Table of contents:
Element:
A. Evidentiary comment:
The knowledge required of the perpetrator led to much debate in the course of the drafting of the Rome Statute (unlike intent, which was considered adequately covered by Article 30.) One commentator suggests that, "In so far as the knowledge of the illegal nature of the acts was concerned, this raised the possibility of a defense based on mistake of law. Article 30 would seem to require knowledge "that a circumstance exists" and the argument was put forth that this might be misinterpreted as requiring knowledge of the illegality. After much debate, it was eventually agreed to adopt the language "knew or should have known of the prohibited nature of such use" suggesting that there must be some objective wrongfulness to the conduct. A footnote was included to indicate that this was a result of interplay between articles 30 and 32 of the Statute." (Roy S Lee ed., "The International Criminal Court- Elements of Crimes and Rules of Procedure and Evidence", Transnational Publishers 2001, pp. 157-158)
Please refer to the MPMD on command responsibility which contains a similar knew or should have known standard.
5.1. The perpetrator knew of the prohibited nature of such use; OR
5.2. The perpetrator should have known of the prohibited nature of such use.
