M.2. The perpetrator fulfilled the subjective elements of the crime charged. (In addition to M.2.1. requirement, requirements of M.2.2. and M.2.3. as well M.2.4. will be applicable as defined in mental elements of each specific crime.

M.2.1. The perpetrator meant to engage in the conduct

M.2.2. The perpetrator meant to cause the consequence

M.2.3. The perpetrator was aware that the consequence will occur in the ordinary course of events

M.2.4. The perpetrator was aware of the circumstances of the crime

M.2. The perpetrator fulfilled the subjective elements of the crime charged. (In addition to M.2.1. requirement, requirements of M.2.2. and M.2.3. as well M.2.4. will be applicable as defined in mental elements of each specific crime.

M.2.1. The perpetrator meant to engage in the conduct

M.2.1.1. ICTY

In the Mucić et al. ("Čelebići") Trial Judgment, it was held that:

"While different legal systems utilise differing forms of classification of the mental element involved in the crime of murder, it is clear that some form of intention is required. However, this intention may be inferred from the circumstances, whether one approaches the issue from the perspective of the foreseeability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness."[1]

The Mucić et al. ("Čelebići") Trial Chamber concluded:

"that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life."[2]

The Mucić et al. ("Čelebići") Appeals Chamber held:

"[t]hat a finding of liability pursuant to Article 7(1) for detention requires a demonstration that the accused had the authority to detain or release the persons detained, or that his acts or omissions had a substantial effect on the continued detention. A greater degree of involvement than the mere awareness that some persons were detained without reasonable grounds to suspect that they posed a security risk is required to establish primary responsibility."[3]

The Kunarac et al. Appeals Chamber held that:

"According to the Trial Chamber, the crime of outrages upon personal dignity requires that the accused knew that his act or omission could cause serious humiliation, degradation or otherwise be a serious attack on human dignity… The Appellant, however, asserts that this crime requires that the accused knew that his act or omission would have such an effect."[4]

"The Trial Chamber carried out a detailed review of the case-law relating to the mens rea of the crime of outrages upon personal dignity […] The Trial Chamber was never directly confronted with the specific question of whether the crime of outrages upon personal dignity requires a specific intent to humiliate or degrade or otherwise seriously attack human dignity. However, after reviewing the case-law, the Trial Chamber properly demonstrated that the crime of outrages upon personal dignity requires only a knowledge of the ‘possible’ consequences of the charged act or omission."[5]

In the Galić Trial Judgment it was held that:

"at the time of the act or omission, the perpetrator had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim" or the accused knew that his acts or omissions were likely to cause serious physical or mental suffering or a serious attack upon the human dignity of the victim."[6]

In the Lukić and Lukić Trial Judgment, it was held that:

"[i]t is not required that the perpetrator intended to target a specific individual. Rather, it is sufficient that the perpetrator intended indiscriminately to kill whoever would be fatally injured as a result of his action."[7]

M.2.1.2. ICTR

In the Kayishema and Ruzindana Trial Judgment it was held that individual criminal responsibility requires:

"knowledge or intent, that is awareness by the actor of his participation in a crime."[8]

According to the Rukundo Trial Chamber:

"The actus reus must have occurred in 1994, and at the time of such acts or omissions, the accused must have had the requisite intent (mens rea) to carry out that crime."[9]

In the Nshogoza Trial Judgment, it was held that:

"Rule 77 (A) provides the general actus reus and mens rea for contempt. The actus reus is interference with the administration of justice, and the mens rea is the knowledge and will to interfere."[10]

The Renzaho Trial Chamber held that:

"The mens rea of the crime requires that the accused knew that his act or omission would have such effect."[11]

The Muvunyi Trial Chamber held that:

"A person may be found guilty of direct and public incitement to commit genocide if he or she directly and publicly incited the commission of genocide (the actus reus) and had the intent to directly and publicly incite others to commit genocide (the mens rea)."[12]

M.2.1.3. Special Tribunal for Sierra Leone

In the Fofana and Kondewa Trial Judgment it was held that:

"the mens rea requirement for committing a crime is satisfied if the Prosecution proves that the Accused acted with the intent to commit the crime, or with the reasonable knowledge that the crime would likely occur as a consequence of his conduct."[13]

The Sesay, Kallon and Gbao Trial Chamber held that:

"The Chamber adopts the definition of the mens rea required for the crime of extermination of the ICTR and ICTY Appeals Chambers: The mens rea required for extermination is that the accused intended, by his acts or omissions, either killing on a large scale, or the subjection of a widespread number of people, or the systematic subjection of a number of people, to conditions of living that would lead to their deaths."[14]

M.2.2. The perpetrator meant to cause the consequence

M.2.3. The perpetrator was aware that the consequence will occur in the ordinary course of events

M.2.4. The perpetrator was aware of the circumstances of the crime