Book Review: Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach
AuthordeGuzman, Margaret M.
SubjectInternational criminal court
International criminal law
Comparative criminal law
Permanent link to this recordhttp://hdl.handle.net/20.500.12613/6934
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AbstractIn The Concept of Mens Rea In International Criminal Law: The Case for a Unified Approach, Mohamed Badar makes an important contribution to the literature through a comprehensive review of mens rea law in many of the world’s national legal systems and at international criminal courts and tribunals. Professor Badar demonstrates that in all of these contexts, theorists, legislators, and judges have struggled mightily to identify the appropriate mental states to justify the infliction of punishment. He also illuminates the historical trajectory of the concept beginning as far back as the Babylonian Code of Hammurabi.
CitationMargaret M. deGuzman, Book Review: Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach, Rutgers Criminal Justice Books Reviews (May 2014).
Available at: https://clcjbooks.rutgers.edu/books/the-concept-of-mens-rea/
Citation to related workRutgers School of Law
Has partRutgers Criminal Justice Books Reviews
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Book Review: Larry May and Shannon Fyfe, International Criminal Tribunals: A Normative DefensedeGuzman, Margaret M. (2018-06-08)In "International Criminal Tribunals: A Normative Defense," Larry May and Shannon Fyfe set out to demonstrate that international tribunals provide “the fairest way to deal with mass atrocity crimes in a global arena.” To do so, the authors take up a wide range of critiques that scholars and others have leveled at international criminal tribunals and argue that although most have some validity, none are fatal to the enterprise of international criminal justice. The authors’ analysis of the various critiques yields both normative arguments about the value of international criminal tribunals and suggestions about how the institutions can be improved. In advancing their normative claims and supporting their prescriptive suggestions, the authors draw on a deep well of philosophical and theoretical concepts, including legitimacy, fairness, effectiveness, and efficiency. The result is a book that not only canvases and addresses the broad array of critiques leveled at international criminal tribunals but adds significantly to the rather scant literature on the philosophical justifications for international criminal justice.
The International Criminal Court is Legitimate Enough to Deserve SupportdeGuzman, Margaret M.; Kelly, Timothy Lockwood (2019)In Allen Buchanan’s essay, "The Complex Epistemology of Institutional Legitimacy Assessments," 33 TEMP. INT’L & COMP. L. J. 323, 323 (2019), he suggests that the legitimacy of the International Criminal Court (ICC) is weak – perhaps so weak that it is unworthy of support. This response argues that Buchanan underestimates the ICC’s legitimacy by misconstruing the institution’s chief justifying function and under-valuing the benefits the institution can provide. Unlike domestic courts, the ICC’s main function is not to uphold the rule of law by deterring crimes, but rather to express global norms in the hopes that over time those norms will permeate the fabric of global society. In light of the complexity of this mandate, and the ICC’s relatively limited resources, it is unsurprising that the institution has faced challenges to its legitimacy in its early years. But these are early years, and we argue that the ICC meets at least to the minimum threshold of legitimacy required to justify giving it support.
Choosing to Prosecute: Expressive Selection at the International Criminal CourtdeGuzman, Margaret M. (2012)The International Criminal Court (ICC), an institution in its infancy, has had occasion to make only a relatively small number of decisions about which defendants and which crimes to prosecute. But virtually every choice it has made has been attacked: the first defendant, Thomas Lubanga, was not senior enough and the crimes with which he was charged-war crimes involving the use of child soldiers-were not serious enough; the Court should have investigated British soldiers for war crimes committed in Iraq; the ICC should not be prosecuting only rebel perpetrators in Uganda and the Democratic Republic of Congo; the Court's focus on situations in Africa is inappropriate; the Court has focused insufficient attention on gender crimes; and so on. Much of the debate about such selection decisions centers on whether the ICC, and particularly its prosecutor, are improperly motivated by political considerations. Critics charge that selection decisions are inappropriately political, while the Court's current prosecutor, Luis Moreno-Ocampo, counters that his decisions are apolitical-that he is simply implementing the law enunciated in the ICC's statute. Most recently, some authors have suggested that the prosecutor's role is inevitably political and should be acknowledged as such. The participants in this debate rarely define what they mean by "political," nor will this Article attempt such definition. Instead, this Article seeks to reframe the debate about the ICC's selection decisions by shifting from the current focus on the boundaries between "legal" and "political" criteria to a constructive dialogue about the most appropriate goals and priorities for the Court. The ICC's core selectivity problem is that the Court lacks sufficiently clear goals and priorities to justify its decisions. States created the ICC to adjudicate "the most serious crimes of concern to the international community as a whole," but they gave it a budget that enables only a handful of prosecutions per year. Persons charged with implementing the Court's broad mandate-its prosecutor and judges-must thus select a few cases from among thousands. Yet the international community has provided the Court virtually no guidance about what goals it should seek to achieve through the cases it selects, beyond the vague mandate to strive to end impunity for "the most serious crimes."