Original scientific paper
THE NOTION, TYPES AND DEGREES OF CULPABILITY PURSUANT TO ARTICLE 30 OF THE ROME STATUTE
Matea Miloloža
; Legal Associate at Law Firm Hanžeković & Partners Ltd
Abstract
The subject of interest of this paper is the question of the notion, types and degrees of culpability in the Rome Statute of the International Criminal Court, as the first codification of international criminal law, which in its Article 30 shaped the general rule on the types and degrees of culpability or mens rea applicable to all international crimes under the jurisdiction of the ICC. For the purpose of affirmation of judgements and opinions developed in the practice of the ad-hoc international criminal tribunals and in order to harmonize different penal notions and legal standings of the common and civil law systems, while outlining the Article 30 ambiguous and complex legal terms emerged causing difficulties in the right interpretation of the mentioned Article and leading to legal uncertainty in the application of the Rome Statute. With this in mind, the paper strives to clarify the issue of terminology in the Article 30 of the Rome Statute, by conducting s broad analysis including interpretation of the notion, types and degrees of culpability from the aspect of both civil law and common law system, taking the viewpoints of eminent legal experts into consideration and finally through legal opinions on this subject given in the case law of the ICC. In respect of the terminology of the Croatian penal system and based on the conducted analysis, it is possible to conclude that the Rome Statute, while defining prerequisites for the criminal liability, incriminates only purposeful and knowledgeable conduct or, in other words, it recognizes direct intent and oblique intent. Other types and degrees of culpability (recklessness, advertent (conscious) negligence and inadvertent (unconscious) negligence) are not within the scope of Article 30 and its standard of culpability, but they can still be applied in the procedure before the ICC, either on the basis of the "unless otherwise provided" clause (of the Article 30 itself) or on the grounds of the specific intent (dolus specialis) – an additional psychological element that is needed in order to establish criminal liability of the perpetrators of the most serious crimes of concern to the international community.
Keywords
the Rome Statute; culpability; mens rea; direct intent; dolus specialis
Hrčak ID:
147838
URI
Publication date:
30.8.2015.
Visits: 4.523 *