Wednesday, February 17, 1999, Morning Session

Elements of Crime

courtesy of

Lawyers Committee of Human Rights

The US introduced its proposal, emphasizing that the format of the proposal

would make negotiations easy. They attempted to reflect the current state

of international law and make the law relevant to criminal litigators. The

paper includes 4 documents, but is meant as one proposal. The first section

includes general comments covering the relationship between the elements

and general principles of international law. The second section is

terminology. The terms defined in the second section apply to the proposal,

including all three of the addendums. Sections 3, 4 and 5 discuss the

elements of crimes relating to Articles 6, 7 and 8 of the Rome Statute

respectively. Section 6 discusses inchoate offenses, explaining the

principles of criminality regarding Articles 25 and 28 of the Statute. The

US pointed out that øinchoate does not modify the nature of the crime, but

it does raise the question of those accused in the event as well as the

question of time. There is no connotation as to the gravity of an inchoate

offense. Finally, the US stated its goals as being to provide a basis for

efficient negotiations while staying faithful to the Rome Statute,

principles of law and criminal law.

Switzerland introduced its joint proposal with Hungary, which refers

specifically to Article 8.2(a) of the Rome Statute. Their purpose is to

rehearse constituent elements and to give a clearer indication to the

judges that have to apply the principles in the Statute. Their basis was

the ICRC non-paper.

Spain introduced its proposal, which will be made available on Thursday.

The paper addresses Articles 6, 7 and 8 of the Rome Statute. It is an

analytical document rather than a formal proposal, an outline intended to

put forward all constituents elements of each crime and to be used as a

guide to the delegates. They have not developed all of the elements of

every crime and think that thought needs to be given to which elements

should be included in the final text. It might not be necessary to repeat

elements found in every crime. Also, the paper tries to avoid extensive

explanations of crimes that may limit the court s power to prosecute crimes

under the Rome Statute. In developing the paper, Spain bore in mind the

general principles of criminal law as found in Articles 22 and 23, but

according the mandate they were not being asked to develop a separate

document on those elements. Part 2 of the paper addresses concepts and

legal techniques to be used as elements of Articles 6, 7 and 8. These

concepts and techniques are penal laws in various countries.

Belgium, together with Finland, South Africa, Costa Rica, Hungary and

Switzerland stated that they will introduce ICRC s non-paper as an official

UN document.

ICRC discussed the paper to be introduced as a UN document. The paper is

meant to be a guide, not a proposal. It examines case law and treaty law as

it stands so far relating to the crimes found in the Rome Statute. In terms

of methodology, the ICRC used cases starting from WWI to the ICTR and ICTY.

As of now, because it is so thorough, the paper is incomplete and only

covers Article 8 (a). By the next Prepcom, the paper will cover all of

Article 8. The paper also references treaty law and the Geneva conventions.

In terms of case law, only those cases that describe elements of the

relevant crimes in some way were included. The ICRC also said it is

introducing a second informal paper describing intent and knowledge as it

refers to civil and common law. Also, it will discuss offenses regarding

prisoners of war, because it is not obvious in the Statute which crime

these fit into. The paper is expected to be ready by Wednesday afternoon.

The Chairperson requested governments start discussion with Article 6. Then

discussion will move to Article 8 because there are papers on Article 8.

Since the same approach should be used for all the crimes, governments

should also state any comments on the structure.

Egypt took the floor and emphasized that the Elements must not amend the

Rome Statute. The Egyptian delegation stated it has serious reservations

regarding the US proposal because the definitions presented in Section 2

are not established in international law and don t reflect what is in the

Rome Statute. In terms of the elements of genocide, the US paper draws no

distinction between those who give orders, those who execute them and the

middle men. The US paper must concentrate on evidence to prove the crime,

and emphasize crime responsibility.

Japan also spoke of the importance of keeping with the Rome Statute. They

saw no major conceptual discrepancies between the Statute and the US

proposal, and were comfortable with all the papers presented. They thought

the US paper should be used as a rolling text for the working group because

it is the only comprehensive document. The definitions in the US proposal

are useful and necessary. Finally, they said the comments throughout the US

proposal should be adopted with the paper.

Syria spoke extensively, agreeing with Egypt's position and reiterating the

importance that no paper conflict with the Rome Statute. They thought the

elements of crimes would be threatened by excluding parts of the Statute or

by restricting the judges. The US paper contradicts itself in several ways,

starting when it states that the Elements described do not change the

definition of any offense. In fact, the Syrian delegation stated, the

definition of the term "Attack directed against any civilian population" is

not in the Statute and the definition of "Lawful justification or excuse"

contradicts the Statute. Also, the section on "Genocide by killing" does

not reflect the Statute. Syria went on to discuss Article 8, saying that

the US interpretation of moves to transfer populations cancel out the

Geneva protocol of 1979, the 4th Geneva convention and the Rome Statute.

