ACTS OF OMISSION, NEGLIGENCE, CONSPIRACY RESULTING IN CRIMES DISCUSSED BY PREPARATORY COMMITTEE FOR INTERNATIONAL CRIMINAL COURT19960329 Also Consider Age of Responsibility, Possible Defences
Omissions, negligence and conspiracy that result in crimes that fall within the jurisdiction of the proposed international criminal court should be punishable under its statute, the Preparatory Committee on the court's establishment was told this afternoon, as it continued its consideration of general principles of criminal law.
Many speakers stressed that the statute should endeavour to reconcile common law concepts such as intention, gross negligence and conspiracy with their analogous civil law concepts -- culpa, dolus eventualis, and complot.
In discussion on omission, the representative of Austria said that the statute should include provisions penalizing not only action, but also omissions. Those provisions, however, should only be used in circumstances where the omission lead to a crime that under was the jurisdiction of the statute.
The representative of the United States agreed in principle with the inclusion of a provision for penalizing omissions, but said that such a provision should not be a substitute for the specification of offences under the court's jurisdiction. The representative of Switzerland said that the proposal for inclusion of omission should not be discarded without further consideration.
Statements in support of the inclusion of a provision to penalize omissions were also made by the representatives of Australia, Canada, Italy, Germany, United Kingdom and Ukraine.
In the discussion on whether causation should be a factor in criminal liability, many speakers stated that the inclusion of provisions on causation would be unnecessary. The representative of Switzerland said that inclusion of that principle would only lead to an over-burdening of the statute.
Austria's representative said that its inclusion was unnecessary, since criminal responsibility only existed if it was traceable to a defendant. The representative of Italy said that the direction adopted in the statutes of the international Tribunals for Rwanda and the former Yugoslavia should suffice regarding causation.
The representative of Israel said that to "attempt" was not enough to commence an event. A substantial step must be taken towards criminal action. France and the United Kingdom emphasized that if the statute were to include causation, it would be preferable to define the conditions under which causation applied.
In its discussion on intention, many speakers urged that the court statute include such a provision. The representative of Canada said that his delegation had proposed a definition of intention which had attempted to deal with civil and common law concepts of intent. The attempt was to capture aspects of both systems. Intent should be defined. Knowledge was a cornerstone of criminal liability.
The statute should also provide for prosecution of "wilful blindness", he continued. Sometimes defendant's knowledge was manifest, but they shut their eyes as if they did not want to know. In common law that was the same thing as knowing.
The representative of Switzerland said that special intention must exist, especially in the case of genocide. The existence of intention might, however, not be required for certain grave breaches of international law. Austria's representative said that it was necessary to include a provision stating that the crimes were only punishable if committed intentionally. The representative of France called for a provision for a code of specific intention for certain of the crimes falling under the jurisdiction of the court.
The representative of Germany said that a provision for intention and knowledge should be included as part of the statute and not in an annex. Germany preferred the integration of all elements of the crime in statute itself. There was no need to put them in annexes, especially when those annexes were deemed to be an integral part of the statute.
The representative of Malaysia stressed the need for clear definition of intention in the statute.
The Committee also discussed the issues of the age of responsibility and defences that might be mounted before the proposed court. There was almost unanimous agreement that an age of responsibility should be specified in the statute. Speakers, however, differed on what that age limit should be. The representative of Switzerland, for example, said that his country would go
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along with the lower limit of 16 years as the age of responsibility for the purpose of mitigation, while responsibility should be full at the age of 18 years. The representative of Ukraine said that the age of criminal responsibility for the core crimes should be 16 years. The representative of France said that the age of responsibility should be 13 years as was the case in the French penal code. That age had been determined as an age at which people participated in crimes with full awareness.
Statements suggesting a range of possible ages were made by Australia, Italy, Brazil, Netherlands, Sweden and the Russian Federation.
In the Committee's discussion of other types of responsibility, the representative of the United States said that "relationship crimes" such as complicity, aiding, abetting, soliciting and being an accessory could be combined into one article. The overriding rules should be that all participants had the intent and purpose of committing a crime, that they should share equal responsibility and that the type of activities giving rise to that responsibility would have to be specified.
Canada said that the statute should make clear that individuals were responsible for their actions. He agreed with the United States that they should be equally responsible for undertaking a criminal act. The representative of Austria said that perpetrating, soliciting and aiding a crime were all punishable. Aiding and abetting and aiding after the commission of a crime would have to be covered. The fact of an attempt being made, but failing, should still be punished. Italy said that conspiracy represented the core of the crime of "racketeering" under the civil law system. France emphasized that the crime must be defined by the degree of responsibility for everyone involved. Attempt, complicity and conspiracy were all crimes with analogues in Greek law, that country's representative stated.
Regarding the types of defences that might be mounted before the proposed international criminal court, the representative of Netherlands called for the drafting of an article which would indicate that the defences listed in the statute were only indicative. Judges could allow others on a case-by-case basis. Canada agreed that any list of defences in the statute should not be exclusive. The court should be able to allow others.
The representative of Malaysia said that his country had serious concerns that the list of available defences would not be exhaustive. Allowing an inexhaustive list would give the court legislative powers. The representatives of Germany and China also stressed the need for an exhaustive list of defences available to defendants in cases brought before the court.
The representative of France said that self-defence and defence of others should be included in the statute. However, the provision on self- defence must stress proportionality between action taken and the causal
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action. The representative of Australia said that the issue of self-defence should be dealt with in the statute. The matter of intoxication as a defence should be left to the court to decide. The representative of China said that the elements of self-defence should be explicitly listed in the statute. The representative of Libya said that self-defence happened when there was aggression against a Member State. Such self-defence must, however, be immediate and proportionate.
The representative of Guatemala said that there might be some difficulties in relation to some of the defences proposed in the draft statute. Self-defence, for instance, could not apply. If the Security Council determined that aggression had occurred, it would be binding on the court, so that self-defence could not be invoked. Also regarding crimes against humanity, self-defence could not be invoked, since those crimes were too grave to be justified in any way.
The representative of Egypt said that Islamic criminal justice system was one of the "major legal systems" that needed to be taken into account when reconciling law. Nothing in the definition of crimes or in general principles of law contradicted with sharia law.
The Preparatory Committee will meet again at 10 a.m. Monday, 1 April, to continue its consideration of general principles of criminal law.
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