THE CRIME OF GENOCIDE. QUESTIONS ABOUT THE MENS REA.

Federico C. La Vattiata

Abstract


The definition of genocide established in the 1948 UN Convention has been totally adopted by the international lawmakers when formulating the corresponding provisions of the Ad Hoc Tribunals’ Statutes, and, more recently, also article 6 of the Rome Statute of the International Criminal Court.
In my oral presentation, I will try to address the topic of the genocidal specific intent.
The theme of the genocidal dolus specialis is certainly among the most debated, not only because it is relevant to the crime itself, but also because it can well represent the occasion for the emergence of the various opinions concerning, upstream, the reconstruction of a theory of guilt in international criminal law (and, more specifically, in the ICC Statute’s system).

Moreover, pursuant to a rigorous approach, I will try to rebut the thesis according to which the genocidal mental element can also be fulfilled by two psychological standards which are, in my opinion, wrong: i.e. the recklessness and the wilful blindness. Such a contradiction is generated by a misunderstanding of the normative provision: indeed, it is caused by a separate analysis of the two components (knowledge and intent) which constitute (as a whole) the standard provided for by article 30 of the Rome Statute. Concentrating all the efforts on the binomial knowledge-intent, one completely loses sight of the (previous in the text) clause "unless otherwise provided".


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