An Investigation of the Mental Element in the International Crime of Genocide in Islamic Jurisprudence and Law

Abstract

In the Statute of International Criminal Tribunal Court for Rwanda, article 2, Paragraph 2 some other punishable acts related to genocide are mentioned. The clause D is about “Attempt to commit genocide”. The judicial precedence in this court shows that those who attempted without any physical element in their cases were punished just because of the existence of a mental element. This case is really similar to the TAJARRI concept in Islamic jurisprudence. Regardless of describing and comparing the notions of crime and sin, both “TAJARRI” and “attempt to commit genocide” are common in lack of the physical elements of the crime or sin. Here in this article we try to have a comparative study of these two concepts which is a totally new idea in legal and Jurisprudential literature, and will refer to the opinions and views of Foghaha(Muslim Jurists) and to the documents and practice of the international criminal courts. According to the international law, Genocide is the worst crime in humanity and there is a subtle similarity between attempt to commit genocide and TAJARRI.The concept of TAJARRI in Islamic jurisprudence can be used to clarify some uncertainties in international law.

Keywords

• mental element
• tajarri
• mens‌ rea
• international crimes
• international criminal court