summary: February 18, 1999, Morning Session

ELEMENTS OF CRIMES

courtesy of

International Service for Human Rights

General comments

On Thursday, February 18, the discussion on genocide and its elements of

crimes continued from Wednesday. In their opening remarks, the delegations

acknowledged the states and organizations that had submitted papers.

Moreover, they congratulated the chairman of the working group to his

position and assured him their full cooperation.

The remarks by the delegates concerned almost exclusively the US proposal

(UN document PCNICC/1999/DP.4, hereinafter "DP.4" or "US proposal"). In

connection with the meeting, a Spanish paper on elements of crimes was

distributed.

Certain considerations reappeared throughout the discussion:

When determining the elements of crimes, the PCNICC must not go beyond the

Rome Statute or the Genocide Convention.

Some representatives wanted to adopt a different methodology for the

session. Instead of discussing the individual elements of crimes directly,

they would prefer to discuss general questions, e.g., the legal status of

the elements of crimes, at the outset.

In the US proposal (PCNICC/1999/DP.4), the similar paragraphs 6(a)(1),

6(b)(1), 6(c)(1), 6(d)(1) and 6(e)(1), providing that the perpetrator must

have committed genocide with the intent to "destroy, in whole or in part, a

national, ethnical, racial or religious group, as such", were criticized by

some representatives for reiterating the mens rea requirement in art 30 of

the Rome Statute.

In DP.4, the similar paragraphs 6(a)(3), 6(b)(4), 6(c)(5), 6(d)(5) and

6(e)(3), providing that the perpetrator must have committed genocide in

"conscious furtherance of a widespread or systematic policy or practice

aimed at destroying such group", were criticized for going beyond and

altering the definition of genocide provided by the Rome Statute and the

Genocide Convention.

The requirement of an effect/result of the unlawful act in inter alia DP.4

para. 6(d)(4) was disputed by some representatives. Instead, the elements

of crime should in some instances be changed to reflect a standard of

danger.

The age limit of 15 years in DP.4 para. 6(e)(2) was disputed by a number of

representatives. Some proposed to exclude the reference to age completely,

whereas others proposed a higher age limit, most often 18 years.

The requirement in DP.4 para. 6(e)(2) that the child was transferred from

its "lawful residence" was disputed by a number of representatives.

Below, I will refer to these propositions as considerations 1 through 6.

Summary of the remarks of the states that participated in the discussion1

Korea

The representative of Korea remarked that the key principle for the

deliberations on the elements of crimes must be to respect the letter and

the spirit of the Rome Statute. Furthermore, the elements of crimes are

supposed to guide the court, not restrict it in an improper manner.

As for the DP.4, the US proposal, Korea seemed concerned about the

"conscious furtherance of a widespread" etc. requirement (discussed above,

consideration 4) and the elaborated intent requirement (see consideration 3

above).

Tunisia

While stressing that the Commission must not reopen the Rome Statute,

Tunisia objected to paragraphs 6(a)(3), 6(b)(4), 6(c)(5), 6(d)(5) and

6(e)(3), providing that the perpetrator must have committed genocide in

"conscious furtherance of a widespread or systematic policy or practice

aimed at destroying such group" (see consideration 4 above). The

representative argued that the idea as such was proper, but that it would

require a review of the Rome Statute to make it possible. On the other

hand, the subparagraphs on intent (see consideration 3 above) was found to

be consistent with article 6 of the Statute.

Finland

Finland objected to the US proposed paragraphs 6(a)(3), 6(b)(4), 6(c)(5),

6(d)(5) and 6(e)(3) (providing that the perpetrator must have committed

genocide in "conscious furtherance of a widespread or systematic policy or

practice aimed at destroying such group"; see consideration 4 above). In

addition, the representative of Finland disputed the proposed age limit of

fifteen years in article 6(e)(2).

US

The representative of the United States, when asked to comment on the

critique, argued that the proposed elements of crimes, although not

literally emanating from the Rome Statute or the Genocide Convention, were

implicit in the notion of genocide. Under the proposed elements of crimes,

any allegation of genocide was rendered more provable. Moreover, the

wording of the relevant provisions of the Genocide Convention was aimed at

creating an obligation for the states parties to outlaw and punish, through

domestic implementing legislation, genocide. The text of the Rome Statute

itself did not offer enough guidance as to the establishment of individual

culpability. Hence the need for concrete provisions, such paragraphs

6(a)(3), 6(b)(4), 6(c)(5), 6(d)(5) and 6(e)(3) of DP.4, on the context of

the crime. Absent these contextual elements, the burden of proving intent

would be excessively troublesome.

