The mental element in international criminal law: The Rome Statute of the International Criminal Court and the elements of offences

Criminal Law Forum

Volumn 12, Issue 3, 2001, Pages 291-334

  Clark, Roger S ^a  

^a and law in the military   (United States)

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EID: 27244458570     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1014929127650     Document Type: Review

References (175)

1. U.N. Doc. A/CONF.183/9 (1998) as corrected ("Rome Statute"). The Statute and most of the preparatory work thereto is conveniently reproduced in THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY (M. Cherif Bassiouni comp. 1998) ("Bassiouni").
2. The Statute is at 39. For useful discussions of the general part material, see Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 CRIM. L. FORUM 1 (1999);
3. Kai Ambos, Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis - from Nuremberg to the Hague, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW: THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS, Vol. I, Commentary 1 (Gabrielle Kirk McDonald and Olivia Swaak-Goldman, eds., 2000);
4. William A. Schabas, General Principles of Criminal Law in the International Criminal Court Statute (Part III), 6 EUROP. J. CRIM. L. & CRIM. JUST. 84 (1998);
5. THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE (Roy Lee et al., eds., 2001);
6. Kriangsak Kittichaisaree, International Criminal Law (2001);
7. Claus Kress, War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice, 30 ISRAEL Y.B. HUM. RTS. 103, 142 (2000);
8. INTERNATIONAL AND NATIONAL PROSECUTION OF CRIMES UNDER INTERNATIONAL LAW (Horst Fischer, Claus Kress & Rolf Lüder, eds., 2001);
9. and numerous entries in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Otto Triffterer, ed., 1999) ("Triffterer ed.").
10. Report of the Preparatory Commission for the International Criminal Court, Addendum, Part II, Finalized draft text of the Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add. 2 (2000) ("The Elements").
11. Rome Statute, preambular para. 9.
12. My own thinking on finding common ground has been significantly influenced by Albin Eser, The Importance of Comparative Legal Research for the Development of Criminal Sciences, 17 NOUVELLES ÉTUDES PÉNALES 77 (1998).
13. See especially Professor Eser's discussion of "supranational criminal justice" at 93.
14. See generally, Roger S. Clark, Criminal Code Reform in New Zealand? A Martian's View of the Erehwon Crimes Act 1961 with Some Footnotes to the 1989 Bill, 21 VICTORIA U. OF WELLINGTON. L. REV. 1 (1991).
15. Variations on the Stephen code are still in force in several other Commonwealth jurisdictions, including Canada and most of the Australian states. A clearly drafted and elegant replacement failed to be adopted in Canada in the 1980s. See LAW REFORM COMMISSION OF CANADA, RECODIFYING CRIMINAL LAW (1986).
16. The same is true of most of the "codifications" in the British Commonwealth, although there were some efforts in the nineteenth century and again in recent years to draft codes with a general part. See Sanford Kadish, Codifiers of the Criminal Law: Wechsler's Predecessors, 78 COLUM. L. REV. 1098 (1978);
17. Martin Friedland, Codification in the Commonwealth: Earlier Efforts, 2 CRIM. L. FORUM 145 (1990). An attempt to re-codify the law in New Zealand and include a comprehensive general part failed in 1989, Clark supra note 5. The legislation adopted to give effect to New Zealand's ratification of the Rome Statute, International Crimes and Criminal Court Act 2000, section 12, incorporates most of the general principles of criminal law contained in the Rome Statute into the legislation defining the newly created offences. This may have some ultimate effect on how people in New Zealand think about the structure of other offences.
18. The German Penal Code apparently applied then.
19. Model Penal Code, Proposed Official Draft (1962).
20. In particular section 2.02, General Requirements of Culpability, which defines "kinds of culpability", namely: purposely [rendered as "intentionally" in many enacted versions], knowingly, recklessly and negligently. By using the category "culpability" the MPC finesses the much debated issue whether negligence, which is assessed by an objective standard, (for the MPC, a "gross deviation from the standard of care that a reasonable person would observe in the actor's situation") can be described as a "mental" element, the mind of the actor conceivably being "blank" at the relevant time. For a comparable analysis to the MPC, see THE IMPLEMENTATION OF THE CORPUS JURIS IN THE MEMBER STATES, PENAL PROVISIONS FOR THE PROTECTION OF EUROPEAN FINANCES, APPENDIX III: CORPUS JURIS 2000 (M. Delmas-Marty and J.A.E. Vervaele, eds., 2000). Article 9 of the Corpus Juris requires intention for most offences but, for those "considered" as fraud, recklessness or gross negligence is sufficient. (Knowledge does not make an appearance.) An "implementing provision" reads: The offender acts recklessly if he is aware of the risk that the circumstances that amount to the constituent elements of the offence exist and that it is unreasonable, having regard to the circumstances known to him, to take that risk. The offender acts with gross negligence if he is not aware of the risk that the circumstances that amount to the constituent elements of the offence exist but the risk is, having regard to the circumstances known to the offender, obvious.
21. (I confess to being puzzled by the concept "constituent elements" here.) 10 See section 1.13(9), defining "element of an offence" to include conduct, attendant circumstances and result. See also section 2.01, on the requirement of a voluntary act, omission as a basis for liability and possession as an act; and section 2.03, defining causation. Opportunities for confusion abound with the traditional terms; sometimes the term actus reus is used to describe conduct alone; sometimes conduct plus consequences; sometimes conduct plus attendant circumstances plus consequences. These ambiguities were rampant in the ICC debates and the reader needs to be wary of context.
22. Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1429 (1968).
23. When I came to New Jersey in 1972, the basic criminal legislation was essentially a partial codification that took place soon after independence and there were still some common law crimes. This was replaced, effective 1 September 1979, by the New Jersey Code of Criminal Justice, Title 2C, based on the Model Penal Code.
24. See generally, Ronald L. Gainer, Report to the Attorney General on Federal Criminal Code Reform, 1 CRIM. L. FORUM 99 (1989). In the case of the United States military, a significant player in drafting the Rome Statute and Elements, the Uniform Code of Military Justice, 10 U.S.C., Chapter 47, includes numerous codifications of what were once solely common law offences such as homicide and assaults, as well as some ill-defined open-ended offences. It has no general part provisions dealing with culpability elements. Not surprisingly, the United States negotiators tended to be much more familiar with federal law than with the Model Penal Code approach.
25. Among the many matters on which agreement could not be obtained at Rome was the criminal responsibility of legal persons, now seldom controversial in the common law. Placing legal persons within the jurisdiction of the ICC would have raised some interesting mental element issues, and would have enhanced the possibilities of obtaining reparation, had it not proved too controversial. See Andrew Clapham, The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on the International Criminal Court, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 139 (M.T. Kamminga and S. Zia-Zarifi, eds., 2000).
26. The best discussion of the content and drafting of these two articles of which I am aware is in Donald K. Piragoff, Article 30 , and Otto Triffterer, Article 32, at 527 and 555 respectively, in Triffterer, ed., supra note 1.
