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DRAFT CODE OF OFFENCES AGAINST THE PEACEAND SECURITY OF MANKIND
[Agenda item 5]
DOCUMENT A/CN.4/398*
Fourth report on the draft Code of Offences against the Peace and Security of Mankind,by Mr. Doudou Thiam, Special Rapporteur
[Original: French][11 March 1986]
CONTENTS
Paragraphs Page
INTRODUCTION 1 55
PART I. CRIMES AGAINST HUMANITY 2-67 55
A. Crimes against humanity prior to the 1954 draft code 3-27 551. Meaning of the word "humanity" 12-15 562. Meaning of the word crime in the expression crime contre la paix et la se'curite' de
/Tinman//^ (offence against the peace and security of mankind) 16-19 573. Content of crimes against humanity 20-27 57
B. Crimes against humanity in the 1954 draft code 28-65 581. Genocide 29-59 58
(a) The purpose of genocide 30 58(b) The number of victims 31-51 58(c) Belligerency 52-59 60
2. Inhuman acts 60-63 603. Apartheid 64-65 61
C. Serious damage to the environment 66-67 61
PART II. WAR CRIMES 68-88 61
A. Terminology problems 69-76 61
B. Substantive problems: war crimes and crimes against humanity 77-80 62
C. Methodology problems 81-88 62
PART III. OTHER OFFENCES 89-145 63
A. Complicity 92-117 631. Complicity in internal law 93-99 63
2. Complicity in international law 100-117 64(a) Limited content 101-105 64(b) Extended content 106-117 65
(i) Complicity of leaders 106-112 65(ii) Complicity and concealment 113-114 66
(iii) Complicity and membership in a group or organization 115-117 66
B. The limits of extended complicity: complot and conspiracy 118-131 66
C. Attempt 132-145 681. Content in internal law 133-141 682. Content in international law 142-145 69
PART IV. GENERAL PRINCIPLES 146-259 70
A. Principles relating to the juridical nature of an offence against the peace and security ofmankind 147 70
Incorporating documents A/CN.4/398/Corr.l-3.
53
54 Documents of the thirty-eighth session
Paragraphs Page
B. Principles relating to the international offender 148-149 701. The offender as a subject of international law 148 702. The offender as a human being 149 70
C. Principles relating to the application of criminal law in time 150-172 701. The non-retroactivity of criminal law 151-163 70
(a) Content of the rule 151-157 70(b) The rule nullum crimen sine lege and the Niirnberg trial 158-161 71
(i) The rule was violated 159 71(ii) The rule was respected 160-161 71
(c) Non-retroactivity and contemporary law 162-163 722. Non-applicability of statutory limitations to offences against the peace and security of
mankind 164-172 72
D. Principles relating to the application of criminal law in space 173-176 72
E. Principles relating to the determination and extent of responsibility 177-258 731. General considerations 177-184 732. Exceptions to criminal responsibility 185-253 74
(a) Coercion 191-193 75(b) Stateof necessity and force majeure 194-201 75(c) Error 202-216 76
(i) Erroroflaw 204-211 76a. Internal legality 205 76b. Lawfulness of the act in international law 206-211 76
(ii) Error of fact 212-216 77(d) Superior order 217-234 77
(i) The order and coercion 218-226 77(ii) The order and error 227-234 78
(e) Official position of the perpetrator of the offence 235-240 79if) Reprisals and self-defence 241-253 80
Part I. Definition and characterizationArticle 1. Definition 82Article 2. Characterization 82
Part II. General principlesArticle 3. Responsibility and penalty 82Article 4. Universal offence 82Article 5. Non-applicability of statutory limitations 83Article 6. Jurisdictional guarantees 83Article 7. Non-retroactivity 83Article 8. Exceptions to the principle of responsibility 83Article 9. Responsibility of the superior 83
Comments concerning articles 1 to 9 83
CHAPTER II. OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
Article 10. Categories of offences against the peace and security of mankind 83
Part I. Crimes against peaceArticle 11. Acts constituting crimes against peace
Paragraph 1 [aggression] 83Comments 84
Paragraph 2 [threat of aggression] 84Paragraph 3 [interference] 84
Comments 84Paragraph 4 [terrorism] 84
Comments 85Paragraph 5 [violation of treaties concerning maintenance of peace] 85Paragraph 6 [violation of treaties prohibiting deployment or testing of weapons] 85
Part III. War crimesArticle 13. Definition of war crimes
First alternative 86Second alternative 86
Comments 86
Part IV. Other offences
Article 14A [conspiracy] [complot]
First alternative 86Second alternative 86
Comments 86B. [complicity] 86
Comments 86C. [attempt] 86
Comments 86
Introduction
1. This report deals with crimes against humanity, war crimes, other offences,general principles and the draft articles. It therefore consists of the following fiveparts:
Part I. Crimes against humanity;Part II. War crimes;Part III. Other offences;Part IV. General principles;Part V. Draft articles.
PART I
Crimes against humanity
2. We shall first consider crimes against humanityprior to the 1954 draft code, and then crimes againsthumanity in that draft code.1
A. Crimes against humanity priorto the 1954 draft code
3. The term "crime against humanity" first appearedin the London Agreement of 8 August 1945 establishingthe International Military Tribunal.2 In the course ofthe preparatory work, it had become apparent that cer-tain crimes committed during the Second World War
1 Adopted by the Commission at its sixth session, in 1954 (Year-book . . . 1954, vol. II, pp. 151-152, document A/2693, para. 54);text reproduced in Yearbook . . . 1985, vol. II (Part Two), p. 8,para. 18.
2 United Nations, Treaty Series, vol. 82, p. 279.
were not, strictly speaking, war crimes. These werecrimes whose victims were of the same nationality as theperpetrators, or nationals of an allied State.
4. These crimes were committed for different motives.As early as March 1944, the representative of the UnitedStates of America on the Legal Committee of the UnitedNations War Crimes Commission proposed that crimescommitted against stateless persons or any other personby reason of their race or religion should be declared"crimes against humanity". In his view, these werecrimes against the very foundations of civilization,wherever or whenever they were committed.3
5. Thus crimes against humanity were defined as of-fences separate from war crimes in the Charter of the
3 History of the United Nations War Crimes Commission and theDevelopment of the Laws of War (London, H.M. Stationery Office,1948), p. 175.
56 Documents of the thirty-eighth session
International Military Tribunal4 (art. 6 (c)), in LawNo. 10 of the Allied Control Council5 (art. II, para.1 (c)), and lastly in the Charter of the InternationalMilitary Tribunal for the Far East6 (art. 5 (c)).
6. It should be recalled that crimes against humanityas defined in the aforementioned instruments werelinked to the state of belligerency. For some time, thishistorical circumstance prevented crimes againsthumanity from being regarded as an autonomous con-cept, for the jurisdictions established to punish crimesagainst humanity considered only offences directly orindirectly related to the war. It must be acknowledgedthat war naturally provides the best opportunity andmost propitious circumstances for the perpetration ofcrimes against humanity. War and crimes againsthumanity go hand in hand. As will be seen, most warcrimes are also crimes against humanity. Although theterm "crime against humanity" appeared only re-cently, the phenomenon to which it refers has a longhistory. It is as old as war. That is why war crimes andcrimes against humanity were long confused with oneanother. The concept of war crimes encompassed thatof crimes against humanity and the penalties inflictedfor the former constituted punishment for the latteralso.
