, when the superior ‘had reason to know’ that atrocities might be perpetrated by those under his or her control. The state policy issue remains one of the unresolved issues in the interpretation of both genocide and crimes against humanity. The ad hoc tribunals have made their position clear, declaring this to be excluded as an element of the crimes in question. To be entirely accurate, state policy has never really been an issue at either the International Criminal Tribunal for Rwanda, where the prosecutions have been confined to genocide charges associated with a brutal regime, or the Special Court for Sierra Leone, where the targets of prosecution were always senior leaders in the apparatus of the state or state-like rebel groups.

Keywords:   mens rea, actus reus, guilty mind, crime, international law, state policy, ad hoc tribunals

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