27. Article 33 permits a defence of superior orders where the actor did not know that an order was unlawful and it was "not manifestly unlawful". The article also states that "orders to commit genocide or crimes against humanity are manifestly unlawful". See discussion infra, text accompanying notes 138-141.
28. Rome Statute, art. 5(1) (echoing preamble, supra note 3).
29. Ibid., arts. 6, 7 and 8.
30. See Report of the International Law Commission on the work of its forty-sixth session, Draft Statute for an International Criminal Court, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994); Bassiouni, supra note 1 at 657. The final version of the Law Commission's Draft Code of Crimes against the Peace and Security of Mankind also has less detail than the Rome Statute and only a brief general part which contains nothing on mental and physical elements, Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. 10 at 14, U.N. Doc. A/51/10 (1996).
31. This was also the model of the Tribunals for Former Yugoslavia and Rwanda. The Yugoslavia tribunal was created by Security Council Res. 827 (1993); that for Rwanda by S.C. Res. 955 (1994).
32. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995); Bassiouni, supra note 1 at 617.
33. An open-ended Working Group of the Committee, chaired by Professor Gerhard Hafner of the University of Vienna, suggested some guidelines for what should later be discussed, Bassiouni, supra note 1 at 656.
34. The heading mens rea was followed by these three items: - Intention (culpa, dolus/intentionally, knowingly, recklessly/dolus eventualis, gross negligence; - General intention - specific intention? (motives); - Age of responsibility The age of responsibility issue was eventually resolved "jurisdictionally" in article 26 of the Rome Statute which provides that the Court has no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. See Roger S. Clark and Otto Triffterer, Article 26, in Triffterer, ed., supra note 1 at 493. There seemed to be widespread acceptance of the proposition that in national law the prosecution must prove more by way of mens rea in the case of children than of adults, and even that there should be total immunity below a certain age, but great disagreement on how to translate those principles to the international scene.
35. For an excellent account of the process, by the distinguished Swedish diplomat who presided over most of the general part issues up to and through Rome, see Per Saland, International Criminal Law Principles, Chapter 7 in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE (Roy Lee, ed., 1999). I would add to his account by noting my impression that the so-called "Siracusa" drafts prepared by informal groups meeting at the International Institute for Higher Studies in Criminal Sciences in Siracusa had a significant impact in persuading delegates that it was a good idea to address such issues. Like most non-governmental, and even some governmental papers, the Siracusa drafts did not appear as official documents, but were widely circulated. I shall make occasional references later to the ultimate of these documents, the "Updated Siracusa-Draft", produced in March 1996. On the governmental front, the main intellectual input into the drafting of the mental element provisions seemed to come from (in alphabetical order) Argentina, Austria, Canada, Germany and Sweden.
36. Updated Siracusa Draft, supra note 23 at 67.
37. See also Albin Eser, The Need for a General Part, in COMMENTARIES ON THE INTERNATIONAL LAW COMMISSION'S 1991 DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND 43 (11 Nouvelles Études Pénales) (M. Cherif Bassiouni, ed., 1993): This need is above all a matter of codificatory logic and economy, because each single crime contains certain elements (such as an act, intent or capacity) which are common to all crimes. These elements should not be repeated with each single definition of crime. But perhaps, even more important is the need for avoidance of inconsistencies, which may easily occur if general requirements were to be regulated in connection with a specific crime, and thus in an isolated manner.
38. Albin Eser, The Need for a General Part, in COMMENTARIES ON THE INTERNATIONAL LAW COMMISSION'S 1991 DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND Ibid., at 43;
39. and the thoughtful discussion by Edward Wise, General Rules of Criminal Law, in THE INTERNATIONAL CRIMINAL COURT: OBSERVATIONS ON ISSUES BEFORE THE 1997-1998 PREPARATORY COMMITTEE 267 (13 Nouvelles Études Pénales) (1997). Contrary to the NGO suggestion of authorizing the Court itself to promulgate "additional norms", the Rome Statute gave the task to the Assembly of State Parties. This was to satisfy a small minority of states that wanted to keep the Court on a short leash. The Preparatory Commission's draft will go before the first meeting of the Assembly which will be established once the treaty enters into force.
40. The early drafts of the Rome Statute used the term "physical" to describe non-mental elements. Ultimately the Statute used the term "material", with some resulting confusion about whether the same thing was meant. See infra note 44. Many participants, common lawyers and civilians alike, used the term "objective" elements in the discussion, and occasionally the word "real". They probably all meant the same thing, but the discussions were wide open to confusion.
41. See infra, notes 91-94 and 97 on what "element" might mean.
42. See infra, text accompanying notes 86-101.
43. The term used in the Model Penal Code, supra note 9.
44. The Ad Hoc Committee, supra note 22, had a heading actus reus which listed merely "act or omission; causation and accountability". For the MPC's effort, see infra note 43.
45. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. II, Compilation of Proposals, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/50/22 (1996); Bassiouni, supra note 1 at 441.
46. The brackets in the original flag disputed issues and disputed issues within disputed issues. It will be noted that both knowledge and recklessness as used in this draft are essentially subjective concepts, although in the case of recklessness, the reference to the risk being "highly unreasonable" adds a possible objective element, counterbalanced in turn by the requirement that it must be proved that the actor was aware of the unreasonableness. The main difference between the two is that in the case of knowledge, it is knowledge that the circumstance exists or that a consequence will occur, whereas for recklessness it is a question of being aware that there is a question of a risk that a circumstance exists or that the consequence will occur. The final, bracketed, component of recklessness, indifference, is again subjective. For recklessness, requirements (a) and (b) seemed in context to be cumulative, although there was no "and" between them. The bracketed reference to general and specific intent in para. 1 of the draft did not survive. To the extent that those concepts (along with recklessness and others) live on in participants' minds, they must depend for their survival on the "unless otherwise provided" phrase at the beginning of article 30. See also infra at notes 103-106.
47. The common law does not distinguish, the way the civil law does, between conscious and unconscious negligence. Speaking of the civil law tradition during the drafting of the Elements, a very helpful paper from the International Committee of the Red Cross, PCNrCC/1999/WGEC/LNF/2/Add.4, noted: Criminal negligence is defined as conscious or unconscious deviation from the required standard of care which causes a result prohibited by criminal law: this may happen (i) either because the actor wrongfully does not consider the results of his action (unconscious negligence), or (ii) if the actor envisaged that occurrence, but because he wrongfully relied on the idea that the result would not occur (conscious negligence). The actor never intends, accepts or knows that the result will occur.
48. While there was never a definition of negligence formally considered, I believe that the negotiators understood that, in general, they were rejecting common law (undifferentiated) negligence and both kinds of civil law negligence. For some exceptions, see discussion of arts. 28 and 33 of the Statute, infra notes 80 and 138-141, and the examples that crept into The Elements, infra note 106.