7. In the introduction to his draft internationalcriminal code,7 Cherif Bassiouni notes that the firsttreaties between the Egyptians and the Sumerians forthe regulation of war were concluded before 1000 B.C;that the ancient Greeks and Romans enacted laws on theright of asylum and the treatment of the wounded andprisoners; and that, from 623, the conduct of war byMuslims was regulated by the Koran. Later, the prob-lem was also dealt with by the Catholic Church, par-ticularly at the Lateran Councils and the Councils ofLyon in the twelfth and thirteenth centuries. The doc-trinal bases for the regulation of armed conflicts werelaid down in the Summa theologiae of St. ThomasAquinas and De Jure Belli ac Pads by Grotius.
8. In Asia, the civilizations of the Chinese (The Artof War by Sun Tzu, in the fourth century B.C.) and theHindus (Laws ofManu, about the same period) likewiseregulated war and adopted measures to protect thewounded and old people.
9. Humanitarian law has developed considerably inmodern times: 1856 Paris Declaration; Red Cross Con-vention (Geneva, 1864); 1868 St. Petersburg Declara-tion; 1874 Brussels Declaration; 1899 and 1907 HagueConventions; 1925 Geneva Protocol for the Prohibitionof the Use in War of Asphyxiating, Poisonous or OtherGases, and of Bacteriological Methods of Warfare;
4 Hereinafter referred to as the "Niirnberg Charter"; annexed tothe 1945 London Agreement (see footnote 2 above).
5 Law relating to the punishment of persons guilty of war crimes,crimes against peace and against humanity, enacted at Berlin on20 December 1945 (Allied Control Council, Military GovernmentLegislation (Berlin, 1946)).
6 Hereinafter referred to as the "Tokyo Charter"; published inDocuments on American Foreign Relations (Princeton UniversityPress), vol. VIII (July 1945-December 1946) (1948), pp. 354 et seq.
7 International Criminal Law: A Draft International Criminal Code(Alphen aan den Rijn, Sijthoff & Noordhoff, 1980), pp. 5-6.
Geneva Conventions of 12 August 1949 and their Ad-ditional Protocols of 8 June 1977.
10. It is true that these instruments were primarilyconcerned with war crimes. However, as will be ex-plained in greater detail below, war crimes are often in-dissolubly linked to crimes against humanity, and thedistinction between the two is not always clear. In draw-ing up the Niirnberg Principles in 1950," the Inter-national Law Commission touched on this aspect of thequestion in Principle VI (c). The autonomy of crimesagainst humanity was merely relative, in so far as therepression of such crimes depended on the existence of astate of war.
11. However, this relative autonomy has now becomeabsolute. Today, crimes against humanity can be com-mitted not only within the context of an armed conflict,but also independently of any such conflict. It is, ofcourse, necessary to define the content of this concept.This is an area which lends itself to romanticism; alyrical style has sometimes been used even in judicial de-cisions, which are necessarily couched in terms that arestrict and cold.
1. MEANING OF THE WORD "HUMANITY"
12. The first question to consider is the meaning of theword "humanity". As Henri Meyrowitz has observed:"the ambiguity of the very term 'humanity' invites us tobe cautious when seeking to introduce this concept intothe definition of incrimination".9 He refers to the threemeanings that have been given to this term: that ofculture (humanism, humanities), that of philanthropyand that of human dignity. A crime against humanitycould then be conceived in the threefold sense of crueltydirected against human existence, the degradation ofhuman dignity and the destruction of human culture.Viewed in the light of these three meanings, a crimeagainst humanity becomes quite simply "a crime againstthe entire human race". In English it has been called a"crime against human kind".
13. Some writers prefer the term "crime against thehuman person" to the term "crime against humanity".But the former would certainly raise the difficult prob-lem, which will be dealt with later, of whether a crimeagainst humanity must necessarily be of a mass natureor not, i.e. whether any serious attack on an individualconstitutes a crime against humanity. If the individual isviewed as the "custodian" and guardian of humandignity, the "custodian of the basic ethical values" ofhuman society, an attack on a single individual mayconstitute a crime against humanity, provided that it hasa specific character which shocks the human conscience.There is, as it were, a natural link between the humanrace and the individual: one is the expression of theother.
1 Yearbook . . . 1950, vol. II, pp. 374-378, document A/1316,paras. 95-127; reproduced in Yearbook . . . 1985, vol. II (Part Two),p. 12, para. 45.
9 H. Meyrowitz, La repression par les tribunaux allemands descrimes contre I'humanit^ et de I'appartenance a une organisationcriminelle en application de la loi n" 10 du Conseil de controle allie(Paris, Librairie generate de droit et de jurisprudence, 1960), p. 344.
Draft Code of Offences against the Peace and Security of Mankind 57
14. The Constance Tribunal, ruling in application ofLaw No. 10 of the Allied Control Council, declared that"the legal good protected by that Law is the individualwith his moral value as a human being, possessing allthe rights that all civilized peoples clearly recognize hepossesses".10 This was a judgment rendered by Germancourts trying crimes against German nationals commit-ted by other German nationals. However, the same ideais found in a decision of the Supreme Court of theBritish Zone, ruling by virtue of the same law on actscommitted by war criminals, in which it stated: "LawNo. 10 is based on the idea that, within the sphere ofcivilized nations, there are certain standards of humanconduct . . . which are so essential for the coexistenceof mankind and the existence of any individual that noState belonging to that sphere has the right to abandonthem."11
15. To sum up, in the term "crime against humanity",the word "humanity" means the human race as a wholeand in its various individual and collective manifesta-tions.
2. MEANING OF THE WORD CRIME IN THE EXPRESSION CRIMECONTRE LA PAIX ET LA SECURITE DE L'HUMANITE (OF-FENCE AGAINST THE PEACE AND SECURITY OF MANKIND)
16. In internal law, the word crime refers to the mostserious offences, both in the three-tier division (con-traventions (petty offences), delits (correctional of-fences) and crimes (criminal offences)) and in the two-tier division (correctional offences and criminal of-fences).
17. We may then pose the question whether the sameholds true in international law. Article 19 of part 1 ofthe draft articles on State responsibility12 deals withcrimes et delits internationaux ("international crimesand international delicts") and states, in paragraph 4:"Any internationally wrongful act which is not an inter-national crime in accordance with paragraph 2 con-stitutes an international delict."
