General principles of criminal law in the Rome statute

Criminal Law Forum

Volumn 10, Issue 1, 1999, Pages 1-32

  Ambos, K A I ^a  

^a MAX PLANCK INSTITUTE FOR FOREIGN AND INTERNATIONAL CRIMINAL LAW   (Germany)

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EID: 27244434245     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1009495423352     Document Type: Article

References (197)

1. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 17, 1998, U.M. Doc. A/CONF.183/9 (1998), 37 I.L.M. 999 (1998), 〈http://www.un.org/icc〉.
2. See, for a general overview: Kai Ambos, Zur Rechtsgrundlage des neuen Internationalen Strafgerichtshofs, 111 ZEITSCHRIFT FÜR DIE GESAMTE STRAFRECHTSWISSENSCHAFT-ZSTW 175 (1999);
3. see also the special issue (4/1998) of the European Journal of Crime, Criminal Law and Criminal Justice (EUR. J. CRIME CR. L. CR. J.) and Triffterer (ed), Commentary (1999).
4. See in particular: GEORGE FLETCHER, RETHINKING CRIMINAL LAW (1978);
5. GEORGE FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW (1998);
6. PAUL ROBINSON, FUNDAMENTALS OF CRIMINAL LAW (1988);
7. ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW (1995, 2nd ed.).
8. For a structural approach see: PAUL ROBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW (1997).
9. William A. Schabas, General Principles of Criminal Law, 4 EUR. J. CRIME CR. L. CR. J., pp. 84-112 (1998).
10. See also Claus Kre, Die Kristallisation eines Allgemeinen Teils des Volterstrafrechts etc., 12 Humanitares Völkerrecht 4 et seq. (1999).
11. See Paul Robinson (1997), supra note 2, at 11-12.
12. "Draft Statute for the International Criminal Court," U.M. Doc. A/CONF. 183/2/Add. 1 (1998), arts. 18-22.
13. The Elements of Crimes and the Rules of Procedure and Evidence are to be adopted later by the Assembly of States Parties, pursuant to arts. 9 and 51 respectively.
14. Edward Wise, "General Principles of Criminal Law", 13 ter NOUVELLES ETUDES PÉNALES 39, 61-63(1998).
15. See, for example: Andreas Zimmermann, Die Schaffung eines standigen internationalen Strafgerichtshofs, 58 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VöLKERRECHT 47, 97-99 (1998).
16. Claus Roxin, I STRAFRECHT-ALLGEMEINER TEIL 97-99 (1997, 3rd ed.).
17. See also, on jurisdiction rations temporis, art. 11: "1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute."
18. Claus Roxin, supra note 9, at 99-101; Geroge Fletcher (1998), supra note 2, at 207; Mauro Catenacci, Nullum crimen sine lege, in THE INTERNATIONAL CRIMINAL COURT, COMMENTS ON THE DRAFT STATUTE 159-170 (Flavia Lattanzi, ed., 1998).
19. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 15;
20. European Convention on Human Rights, 213 U.N.T.S. 221, entered into force Sep. 3, 1953, art.7;
21. American Convention on Human Rights, 1144 U.N.T.S. 123, entered into force Jul. 18, 1978, art. 9;
22. Universal Declaration of Human Rights, O.A. Res. 217 A (III), U.N. Doc. A/810 (1948), art. 11(2);
23. African Charter on Human and People's Rights, O.A.U. Doc. CAB/LEG/67/3 rev. 5, entered into force Oct. 21, 1986, art. 7(2);
24. Geneva Convention of August 12, 1949 Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950, art. 99;
25. Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, 75 U.N.T.S. 135, entered into force Oct. 21, 1950, arts. 64, 67;
26. Protocol Additional I to the 1949 Geneva Conventions and Relating to The Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3, entered into force Dec. 7, 1978, art. 74(4)(c);
27. Protocol Additional II to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609, entered into force Dec. 7, 1978, art. 6(2)(c).