49. On other occasions, I thought some of the civilians regarded dolus eventualis as closer to knowledge. Perhaps there is a distinction along these lines: for some, dolus eventualis involves an acceptance of something that is almost certain to happen; this is close to common law knowledge. For others, it is more a question of taking a (substantial? serious?) risk that something will happen and not caring if it does. The latter is closer to common law recklessness. I say this with all the usual caveats since I doubt that either "system" is monolithic or always precise.
50. Some of those objecting to negligence liability were the same ones opposed to imposing liability for omissions. See infra text accompanying notes 40-41. Note, however, that liability for an omission could be based (to use the terminology appearing in the ICC drafts) on intent, knowledge or recklessness, as well as on negligence.
51. See infra notes 77-81.
52. What we may have here is a breakdown in communication between different modes of legal analysis. It may well be that some of the civilians believed that the debate concerned the components into which their system of thought breaks the broader category of "intent". French thought, for example, distinguishes two components, "la conscience" and "la volonté", approximately "awareness" and "desire" in English, both of which are said to be required for both "general intent" and "special intent". See generally, Catherine Elliott, The French Law of Intent and its Influence on the Development of International Criminal Law, 11 CRIM. L. FORUM 35, 36-38 (2000).
53. Similarly, German, Austrian and Swiss law also require two components for mens rea, "wissen" and "wollen", an "intellektuelle komponente" and a "voluntative komponente". " Voluntative" is not a term in English usage and translation seems to be difficult, but the German concepts seem at least close to "awareness" and "desire" which is how Elliott translates the similar French concepts. There are sophisticated ways of combining variations of the two components to form at least four different kinds of mens rea, in descending order of seriousness, absicht (intention), wissenlichkeit (knowledge), einfacher vorsatz (unbedingter vorsatz) (ordinary/unconditional intent) and bedinger vorsatz (dolus eventualis) (conditional intent). See OTTO TRIFFTERER, ÖSTERREICHISCHES STAFRECHT, ALLGEMEINER 2, chapter 9 II, 157ff and diagrams and further refererences 88, 89, 172, 173, 175 and 177 (1994). Many non-civilian participants in the drafting had no understanding of these distinctions and it is difficult to find them in the plain meaning of article 30. Common law participants had their own baggage. How judges will fare, if they insist on bringing their ingrained intellectual structure to judging, rather than making as much as can be made of the Statute's negotiated structure, is hard to say.
54. "Circumstances" are explained more fully at notes 51-54 and 63-67 infra. Some of the debate concerning the necessity of intent was about the "ordinary" usage of words. Take the "already married" circumstance element in bigamy. In English, it is awkward usage to say: "I intended that I was already married." "I knew I was already married" follows ordinary speech more closely.
55. One of the principal drafters of article 30, the Canadian, Donald Piragoff, comments in Triffterer, ed., supra note 1 at 530: The conjunctive formulation in article 30 para. 1 ensures that even where knowledge of a particular circumstance might be a separate element of a crime [e.g., article 7 para. 1 ("with knowledge of the attack"); article 8 para. 2(b)(iv) ("in the knowledge that")], a person cannot be criminally responsible and liable for punishment unless the other material elements [E.g., article 7 par. 1 (the "following acts" as described in subparagraphs (a) to (k))] are also committed with intent. (Bracketed material in footnotes in original.) "Intent" as used in article 30(2)(a) seems closer to what common lawyers often think of as the "volitional" part of an "act" (deliberately pulling a trigger as opposed to a reflex action, for example) whereas (2)(b) is dealing with purposive activity in respect of results. The careful reader will also notice that "knowledge" is not defined in relation to conduct and this may create some mischief later. On the comparable failure of the MPC to define recklessness and negligence with respect to conduct, see Paul H. Robinson and Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STANFORD L. REV. 681, 710-712 (1983).
56. Bassiouni, supra note 1 at 487.
57. Saland, supra note 23 at 205.
58. Article G, para. 3, Bassiouni, supra note 1 at 487. Para. 2 of draft Article G, dealing with omissions, tried to connect causation and omissions. Alongside this sparse reference to causation compare the more ambitious efforts in the Model Penal Code Section 2.03 and the refined version of that in the New Jersey Code, N.J. Stat. Ann. Tit. 2C:2-3. Some of the United States codes, New York for instance, put causation in the "too hard" category and omitted it. It will be observed that draft article G introduced a (controversial) concept of "harm" that was never fully articulated and later jettisoned. It has survived in article 30 of the Rome Statute as the more neutral term "consequence". For the MPC, causation is a distinct "element"; if, as I think is implicit in article 30, the three categories, conduct, consequences and circumstances include all material elements in the Rome Statute, causation must be subsumed either within "conduct" or within "consequence". I thought the drafting of the Elements at least proceeded on some such basis, but I believe there are those who see causation as another category of material element, just not one mentioned in the Statute.
59. The "attribution" aspect of causation is emphasized in MPC, Section 2.03. See discussion in American Law Institute, Model Penal Code, Tentative Draft No. 4, 132-135 (1955).
60. None of the committees or working groups that participated in the drafting of the general part was involved in the change of language from "physical" to "material". The change first appeared in the version of article 30 which emerged from the Drafting Committee on 13 July 1998. Since the Drafting Committee was charged only with matters of style and not substance, a fair inference is that some members of the Committee simply thought that "material" was a term more consistent with national usage. (It is not, however, standard American or Samoan usage for "physical".) Rule 49(2) of the Rules of Procedure for the Conference, U.N. Doc. A/CONF.f 83/6 (1998), provided that "[t]he Drafting Committee shall, without reopening substantive discussion on any matter, coordinate and refine the drafting of all texts referred to it, without altering their substance..." The MPC, in Section 1.13, subs. (9) and (10), uses "material" in a different way when it draws a distinction between material and non-material elements. (The drafting is a little awkward but it must be distinguishing between types of physical elements.) A "material" element means "an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offence, or (ii) the existence of a justification or excuse for such conduct". The differences between material and non-material elements are functional. All "elements" must be proved beyond reasonable doubt. MPC, Section 1.12. In addition, as to each "material element" of a physical nature, there is a presumption that at least recklessness must be proved (by the same standard of proof). MPC, Section 2.02(3). Some common law judges (operating without the MPC) characterise questions of jurisdiction and the statute of limitations as not being "elements" and thus not subject to a presumption of mens rea or requiring proof beyond reasonable doubt; some find ways to permit proof on a lesser standard than applies to other elements, even while treating them as "elements". See, e.g., Matthew Goode, The Tortured Tale of Criminal Jurisdiction, 21 MELBOURNE U. L. REV. 411 (1997).