Guatemala

The representative of Guatemala discussed the nature of the elements of

crimes in light of articles 9 and 21 of the Rome Statute. He concluded that

the text was legally binding and that great caution was therefore warranted

when drafting elements of crimes. In addition, he proposed that the intent

requirements, as put forth in articles 6(a)(1), 6(b)(1), 6(c)(1), 6(d)(1)

and 6(e)(1) of DP.4, be substituted by one general provision inserted

between the headline "III. Article 6: Crimes of Genocide" and the

individual articles. This would make the text less repetitious.

Australia

Australia emphasized that the elements of crimes must be flexible, simple

and consistent with the Rome Statute. The representative argued that the

first element of all articles, the intent provisions, was necessary, and

that the locution "one or more" in the second element was desirable.

Nevertheless, the provision stating that the perpetrator must have

committed genocide in "conscious furtherance of a widespread or systematic

policy or practice aimed at destroying such group"(paragraphs 6(a)(3),

6(b)(4), 6(c)(5), 6(d)(5) and 6(e)(3)), was criticized for going beyond and

altering the definition of genocide as provided by the Rome Statute and the

Genocide Convention. Furthermore, the focus in para. 6(b)(3) and 6(d)(4) on

result/effect rather than on danger was challenged, as was the term

"physical harm" (the term "bodily harm" would be preferred by Australia).

According to the representative, element 6(c)(4) was beyond the scope of

the Rome Statute, the term "forcibly" in para. 6(d)(2) should be excluded,

and, finally, the age limitation and the "lawful residence" requirements in

para. 6(e)(2) seemed suspect.

Poland

Poland agreed with Guatemala on the need for a methodology and argued that

the question whether the elements of crimes are binding should be addressed

first. As for the US proposal on elements of crimes for article 6, Poland

did not view it as a problem that some elements were repeated throughout

the text, because the court will look at each crime and each element of

crime separately.

Holy See

The Holy See endorsed generally the statements of Finland and Australia and

then turned to the question of age limitations in DP.4 para. 6(e)(2).

Because of the multitude of various age limits prevalent in international

legal instruments, including the Geneva Conventions and the convention on

the Rights of the Child, the Holy See proposed that the reference to the

age of fifteen be omitted.

Pakistan

While praising the US paper for its form and structure, Pakistan claimed

that it fell short in substance. It targeted, i.e., the word "systematic"

in para 6(a)(3).

Portugal

Portugal joined all those who emphasized the condition in article 9(3) of

the Rome Statute, which provides that the elements of crimes must not go

beyond the Rome Statute. In particular paragraphs 6(a)(3), 6(b)(4),

6(c)(5), 6(d)(5) and 6(e)(3), providing that the perpetrator must have

committed genocide in "conscious furtherance of a widespread or systematic

policy or practice aimed at destroying such group", were targeted for their

alleged lack of basis in both the Rome Statute and the Genocide Convention.

France

France explored in some length an idea according to which comments would be

inserted under each article in the text on the elements of crimes, and

promised to return at a later stage with some draft comments. These

comments would focus on international case law, e.g., the Akayesu

(ICTR-96-4) judgement from the International Criminal Tribunal for Rwanda.

Russia

Russia pointed out that the success of the work of defining the elements of

crimes depended on whether the balance achieved in Rome can be maintained.

Moreover, the Russian representative defended the DP.4. In the Russian

interpretation, the Rome Statute and the Genocide Convention define

jurisdiction, whereas the US proposal adjusts the text to fit individual

liability. Additionally, Russia was skeptical about the wisdom of the age

of fifteen requirement in DP.4 para. 6(e)(2). This should be suppressed or

raised to eighteen years.

Trinidad and Tobago

The representative of Trinidad and Tobago warned against distorting the

language oft he Rome Statute, and criticized the age limit and the

reference to "lawful residence" in DP.4 para 6(e)(2).

Phillippines

The Phillippines criticized the element in paragraphs 6(a)(3), 6(b)(4),

6(c)(5), 6(d)(5) and 6(e)(3) ["...conscious furtherance of a widespread or

systematic policy or practice aimed at destroying such group"] of the US

proposal. Furthermore, the Philippine representative endorsed in general

terms the Australian declaration. As for the Spanish paper, the

Phillippines praised the approach and pointed out advantages with the

"scientific" Spanish method, but contended that it would take too long for

the Commission to consider the text. Finally, the representative objected

to the inclusion of international case law (as proposed by France).