28. Kai Ambos, Nuremberg revisited. Das Bundesverfassungsgericht, das Völkerstrafrecht und das Rückwirkungsverbot, 17 STRAFVERTEIDIGER 39-43 (1997).
29. France et al. v. Goring et al., (1946) 23 I.M.T. 1, 444 (emphasis added).
30. "Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal," Yearbook ... 1950, Vol. II, pp. 374-378.
31. "Draft Code of Offences Against the Peace and Security of Mankind," Yearbook ... 1954, Vol. II, pp. 151-152
32. (also Yearbook ... 1983, Vol. I, p. 4;
33. Yearbook ... 1953, Vol. II, p. 11;
34. Yearbook ... 1984, Vol. I, pp. 4-5;
35. Yearbook ... 1984, Vol. II, pp. 2, 8).
36. Doudou Thiam, "Fourth Report on the Draft Code of Offences against the Peace and Security of Mankind," Yearbook ... 1986, Vol. II, para. 163.
37. See, for the 1991 Draft Code: Yearbook ...1988, Vol. II, p. 70;
38. for the 1996 Draft Code: "Report of the ILC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," GAOR 51st Session, Supp. No. 10 (A/51/10), at 72, para. 1, 73, para. 5.
39. "Draft Code of Crimes Against the Peace and Security of Mankind," Yearbook ...1991, Vol. II, pp. 94-97.
40. "Draft Code of Crimes Against the Peace and Security of Mankind," U.N. Doc. A/51/332, supra note 18;
41. also 18 HUM. RTS L. J. 96 (1997).
42. International Covenant on Civil and Political Rights, supra note 12, art. 15(2): "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations." See also: Universal Declaration of Human Rights, supra note 12, art. 11(2), and European Convention on Human Rights, supra note 12, art. 7(2). Note, however, that the principle is not set out in the nullum crimen provisions of the American Convention on Human Rights, supra note 12, art. 9, and the African Charter of Human and Peoples' Rights, supra note 12, art. 8(2).
43. Supra note 18.
44. See OTTO TRIFFTERER, DOGMATISCHE UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VÖLKERSTRAFRECHTS SEIT NÜRNBERG 139 (1966) (demonstrating that a general norm on penalties is sufficient).
45. These declarations are as old as the codification history: see the 1954 Draft Code, supra note 16, art. 1; 1991 Draft Code, supra note 19, arts. 3(1), 1996 Draft Code, supra note 20, arts. 2(1), 4. See also Thomas Weigend, Article 3: Responsibility and Punishment, in COMMENTARIES ON THE ILC's 1991 DRAFT CODE 113 (M.C. Bassiouni, ed., 1993).
46. U.M. Doc. A/CONE 183/C.1/L.3 (1998), art. 23(5), (6). See also Edward Wise, supra note 7, at 42; Andrea Sereni, Individual Criminal Responsibility, in THE INTERNATIONAL CRIMINAL COURT, COMMENTS ON THE DRAFT STATUTE 145-146 (Flavia Lattanzi, ed., 1998).
47. U.M. Doc. A/CONE 183/C.1/WGGP/E.5 (1998).
48. Cf. recently: EINZELVERANTWORTUNG UND MITVERANTWORTUNG IM STRAFRECHT. EUROPEAN COLLOQUIUM ON INDIVIDUAL, PARTICIATORY AND COLLECTIVE RESPONSIBILITY IN CRIMINAL EAW (A. Eser, B. Huber, K. Cornils, eds., 1998).
49. For convenience, we reproduce the text of paragraphs (a) to (c) of article 25(3): "3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission ..."
