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  • Print publication year: 2009
  • Online publication date: July 2009

5 - The mental element or mens rea of genocide


Genocide is one of the five ‘acts’ of the subparagraphs of article II of the Convention, committed with the ‘intent’ defined in the chapeau. Even where an act itself appears criminal, if it was purely accidental, or committed in the absence of intent to do harm or knowledge of the circumstances, then the accused is innocent. According to Lord Goddard, ‘the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind’. But, in cases that cannot be described as purely accidental, the accused's mental state may be far from totally innocent and yet not egregiously evil. To quote Racine, ‘[a]insi que la vertu, le crime a ses degrés’. Criminal law systems establish levels of culpability based more or less entirely on the mental element, even when the underlying act is identical. Homicide is a classic example, because virtually all legal regimes recognize degrees of the crime based on differences in the mental element alone. For instance, involuntary homicide or manslaughter is a form of homicide that is not completely accidental and is attributable to the gross negligence of the offender. Homicide that is truly intentional, on the other hand, qualifies as murder. Even within murder, criminal law systems may make further distinctions, defining particularly reprehensible forms such as planned and premeditated murder, patricide, multiple murder, murder associated with other crimes such as sexual assault, and contract killing.