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The Concept of Mens Rea in International Criminal Law

The Case for a Unified Approach

By: Mohamed Elewa Badar
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Published: 30-01-2013
Format: PDF eBook (?)
Edition: 1st
Extent: 540
ISBN: 9781782250654
Imprint: Hart Publishing
Series: Studies in International and Comparative Criminal Law
RRP: £44.99
Online price : £35.99
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About The Concept of Mens Rea in International Criminal Law

The purpose of this book is to find a unified approach to the doctrine of mens rea in the sphere of international criminal law, based on an in-depth comparative analysis of different legal systems and the jurisprudence of international criminal tribunals since Nuremberg. Part I examines the concept of mens rea in common and continental legal systems, as well as its counterpart in Islamic Shari'a law. Part II looks at the jurisprudence of the post-Second World War trials, the work of the International Law Commission and the concept of genocidal intent in light of the travaux préparatoires of the 1948 Genocide Convention. Further chapters are devoted to a discussion of the boundaries of mens rea in the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda. The final chapter examines the definition of the mental element as provided for in Article 30 of the Statute of the International Criminal Court in light of the recent decisions delivered by the International Criminal Court.

The study also examines the general principles that underlie the various approaches to the mental elements of crimes as well as the subjective element required in perpetration and participation in crimes and the interrelation between mistake of law and mistake of fact with the subjective element.

With a Foreword by Professor William Schabas and an Epilogue by Professor Roger Clark

From the Foreword by William Schabas
Mohamed Elewa Badar has taken this complex landscape of mens rea at the international level and prepared a thorough, well-structured monograph. This book is destined to become an indispensable tool for lawyers and judges at the international tribunals.

From the Epilogue by Professor Roger Clark
This is the most comprehensive effort I have encountered pulling together across legal systems the 'general part' themes, especially about the 'mental element', found in confusing array in the common law, the civil law and Islamic law. In this endeavour, Dr Badar's researches have much to offer us.

Table Of Contents

William A Schabas
1. Introduction
2. From Vengeance to Mens Rea to Mentes Reae
3. Mens Rea in the Common Law of England and Wales, Australia and Canada
4. Mens Rea in the American Law Institute's Model Penal Code
5. Mens Rea in German and French Criminal Law
6. Mens Rea in Chinese and Russian Criminal Law
7. Mens Rea in Islamic Criminal Law
8. Mens Rea in post-World War II Trials, the Travaux Préparatoire of the Genocide Convention and the Work of the International Law Commission
9. Mens Rea of Crimes in the Jurisprudence of the the Former Yugoslavia and Rwanda
10. The Mens Rea of Perpetration and Participation in the Jurisprudence of the ICTY and ICTR
11. Mens Rea in the Jurisprudence of the International Criminal Court
12. General Conclusions and Recommendations


“A parere di chi scrive, in conclusione, il pregio maggiore del lavoro di Badar risiede nella vastità davvero notevole dei materiali plurilingue che Egli è riuscito a raccogliere ed a sistematizzare, soffermandosi pure sulla disciplina della mens rea in alcune tradizioni extra-occidentali finora poco o affatto conosciute alla comunità internazional-penalistica.” –  Sara Porro, Indice Penale, Volume XVI, No. 2

“The text has been exhaustively researched and fluently written. It contains a most thorough and comprehensive review of the varying conceptions of the mental elements of crimes at the national level.
... an invaluable resource for both academics and students of international criminal law. In addition, practitioners of international criminal law will, no doubt, rely on the information and analysis contained therein in their daily work.
” –  Noelle Higgins, International Human Rights Law Review, Issue 2

“The outstanding feature of the book is its broad analysis of the substantive law of several major legal jurisdictions which reveals the much sought after universal value in such a diverse criminal justice system.” –  Megumi Ochi, Journal of International Criminal Justice, Issue 4

“Frankly if one had only one book on the principle of mens rea this would be the one to consider as it is not just an academic work, but a practitioner's manual on conceptualizing the full gaunt of this critically important doctrine.” –  David M. Crane, ASIL Cables

“In reading Mohamed Elewa Badar's remarkably comprehensive book about the concept of mens rea in national and international criminal laws, I kept thinking how thrilled I would have been to discover such a book while working at the ICTY. Professor Badar reveals the confusion surrounding mens rea at the international level and proposes to lend some clarity to the concept through comparative analysis.

The book makes an important contribution to the literature through its very comprehensive review of mens rea law in many of the word's national legal systems and at international criminal courts and tribunals.

The book provides an impressive level of detail with regard to many of the systems it reviews, elucidating not only dominant trends in thinking about mens rea but also conflicts within legal systems. The book also contains some helpful comparative analysis, including, for instance, tables that compare approaches among common law systems. The book's exploration of the international criminal law jurisprudence concerning mens rea is also impressively comprehensive. invaluable resource for practitioners and judges seeking to develop the concept of mens rea in international criminal law. It's rich descriptions of national and international approaches to mens rea facilitate discussion of the most appropriate approaches to the mental elements of international crimes. Just as I would have benefitted greatly from a book of this nature when I worked at the ICTY in 1997, the work of international criminal law practitioners, scholars, and teachers will be enhanced by exposure to Professor Badar's extensive research.

” –  Margaret M. deGuzman, Criminal Law and Criminal Justice Book Reviews, May 2014

“...a very impressive and comprehensive work, strong in all analytical, comparative and dogmatic senses...This book must be strongly recommended to anyone who teaches, researches, or practises in the area of international criminal law or comparative criminal justice.” –  Alexander Orakhelashivili, German Yearbook of International Law, Volume 56, 2013

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