50. See Model Penal Code (American Law Institute, 1985, hereinafter MPC), s. 2.06(1): "committed by his own conduct"; Spanish Penal Code (Codigo Penal, Ley Organica 10/1995, de 23.11.1995, hereinafter SPC), art. 28: "por si solos; German Penal Code (trans, by Joseph Darby, The American Series of Foreign Penal Codes, vol. 28, 1987, 〈http://wings.buffalo.edu/law/bc lc〉, hereinafter GPC), §25 (1): "selbst ...begeht" ("acting himself"). In French criminal law the "auteur médiat" is not codified, but exceptionally recognized if the direct perpetrator is used as a "simple instrument" (cf. ANNA-KATHERINA CZEPLUCH, TÄTERSCHAFT UND TEILNAHME IM FRANZÖSISCHEN STRAFRECHT 30-33 (1994)).
51. The translation of the German "Hintermann" into English is a difficult task. The translation as "master-mind" by Emily Silvermann (see Claus Roxin, The Dogmatic Structure of Criminal Liability in the General Part of the Draft Israeli Penal Code, 30 ISRAEL LAW REVIEW 71 (1996)) may omit cases in which the dominance of the "Hintermann" is physical (e.g., by coercion) rather than intellectual.
52. See comment to MPC, supra note 29, s. 2.06.
53. Ibid.; also SPC, supra note 26, art. 28; GPC, supra note 29, §25(1) and (2).
54. "Report of the ILC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," supra note 18, at 25 (para. 14).
55. Black's Law Dictionary 1392 (1990, 6th ed.); MPC, supra note 29, s. 5.02(1).
56. Ibid., at 774.
57. MPC, supra note 29, §2.06.
58. "Report of the ILC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," supra note 18, at 24 (para. 10).
59. Prosecutor v. Tadic (Case no. IT-94-1-T), Opinion and Judgment, May 7, 1997, paras. 674, 688-692.
60. Ibid., para. 688.
61. Ibid., para. 687: "...not only does one not have to be present but the connection between the act contributing to the commission and the act of commission itself can be geographically and temporally distanced." For the "concerned in the killing" doctrine, see: 15 L.R.T.W.C. 49-51; also: Prosecutor v. Tadic, supra note 38, para. 691.
62. Prosecutor v. Tadic, supra note 38, para. 689.
63. Yearbook ... 1991, Vol. II (Part 2), p. 98;
64. Yearbook ... 1991, Vol. I, p. 188, para. 21 (Mr. Pawlak, chairman of the Drafting Committee).
65. See also: Yearbook ... 1990, Vol. I, pp. 17, 23, 28, 48;
66. Yearbook ...1990, Vol. II (Part 1), pp. 28 et seq. (paras. 28 et seq.);
67. Yearbook ... 1990, Vol. II (Part 2), pp. 12
68. et seq. (para. 50). Cf. also: MPC, supra note 26, §2.06; Christine Van den Wyngaert, The Structure of the Draft Code and the General Part, in COMMENTARIES ON THE ILC'S 1991 DRAFT CODE 55-56 (M.C. Bassiouni, ed., 1993); Thomas Weigend, supra note 24, at 116-7.
69. Prosecutor v. Tadic, supra note 38, para. 692 (emphasis added).
70. Cf. Edward Wise, supra note 7, at 42-3; Andrea Sereni, supra note 25, 139. See also: "Draft Statute for the International Criminal Court," supra note 5, art. 23(3): "Criminal responsibility is individual and cannot go beyond the person and the person's possesions."
71. "(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime."
72. International Convention for the Suppression of Terrorist Bombings, U.N. Doc. A/RES/52/164 (1998), annex, art. 2(3)(c).
73. For example: "Draft Statute for the International Criminal Court," supra note 5, art. 23(7)(e)(ii).
74. See, for example, Vespasian Pella, "Mémorandum," Yearbook ... 1950, Vol. II, pp. 278-362, 357;
75. Jean Graven, Les Crimes contre l'Humanité, RECUEIL DES COURS DE L'ACADÉMIE DE DROIT INTERNATIONAL 433-605, 502-503 (1950);
76. Hans-Heinrich Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom Völkerstrafrecht, 66 ZStW 193-217, 213 (1954);
77. recently: Rosemary Rayfuse, The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission, 8 CRIM. L.F. 52 (1997).
