The Knowledge Of Mental Element In International Criminal Law

The mental element in international criminal law is much accounted by thelegislation and judiciary, but it has been few studied by researcher. The mentalelement in international criminal law is a complex issue that involving deep-seatedtheories. In order to deconstruct and analysis the theories of the mental element, wechoose the element of knowledge as a entry point. There are three aspects: thenorms, theoretical origin, specification on the subjective cognizance of appropriateeligibility, to clarify and analysis the knowledge element in international criminallaw, which is based on the common-law justice systems and the civil-law tradition.And on this basis we can grasp uniqueness of the knowledge in internationalcriminal law.The element of knowledge is the most core term and has special theoreticalstatus of the mental element in international criminal law, as an independent mode ofmens rea that takes an element analysis approach. Theoretical analysis of theknowledge elements to be unfolded from two aspects of factual knowledge andillegality cognition. Knowledge as a mode of mental elements correspond to threetypes of material element:conduct element, consequence element and circumstanceelement. The content of the cognition degree should reach the standard of“awareness of substantial likelihood” at least. On the illegality cognition, due to theparticularity of international criminal law violations that presumption of publiccognition premise is not clear, the content of the presumption is uncertain and full,so the presumption of knowledge in international criminal law should be defensible.However, trial practice of the international criminal court misinterpreted the mistakeof law. Finally, the research of knowledge in international criminal law should be arrival to the recognition of knowledge. And then we need to clarify the relationshipbetween constructive knowledge, willful blindness, should have knew.