Since Article 8 gives a wider interpretation of the concept, what basis can

the US find in the Rome Statute? Finally, Syria found problems with the

definition of "legal pretext".

France spoke regarding the general structure of the documents. They stated

that the US proposal is the most complete and that it follows the Rome

Statute closely. Section 1 reaffirms the structural links between the Rome

Statute and elements of crimes. However, the elements should not modify the

Rome Statute. France was grateful for the US comments in each section, and

thought it might be useful to add laws from the ICTY and ICTR. Concerning

jurisprudence, France thought the Swiss/Hungarian document gave food for

thought. Referring to Part 6 of the US proposal, inchoate offenses, the

French delegation stated that the point is not to re-open discussion on the

general principles of law. That discussion was completed in Rome and

Article 30 resulted from the negotiations. Regarding the Swiss/Hungarian

proposal, France was concerned about including the concept of omission. Any

reference to that concept was removed during the Rome discussion on the

general principles of law and the references in Articles 25 and 28 were

removed before the final vote.

South Africa spoke on behalf of SADC, saying that the US paper contains

unnecessary detail and leaves little room for the court to maneuver. In

fact, the elements of crimes should be more a commentary and not a

prescriptive document. The US document is more than mere guidelines for the

court, and in fact defines the minimal requirements for a guilty

conviction, and the terminology section purports to amend the Statute.

Finally, the US paper contradicts some concepts in humanitarian law and

limits the scope of jurisdiction.

Spain spoke again on its forthcoming paper, saying that they have tried to

mention 15 possible elements, including the aspect, property, active

subject, passive subject, intentional element, subject element, negative

element, unlawfulness, degrees of execution, forms of crimes manifested,

participation, circumstances of responsibility and others. In terms of

genocide, six of the elements deserve special attention including legal

property to be protected (ie, the legal right to existence), national

ethnic, ethnic, racial, or religious groups (special consideration needed

to make a further distinction in other social groups), that destroying

wholly or partly of a group is an intentional crime, the definition of

killing and serious bodily harm, attended circumstances of how this crime

is related to the other crimes and how it is opposed to other war crimes

that are listed and finally, the associations, conspiracy and provocation

that may be relevant. Concluding, Spain acknowledged that the US proposal

gave a different type of approach, but that their approach would be

incomplete without addressing the issues in Spain s paper. Spain would be

interested in developing a unified text.

Mexico stated that it is very important not to change or distort the

elements of crime as they were approved in the Rome Statute.

Cuba said that Article 6 reflects the 1952 Convention on Genocide and that

they do not want to redefine the Rome Statute. They do not understand

øinterpreting the Statute to mean øredefining it. The US proposal

redefines what was defined in Rome. The Spanish proposal has merit in that

it incorporates the human right to existence. Cuba said they would rather

become involved in the review of the elements that the court would need to

employ the rules defined in Rome rather than re-definition.

Canada spoke next, saying the US paper is acceptable except for the final

elements, which were not adding to the efforts of the Working Group. The

Canadian concern was that the US paper is inconsistent with the Statute.

They think it would be unwise to open up a discussion that was covered in

the 1948 Genocide Convention and the Rome Statute. The fourth element of

each of the US elements of genocide is that the act occurred øin conscious

furtherance of a widespread or systematic policy or practice aimed at

destroying such group . This is not necessary and would re-open a

discussion on the definition of genocide, which would be unwise and

inconsistent with the mandate of the prepcom.

Colombia stated that it would like to address the subjective elements of

the crime and the internal elements that the US proposal was especially

interested in. Colombia was happy to see in Spain s document the active

subject of the crime. Rome should be used as a departing point. The

question of a øplan should be discussed as a special category, a type of

plan, as discussion proceeds on Article 6. Also, Colombia questioned why

talk about økilling when a single person is dead. This might be simply

homicide. The intention to kill a group starts with homicide. Finally,

Colombia thought there should be no reference to age in the US proposal

section regarding øGenocide by transferring children . Currently, the

proposal says øunder the age of fifteen.

New Zealand agreed with Canada s point regarding the substantive problem

with the US proposal (the øwidespread element). They did not yet offer a

position on the Spanish paper, but thought it would be good to inject

elements from the paper. They did not commit to any of the US definitions.

Benin commented on the US paper, saying it disagrees and agrees with

France. They agree that provisions on the liability of military leaders are

very pertinent. However, they are confused by the US element of

solicitation, aiding and abetting and incitement in the inchoate offenses.