78. See also the statement of the German delegate Katholnigg at the Diplomatic Conference for the Adoption of the 1988 Drug Convention (United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 1988, Official Records, Vol. II, para. 52: "common law concept unknown in civil law systems") The concept was, however, in principle recognized by the International Law Commission's Special Rapporteur, Doudou Thiam (Yearbook ... 1990, Vol. II, p. 16, para. 66).
79. Yearbook ... 1991, Vol. II, p. 99 (commentary to Art. 3).
80. Supra note 20, art. 2(3)(e).
81. Similarly, MPC, supra note 29, §2.06, which does not make conspiracy as such a basis of liability but asks for the behaviour charged to constitute complicity.
82. Convention for the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951).
83. Raphael Lemkin, Genocide as a Crime under International Law. 41 AM. J. INT'L L. 145 (1947);
84. Josef L. Kunz, The United Nations Convention on Genocide. 43 AM. J. INT'L L. 732, 738 (1949); Hans-Heinrich Jescheck, supra note 48, at 203 et seq.
85. "Report of the ILC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," supra note 18, at 26-7 (para. 16). See also about the importance of incitement in relation to genocide in Rwanda: Prosecutor v. Akayesu (Case No. ICTR 96-4-T), Judgment, Sept. 2, 1998, paras. 672-675, 〈http://www.ictr.org/english/judgements/akayesu.html〉; Prosecutor v. Kambanda (Case No. ICTR 97-23-S), Judgment and Sentence, Sept. 4, 1998, para. 40 (count 3) 〈http://www.ictr.org/english/judgements/kambanda.html〉.
86. Cf. ibid, at 26.
87. Cf. Thomas Weigend, supra note 24, at 115-116 (regarding the 1991 Draft Code, supra note 19, art. 2(3)) distinguishing between soliciting and aiding on the one hand, and inciting and conspiring on the other.
88. "(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose."
89. The International Law Commission could not reach consensus on a list of crimes which can be attempted yet many members and some governments considered an attempt only possible in case of war crimes or crimes against humanity ( Yearbook ... 1986, Vol. II (Part 2), p. 49, para. 128;
90. Yearbook ... 1990, Vol. I, pp. 6, 21, 70;
91. Yearbook ... 1990, Vol. II (Part 2), p. 16 (para. 71);
92. Yearbook ... 1991, Vol. I, p. 188;
93. Yearbook ... 1991, Vol. II (Part 2), p. 99;
94. Yearbook ... 1994, Vol. II (Part 2), pp. 77, 85 (para. 196);
95. Yearbook ... 1994, Vol. I, pp. 110, 121, 145 (para. 10)).
96. French Code pénal, art. 121-5: "commencement d'exécution"; MPC, supra note 29, § 5.01 (1) (c): "substantial step." Cf. Edward Wise, supra note 7, at 44.
97. Yearbook ... 1986, Vol. II, p. 49 (para. 129).
98. "Report of the ILC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," supra note 18, p. 27 (para. 17).
99. Cf. HERVÉ PELLETIER, JEAN PERFETTI, CODE PéNAL 1997-1998 20 (1997, 10th ed.).
100. Similarly, French commentators consider the abandonment as part of the definition of attempt (cf. GASTON STEFAN!, GEORGES LEVASSEUR, BERNARD BOULOC, DROIT PÉNAL GÉNÉRAL 203 (1997, 16th ed.)).
101. "Decisions taken by the Preparatory Committee at its Session held from 11 to 21 February 1997," U.M. Doc. A/AC.249/1997/L.9/Re v.l, p. 22, fn. 12.
102. 1994 ILC DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL COURT WITH SUGGESTED MODIFICATIONS (UPDATED SlRACUSA-DRAFT) (Association Internationale de Droit Pénal (AIDP)/International Institute of Higher Studies in Criminal Sciences (ISISC)/Max-Planck-Institute for Foreign and International Criminal Law (MPI) et al., 1996), arts. 33-38.