18. It may be asked, however, whether the meaning ofthe word crime as used in article 19 coincides exactlywith its meaning in the expression crime contre la paix etla securite de Vhumanite. That coincidence is not ob-vious; in any event, it has not always been obvious.Originally, the word crime in the expression crimecontre la paix et la securite de Vhumanite was a genericterm synonymous with "offence". It covered allcategories of criminal acts. Of course, in most cases theacts covered were crimes (criminal offences) in thetechnical sense of the term. But sometimes the termcrime also covered correctional offences or even pettyoffences. The Charters of the international militarytribunals (Niirnberg and Tokyo), as well as Law No. 10,used the word crime ("crime") in the general sense of"offence", whatever the gravity of the offence con-cerned. In that connection, attention may be drawn to a
decision of the Supreme Court of the British Zonerendered on appeal against a judgment of a court offirst instance which, in consideration of the penalty in-flicted, had wrongly described the act as a delit contreVhumanite ("offence against humanity").13 Accordingto the court's decision, the word "offence" did not existin Law No. 10, even if the penalty inflicted corre-sponded to that kind of transgression. The word crime("crime") in the expressions "crime against humanity"and "war crime" was a general term covering acts ofdifferent degrees of gravity, although, as noted above, itreferred in most cases to very serious acts. The wordcrime was synonymous with "offence" in the broadestsense of that term. It covered petty offences as well asthe most serious acts. It is for that reason that article 50of the 1949 First Geneva Convention14 subsequentlydrew a distinction between "grave breaches" and otherbreaches.
19. Today, the Commission has taken a decision onthe matter. It has decided that the word crime (offence)should not cover all offences, but only the most seriousones.
3. CONTENT OF CRIMES AGAINST HUMANITY
20. Defining the content of the word "humanity" andthat of the word "crime" is not sufficient to define thecontent of the expression "crime against humanity".This concept is so rich in substance that it is difficult toencapsulate it in a single formula. Several definitionshave been suggested, but each has emphasized one ormore essential elements of these crimes, without em-bracing all their elements.
21. Some definitions emphasize the character of thecrime: its barbarity, brutality or atrocity. Thus theAustrian Constitutional Act of 26 June 1945 states:"Any person who, during the period of NationalSocialist tyranny, and in abuse of his authority, placedothers in an intolerable situation . . . for motives ofpolitical animosity is guilty of the crime of barbarityand brutality."15 This formula has been criticized. Ac-cording to some, barbarity and atrocity are notnecessary elements. The humiliating and degradingtreatment and the outrages upon personal dignity re-ferred to in the 1949 Geneva Conventions likewiseconstitute crimes against humanity.
22. Other definitions stress the infringement of aright: "infringement of fundamental rights": the rightto life, to health, to physical well-being, to freedom(resolution of the eighth International Conference forthe Unification of Penal Law).16
10 Tillessen case (Siiddeutsche Juristenzeitung (Heidelberg), 1947,col. 337, at col. 339); cited in Meyrowitz, op. cit., p. 346, footnote 15.
" Entscheidungen des Obersten Gerichtshofes fur die BritischeZone in Strafsachen {O.G.H. br. Z.) (Berlin, 1949), vol. 2, p. 271;cited in Meyrowitz, op. cit., p. 347.
12 Yearbook . . . 1980, vol. II (Part Two), p. 32.
13 O.G.H. br. Z. (see footnote 11 above), vol. 1, pp. 48-49; citedin Meyrowitz, op. cit., p. 246. The expression "offence against hu-manity" is a translation of the Special Rapporteur's French text andnot a quotation from the official text of the court's decision.
14 United Nations, Treaty Series, vol. 75, p. 31.15 Constitutional Act on war crimes and other National Socialist
outrages, art. 3, para. 1 (Staatsgesetzblattfur die Republik Osterreich,28 June 1945, No. 32, p. 56).
16 Resolution on crimes against humanity, adopted by the eighthConference (Brussels, 10-11 July 1947); see Actes de la Conference(Paris, Pedone, 1949), pp. 227-228.
58 Documents of the thirty-eighth session
23. Yet other definitions emphasize the mass nature ofcrimes against humanity (extermination or enslavementof peoples or groups of individuals). The question has,however, been widely discussed and the condition thatsuch crimes must necessarily be mass crimes has notalways been accepted. It is true that article 19 of part 1of the draft articles on State responsibility refers to abreach "on a widespread scale" of an internationalobligation (para. 3 (c)). But this point of view is notunanimously accepted.
24. The concept is so rich in substance that the debatecould go on forever. Some writers stress the legal per-sonality of the perpetrator. In their view, crimes againsthumanity are State crimes. According to EugeneAroneanu, "a crime against humanity, before being a'crime', is an act of State sovereignty, an act by which aState attacks, for racial, national, religious or politicalreasons, the freedom, rights or life of a person or groupof persons".17 Other writers, however, consider thatcrimes against humanity can also be committed by in-dividuals, even if they are exercising a power of theState.
25. The only element which seems to be unanimouslyaccepted is the motive. All writers, all judicial decisionsand all the resolutions of international congresses agreethat what characterizes a crime against humanity is themotive, i.e. the intention to harm a person or group ofpersons because of their race, nationality, religion orpolitical opinions. What is involved is a special intentionwhich forms part of the crime and gives it its specificnature.
26. In effect, article 6 (c) of the Niirnberg Charter, ar-ticle II, paragraph 1 (c) of Law No. 10 of the AlliedControl Council, and article 5 (c) of the Tokyo Charterall refer to the motive for the criminal act, although thewording used sometimes varies. That is why the draftersof those texts, in defining a crime against humanity,preferred not to limit themselves to a synoptic formula,but rather to combine a general definition with an il-lustrative list.
27. Even in this case, however, the autonomy of theconcept remained limited and subordinated to the ex-istence of a state of war, as noted above (para. 10).Such was the state of law prior to 1954.
B. Crimes against humanity in the 1954 draft code
28. The 1954 draft code first rendered crimes againsthumanity autonomous by detaching them from the con-text of war. It then endowed the concept with a bipartitecontent by drawing a distinction between the crime ofgenocide and other "inhuman acts". These two of-fences are covered in article 2, paragraphs (10) and (11),of the 1954 draft. The problem which arises at this stageis to determine why the 1954 draft separated"genocide" from "inhuman acts".
1. GENOCIDE
29. There is no doubt that genocide, as described inarticle 2, paragraph (10), and the "inhuman acts" des-cribed in paragraph (11) of that article constitute crimesagainst humanity. There are, however, divergent viewsconcerning the specific nature of genocide, dependingon the angle from which it is considered. In effect, it canbe considered from two angles: its purpose and thenumber of victims involved.
(a) The purpose of genocide
30. If genocide is considered from the point of view ofits purpose, there can be no doubt that a distinctionmust be drawn between this crime and other inhumanacts, for the purpose here, as specified in the 1948 Con-vention on the Prevention and Punishment of the Crimeof Genocide,18 is "to destroy,* in whole or in part, anational, ethnical, racial or religious group*" (art. II).It is true that other inhuman acts may likewise be com-mitted for national, racial or religious reasons, but thepurpose is not necessarily to destroy a group consideredas a separate entity. Genocide has specific features whenviewed from this angle.
(b) The number of victims
31. If genocide is considered from the point of view ofthe number of victims, the question is whatdistinguishes it from other inhuman acts. Some writerssee no difference between genocide and other crimesagainst humanity. According to Stefan Glaser, "it . . .seems certain that the drafters of the Convention onGenocide and of the draft code intended toacknowledge that genocide had been committed evenwhen the act (murder, etc.) had been committed againsta single member of a particular group, with the inten-tion of destroying the latter 'in whole or in part' " . " Inhis view, "it is the intention* . . . which is decisive forthe concept of genocide".