61. United States federal law has occasionally and randomly visited such issues. See, e.g., U.S. v. Medjuck, 48 F.3rd 1107 (9th Cir. 1995) (whether ship "subject to the jurisdiction of the United States" was an element of offence, and factual issues should be decided by jury); Antiterrorism and Effective Death Penalty Act 1996, 18 U.S.C. Section 2332b(d) (prosecution "not required to prove knowledge of a jurisdictional base alleged in the indictment" - but section assumes the jurisdictional base is an element). I believe that the Rome Statute achieves the same result as the MPC, in that the prosecution carries the burden of persuasion (beyond reasonable doubt) in respect of all elements (including grounds concerning jurisdiction and grounds for excluding criminal responsibility). See Rome Statute article 66 (presumption of innocence) and article 67(1)(i) (right of accused "[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal"). My position is disputed by others. Whether there are any "purely jurisdictional" provisions in the Rome Statute which, because of that characteristic, did not attract a mental element was debated during the drafting of the Elements, infra at notes 118-120, 130-131 and paragraph following note 131.
62. Article H was slightly more verbose and seemed to use "conduct" synonymously with "act or omission".
63. But see notes 42-43 supra recausation.
64. Section 1.13 of the MPC defines "conduct" as "an action or omission and its accompanying state of mind, or, where relevant, a series of acts or omissions". "Act" or "action" is defined in section 1.14 as a "bodily movement whether voluntary or involuntary". Section 2.01 adds that a person is not guilty of an offence "unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable". I have always been puzzled whether "accompanying state of mind" in section 1.13 refers to the volitional item in section 2.01 or to the culpability item in section 2.02. Either way, there seems to be some redundancy in the definition, with "parts" of the offence being counted twice.
65. The MPC uses the term "result" rather than " consequence" but leaves it equally undefined.
66. See supra notes 42-43.
67. I pull the trigger on a gun. Conduct, surely, but does the conduct also include the fact that the bullet went through the victim and that he is now dead. Is his death part of the conduct or is it a consequence?
68. The best attempt at elucidation is in PAUL H. ROBINSON, CRIMINAL LAW 149-152 (1997). Robinson notes, in American usage, the close relationship and frequent confusion between circumstances and conduct (in the narrow sense of the actor's acts or omissions) and any relevant result of that conduct. It is important also to distinguish the narrow technical use of the term "circumstance" to describe a part of the material elements from its more general legal usage. Take, for example, the phrase "circumstances of the crime". This may refer to some underlying facts from which the existence of relevant physical or mental elements maybe inferred; it may equally refer to matters of mitigation that are apposite at sentencing. An example of the evidentiary use of the term appears in para. 2 of the General introduction to the draft Elements of Crimes, supra note 2: "Existence of intent and knowledge can be inferred from relevant facts and circumstances." The first sentence of the quotation from the Corpus Juris 2000, supra note 9, appears to use "circumstances" in two different ways, once to describe material elements, once to refer to underlying facts.
69. The chief architect of the MPC introduces a complex kind of circumstance when he speaks of "attendant circumstances that negative a defence". Self defence, for example, requires that the accused be in peril; if there is no peril, that "circumstance" is missing. See Wechsler, supra note 11 at 1437.
70. See also the examples given by the Canadian delegation, infra note 65.
71. One further aspect of article 30 of the Rome Statute requires mention. Paragraph 1 speaks of the physical/material element being "committed" with the necessary mental element. This was an unfortunate choice of a verb which, I fear, no one closely involved (myself included) seems to have noticed until too late. It is easy enough to think of "committing" conduct (including conduct by omission), or even of "committing" a consequence, such as a homicide. It is, on the other hand, difficult to think of "committing" a circumstance. It is not my action that makes something the property of another. That is part of the scene (a crucial part) against which I engage in conduct in taking someone else's stuff. I do have an attitude towards it, though, probably "knowledge". Hence, "committed" must be interpreted as meaning something like "accompanied by" in order to make sense in relation to circumstance elements. Note also the problem with "intent" as to circumstances, supra note 38.
72. Compilation of Proposals, Bassiouni, supra note 1 at 491. I expressed doubts about the validity of the distinction contained in the first paragraph of this statement.
73. Cf. MPC, section 2.04(1) which treats mistakes both of fact and law in a unitary manner. The drafters of the MPC doubted the necessity of including section 2.04(1), commenting that it is not "to say anything that would not otherwise be true, even if no provision on the subject should be made". MPC, Tentative Draft No. 4, 136 (1955).
74. Note also that a mistake of any kind can always be injected into the arguments at sentencing where the Court is obligated to "take into account such factors as the gravity of the crime and the individual circumstances of the convicted person". Rome Statute, art. 78(1). That the person was labouring under a misapprehension of law or fact must be admissible at sentencing - and of varying weight according to the "individual circumstances".
75. See infra text accompanying notes 68-71.
76. Compare MPC, section 2.04 (mistake may negative the "purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offence") with New Jersey Code, 2C:2-4 (only "if the defendant reasonably arrived at the conclusion underlying the mistake"). The New Jersey approach effectively transforms the culpability element as to the material element in question to one of negligence even though intent, knowledge or recklessness would normally be required. For occasional functional departures from the general rule of article 32 in The Elements, see infra note 106.
77. I thought, from listening to them, that most of the civilians who participated in the debate understood an invincible or unavoidable mistake as being one that occurred notwithstanding the exercise of reasonable care. At least one of the Latin American players explained it to me individually as closer to something that happens in spite of the exercise of extraordinary care. Reasonable care was not enough to excuse. See also on these different possible standards, Gunther Arzt, Ignorance or Mistake of Law, 24 AM. J. COMP. L. 646, 658 (1976).
78. Compilation of Proposals, Bassiouni, supra note 1 at 490.
79. Rome Statute, art. 67(1)(i). See supra note 44. Confused discussion during the drafting of the Elements demonstrated that there are some very different conceptions across legal systems on how the burden of proof issues will eventually play out.
80. Model Penal Code, Tentative Draft, No. 4, supra note 43 at 131. On German law, see Arzt, supra note 60.
81. See also the very interesting analysis of Anglo-American and German cases in GEORGE FLETCHER, RETHINKING CRIMINAL LAW 730-758 (1978).
82. R. v. Smith, [1974] 2Q.B. 354 C.A. (conviction reversed where Smith believed property was his own but, because of arcane rules of English property law, it belonged to the landlord).
83. The Canadian delegation, which had a strong hand in negotiating article 32, circulated a "non-paper" during the drafting of the Elements which suggested as "recurring examples" (in which it evidently thought there should be a defence): - "Bigamy" charges where the accused, due to a mistake of law, did not know that he or she was already married. - "Driving without a license" where the accused, due to a mistake of law, did not realize that his license was invalid. - "Theft" case where the accused, due to a mistake of law, misunderstood the status of the property or the relevant ownership or rights. For some examples of "theft" cases in the Elements, where a mistake of law might excuse, see art. 8(2)(b)(xiii), Element 2 (destroying or seizing "property of a hostile party"); art. 8(2)(b)(xvi) (pillaging) Element 2 ("perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use"). On pillaging and mistake of law, see Kittichaisaree, supra note 1 at 265;
84. Christopher Keith Hall, The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92 AM. J. INT'L L. 124, 130 (1998).
85. See supra notes 52-54 for discussion of the meaning of "circumstance". The examples given by the Canadians in the immediately preceding footnote are all circumstance elements.