103. See the decision of the United States Supreme Court in In re Yamashita, 327 U.S. 1, 13-14 (1945): ".. .unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities ..." For further references see Kai Ambos, Individual Criminal Responsibility in International Criminal Law, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW (O.K. McDonald, O. Swaak Goldman, eds., 1999, forthcoming).
104. Recently, Ann Marie Prévost convincingly demonstrated that the Yamashita precedent was strongly influenced by racial bias of the U.S. against the Japanese (Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita, 14 Hum. Rts Q. 303 (1992)).
105. For convenience, we reproduce the text of article 28: "Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: 1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 2. With respect to superior and subordinate relationships not described in para. 1, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution."
106. See supra note 12. Comp. generally A.P.V. ROGERS, LAW ON THE BATTLEFIELD 138-142 (1996).
107. Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), Annex, art. 7(3): "...acts ...committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof" (emphasis added).
108. U.N. Doc. A/CONE 183/C.1/L.2 (1998).
109. Proposal by Argentina, Canada and Germany, Jun. 17, 1998 (on file with author).
110. U.M. Doc. A/CONE 183/C.1/WGGP/L.7 (1998).
111. U .N. Doc. A/CONE 183/C.l/WGGP/L.7/Rev. 1 (1998).
112. See, for example, R. v. Finta (1990), 92 D.L. R. (4th) 1, 1 O.R. (3d) 183, 98 I.L.R. 520 (Ontario C.A.), at 595 (I.L.R.).
113. See MPC, supra note 29, §2.02 (7) (emphasis added). See also WAYNE R. LAEAVE, AUSTIN W. SCOTT, CRIMINAL LAW I 307-8 (1986).
114. Comment to MPC, supra note 29, §2.02.
115. See also William A. Schabas, supra note 3, who sees the new standard as establishing a "full knowledge requirement."
116. See the decisions of the ICTY under Rule 61, Rules of Procedure and Evidence, U.N. Doc. IT/32: Prosecutorv. Nikolic (Case No. IT-94-2-R 61), Review of Indictment Pursuant to Rule 61, Oct. 20, 1995, para. 24; Prosecutor v. Karadzic and Mladic (Case Nos. IT-95-5-R 61/IT-95-18-R 61), Review of Indictment Pursuant to Rule 61, July 11, 1996, paras. 42, 65-85; Prosecutor v. Delalic et al. (Case No. IT-96-21-T), judgement 16 November 1998, par. 333 et seq. See also the recent decisions of the ICTR: Prosecutorv. Jean Kambanda, supra note 53, para 40; Prosecutor v. Akayesu, supra note 53, para. 487-91 where, however, it is stated that command responsibility of civilians "remains contentious" (para. 491).
117. William A. Schabas, supra note 3. Critically also: Edward Wise, supra note 7, at 46.
118. See the critical discussion by George Fletcher (1998), supra note 2, at 45-50.
119. Article 28(2)(b) is redundant since it only repeats the effective control requirement already mentioned in the first phrase of subparagraph 2.
120. "Draft Statute for the International Criminal Court," supra note 5, art. 28.
121. U.M. Doc. A/CONE 183/C.1/WGGP/L.4/Add.1 (1998).
122. Edward Wise, supra note 7, at 48-50, argues for a general norm on omission.
123. Comp. George Fletcher (1978), supra note 2, at 582-583.
124. Rules of Procedure and Evidence, supra note 77.
125. Prosecutor v. Karadzic and Mladic, supra note 77, paras. 84, 94.
126. William A. Schabas, supra note 3, fn. 133.
127. Such a prevalence is implied in Prosecutor v. Karadzić and Mladić supra note 77, para. 83: "The evidence and testimony rendered all concur in demonstrating that Radovan Karadzić and Ratko Mladić would not only have been informed of the crimes allegedly committed under their authority, but also and, in particular, that they exercised their power in order to plan, instigate, order or otherwise aid and abet in the planing, preparation or execution of the said crimes" (emphasis added).
