Commentary on Sections Part 5: Offences under Domestic Law Section 66: Mental Element
106.This section reflects Article 30 of the Statute. It provides a general rule that, unless otherwise provided, the necessary mental element of an offence is present if the material elements of genocide, a crime against humanity, a war crime or an offence against the administration of justice are committed with intent and knowledge. “Intent” and “knowledge” are explained in subsection (3).
107.In accordance with Article 30,subsection (2) provides that this general rule shall not apply where an alternative mental element is specified in certain provisions of the Statute, certain provisions of the Act or in any of the relevant Elements of Crimes. An example is to be found in the finalized draft Elements of Crimes in respect of Article 8(2)(b)(xxvi) (conscripting or enlisting children under the age of fifteen) where it is required that the perpetrator “knew or should have known” of the age of the child concerned.