Germany

According to the German delegation, both the intent requirement (see

consideration 3 above) and the condition that the perpetrator of genocide

act in "conscious furtherance of a widespread or systematic policy or

practice aimed at destroying such group" (DP.4 paragraphs 6(a)(3), 6(b)(4),

6(c)(5), 6(d)(5) and 6(e)(3); consideration 4 above) lacked to some extent

consonance with the Rome Statute and the Genocide Convention. The

representative explained that those two instruments apply to two principal

groups of perpetrators, the planners (the superiors) and those who carry

out the decisions (the subordinates). The subordinate may not have the same

knowledge about the atrocities as the superior, but should be equally

punished; since the "...conscious furtherance..." element obstruct this, it

should be deleted. Germany also felt unconvinced by the American implicit

theory of the elements of crimes. The representative of Germany concluded

that the elements of crimes should be carefully drafted and precise, in

particular the mens rea element, that the text should rather be short and

incomplete than long and defective (less is more), and that the French

proposal to include comments should be ignored since it would complicate

the work of the Commission.

Japan

Japan endorsed generally the US paper and stressed the need for clarity in

the text of the elements of crimes. The representative of Japan made two

points that he deemed particularly important, namely (a) that it could be

discussed whether the "conscious furtherance" requirement should be omitted

(see consideration 4 above) and (b) that the fifteen years of age proviso

(see consideration 6 above) should be upheld.

Turkey

Turkey was skeptical to the "conscious furtherance of a widespread..."

requirement (consideration 4 above), and warned against reopening the Rome

Statute.

Costa Rica

Costa Rica wanted to include explicitly in the elements of crimes acts of

sexual violence, in accordance with the case law of the ICTR. Nothing new

would thereby be created, according to the representative. Lastly, the age

limit should be raised to the age of eighteen, in correspondence to the

Convention on the Rights of the Child.

Sierra Leone

The representative of Sierra Leone saluted the states and organizations

which had submitted papers, and congratulated the chairman of the working

group to his election.

Mexico

Mexico objected to the inclusion of new conditions ("conscious furtherance

of a widespread...", consideration 4 above), and criticized the age

limitation and the lawful residence provisions in DP.4 6(e)(2).

Switzerland

Generally, Switzerland disagreed with those who wanted to start the work

session with a discussion on the nature of the elements of crimes before

considering them directly. As for the proposed elements of crimes in DP.4,

the Swiss delegation objected to the "conscious furtherance of a

widespread..." requirement (consideration 4 above), criticized the "effect"

and "result" requirements in DP.4 para. 6(b)(3), 6(c)(4) and 6(d)(4) (the

attempt should be punishable as well), and objected to the "lawful

residence" and fifteen years old conditions laid down in DP.4 para 6(e)(2).

Netherlands

The Netherlands wanted to omit the age requirement in DP.4 para 6(e)(2).

Its representative questioned the "lawful residence" requirement in that

same paragraph and criticized the requirement on "conscious furtherance of

a widespread..." (consideration 4 above).

Spain

Spain asserted that the language of the elements of crimes must be strictly

within the scope of the Rome Statute and yet flexible. The Spanish

delegation felt that the "conscious furtherance of a widespread..."

requirement (consideration 4 above) was unacceptable. They opposed the

French idea to insert international case law in comments under each group

of elements of crimes, and Spain furthermore criticized the focus on

"effect" and "result" in the US proposal.

UK

The representative of the UK advised against unnecessary detail in drafting

the elements of crimes. The UK felt ambivalent concerning the element

stating that the unlawful act must be committed in "conscious furtherance

of a widespread or systematic policy or practice aimed at destroying such

group"(DP.4, paragraphs 6(a)(3), 6(b)(4), 6(c)(5), 6(d)(5) and 6(e)(3)).

The UK remarked that more explanations from the US would be necessary

regarding DP.4 para. 6(c)(2) and asked whether fifteen was an appropriate

age for the purposes of article 6(e). Lastly, the representative of the UK

urged the commission to think about how to deal with acts of sexual

violence in the context of genocide and in light of the evolution of the

ICTR case law.

Colombia

The representative of Colombia was the last to speak at this meeting of the

Working Group on Elements of Crimes. He questioned the wording of DP.4,

paragraphs 6(a)(3), 6(b)(4), 6(c)(5), 6(d)(5) and 6(e)(3) ("conscious

furtherance of a widespread or systematic policy or practice aimed at

destroying such group") and expressed some concern about the "effect" and

"result" focus in DP.4 para. 6(b)(3), 6(c)(4) and 6(d)(4).