128. "Article 30. Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, 'knowledge' means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 'Know' and 'knowingly' shall be construed accordingly."
129. Supra note 20, art. 2(3)(a).
130. For example, Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, supra note 12, art. 147.
131. John Allain, John R.W.D. Jones, A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Security of Mankind, 8 EUR. J. INT'L L. 100, 106(1997).
132. See "Draft Statute for the International Criminal Court," supra note 5, art. 29(4). A consensus on a common definition could not be reached.
133. Recklessness stands between dolus eventualis and conscious negligence ("bewußte Fahrlassigkeit"). See Thomas Weigend, Zwischen Vorsatz und Fahrlassigkeit, 93 ZStW 657, 673 et seq. (1981).
134. Comp. George Fletcher (1978), supra note 2, at 446, and George Fletcher (1998), supra note 2, at 123. For the various theories in German scholarship see Claus Roxin, supra note 9, at 372-400.
135. But comp. Edward Wise, supra note 7, at 52-54, who offers a definition which includes dolus eventualis but excludes recklessness.
136. Similarly Edward Wise, supra note 7, at 51.
137. Comp. MPC, supra note 29, §2.02.
138. "Article 27. Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person."
139. See: Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (I.M.T.), adopted Aug. 8, 1945, 82 U.N.T.S. 279, art. 7; Control Council Eaw No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, Official Gazette Control Council for Germany, art. II(4)(a); "Principles of International Eaw recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal," supra note 15, Principle III; Convention for the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951), art. IV; Statute of the International Criminal Tribunal for the former Yugoslavia, supra note 67, art. 7(2); Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1944), Annex, art. 6(2).
140. Convention for the Prevention and Punishment of the Crime of Genocide, ibid., art. IV. Crit. Jean Graven, supra note 48, at 508 et seq.; ANTONIO PLANZER, EE CRIME DE GÉNOCIDE 136-137 (1956).
141. See PIETER N. DROST, THE CRIME OF STATE, VOL. 2, GENOCIDE 8, 94 (1959)
142. (proposing the term "agent of state"); see also N. ROBINSON, THE GENOCIDE CONVENTION 70-71 (1960).
143. D.H.N. Johnson, The Draft Code of Offences against the Peace and Security of Mankind, 4 INT'L COMP. E. Q. 462-463 (1955), at 462-3.
144. Jean Spiropoulos, Report, in Yearbook ... 1950, Vol. II, pp. 253-278, 273.
145. Yearbook ... 1954, Vol. I, p. 138;
146. Yearbook ... 1951, Vol. II, pp. 51-52.
147. "Report of the IEC on the work of its forty-eighth session, Jun. 5-Aug. 26, 1996," supra note 18, at 41 (para. 6).
148. The 1991 Draft Code, supra note 19, art. 7, excluded a statute of limitations, but the provision was deleted during discussion s on the 1996 Draft Code (supra note 20), because it was considered that such a rule should not apply to all crimes provided for in the Code (see Yearbook ... 1994, Vol. II, pp. 80-81 (paras. 147 et seq.);
149. Yearbook ... 1994, Vol. I, p. 146 (para. 16).
150. William A. Schabas, supra note 3.
151. "1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court."
152. See also the similar provision of MPC, supra note 29, §4.01.
153. U.M. Doc. A/CONE 183/C.l/WGGP/L.4/Add. I/Rev. 1 (1998), p. 4, fn. 8.
154. Comp. George Fletcher (1978), supra note 2, at 846-847. See also MPC, supra note 29, §2.08 (2), and commentary, at 357.
155. See, for example, Swiss Penal Code, art. 12, Italian Penal Code, art. 92 - most recently - Spanish Penal Code, art. 20, no. 1(2): "El trastorno mental transitorio no eximirá de pena cuando hubiese sido provocado por el sujeto con el propösito de cometer el delito o hubiera previsto o debido prever su comision."