32. The question then arises whether the other crimesagainst humanity referred to as "inhuman acts" in the1954 draft code also imply a mass element. This is animportant question which arises in the decisions of themilitary tribunals established by virtue of Law No. 10 ofthe Allied Control Council.
33. A certain current of opinion emerged in favour ofa mass element. According to the Legal Committee ofthe United Nations War Crimes Commission:
Isolated offences did not fall within the notion of crimes againsthumanity. As a rule systematic mass action, particularly if it wasauthoritative, was necessary to transform a common crime,punishable only under municipal law, into a crime against humanity,which thus became also the concern of international law. Only crimeswhich either by their magnitude and savagery or by their large numberor by the fact that a similar pattern was applied at different times andplaces, endangered the international community or shocked the con-science of mankind, warranted intervention by States other than thaton whose territory the crimes had been committed, or whose subjectshad become their victims.20
17 E. Aroneanu, Le crime contre I'humanM (Paris, Dalloz, 1961),pp. 56-57.
11 United Nations, Treaty Series, vol. 78, p. 277." S. Glaser, Droit international pinal conventionnel (Brussels,
Bruylant, 1970), p. 112.20 History of the United Nations War Crimes Commission
op. cit. (footnote 3 above), p. 179.
Draft Code of Offences against the Peace and Security of Mankind 59
34. However, contrary views were expressed.21 Thusthe International Congress of the Mouvement nationaljudiciaire francais, in its resolution on the punishmentof Nazi crimes against humanity, adopted in October1946, declared: "Any persons who exterminate orpersecute an individual* or a group of individuals byreason of their nationality, race, religion or opinions areguilty of crimes against humanity and punishable assuch."22
35. Similar views are found in the reports submitted tothe eighth International Conference for the Unificationof Penal Law, held at Brussels in July 1947.23
36. In the Brazilian report to that Conference, Rob-erto Lyra, professor in the Faculty of Law in Rio deJaneiro, proposed the following definition: "Any act oromission which constitutes a serious threat or physicalor mental violence towards an individual* by reason ofhis nationality, race, or religious, philosophical orpolitical views shall be deemed a crime of lese-humanite."2*
37. In their report, the delegates from theNetherlands, W. P. J. Pompe, Rector of the Universityof Utrecht, and B. H. Kazemier, adviser in the Ministryof Justice, proposed as a definition of a crime againsthumanity: "to exterminate or place in an intolerablesituation, in breach cf the general principles of lawrecognized by civilized peoples, an individual* or agroup of individuals by reason of their nationality,religion or opinions".25
38. In the Polish report, submitted by GeorgesSawicki, Advocate General in Warsaw, the followingdefinition was proposed: "Any person who commits anoffence jeopardizing the life, health, bodily integrity,liberty, honour or property of a person* or a group ofpersons . . . shall, if the act was committed for reasonsof nationality, religion, race or political beliefs, beguilty of a crime against humanity."26
39. In the report of the Holy See, submitted by itsdelegate, Pierre Bondue, "any attack . . . upon therights . . . of any human being by reason of his op-inions, nationality, race, caste, family or profession"27
was considered to constitute the crime.
40. The Swiss delegate, Jean Graven, professor in theFaculty of Law in Geneva, submitted the followingdraft definition in his report:
Any person who, without right and for reasons of race, nationality,religion, political beliefs or opinions, attacks or endangers the liberty,health, bodily integrity or life of a person* or a group of persons, inparticular by deportation, enslavement, ill-treatment or extermi-
nation, whether in time of war or in time of peace, commits a crimeagainst the human person (or humanity) and is punishable therefor.21
41. Furthermore, Andre Boissarie, procureur generalat the Court of Appeals of Paris, had, within theframework of the Mouvement national judiciairefrancais, prepared a draft convention, article 5 of whichprovided: " 'Crimes against humanity' are crimes com-mitted against a human individual* or group by reasonof nationality, race, religion or opinions."2'
42. Henri Meyrowitz discusses the question of a masselement at length in his remarkable work. He contendsthat:. . . Crimes against humanity must in fact be interpreted as comprisingnot only acts directed against individual victims, but also acts of par-ticipation in mass crimes . . .
It is no longer necessary that there should be a plurality of victimsor a plurality of acts. The concept of a crime against humanitydoubtless derived from a historical criminal phenomenon, one ofwhose main characteristics was its mass nature: a great number ofacts, a great number of agents, a great number of victims. . . . But [amass nature] is a sociological condition of the phenomenon of crimesagainst humanity, not a constituent element of the offence.30
43. Legal writers thus disagree on the questionwhether a crime against humanity is necessarily of amass nature or not. The same disagreement appears injudicial practice.
44. The Supreme Court of the British Zone consideredthat the mass element was not essential to the legaldefinition of a crime against humanity, which refers notonly to extermination—which implies a mass element—but also to murder, torture or rape, which can involvea single isolated act.31
45. The United States military tribunals, on the otherhand, considered that the mass element formed an in-tegral part of a crime against humanity. In the Justicecase, senior officials of the Nazi judicial system werefound guilty of "conscious participation in a nation-wide Government-organized system of cruelty* andinjustice". The tribunal therefore stated that the defi-nition should not cover isolated cases of atrocities orpersecution.32
46. The Legal Committee of the United Nations WarCrimes Commission, after studying the definitions con-tained in the Niirnberg and Tokyo Charters and LawNo. 10 of the Allied Control Council, expressed asimilar view (see para. 33 above).
47. In the draft articles on State responsibility, theview that the crime must be of a mass nature appears toprevail, since, according to article 19, paragraph 3 (c),
21 See the memorandum prepared in 1950 by V. V. Pella at the re-quest of the Secretariat (original French text published in Yearbook. . . 1950, vol. II, pp. 278 etseq., document A/CN.4/39), para. 139(at pp. 348-349).
22 Revue Internationale de droitpinal (Paris), vol. 19(1948), p. 384.23 Actes de la Conference, op. cit. (footnote 16 above), pp. 108 et
seq.24 Ibid., p. 116."Ibid., p. 130."Ibid., p. 137.27 Ibid., p. 149.
"Ibid., p. 157.29 Revue Internationale de droit pinal (Paris), vol. 19 (1948), p. 382.30 Op. cit. (footnote 9 above), pp. 255 and 280.31 O.G.H. br. Z. (see footnote 11 above), vol. 1, pp. 13 and 231;
cited in Meyrowitz, op. cit., p. 254.32 See Trials of War Criminals before the Nuernberg Military
Tribunals under Control Council Law No. 10 (Nuernberg, October1946-April 1949) (15-volume series, hereinafter referred to as"American Military Tribunals") (Washington (D.C.), U.S. Govern-ment Printing Office, 1949-1953), case No. 3, vol. Ill, p. 985; cited inMeyrowitz, op. cit., pp. 252-253.
60 Documents of the thirty-eighth session
an international crime may result from "a seriousbreach on a widespread scale* of an internationalobligation of essential importance for safeguarding thehuman being".
48. The distinction resulting from the mass nature ofthe act is, in any case, not conclusive. There are thosewho still consider that the systematic violation of asingle human right is a crime against humanity.
