CYIL vol. 13 (2022)

JAKUB SPÁČIL CYIL 13 ȍ2022Ȏ The crime of aggression provides for individual criminal responsibility for an act of aggression, which is defined in Article 8 bis RS as “use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. 46 However, for the purposes of criminal responsibility, several additional criteria must also be met, including the “gravity and scale” of aggression. 47 At the same time, there is consensus that every armed attack constitutes aggression. 48 An armed attack is therefore a subset of aggression and as such must fulfil all the characteristics of aggression. In contrast to the law of armed conflict, international criminal law has a sophisticated concept of assessing the intent of the perpetrator, that is, mens rea , criminal intent. 49 I believe that it is precisely by analogical application of the concept of mens rea that the problem of the absence of a mechanism for concluding that the subjective element of armed attack has been fulfilled can be solved, and such a procedure can be supported by several arguments. Firstly, mens rea in effect resolves the question of the attributability of the act and the consequence to the natural person – the perpetrator of the international crime. Similarly, the determination of whether the subjective element of an armed attack has been satisfied involves nothing more than a determination of the attributability of the act and consequence to the individual (or individuals in the case of a collective decision) with respect to their will, because these persons create the will of a State. Although in the case of international criminal law it is a question of individual responsibility and in the case of the law of armed conflict it is a question of state responsibility, in both cases we are ultimately analysing the intent of the individual (in the first case of an individual as such, in the second case of a person acting for the state, i.e. deciding to carry out the attack). Nothing, therefore, prevents the analogical application of the concept of mens rea to the conduct of the State in the present context. Secondly, the concept of mens rea is a general principle of (criminal) law and is therefore a source of international law. 50 And thirdly, transferring concepts from (international) criminal law to other areas of international law is a practice commonly used by international legal scholars. 51 Before proceeding to resolve the above hypothetical examples using the concept of mens rea , it is necessary to explain how this concept is specifically applied in international law. Mens rea can be defined as “the state of mind statutorily required in order to convict a particular defendant of a particular crime”. 52 The quality of mens rea can be divided into four categories, namely intent, knowledge, recklessness and negligence. 53 We may now come to the aforementioned Article 30 of the RS. This article, entitled “Mental element”, sets out the mens rea standard which is 46 Rome Statute of the International Criminal Court, Article 8 bis, para. 2. 47 Rome Statute of the International Criminal Court, Article 8 bis, para. 1. 48 ROSCINI, 2016, p. 77, see supra note 4. 49 Mens rea generally refers to the “element of intent” and Ruys also uses it in relation to armed attack, see RUYS, 2011, p. 158, see supra note 18. 50 PIGAROFF, K., D., ROBINSON, D. In TRIFFTERER, O., AMBOS, K. (eds ). The Rome Statute of the International Criminal Court: A Commentary . 3rd ed. Oxford: Beck/Hart, 2016, p. 1112 (Article 30); Statute of the International Court of Justice, art. 38, para. 1, letter c). 51 E. g. WEISBORD, N. The Mens Rea of the Crime of Aggression. Washington University Global Studies Law Review , 2013, vol. 12, no. 3, p. 502. 52 Legal Information Institute. Mens Rea [online]. Law.Cornell.edu, [accessed 14 March 2022]. Available at . 53 Ibid.

58