86. The MPC, section 2.04(3) has an exceptional provision where mistake as to the very meaning of the criminal prohibition may work. It provides: (3) A belief that conduct does not legally constitute an offence is a defence to a prosecution based upon such conduct when: (a) the statute or other enactment defining the offence is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or (b) he acts on a reasonable reliance on an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged with responsibility for the interpretation, administration or enforcement of the law defining the offence. (The New Jersey version of 2.04(3) adds another: "he otherwise diligently pursues all means available to him to ascertain the meaning and application of the crime to his conduct and honestly and in good faith concludes that his conduct is not a crime in circumstances in which a law-abiding and prudent person would so conclude" N.J. Stat. Ann. Tit. 2C, s. 2-4(c)(3).) Exceptionally, both the MPC and the New Jersey Code reverse the burden of proof as to this defence. United States federal law has developed pockets, especially in tax and regulatory cases, where the prosecution may be required to prove that the accused knew the contents of a prohibition. See Richard Singer and Douglas Husak, Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer, 2 BUFFALO CRIM. L. REV. 859, 877-887 (1999).
87. Triffterer, article 32, supra note 1 at 561-571.
88. I address the article 33 issue, infra at notes 138-140.
89. Triffterer, Article 32, supra note 1 at 570. While I do not find Professor Triffterer's case compelling, I think his argument also applies to the "shall ... only" in paragraph 1 and the "may" in paragraph 2, sentence 2.
90. The existence of those proposals is not even mentioned by the chair of the relevant negotiations, Saland, supra note 23, at 210.
91. Not being entirely devoid of ego, I like to think that I was largely responsible for injecting the "default rule" concept into the ICC debates. I think I have just coined the term "explicit use".
92. MPC, s. 2.02(2), supra note 9.
93. See, for example, the definitions of murder (criminal homicide committed purposely, knowingly or "recklessly under circumstances manifesting extreme indifference to human life", Section 210.2); manslaughter (criminal homicide committed recklessly, Section 210.3); and negligent homicide (committed negligently, section 210.4). Each uses terms defined in section 2.02.
94. MPC, Section 2.02(3). The Code has a further default rule in section 2.02(4), which is applicable both to Code and non-Code offences. It reads: Prescribed Culpability Applies to All Material Elements. When the law defining an offence prescribes the kind of culpability that is sufficient for the commission of an offence, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offence, unless a contrary purpose plainly appears. (On the meaning of "material" here, see supra note 44.) Section 2.01 of the MPC (requirement of a voluntary act, or of an omission where there is a duty) is yet another default rule which reads the conduct requirement into all offences.
95. The Rome Drafting Committee was effectively prevented from embarking on such a course by Rule 49(2) of the Rules of Procedure for the Conference, supra note 44. Any effort to refine the general part and special part very much would have led to howls of "substance!"
96. Supra note 3f (para. 4).
97. Ibid. (para. 1).
98. Functionally, the effect of the draft would have been similar to the one that the MPC achieves in respect of negligence which applies only where the Code expressly says so.
99. Saland, supra note 23 at 205.
100. Saland adds that: "It should be noted, however, that the concept of recklessness though not the term itself, exists in the Rome Statute, i.e., in article 28, which was negotiated after article 30." Ibid., at 206.
101. The reference is to the responsibility of superiors who are not military superiors, pursuant to article 28(2). Military superiors have what I see as a negligence-type responsibility pursuant to article 28(1) of the Rome Statute. Under paragraph 1, military commanders may be responsible for breach of duty where the commander "either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes". Other superiors may, under para. 2, be liable where "[t]he superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes". Paragraph 1 is a negligence test; paragraph 2 is some kind of recklessness/wilful blindness/knowledge test. In the Tokyo War Crimes Trials, all superiors, military and civilian were held to a negligence standard. See I THE TOKYO JUDGMENT: THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (IMTFE) 29 April 1946-1912 November 1948 29-31 (B.V.A. Röling and C.F. Ruter, eds., 1977).
102. That was the case in the ICC drafts until Rome where China and the United States engineered the distinction now in article 28. Article 28 was hardly one of the successes of codification at Rome. It was the kind of effort that Professor Baxter had in mind in Richard Baxter, The Effects of Ill-Conceived Codification and Development of International Law, in RECUEIL D' ÉTUDES DE DROIT INTERNATIONAL EN HOMMAGE À PAUL GUGGENHEIM 146 (1968).
103. For an excellent discussion of superior orders in the Rome Statute, which does not, however, explore the differences between paras. (1) and (2), see Charles Garraway, Superior Orders and the International Criminal Court: Justice delivered or justice denied, 81 INT'L REV. RED CROSS 785 (1999).
104. The distinctions are explored in Greg R. Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court, 25 YALE J. INT'L L. 89 (2000).
105. On the implications of dropping it, see infra at notes 104-106.
106. Rome Statute, art. 6.
107. Rome Statute, art. 7(1).
108. See supra note 44 and infra notes 118-120 and 130-131.
109. See infra text following note 131.
110. Rome Statute, art. 9(1).
111. The United States first proposed Elements to the Preparatory Committee late in its work in New York. U.N. Doc. A/AC.249/1998/DP. 11 of 2 April 1998. The proposal argued that: [E]lements of crimes should be set forth in an annex to the statute to provide the clarity and precision required to adequately instruct the Prosecutor and the Court, to ensure respect for the rights of the accused. Current formulations ... [in the then current draft] tie norms to treaty formulations but fail to provide a useful tool to the practitioner. We believe criminal elements can give teeth to the concept of nullem crimen sine lege. I thought the proponents of the Elements, the military representatives on the United States delegation, had the MPC in mind, or perhaps something based on the Model Jury Instructions which are a feature of most United States federal and state jurisdictions. It later became apparent that the model was in fact military manuals and that training lower military personnel was also a significant consideration in addition to assisting prosecutors, defence counsel, and judges. The physical elements, rather than the mental ones, seemed to be of particular concern to the United States negotiators, although the relevant United States manual deals with both kinds of elements. It does not define what is meant by an "element", but does contain a lengthy section analysing each military offence, including in most cases a breakdown of what must be proved, headed "elements". See Manual for Courts-Martial United States (1995, ed.), Part IV (Punitive articles).
112. For an excellent account of the work of the Preparatory Committee, see Christopher Keith Hall, The First Five Sessions of the UN Preparatory Committee for the International Criminal Court, 94 AM. J. INT'L L. 773 (2000).
113. Article 9(3) of the Rome Statute gives the Court some room to manoeuvre when it requires that the Elements "shall be consistent with this Statute".