These, practically speaking, wouldn t be inchoate but complicity. The

inchoate section is a question of the perpetrator; the principal actor is

different from the main author.

Greece reminded the group that in Rome, it did not want a section on

elements of crime. They said that the elements must not conflict with the

Statute. They found the US proposal confusing sometimes because the first

and second paragraphs repeated the Statute and the third, the "widespread"

element, was a clear deviation from the Rome Statute.

Cameroon said they were not here to re-write the Rome Statute. They said

there is no longer a need for general elements of crimes to be spelled out,

because those are in the Rome Statute. Instead, they want specifics.

Omission, as France said, should be left out. Other elements, such as

øserious negligence don t need to be described as elements, but their

consequences can be described. The judges can figure out the seriousness of

the crime. There are questions about the terminology (such as øaiding and

abetting ). In each crime, there should be a psychological element as well

as a physical element defined.

Norway stated that its national legal tradition doesn t have elements of

crimes and they didn t support the idea in Rome. However, the stated

objective of the elements of crimes is to enhance the understanding of the

Statute while remaining consistent with it. In their view, the US paper is

a useful basis for discussion. On the øwidespread element, Norway agrees

with Canada.

Italy wanted to ensure that the elements of crimes remained consistent with

the Rome Statute. They supported the New Zealand idea of moving directly to

a discussion of elements of crimes and putting off a discussion of the

definitions. At least some of the Spanish elements should be able to be

combined with the US proposal. Regarding the øwidespread element, Italy

agreed with Canada, Norway, Greece and New Zealand.

Sweden emphasized that it wanted to keep to Article 9 of the Statute. They

associated themselves with the South African statement, and would caution

against using unnecessary detail. They would prefer the elements of crime

to be a commentary instead of prescriptive, which would keep with Article

9. Sweden agreed with New Zealand that they could leave aside the question

of definitions for the moment. They agreed with France that they were not

here to re-open the Statute regarding general principles of law, especially

as that applies to the last part of the US paper and general articles in

the Rome Statute on the mental element. Regarding the US elements of

genocide, Sweden found the first and second elements unobjectionable but

unnecessary. They agreed with Canada on the øwidespread element. Also,

regarding the US elements on øgenocide by harming , Sweden thought they

should use the word øbodily instead of øphysical , not because of any

substantive difference but because it was in keeping with the Rome Statute.

In the section on øgenocide by preventing births , Sweden stated that the

effect of preventing births is a necessary prerequisite. Finally, Sweden

agreed with Colombia on the issue of age in the section on øgenocide by

transferring children, asking if fifteen is a desirable age limit and

pointing out that the Convention on the Rights of the Child says eighteen.

China spoke next, saying that it is important not to deviate from the Rome

Statute. In this regard, China agreed with France and Switzerland that

especially those questions that were solved in Rome shouldn t be re-opened.

The definition of crimes in the Rome Statute is not very accurate, and the

elements of crimes should mainly reflect the accuracy of criminal law. The

elements should be clear about what is a crime and what is not and should

not leave ambiguities up to the judges. The Chinese delegation said the US

proposal is comprehensive and it should be used as a basis for further

work. As for genocide, China accepted the framework put forth in the US

proposal and said the first element was important as it differed the crime

of genocide from other crimes. As for the øwidespread element, China

recognized that it was a new concept here but had not yet formed a position

on the matter.

Belgium reminded the group that it, too, was against the idea of having

elements of crime during the negotiations in Rome. They shared France s

view that the US proposal departs from the Prepcom mandate. South Africa

aptly pointed out that the elements of crimes should not enter into

dangerous or pointless details. In terms of genocide, Belgium agrees with

Canada about the øwidespread element. Also, the US item 6 (c) (genocide by

inflicting conditions of life) was new as far as they saw it. The idea in

US proposal 6 (d) under preventing births, the term øby force was a new

idea and constrictive. Finally, Belgium agreed with Colombia and Sweden

regarding the age limits, and cited the Convention on the Rights of the

Child.

Israel also said they did not want to go beyond the Rome Statute. They

found the terminology section very useful and said it is important to

define the elements of crimes. In terms of genocide, the Rome consensus

comes from the definition in the 1948 Genocide Convention. However, the

Rome consensus was that in this context there should be reference to

elements contained in Article 30. There was no point in repeating the Rome

Statute. Regarding the øwidespread element, Israel said they could not see

genocide being committed without it being widespread or systematic. It was

implied in the definition and consistent with the Rome Statute.

Austria disagreed with the terminology set out in the US proposal, and

agreed with New Zealand to set the question of terminology aside. Austria

agreed with Canada regarding the øwidespread element, and stated they

didn t think the working group should add new criteria to the definition of

genocide.