156. See MPC, supra note 29, §2.08, and commentary at 350 et seq, on the one hand, and § 4.01 on the other. See also George Fletcher (1978), supra note 2, at 847-52.
157. See, for example, German Penal Code, §330: "Whoever intentionally or negligently becomes intoxicated ... is punishable ... if while in that intoxicated condition he commits a wrongful act and if by virtue of the intoxication is not responsible ..." (translation, according to George Fletcher (1978), supra note 2, at 847).
158. Even more radical: William A. Schabas, supra note 3: "...the provision ...borders on the absurd."
159. "1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: [...] (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph."
160. Yearbook ... 1994, Vol. II, p. 84.
161. See 1954 Draft Code, supra note 16, art. 2(1), (3).
162. U.M. Doc. A/CONE 183/C.1/WGGP/L.2 (1998).
163. Comp. U.M. Doc. A/CONE183/C.1/WGGP/L.4/Add. 1 (1998), pp. 4-5 and U.M. Doc. A/CONE183/C.1/WGGP/L.4/Add. 3 (1998), p. 2.
164. See also Yearbook ... 1994, Vol. II, p. 84 (para. 178);
165. Doudou Thiam, "Twelfth Report," U.M. Doc. A/CN.4/460 (1994), para. 159.
166. Some delegations were of the view that this only applies to lawful defensive operations (U.M. Doc. A/CONE183/C.l/WGGP/L.4/Add. 3 (1998), p. 2, fn. 3).
167. See also the footnote to "accomplishing a military mission" which declares that the use of force by States is governed by the applicable international law (U.N. Doc. A/CONE 183/C.1/WGGP/L.4/Add. 3 (1998), p. 2, fn. 1).
168. Yearbook ... 1994, Vol. II, p. 87 (paras. 206-207).
169. See the references in William A. Schabas, supra note 3.
170. See also: Edward Wise, supra note 7, at 57.
171. Cf. PAUL ROBINSON, CRIMINAL LAW DEFENCES II 351 (1994): "relative impairment of the psychological control mechanisms."
172. See MPC, supra note 29, §3.02, comment, at 9: "... a principle of necessity ... affords a general justification for conduct, that would otherwise constitute an offense."
173. See German Penal Code, §35, and George Fletcher (1978), supra note 2, at 833. See also MPC, supra note 29, §2.09(1), which, however, employs a rather objective criterion ("reasonable firmness").
174. See generally for the (necessary) difference between justification and excuse: A. Eser, Justification and excuse: A key issue in the concept of crime, in I RECHTFERTIGUNG UND ENTSCHULDIGUNG. JUSTIFICATION AND EXCUSE 17 (A. Eser, G. Fletcher, eds., 1987); George Fletcher (1978), supra note 2, at 759-774; Paul Robinson, supra note 128, §§24, 25;
175. against the distinction, Kent Greenawalt, The perplexing borders of justification and excuse, in I RECHTFERTIGUNG UND ENTSCHULDIGUNG. JUSTIFICATION AND EXCUSE ibid., at 265;
176. and also sceptical: Thomas Husak, The Serial View of Criminal Law Defenses, 3 CRIM. L.F. 369(1992).
177. Cf. A. Eser, "Defences" in War Crime Trials, 24 ISRAEL Y.B. HUM. RTS. 201-222, 213 (1995).
178. Recently, Christiane Mill-Theobald has tried to develop some general rules ("DEFENCES" BEI KRIEGSVERBRECHEN AM BEISPIEL DEUTSCHLANDS UND DER USA (1998)).
179. Prosecutor v. Erdemovic (IT-96-22-A), Oct. 7, 1997, para. 19, and disposition 4 (see Olivia Swaak-Goldman, Prosecutor v. Erdemovic, 92 AM. J. INT'L E. 282 (1998)). See in particular - against a defence - the separate vote of McDonald/Vohrah, paras. 59 et seq. (at 66-7, 72, 75, 78, 88). However, Cassese argues much more convincingly in favour of a defence, para. 11 et seq. (at 12, 16-7, 21 et seq., 41 et seq., 49-50). See also, on the decision of the Trial Chamber (in favour of a defence):
180. Sien Ho Yee, The Erdemovic Sentencing Judgment: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 GEORGIA JOURNAL OF INT'L & COMP. E. 263, 295-302 (1997).