49. The question therefore arises whether the elementof seriousness could serve as a differentiating factor.Stefan Glaser believes that genocide is "only an ag-gravated case" of a crime against humanity. The twoconcepts differ only in degree and not in nature.33 Ac-cording to Glaser, the distinction is all the more difficultto maintain because, when the motives are considered,the difference between destroying an "ethnic group"and destroying a "political group" is not apparent.
50. Vespasien V. Pella, however, does not share thatview. According to him, the concepts of genocide andcrimes against humanity do not overlap:
Indeed, there is no genocide within the meaning of the Conventionof 9 December 1948 if the act was directed against a political group.By contrast, persecution for political reasons may constitute a crimeagainst humanity within the meaning of article 6 (c) of the Charter ofthe Niirnberg Tribunal.34
Carrying his reasoning to its limit, he considers that thedifference between the two concepts is such thatgenocide should be excluded from the code. Accordingto him, the fact that there is a separate Convention onGenocide makes superfluous its inclusion in a code ofoffences against the peace and security of mankind, andhe believes that "the independence and separate ex-istence of the Convention on Genocide should be main-tained".35
51. That extreme argument seems unacceptable;moreover, it was not accepted by the Commission in1954. If all the wrongful acts which are the subject of aconvention had to be excluded from the code, the latterwould be nothing more than an empty shell. Further-more, most of the conventions do not cover the criminalaspect of wrongful acts, which is precisely the subject ofthe present draft code.
(c) Belligerency
52. It was also considered that belligerency might con-stitute an element that would serve to differentiate be-tween the two concepts. The Niirnberg Charter linkedcrimes against humanity with the state of belligerency.The military tribunals discussed the problem at greatlength. The United Nations War Crimes Commissionsummarized the debate in the following terms: "whilethe two concepts may overlap, genocide is differentfrom crimes against humanity in that, to prove it, noconnection with war need be shown".36
33 Op. cit. (footnote 19 above), p. 109.34 See memorandum, Yearbook . . . 1950, vol. II, p. 351, document
A/CN.4/39, para. 141."Ibid., p. 142.36 See Law Reports of Trials of War Criminals (15-volume series,
prepared by the United Nations War Crimes Commission) (London,H.M. Stationery Office, 1947-1949), vol. XV, p. 138.
53. In 1954, the Commission excluded belligerency asa factor for distinguishing between genocide and crimesagainst humanity. However, in the draft code, it re-tained the distinction between the two concepts, each ofthose offences being the subject of a separate paragraph(paragraphs (10) and (11) of article 2).
54. The Special Rapporteur considers that, for reasonswhich are based on the specific nature of the crime ofgenocide, the latter should be assigned a separate placeamong crimes against humanity.
55. As for the formulation of the draft article, it mustfirst be noted that the word "genocide" does not appearin the 1954 draft. However, article 2, paragraph (10),deals expressly with that phenomenon, and all the actslisted in that paragraph are acts of genocide. Moreover,the word "genocide" is used and defined in article II ofthe Convention of 9 December 1948. Except for thatdifference, the 1954 text reproduces the 1948 text wordfor word.
56. With regard to the elements contained in the twotexts, it may be asked whether the words "national,ethnic, racial" do not sometimes overlap, and whetherthere are not pleonasms, particularly in the use of thewords "ethnic" and "racial". It is clear that, althoughthose concepts may overlap, they are not identical.
57. A national group often comprises several differentethnic groups. States which are perfectly homogeneousfrom an ethnic point of view are rare. In Africa, in par-ticular, territories were divided without taking accountof ethnic groups, and that has often created problemsfor young States shaken by centrifugal movementswhich are often aimed at ethnic regrouping. With rareexceptions (Somalia, for example), almost all AfricanStates have an ethnically mixed population. On othercontinents, migrations, trade, the vicissitudes of warand conquests have created such mixtures that the con-cept of the ethnic group is only relative or may no longerhave any meaning at all. The nation therefore does notcoincide with the ethnic group but is characterized by acommon wish to live together, a common ideal, a com-mon goal and common aspirations.
58. The difference between the terms "ethnic" and"racial" is perhaps harder to grasp. It seems that theethnic bond is more cultural. It is based on culturalvalues and is characterized by a way of life, a way ofthinking and the same way of looking at life and things.On a deeper level, the ethnic group is based on acosmogony. The racial element, on the other hand,refers more typically to common physical traits. Ittherefore seems normal to retain these two terms, whichgive the text on genocide a broader scope covering bothphysical genocide and cultural genocide.
59. The other category of crimes against humanity tobe discussed is that referred to in the 1954 draft code as"inhuman acts".
2. INHUMAN ACTS
60. Article 2, paragraph (11), of the 1954 draft codedoes not give a general definition of inhuman acts butprovides a list of such acts. However, while the list in
Draft Code of Offences against the Peace and Security of Mankind 61
paragraph (10) concerning genocide is limitative, the listin paragraph (11) is illustrative.
61. Indeed, this area includes very diverse acts whichare very varied in their manifestations. The nature ofcrimes against humanity changes with technologicalprogress. The expression "crime against humanity"dates back to the Second World War precisely becauseof the cruelty made possible by such progress. Becauseof that evolving nature, any attempt to list all the crimesagainst humanity would narrow the scope of the subjectand might allow offences which are sometimes difficultto imagine before they are committed to go unpunished.
62. Without anticipating what will be said elsewhereabout war crimes (some of which are confused withcrimes against humanity), we can recall the methodfollowed in the Hague Convention (IV) of 18 October1907,37 the preamble to which states:. . . the high contracting Parties clearly do not intend that unforeseencases should, in the absence of a written undertaking, be left to the ar-bitrary judgment of military commanders.
Until a more complete code of the laws of war has been issued, thehigh contracting Parties deem it expedient to declare that, in cases notincluded in the Regulations adopted by them, the inhabitants and thebelligerents remain under the protection and the rule of the principlesof the law of nations, as they result from the usages established amongcivilized peoples, from the laws of humanity,* and the dictates of thepublic conscience.
63. Although there is no such reference in the 1954draft code to the principles of the law of nations, theusages established among civilized peoples, the laws ofhumanity and the dictates of the public conscience, it iscertain that those were the principles which governedthat text. Moreover, the code makes it clear that in-human acts are not limited to those listed in it.
37 Convention respecting the Laws and Customs of War on Land,see J. B. Scott, ed., The Hague Conventions and Declarations of 1899and 1907, 3rd ed. (New York, Oxford University Press, 1918),pp. 101-102.
3. APARTHEID
64. There is no doubt whatsoever that apartheid is acrime against humanity: only those who resist the courseof history could have such doubts. In his secondreport,38 the Special Rapporteur listed all the inter-national instruments relating to apartheid. Moreover, ifthe concept of jus cogens has any meaning, this caseprovides one of its most justified applications.
65. Without questioning the criminal nature of apart-heid, some thought that the term was too much linkedto a specific system to be the basis of a general rule. Butthat is not the prevailing argument. Apartheid, likemany other crimes, has its specific traits. Involuntaryand voluntary homicide and murder are crimes whichhave specific characteristics, but which neverthelessderive from the same basic act: killing. But that sameact has a different degree of seriousness according toeach case. Apartheid, like genocide, has a certain degreeof autonomy in the code, even though both are inhumanacts.