114. Such as the decision at Rome, supra note 41, to drop the "physical element" draft article altogether.
115. John Carey, in some very thoughtful discussions of the inadequacies of the draft Elements accuses the drafters at several points of shirking their responsibility to "assist" the Court. See, Editorial Comments, ICC PrepCom, 34 U.N.L. REP. 149 (2000),
116. and Further Editorial Comments on the PrepCom's "Elements", 35 U.N.L. REP. 4 (2000).
117. Most of the examples he gives, telling as they are, represent examples of one or other of the phenomena mentioned in the text. It is not only international drafting that suffers from such problems. On model jury instructions, see Thomas Lundy, Jury Instruction Corner, Part I: The Inherent Limitations of Pattern Instructions, THE CHAMPION, May 2001, 39, 40 (noting "compromise" and "committee dynamics").
118. This is consistent with the structure of the MPC and the classic United States discussion, Paul H. Robinson and Jane A. Grall, supra note 39. As Robinson and Grail point out, even the MPC is not perfect in executing its purported structure.
119. Rome Statute, art. 66, heading and para. i. Note also the duty on the Prosecutor in article 54 of the Statute to "investigate incriminating and exonerating circumstances equally".
120. Rome Statute, art. 66, para. 2. See also para. 3 ("the Court must be convinced of the guilt of the accused beyond reasonable doubt").
121. Article 31 of the Rome Statute has a collection of items that in domestic systems come under the rubric of justifications and excuses. Calling them "Grounds for excluding criminal responsibility" was a nice way to avoid the inevitable characterisation problems that the distinction between justification and excuse spawns. Some of them (insanity, intoxication, defence of person or property, duress) are defined in the Rome Statute, art. 31(1), with a fair degree of precision. Others are left to the judges to invent, using "general principles of law derived by the Court from national laws of legal systems of the world, including, as appropriate, the national laws of the States that would normally exercise jurisdiction over the crime ..." (Art. 31(3), referring the inquiry out to article 21 on "applicable law".) Compare the generality of potentially open-ended common law defences retained by Crimes Act 1961, Section 9 (Samoa) and Code of Criminal Justice (New Jersey), N.J. Stat. Ann. Tit. 2C:2-5. The principle of legality was apparently seen by the authors of those codifications as having less force in relation to giving detail to the defences than to the basic offence definitions. Cf. the insistence in the Updated Siracusa-Draft, supra note 24, that legality had bite in relation to "exoneration" too. Robinson, supra note 51 at 85, suggests that the legality principle may have "differential application" depending on the function of criminal doctrine that is relevant in each instance. Here the distinction seems to be between "rule articulation" (much precision required for ICC Statute arts 6, 7 and 8) and "principles of adjudication" (less articulation necessary for article 31). I do not think that Robinson would be impressed by something as open-ended as the Samoan and New Jersey Codes - or the Rome Statute's residual principles of exclusion of responsibility. See generally, Paul H. Robinson, Michael T. Cahill and Usman Mohammad, The Five Worst (and Five Best) American Criminal Codes, 95 N.W. U. L. REV. 1, 17-18 (2000).
122. Some cynics would use the word "re-negotiating" here.
123. With the encouragement of H.R.H. Prince Zeid Al-Hussein of Jordan, who chaired many of the consultations on the Elements, I endeavoured to contribute to the process with an informal discussion paper, entitled elements of The Elements (lower case in original) distributed on behalf of Samoa, dated 1 August 1999, revised and updated as Some Notes for a Second Reading of The Elements (29 January 2000) (on file with the author).
124. See infra notes 131-136 (discussing article 31 of the Rome Statute). Paragraph 5 of the General introduction to the Elements notes: "Grounds for excluding criminal responsibility or the absence thereof are generally not specified in the elements of crimes listed under each crime." A footnote here adds that the paragraph is "without prejudice to the obligation of the Prosecutor under article 54, paragraph 1 of the Statute" to "investigate incriminating and exonerating circumstances equally". I understood the decision not to address this issue as being a determination that it was simply not an area on which we could be helpful, rather than an understanding that these were not "elements". I comment briefly, infra at notes 132-141, on the failure of the Elements to address the problems of the inter-relationship of articles 30 and 32 with 31, and similar problems in repect of article 33 (superior orders).
125. Rome Statute, art. 25, para. 3. Article 30's default rule on intent and knowledge must apply to the "elements" that connect a person charged jointly or through another's actions to "the crime". Article 25 sometimes uses terms like "purpose" and "with the aim of" that may need to be read in the light of article 30. Speaking generally, one who does not personally "do" the deed, must know of it and intend to associate himself with it. Recklessness and negligence are sufficient to link individuals with group criminality in some domestic systems. See, e.g., Crimes Act 1961 (Samoa), Section 25 (if one incites, counsels or procures another to be a party to an offence, the person doing the inciting, etc., is liable for every offence which he "knows or ought to have known to be likely to be committed in consequence thereof.)" (Emphasis added.) This does not seem to be enough in the Rome Statute. Words like "purpose" and "knowledge" appear regularly in article 25. A United States draft, ultimately not proceeded with, had an element of intent, rather than negligence, in relation to solicitation, aiding and abetting, and incitement. U.N. Doc. PCNICC/1999/DP4/Add.3. Compare the recklessness and negligence liability of superiors under art. 28 of the Rome Statute, supra note 80.
126. Rome Statute, art. 25, para. 3(f), subparas. (a) to (e). A "substantial step" is required, presumably accompanied by whatever mental element is required by the substantive offence (the Statute is silent on this). A proviso has a mental aspect: "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." The abandoned United States draft Element for attempts in U.N. Doc. PCNICC/1999/DP4/Add.38, included the requirement that doned the act was committed with the intention of committing a crime under the Statute (such intention would include the intention to meet all the elements of the given offence under articles 6, 7 or 8)doned . Some thought, contrarily, that knowledge, or even negligence, might suffice.
127. See generally, supra note 80.
128. Para. 8 of the General introduction to the Elements thus provides: As used in the Elements of Crimes, the term "perpetrator" is neutral as to guilt or innocence. The elements, including the appropriate mental elements, apply, mutatis mutandis, to all those whose criminal responsibility may fall under articles 25 and 28 of the Statute. Some of the more complex cases, for example, will be the commander whose troops committed atrocities but are not individually identifiable, and the superior whose child butchers are not amenable to the jurisdiction. Articles 25 and 28 themselves supply the connecting elements.
129. The doubters and revisionists who could not really believe the "and" in article 30, discussed supra notes 38-39, had a minor victory here with their comma and their " or both."
130. Paragraph 7 of the general introduction uses the term " particular mental element" to describe these two. In some common law usage, "particular" intent is synonymous with heightened or " specific intent" . Here a particular mental element may be more, or less, than the default element in article 30.
