[Code of Federal Regulations]
[Title 32, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR11.4]

[Page 32-33]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
 
PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION--Table of 
Contents
 
Sec. 11.4  Applicable principles of law.

    (a) General intent. All actions taken by the Accused that are 
necessary for completion of a crime must be performed with general 
intent. This intent is not listed as a separate element. When the mens 
rea required for culpability to attach involves an intent that a 
particular consequence occur, or some other specific intent, an intent 
element is included. The necessary relationship between such intent 
element and the conduct constituting the actus reus is not articulated 
for each set of elements, but is presumed; a nexus between the two is 
necessary.
    (b) The element of wrongfulness and defenses. Conduct must be 
wrongful to constitute one of the offenses enumerated herein or any 
other offense triable by military commission. Conduct is wrongful if it 
is done without justification or excuse cognizable under applicable law. 
The element of wrongfulness (or the absence of lawful justification or 
excuse), which may be required under the customary law of armed 
conflict, is not repeated in the elements of crimes in Sec. 11.6. 
Conduct satisfying the elements found herein shall be inferred to be 
wrongful in the absence of evidence to the contrary. Similarly, this 
part does not enunciate defenses that may apply for specific offenses, 
though an Accused is entitled to raise any defense available under the 
law of armed conflict. Defenses potentially available to an Accused 
under the law of armed conflict, such as self-defense, mistake of fact, 
and duress, may be applicable to certain offenses subject to trial by 
military commission. In the absence of evidence to the contrary, 
defenses in individual cases shall be presumed not to apply. The burden 
of going forward with evidence of lawful justification or excuse or any 
applicable defense shall be upon the Accused. With respect to the issue 
of combatant immunity raised by the specific enumeration of an element 
requiring the absence thereof, the prosecution must affirmatively prove 
that element regardless of whether the issue is raised by the defense. 
Once an applicable defense or an issue of lawful justification or lawful 
excuse is fairly raised by the evidence presented, except for the 
defense of lack of mental responsibility, the burden is on the 
prosecution to establish beyond a reasonable doubt that the conduct was 
wrongful or that the defense does not apply. With respect to the defense 
of lack of mental responsibility, the Accused has the burden of proving 
by clear and convincing evidence that, as a result of a severe mental 
disease or defect, the Accused was unable to appreciate the nature and 
quality of the wrongfulness of the Accused's acts. As provided in 32 CFR 
9.5(c), the prosecution bears the burden of establishing the Accused's 
guilt beyond a reasonable doubt in all cases tried by a military 
commission. Each element of an offense enumerated herein must be proven 
beyond a reasonable doubt.

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    (c) Statute of limitations. Violations of the laws of war listed 
herein are not subject to any statute of limitations.