C. Serious damage to the environment
66. According to article 19, paragraph 3 (d), of part 1of the draft articles on State responsibility, "a seriousbreach of an international obligation of essential im-portance for the safeguarding and preservation of thehuman environment, such as those prohibiting massivepollution of the atmosphere or of the seas" is an inter-national crime.
67. It is not necessary to emphasize the growing im-portance of environmental problems today. The need toprotect the environment would justify the inclusion of aspecific provision in the draft code.
" Yearbook . . . 1984, vol. II (Part One), p. 89, documentA/CN.4/377, para. 44 (3) and footnote 34.
PART II
War crimes
68. The concept of war crimes calls for some com-ments concerning terminology problems, followed bysubstantive comments, and lastly some remarks con-cerning methodology problems.
A. Terminology problems
69. Here we are faced at the outset with a ter-minological difficulty. In traditional international law,the term "war" did not refer only to a sociological andpolitical phenomenon, but first and foremost to a legalconcept reflecting a state of international relationswhich created rights and obligations for those whowaged it. War itself was a right linked to sovereignty.The purpose of international conventions was thereforenot to prohibit war, but merely to regulate it. The idea
of an international convention prohibiting war, exceptin cases of self-defence, is relatively recent, dating fromthe 1928 Kellogg-Briand Pact.39 It gained groundespecially after the Second World War, with the adop-tion of the Charter of the United Nations.
70. However, although war is today a wrongful act, itis an enduring phenomenon. Unfortunately, the same istrue for many other crimes. It is not enough to declarean act illegal and prohibit it for mankind to be rid of it.The injunction against voluntary homicide and murderis age-old. Nevertheless, regrettably, voluntaryhomicide and murder occur every day. If prohibiting anact were enough to banish it from human behaviour,there would be no police, no legal system and no penalsystems.
" League of Nations, Treaty Series, vol. XCIV, p. 57.
62 Documents of the thirty-eighth session
71. Thus the prohibition of war did not make it dis-appear. It can be said, however, that prohibiting warplaced it in a new perspective which entails legal im-plications. The first is, naturally, that the "declarationof war" becomes a wrongful act. Nowadays, war, evenwhen declared in the manner formerly required, is con-sidered as aggression.
72. Yet even though war has become a wrongful actand can no longer legitimate any right, the basicphenomenon—that is, armed conflict—still exists andone would have to be very naive indeed not to continueto be concerned by it. The 1954 draft code prohibitedacts "in violation of the laws or customs of war"(art. 2, para. (12)). In order to find a formula in con-formity with the law, it was suggested that the term"war" should be deleted from that expression. But itwould be absurd to consider an act criminal and, at thesame time, seek to lay down rights and duties for itsperpetrators. However, to refrain, for that reason, fromlimiting the excesses and abuses which are committedduring armed conflicts would be more than naive; itwould be foolish and wrong.
73. Moreover, the prohibition of war does not rule outsituations (self-defence, peace-keeping operations) inwhich the use of force, although allowed, must berestricted to well-defined limits.
74. A law of armed conflict thus remains essential.The only problem that arises in this regard is one of ter-minology, namely whether the term "war" should beabandoned and replaced by "armed conflict".
75. There are arguments in favour of this idea, par-ticularly since the appearance of new types of armedconflict which do not always pit State against State butmay pit State entities against non-State entities (nationalliberation movements, partisan movements, etc.). Non-international armed conflicts were covered as early as1949 by article 3 of the First Geneva Convention. Thetwo Additional Protocols of 1977 to the 1949 GenevaConventions, concerning armed conflicts,40 confirmedthis idea, namely that the conflict need not be one be-tween States for the "laws or customs of war" to be ap-plicable. Article 1, paragraph 4, of Protocol I providesthat the situations referred to in article 2 common to theGeneva Conventions include "armed conflicts in whichpeoples are fighting against colonial domination andalien occupation and against racist regimes in the exer-cise of their right of self-determination". As a result ofthis provision, combatants and prisoners of wars ofnational liberation have been put in the same categoryas combatants and prisoners of war "of any otherarmed conflict" within the meaning of article 2 com-mon to the four Geneva Conventions.
76. It follows from these brief remarks that the con-cept of war in the traditional sense has been shattered. Itno longer applies exclusively to inter-State relations, butencompasses any armed conflict pitting State entitiesagainst non-State entities. In other words, it is no longerwar in the formal sense, but war in the material sense,
40 United Nations, Juridical Yearbook 1977 (Sales No. E.79.V.1),p. 95 (Protocol I) and p. 135 (Protocol II).
i.e. its content (the use of armed force), which is re-ferred to here. Therefore the term "war" is used in thisreport in the material sense of armed conflict, not in theformal and traditional sense of inter-State relations.
B. Substantive problems: war crimes and crimesagainst humanity
77. The substantive problems concern the distinctionbetween war crimes and crimes against humanity. It isnot always easy to draw a distinction between a warcrime and a crime against humanity. Whether one con-siders the two concepts from the point of view of theircontent or that of their scope, they will be seen tooverlap, and this often makes it difficult to distinguishbetween them.
78. Although the two concepts are distinct, the sameact may, at the same time, constitute a war crime and acrime against humanity. If voluntary homicide andmurder are committed during an armed conflict, theymay constitute crimes against humanity as well as warcrimes. To be deemed as such, it is enough for them tohave been committed for political, racial or religiousmotives. The same deeds, committed for the samemotives outside the context of armed conflict, are sim-ply crimes against humanity.
79. This possible dual characterization has its advan-tages. Indeed, characterization as a crime againsthumanity makes it possible to punish acts that cannot becharacterized as war crimes. Crimes committed in timeof war by nationals against other nationals might go en-tirely unpunished if they could not be characterized ascrimes against humanity.
80. Because of the motive involved, the two offencesdo not have the same content and therefore do not havethe same scope. A war crime is narrower in scope. It canbe committed only in time of war, whereas a crimeagainst humanity can be committed in time of peace aswell. A war crime can be committed only amongenemies, whereas a crime against humanity can be com-mitted against victims who are not enemies, and even bya State against its own nationals.
C. Methodology problems
81. The question arises as to what is the best way of in-dicating what constitutes a war crime: a general defi-nition or an enumeration?
82. Enumeration has always presented difficult prob-lems. It is difficult, if not impossible, to draw up an ex-haustive list of "war crimes". In 1919, the PreliminaryPeace Conference had prepared a list of the violationsof the laws and customs of war by the German andAllied forces during the First World War; the list con-sisted of 32 types of violation.
83. During the Second World War, Sir Cecil Hurst,representative of the United Kingdom and Chairman ofthe United Nations War Crimes Commission, onceagain raised the question of what should be considereda "war crime". The War Crimes Commission was
Draft Code of Offences against the Peace and Security of Mankind 63
daunted by the enormous scope of the undertaking. Itsimply revived the list drawn up in 1919, while recogniz-ing the principle that the list was not exhaustive and thatthere might be other crimes that should appear on it, inview of subsequent developments. There were in factnew proposals. For example, the taking of hostages wasadded on the proposal of the representative of Poland.Likewise, random mass arrests were defined as crimes.It was also acknowledged that it was necessary to bear inmind the preamble to the Hague Convention (IV) of1907,4I which proved that war crimes were not limited tothe violations of the laws of war as embodied in theHague Conventions, and that the general principles oflaw recognized by civilized nations should make it poss-ible to characterize as war crimes all acts which seriouslycontravened those principles.42
84. The Charter of the Niirnberg Tribunal mentions"violations of the laws or customs of war", which"shall include, but not be limited to,* murder, ill-treatment", etc. (art. 6 (&)). Law No. 10 of the AlliedControl Council refers to "violations of the laws orcustoms of war, including but not limited to* murder,ill-treatment . . . " (art. II, para. 1 (b)).