131. See generally Rome Statute, art. 21, on " Applicable law".
132. See Ambos, supra note 1 at 21.
133. I do not believe that we ultimately used the term "reckless" in The Elements, but there are several examples of "should have knowns" which were meant to express a negligence standard. They are all cases in which the "defence" is likely to be mistake or ignorance. See, in particular, Elements, article 6(e), Genocide by forcibly transferring children (perpetrator "knew, or should have known, that the person or persons were under the age of 18 years"); article 8(2)(b)(vii)-1, -2 and -4, War crimes of improper use of flags, insignias, emblems, etc. ("perpetrator knew or should have known of the prohibited nature of such use") ("prohibited nature" said to denote illegality, so a mistake of law is relevant here, cf. (vii)-3 on improper use of flag, insignia or uniform of the United Nations, where the prosection must prove that the perpetrator knew of the prohibited nature; this is said to be because of "the variable and regulatory nature of the relevant prohibitions); "article 8(2)(b)(xxvi), War crime of using, conscripting or enlisting children in international armed conflict ("knew or should have known that such person or persons were under the age of 15 years"); article 8(2)(e)(vii), War crime of using, conscripting and enlisting children in non-international armed conflict ("knew or should have known that such person or persons were under the age of 15 years"). Except perhaps in relation to the "contextual circumstances" for genocide, infra notes 118-120, and war crimes, infra notes 130-131, I do not recall any proposals on the table that might be characterised as entailing strict liability.
134. The cases that I recall as particularly relied upon in negotiating the Elements were Prosecutor v. Delalic et al. (Case no. IT-96-21-T), Judgment, 16 November 1998, (1999) 38 I.L.M. 57; Prosecutor v. Furundzija (Case no. IT-95-17/1-T), Judgment, 10 December 1998, (1999) 38 I.L.M. 317; various stages of the Tadic case (ICTY) and Prosecutor v. Akayesu (Case no. ICTR-96-4-T), Judgment, 2 September 1998, (1998) 37 I.L.M. 1399. There is a very useful summary of all the decisions concerning definitions and elements of crimes in Prosecutor v. Kordic & Cerkez (Case No. IT-95-14/2-T), Judgment, 26 February 2001, at paras, 188-362. See also discussion therein of "individual criminal responsibility" at paras 363-447, especially the analysis of the Delalic case. The International Committee of the Red Cross supplied the Preparatory Commission with extremely helpful studies of national and international cases which, to my mind, served to underscore both how confused the whole area is and the wisdom of trying to construct something new and logical.
135. R. v. Finta, [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513 (Sup. Ct. Canada). The original proposal that led to para. 4 of the general introduction was introduced by Canada and Germany in relation to crimes against humanity, U.N. Doc. PCNICC/1999/WGEC/DP.36 of 23 November 1999: To the extent that an element is of a normative character (e.g., referring to the illegality of an act or its 'inhumane' nature or its similarity to other prohibited acts), it need not be
136. The central issue on appeal was this: it was clear in the relevant legislation that the prosecution had to prove to a jury beyond reasonable doubt that the accused had committed an offence within the definition of a crime under the Canadian penal code. It was also necessary to show that any such criminal act was within the definition of a crime against humanity or a war crime. The court was split 4-3. For the majority, all this should go to the jury. Two sets of elements, national and international, must be proved. See Cory J. for the majority, 112 D.L.R. (4th) at 593-599. Awareness of the facts and circumstances that brought the offence within the international definition, or at least "wilful blindness", had to be proved. The dissent regarded the question of whether the acts amount to a war crime or crime against humanity as merely jurisdictional. It was for the judge to decide as a matter of law, not one for the jury as part of substance at all. As such, any factual components did not have to be proved beyond a reasonable doubt, but merely on the balance of probabilities. Nor was any mental element required. For the dissent, the jury need rule only on the national (Canadian code) elements.
137. Since the dissent would not require that the Crown prove any mental element as to the jurisdictional issues, the fact/law issue discussed in the text did not arise for them. See La Forest J. for the three dissenters, 112 D.L.R. (4th) at 542.
138. There were those who believed until the end that there might be other elements "out there" (such as causation) on which we did not need to pontificate at this point. Others thought that all elements could be found within the four corners of the Elements.
139. There is another potential candidate for this category in article 8, para. 1 of the Statute which no one wanted to tackle in the Elements of war crimes. It is another "threshold" statement: The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. If the accused concedes that an "isolated" crime occurred but denies that the threshold was met, can he defeat the "jurisdiction" of the Court? I find the "in particular" very hard for a court to apply and would interpret the paragraph as being addressed to prosecutorial discretion, rather than court determination. If I am wrong in this, and this is a jurisdictional element of the war crimes offences, there are some hard mental element questions to be answered. See infra notes 119, 130-131 and paragraph following note 131.
140. Rome Statute, art. 6, derived from Genocide Convention 1948, art. III. "Acts", is evidently used in these provisions in a way that includes the appropriate mental element, similar to the way the MPC defines "conduct", supra note 47.
141. "Killed" is accompanied by a footnote, applicable throughout the Elements, that "killed" is interchangeable with "caused death". The relationship between killing and causing death once led to no-holds-barred strife in the linguistics literature between supporters and opponents of Noam Chomsky. Here it seems to serve the more prosaic goal of catching indirect causation and some omission cases such as deliberate reduction of rations. See Knut Dörmann, Grave Breaches of the 1949 Geneva Conventions, in Roy Lee et al., eds., supra note 1 at 124.
142. The Elements, art. 6(a).
143. This rather important point had escaped earlier drafting efforts. The person who enthusiastically does evil deeds in the first hours of a developing situation is just as culpable as the one who does the same things the next day when the "pattern" has been established. Yet the early one would not be within the literal language.
144. The ICTY cases and many commentators refer to the overly-confident view of the ILC that "[m]urder is a crime that is clearly understood and well defined in the law of every State. This prohibited act does not require any further explanation." Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on its forty-eighth session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. 10 at 96, U.N. Doc. A/51/10 (1996). My experience, with common law jurisdictions at least, suggests that this is not so. International law has never tried, as most jurisdictions do, to distinguish between murder and manslaughter (and the further category common in modern American law, negligent homicide). The results are confusing. That which is murder in some places is manslaughter in others; conduct meeting the conceptual tests for manslaughter in some places is no offence in others. My suspicion that the ILC was not thinking when it made the quoted statement is confirmed by the exhaustive review of domestic law in Günter Heine and Hans Vest, Murder/Wilful Killing in McDonald and Swaak-Goldman, supra note 1 at 175.
145. Is it only murder/wilful killing and not (reckless and) negligent killings that amount to an international crime? I think so, except perhaps in the command responsibility area. Early drafts of the murder and wilful killings Elements sometimes included language from the Delalic and Blaskic cases to the effect that it must be shown that the perpetrator "had the intent to kill, or to inflict serious bodily injury in reckless disregard of human life". See the recent restatement of these authorities in Prosecutor v. Kordic & Cerkez, supra note 107, at para. 229 (and also at para. 236 where the words "reasonable knowledge" appear in place of "reckless disregard" suggesting some confusion about whether the test is subjective or objective). I believe that the "intent and knowledge" standard of article 30 will provide the ultimate framework for such cases, but am equally certain that the matter will be the subject of both confusion and controversy.
