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This article, written in commemoration of the tenth anniversary of the International Criminal Court (ICC), explores the mens rea of the crime of aggression. The definition and jurisdictional conditions of the crime of aggression was recently incorporated into the ICC’s Rome Statute, thereby reviving a crime used during the Nuremberg trials to prosecute Nazi leaders after World War II. Mens rea is an important, even central, consideration when judging whether a defendant has satisfied all of the elements of the crime of aggression.

The starting point for this exploration of the mens rea of the crime of aggression is its elements. The elements are an official ICC document clarifying the culpable mental state that applies to each aspect of the conduct, consequences, and circumstances constituting the crime. Mens rea can also come into play in differing ways in an aggression case through several defenses. A number of defenses are contained in Part 3 of the Rome Statute, the general section applicable to all ICC crimes.

Ultimately, judges are being asked to chart a new course. It will be up to them, hearing concrete aggression cases and reasoning from existing jurisprudence, to keep the mens rea elements within the bounds of contemporary criminal law and to ensure that the fledgling crime accords with evolving notions of culpability.