85. The Tokyo Charter, on the other hand, referred to"conventional war crimes: namely, violations of thelaws or customs of war" (art. 5 (b)). But there was noenumeration, not even a non-limitative one.
86. The debate is open once again. In the case underconsideration, it is best to leave well alone and to temperidealism with realism. Sir David Maxwell Fyfe said:
"I do not think it practicable to produce a code ofelaborate and detailed definitions."43 Vespasien Pellawas more categorical: "It is impossible in the presentcircumstances to draw up a complete list of violations ofthe laws and customs of war."44 Jean Spiropoulos, Rap-porteur for the 1954 draft code, was of the same mind:. . . In connection with the draft code, the view has been expressedthat one should set up an exhaustive enumeration of all acts whichwould constitute war crimes. . . .
In our opinion such an undertaking would meet with the mostserious difficulties, since there are deep divergencies of opinion onvery important subjects concerning the laws and customs of war.. . ,45
He thought it necessary to adopt a general definition ofwar crimes and leave to the judge the task of decidingwhether the case under consideration involved such acrime. But he added: "We do not object to adding a listof violations of the rules of war to the general defi-nition, provided, however, that this list does not exhaustthe acts to be considered as 'war crimes' ".46
87. In 1954, the Commission adopted the method of ageneral definition and nothing more.
88. We are once again at the crossroads. The draft ar-ticle on war crimes submitted by the Special Rapporteurthus consists of two alternatives: one is a synthesis basedon the 1954 draft, and the other a combination of thetwo methods (see article 13 in part V of the presentreport).
41 See paragraph 62 and footnote 37 above.41 History of the United Nations War Crimes Commission
op. cit. (footnote 3 above), pp. 170-172.
43 Cited in Pella's memorandum, Yearbook . . . 1950, vol. II,p. 352, document A/CN.4/39, para. 145, in fine.
44 See memorandum, ibid., para. 147.43 First report by J. Spiropoulos on the draft code of offences
against the peace and security of mankind, Yearbook . . . 1950,vol. II, p. 266, document A/CN.4/25, paras. 78-79.
46 Ibid., p. 267, para. 82.
PART III
Other offences
89. It has been said that the nature of offences againstthe peace and security of mankind often implies a con-cursus plurium ad delictum. The phenomenon of par-ticipation is the rule in this regard, hence the importanceof the concepts of complicity and conspiracy when con-sidering these crimes.
90. Attempt to commit such crimes will also be con-sidered as a related offence.
91. The 1954 draft code simply described these acts asoffences without analysing or defining them, and nocomments on them are to be found in the preparatorywork. Now the transposition of certain concepts of in-ternal law to international law sometimes results in in-coherence. Here, however, these concepts become reallydistorted when they enter the sphere of international lawand sometimes their content or meaning changes. It willtherefore be interesting to see what becomes of the con-cepts of complicity and conspiracy when they enter thatsphere.
A. Complicity
92. In a criminal act committed through participation,the accomplice plays a role distinct from that of theprincipal. The two are not accused of the same acts. Forexample, in the case of murder, the physical act of kill-ing is distinct from providing the means to kill. Whilethe two offences are related (theoretically, one is linkedto the other), each retains its own character. As theirmaterial content differs, they constitute two conceptshaving two distinct legal characterizations. In somecases, however, it is difficult to determine the legal con-tent of either. In internal law, the content of complicityvaries in scope, depending upon the legislation con-cerned.
1. COMPLICITY IN INTERNAL LAW
(a) Limited content
93. Article 60 of the French Penal Code sets forth thevarious cases of complicity. The latter may take the
64 Documents of the thirty-eighth session
form of instigation, provision of means, or aiding andabetting.
94. In general, under French law, complicity does notinclude acts committed after the principal offence. Con-cealment, for instance, is an offence distinct from com-plicity.
95. Of course, French penal law also recognizes casesof extended complicity. For example, article 61 of thePenal Code equates certain cases of concealment withcomplicity: concealment of robbers or perpetrators ofcrimes against the security of the State or the publicpeace. According to the Code, the perpetrator of suchan act, committed after the principal act, "shall bepunished as an accessory". But this kind of complicityowes its autonomy to the law alone. Although the pen-alty incurred is the same as that incurred by the prin-cipal, the offence is autonomous: it is covered by aspecial provision of the Penal Code and is not ajurisprudential application of the general theory ofcomplicity.
96. The laws of many other countries limit complicityto acts committed prior to or concomitantly with theprincipal act; acts committed later do not constitutecomplicity and are defined as autonomous offences.The Penal Code of the Federal Republic of Germanylimits complicity to the provision of advice orassistance, i.e. to prior or concomitant acts. The 1951Penal Code of Yugoslavia (art. 265), that of the GermanDemocratic Republic (art. 234) and that of Hungary(art. 184) make concealment a separate offence.
(b) Extended content
97. Extended complicity tends to include acts commit-ted after the principal act instead of making themautonomous offences. According to Igor Andrejew,some Soviet writers are in favour of the concept of"contact" with the offence. They believe that any inten-tional activity related to an offence that is being com-mitted or has already been committed by other personsmay constitute a case of complicity: for example, anyact interfering with the prevention or discovery of theoffence. There are four kinds of contact: concealmentof the perpetrator, non-denunciation of the offence,consent to the offence and concealment of property.47
98. Anglo-American law recognizes both the accessorybefore the fact and the accessory after the fact. The ac-cessory after the fact is guilty of a form of extendedcomplicity, a concept which, as will be seen, was used inthe decisions of the Niirnberg Tribunal and the Alliedtribunals. Other legal systems also incorporate the con-cept of "originator" (auteur intellectuel) within the ideaof complicity. According to these systems, some formsof participation, such as instigation, conception of theact, or sometimes even the giving of an order, in whichthere is no physical participation, are considered ascomplicity.
99. These brief references to comparative law showhow difficult it is to assign a content to the concept of
47 I. Andrejew, Le droit p4nal compart des pays socialistes (Paris,Pedone, 1981), pp. 61-62.
complicity in internal law. Depending on the legislationconcerned, the boundary between the concepts ofperpetrator, co-perpetrator, accomplice and receiver orconcealer shifts, thereby affecting the content of com-plicity. Consequently, the content of the concept ofcomplicity may be either extended or limited.Sometimes the accomplice is confused with the co-perpetrator, the originator and even the receiver or con-cealer. Sometimes the accomplice is simply the in-stigator or the person who aided and abetted.
2. COMPLICITY IN INTERNATIONAL LAW
100. In international law, too, the word "accomplice"may have a limited or an extended meaning, dependingon the circumstances.
