Journal of the Charles University Law Faculty
Tereza Ottová
Author’s affiliation:
Faculty of Law, Charles University in Prague
The Concept of the Subjective Element Mens Rea in Command Responsibility in International Criminal Law
Jurisprudence 2/2026 Section: Articles Page: 1-7
Keywords: International criminal law, mens rea, command responsibility, Rome Statute, individual criminal liability
Abstract: This article examines the concept of mens rea in command responsibility under international criminal law, focusing on the tension between individual criminal liability and liability for omissions. The analysis begins with Article 30 of the Rome Statute, which defines the general standard, and its relationship to the specific regime of command responsibility under Article 28. The paper traces the historical development from the Yamashita case through Additional Protocol I to the jurisprudence of the ICTY, ICTR, and ICC. Special attention is given to the mental element and the diverging standards of “knew”, “had reason to know”, and “should have known”, which have not yet been harmonised. The Bemba case illustrates the ongoing interpretative fragmentation within the ICC. The study highlights the legal and systemic risks arising from the lack of clarity in the doctrine of command responsibility, which undermines legal certainty and equality before the law.
