"Actus non facit reum, nisi mens sit rea": An investigation into the treatment of mens rea in the quest to hold individuals accountable for genocide Page: 5

                                
This definition has been subsequently analyzed as a bifurcation into two distinct elements, namely the "requisite intent"
clause of the crime detailed in the chapeau of the definition, also known as the mental element of the crime or the mens
rea, and the list of prohibited acts, known as the actus reus.39 In both of these elements, the definition is presented in a
fairly vague manner. Many components within both the chapeau and the list of crimes are not elaborated upon in any
statutes, and in fact, much debate still rages upon the "shortcomings" of this definition.40 Perhaps most of all, there is
disagreement about the ambiguities of the "intent" clause, and how the mens rea component has been addressed in the
Genocide Convention, ICTY, ICTR, and International Criminal Court statutes.41 Unfortunately, there has been little actual
doctrine propagated by judicial bodies to fill in these legal gaps. Most theoretical and jurisprudential developments in
respect to the crime of genocide have been hashed out in academic journals and special UN committees.42 The concept of
mens rea, fifty years after it was applied in the Genocide Convention definition, is still "susceptible to remarkably
divergent interpretations,"43 and there is nothing any international statute that requires one specific interpretation.
III - Mens Rea: The Mental Element
A fundamental principle in many legal systems, especially those in the Anglo-American common law tradition,
is expressed by the Latin phrase "actus non facit reum nisi mens sit rea," which translated means "the act is not culpable
unless the mind is guilty."44 This delineates the two-fold requirement for every substantive crime; namely for every crime
there is an actus reus, or the physical act that constitutes the crime, and the mens rea, or the mental element of varying
standards that is held by the perpetrator.45 This has been a fundamental principle of legal systems and was valued by
jurists as far back as Joel Prentiss Bishop.46 The crime of genocide has its intent clause in its chapeau - specifically the
"intent to destroy, in whole or in part [a protected group], as such."47 This element is the crucial part of the crime of
genocide because it distinguishes the crime from more ordinary ones, like murder,48 and it relates genocide to other
39 See Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. GOAR, 51st Sess., Supp. No. 10, at 87, U.N.
Doc. A/51/10 (1996). Also, see Alexander K.A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99
Columbia Law Review (December, 1999) at 2264-2265
40 See Nersessian, supra note 5, at 235 and Greenawalt, supra, at 2260-2264
41 Much scholarly research exists about the ambiguities of the Genocide Convention definition of genocide and a few examples are contained in
these footnotes. Also, trial chambers have commented on the meaning of the genocide definition in many cases, notably the Akayesu,
Kambanda, and Kayishema decisions of the ICTR at http://www.ictr.org/ENGLISH/cases/completed.htm and the Krstic, Jelisic, and
Karadzic/Mladic cases at http://www.un.org/icty/cases/indictindex-e.htm Hereinafter, the International Criminal Court will be referred to as the
ICC.
42 See Nersessian, supra note 5, at 235
43 Id. At 2264
44 John R.W.D. Jones, "Whose Intent is it Anyway?" Genocide and the Intent to Destroy a Group. Man's Inhumanity to Man. L.C. Vorah et al.
(eds.) 467-480 (Kluwer Law International 2003) at 470 This Latin maxim dates back to prominent English jurist Edward Coke in his work
Institutes, Part II (1797 edition) chapter 1, folio 10
45 Id.
46 "If a case is really criminal, if the end sought is punishment and not the redress of a private wrong, no circumstance can render it just, or
consistent with sound jurisprudence, for the court or a jury to condemn the defendant unless his mind is guilty. J Bishop, Bishop on Criminal Law
 291.1 (9th ed. 1923) as reprinted in Pamela Hediger. Mens Rea: The Impasse of Law and Psychiatry, 26 Gonz. L. Rev. (1991) at 615
47 See Prosecutor v. Jelisic, case number IT-95-10, Judgement, 14 Dec. 1999, para. 62 and 66-68
48 See Ratner and Abrams, supra note 12, at 35-36