[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR11.4]



[Page 33-34]

 

                       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.



[[Page 34]]



    (c) Statute of limitations. Violations of the laws of war listed 

herein are not subject to any statute of limitations.