146. The explanation in the genocide introduction that "manifest" is an "objective qualification" could perhaps be seen as an assertion that some kind of negligence test applies, at least within the element. I suspect that much the same effect could have been reached by applying the value judgment paragraph (para. 4) of the general introduction. Others saw the Element, by its very nature, as involving some kind of unique mental element that did not fit any of the categories.
147. One could argue that the element was being implied from the general law and that the general law regarded such threshold elements as jurisdictional only and not requiring any mental element. See Finta's dissent, supra note 110;
148. Prosecutor v. Kunarac, Kovac & Vukovic (Case Nos. IT-96-23-T & IT-96-23/1-T), Judgment, 22 February 2001, at paras. 411-414 (requirement that crime against humanity be "committed in armed conflict," peculiar to the Statute of the Yugoslav Tribunal, does not require intent or nexus) (citing the Appeals Chamber in Prosecutor v. Tadic (Case No. IT-94-1-A), Judgment, 15 July 1999, paras. 249, 251 and 272). At Nuremberg, the requirement that a crime against humanity be "in execution of or in connection with any crime within the jurisdiction of the tribunal" [typically crime against peace] was best seen as only jurisdictional, rather than a substantive limitation on the concept of the crime. It does not seem to have attracted a knowledge requirement. See Roger S. Clark, Crimes against Humanity, in THE NUREMBERG TRIAL AND INTERNATIONAL LAW 177, 195-196 (G. Ginsburgs and N. Kudriavtsev, eds., 1990).
149. The argument that there are jurisdictional elements not requiring knowledge gains support from article 32(2)'s statement that "a mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility". Note particularly the words "within the jurisdiction of the Court". It appears to be no defence not to know (a) that something is "a crime", or (b) that it is within the jurisdiction of this Court! See also infra notes 130-131 and paragraph following note 131.
150. I interpret "case-by-case" to mean that the Court could decide the issue once and for all and then, under article 21(2) of the Rome Statute, follow its own decision. Others disagree and think that there may be no general principle.
151. As in the case of genocide, supra note 112, the "acts" include a mental element.
152. The Elements contain the same point on killing and causing death as in supra note 114.
153. See supra text accompanying note 84.
154. The Elements, introduction to crimes against humanity.
155. Supra note 116.
156. The Elements, introduction to crimes against humanity, para. 3.
157. Footnote 6, accompanying immediately preceding para.
158. Element 2 being a context element, the skirmish here is primarily about the attitude of the State or organization which sets the stage for whatever the actor before the Court did or did not do. The actor whose actions or omissions and mental processes give rise to the responsibility of the State could, in some situations, also be the one before the Court.
159. Supra notes 108-116.
160. See supra notes 44 and 118-120.
161. There are numerous examples of the finesse throughout the war crimes Elements. The question of whether this is a valid reading will undoubtedly be litigated. Not all potential mistake of law situations have been finessed in this way in the Elements. See, e.g., the flag and insignia situations in supra note 106. Footnote 32 of the Elements, applicable generally to all of the examples of "awareness of the factual circumstances", says that "[t]his mental element recognizes the interplay between articles 30 and 32". The verb "was aware" that appears in these Elements obviously comes from article 30, paragraphs 2 (intent) and 3 (knowledge) (knowledge and intent overlap in these provisions). Personally, I thought that each instance of "was aware" could properly have been replaced by "knew", but that view did not command a consensus, for reasons I could never grasp.
162. Rome Statute, art. 31(1) (insanity, intoxication, defence of person or property, duress); art. 32 (mistake of fact or mistake of law); art. 33 (superior orders and prescription of law).
163. Ibid., art. 31(3) (others "derived from applicable law as set out in article 21").
164. On article 31, see also supra note 94.
165. Footnote 32 of the Elements.
166. See note 131 supra.
167. Article 32, on mistake, uses the same term to describe its exculpatory effect as article 31, namely "ground for excluding responsibility". Note that article 33 says "relieve that person of criminal responsibility" which must mean the same.
168. Along with issues of substance, the "defences" raise complex problems of the burden of proof. There was a widespread reluctance (mistaken in my opinion) during the drafting of the Elements to embark on any burden of proof issues. See generally, supra note 44.
169. For a common lawyer, burden of proof issues may be determinative and I address them daily in classes otherwise devoted to substantive law. There is some very suggestive material on burden of proof issues, especially concerning "defences", in George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 11 YALE L. J. 880 (1968),
170. and Peter Krug, The Emerging Mental Capacity Defence in International Criminal Law: Some Initial Questions of Implementation, 94 AM. J. INT'L L. 317 (2000). Article 33 of the Rome Statute is drafted with strange negatives cunningly placed to maximise the difficulties a prosecutor must face in figuring out what to do. I think the least absurd meaning is that, once the defence is in play, the prosecution must prove beyond reasonable doubt either (i) that the perpetrator was not under a legal obligation to obey, or (ii) that she knew the order to be unlawful, or (iii) that the order was manifestly unlawful. Others would shift the burden of persuasion and insert some "ands" instead of "ors". Shifting the burden is, in my opinion, flatly prohibited by article 67(1)(i) (no "reversal of the burden of proof or any onus of rebuttal").
171. See Otto Triffterer, Article 33, in Triffterer, supra note 1 at 573.
172. In this respect, the superior orders defence in article 33 may (for those acting under instruction) be close to that in section 2.04(3) of the MPC, supra note 67, which permits a limited defence of reliance on the law. Article 33 is headed "[s]uperior orders and prescription of law". "Prescription of [originally "by"] law" as a heading goes back at least to the 1996 meetings, text in Bassiouni, supra note 1, at 494.
173. One of the drafts on the table then denied a defence to genocide, war crimes and the crime of aggression for the "sole fact" of carrying out "an act prescribed or authorized by legislation or regulations or an act ordered by the legitimate authority". Such a fact might, however, be used in mitigation. Those charged with war crimes could use such a defence unless the act was "manifestly illegal". This alternative was the source of the "prescription of law" heading. This version was accompanied by immunity for those acting pursuant to Security Council authority. The "prescription of law" part of the substance of the drafts fell by the wayside within the article by Rome but remained (perversely I fear) in the heading. Cf. the Nuremberg Charter's insistence in its crimes against humanity provision that something might be criminal under international law "whether or not in violation of the domestic law of the country where perpetrated". Nuremberg Charter, art. 6(c). (Affording those acting on behalf of the Security Council the right to commit crimes under international law was utterly unacceptable and that part disappeared also.) Orders may provide grounds for mitigation of sentence under the general rule of article 78 of the Rome Statute that the Court must "take into account such factors as the gravity of the crime and the individual circumstances of the convicted person".
174. Supra note 131.
175. Supra note 24.