181. Against duress (or necessity) as a defense to murder or genocide see YORAM DINSTEIN, THE DEFENCE OF "OBEDIENCE TO SUPERIOR ORDERS" IN INTERNATIONAL EAW 80 (1965);
182. followed by Enrico Mezzetti, Grounds for excluding criminal responsibility, in THE INTERNATIONAL CRIMINAL COURT, COMMENTS ON THE DRAFT STATUTE 147-157, 152-153 (Flavia Eattanzi, ed., 1998).
183. Wayne R. LaFave, Austin W. Scott, supra note 71, at 575 et seq.; JOHN SMITH, BRIAN HOGAN, CRIMINAL LAW 83 et seq. (1996, 8th. ed.);
184. see also Jens WATZEK, RECHTFERTIGUNG UND ENTSCHULDIGUNG IM ENGLISCHEN STRAFRECHT 275 et seq. (1997).
185. See George Fletcher (1998) supra note 2, pp. 153-4.
186. But see George Flectcher, id., at 146-167, who convincingly demonstrates, distinguishing between six forms of mistake, that the MPC, supra note 29, fails to recognize mistakes not covered by the mental element criterion, in particular mistakes about norms of justification ("Erlaubnisirrtum") or excuse ("direkter" or "indirekter Verbotsirrtum"). For the extensive German scholarship on the subject, see for example Claus Roxin, supra note 9, §§12 II, 21;
187. KRISTIAN KÜHL, STRAFRECHT. ALLGEMEINER TEIL §13 (1997, 2nd ed.). See also the correct critical observations of Edward Wise, supra note 7, at 54-55.
188. Erdemovic said: "Your honour - I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: 'If you are sorry for them, stand up, line up with them and we will kill you too.' I am not sorry for myself but for my family, my wife and son who then had nine months, and I could not refuse because than they would have killed me."(Prosecutor v. Erdemovic (IT-96-22-T), Nov. 29, 1996, para. 10).
189. See supra note 134.
190. Duress is an excuse: see supra note 131 and main text.
191. See recently also Christiane Mill-Theobald, supra note 133, at 347-8.
192. See MORRIS GREENSPAN, THE MODERN LAW OF LAND WARFARE 440-2, 490-496 (1959);
193. L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 237-8, 243 et seq. (1976); see recently Lnrico Mezzetti, supra note 134, at 155-7, who, however, seems to ignore the "mens rea principle."
194. See Yoram Dinstein, supra note 134, pp. 87-90, at 88: ".. .the fact of obedience to orders constitutes not a defence per se but only a factual element that may be taken into account in conjuntion with the other circumstances of the given case with in the compass of a defence based on a lack of mens rea, that is, mistake of law or fact or compulsion."
195. See most recently the 1996 Draft Code, supra note 20, art. 5. See for a thorough analysis of the positive law and the jurisprudence: Christiane Mill-Theobald, supra note 133, at 73-107; see also A.P.V. Rogers, supra note 67, 143-148; Ldward Wise, supra note 7, at 58; Kai Ambos, Aur strafbefreienden Wirkung des 'Handelns Auf Befehl' aus deutscher und völkerstrafrechtlicher Sicht, JURISTISCHE RUNDSCHAU 221-226, 223 et seq. (1998).
196. For the "respondeat superior" doctrine, on the one hand, and the "absolute liability" doctrine, on the other, see; Christiane Mill-Theobald, supra note 133, at 69-72; also Albin Eser, supra note 132, at 204, 206-8.
197. Cf. A.P.V. Rogers, supra note 67, at 146-8.