(a) Limited content
101. The limited content appears to derive from theCharters of the International Military Tribunals. TheNurnberg Charter, in the last paragraph of article 6, andthe Tokyo Charter, in article 5 (c), single out "leaders,organizers, instigators and accomplices". Law No. 10of the Allied Control Council, in article II, paragraph 2,singles out any person who:
(a) was a principal;(b) was an accessory to the commission of a crime or
ordered or abetted the same;(c) took a consenting part therein;(d) was connected with plans or enterprises involving
the commission of a crime;(e) was a member of any organization or group con-
nected with the commission of a crime;if) with reference to paragraph 1 (a), i.e. crimes
against peace, held a high political, civil or militaryposition or a high position in financial, industrial oreconomic life.
102. One observation comes immediately to mind: thetexts appear to draw a distinction between complicityand certain related concepts. Thus the NurnbergCharter separated accomplices from leaders, organizersand even instigators. The Tokyo Charter drew the samedistinction. Law No. 10 established several categories ofperpetrators within which the accessory was separatedfrom the person who "ordered or abetted" the crime,the person who "took a consenting part" therein, andthe person who, with respect to certain crimes (crimesagainst peace), held "a high political, civil or militaryposition" or "a high position in financial, industrial oreconomic life".
103. On reading these texts, one wonders what con-stitutes complicity: what is an accomplice if he is not theinstigator or the person who ordered, directed, organ-ized, or took a consenting part in the crime? Perhapscomplicity consists solely in aiding and abetting or theprovision of means, the only elements not expresslyreferred to.
104. In fact, the drafters of these texts were promptedmore by concern for efficiency than by concern for legalexactitude or rationality. The use of varied terms andexpressions that are often synonymous and that overlapcan be explained by the desire to let no act go unpun-
Draft Code of Offences against the Peace and Security of Mankind 65
ished. In an era in which crime had taken on the mostvaried, subtle and insidious forms, it was essential to letno act slip through the net, to neglect no aspect of sucha complex situation. It was difficult to know in whatcapacity an individual had acted. Often those having themost responsibility, those at the top of the hierarchy,those who conceived of and ordered the crimes thatwere committed were not the actual perpetrators, andone could hardly consider them as accomplices and theirsubordinates as the principals. In the context of thetimes, group crime predominated and it was difficult todistinguish protagonists from accomplices and even,generally speaking, from all those who had participatedin a mass action.
105. The fact remains that, by characterizing thevarious kinds of participation in an autonomous way,the texts limited the content of complicity proper.
(b) Extended content
(i) Complicity of leaders
106. In certain cases, domestic legislation had nothesitated to extend the concept of complicity to includeleaders, thereby broadening its content. It was con-sidered that they had organized or tolerated the actdefined as a crime, or even conceived of the act, com-plicity thereby being extended to cover the originator.
107. Thus, for example, the French Ordinance of 28August 1944 on the punishment of war crimes providesin article 4:
Where a subordinate is prosecuted as the actual perpetrator of a warcrime, and his superiors cannot be indicted as being equally respon-sible, they shall be considered as accomplices* in so far as they haveorganized* or tolerated* the criminal acts of their subordinates.
Luxembourg's Law of 2 August 1947 on the punishmentof war crimes contains a similar provision in article 3:. . . the following may be charged, according to the circumstances, asco-authors or as accomplices* in the crimes and delicts set out in ar-ticle 1 of the present law: superiors in rank who have tolerated thecriminal activities of their subordinates, and those who, without beingthe superiors in rank of the principal authors, have aided these crimesor delicts.
Similarly, in the Netherlands, the Law of 10 July 1947on the judgment of persons guilty of crimes againsthumanity provides in article 27, paragraph 3:
Any superior who deliberately permits a subordinate to be guilty ofsuch a crime shall be punished with a similar punishment as laid downin paragraphs 1 and 2.
The Greek Constitutional Act No. 73 of 8 October 1945on the trial and punishment of war criminals provides inarticle 4:
When a subordinate is charged as principal of a war crime and hissuperiors in the hierarchy cannot be punished also as principals in ac-cordance with articles 56 and 57 of the Penal Law, the said superiorsare considered as accessories if they have organized* the criminal actor have tolerated* the criminal act of their subordinate.
The Chinese Law of 24 October 1946 on the trial of warcriminals provides in article 9:
Persons who occupy a supervisory or commanding position in re-lation to war criminals and in their capacity as such have not fulfilledtheir duty to prevent crimes from being committed by their subor-dinates shall be treated as the accomplices* of such war criminals.
108. It follows from these provisions that the conceptof complicity may encompass acts which have consistedof organizing, directing, ordering or tolerating. This ex-tension of complicity rests upon the assumption ofresponsibility attaching to the superior in rank. It isassumed that the latter has knowledge of all the ac-tivities of his subordinates, and the fact of not prevent-ing a criminal act or plan is equivalent to complicity.
109. The same view is to be found in judicial de-cisions. The United States Supreme Court, in theYamashita case, rejected a request for habeas corpusfrom the Japanese General Yamashita in the followingterms:. . . it is urged that the charge does not allege that petitioner has eithercommitted or directed the commission of such acts,* and conse-quently that no violation is charged as against him. But this overlooksthe fact that the gist of the charge is an unlawful breach of duty bypetitioner as an army commander to control the operations of themembers of his command by "permitting them to commit" the exten-sive and widespread atrocities specified. The question then is whetherthe Law of War imposes on an army commander a duty to take suchappropriate measures as are within his power to control the troopsunder his command for the prevention of the specified acts which areviolations of the Law of War and which are likely to attend the oc-cupation of hostile territory by an uncontrolled soldiery, and whetherhe may be charged with personal responsibility for his failure to takesuch measures when violations result.48
The reply given by the Court was affirmative. It isassumed that complicity attaches to a commanding of-ficer whose subordinates have committed a criminal act,and the commanding officer must produce proof that itwas impossible for him to prevent the commission of thecrime under consideration.
110. This assumption was extended to members of theGovernment. The Tokyo Tribunal ruled that respon-sibility for prisoners of war rested not only upon of-ficials having direct and immediate control of them, butalso, in general, upon members of the Government,military or naval officers in command of formationshaving prisoners of war in their possession, and officialsin departments concerned with the well-being ofprisoners, for: "It is the duty of all* those on whomresponsibility rests to secure proper treatment ofprisoners and to prevent their ill-treatment".49 Derel-iction of this duty, whether through voluntary absten-tion or negligence, makes superiors in rank accomplicesin the crimes which may be committed.
111. Furthermore, in the Hostage case, the UnitedStates Military Tribunal stated that "a corps com-mander must be held responsible for the acts of hissubordinate commanders in carrying out his orders andfor acts which the corps commander knew or ought tohave known about*".50
112. The concept of complicity understood in this wayis therefore broader than that referred to in the Niirn-berg and Tokyo Charters and in Law No. 10 of theAllied Control Council and goes beyond aiding and
48 Law Reports of Trials of War Criminals, op. cit. (footnote 36above), vol. IV, p. 43; and United States Reports (Washington, D.C.),vol. 327 (1947), pp. 14-15.
49 Law Reports of Trials . . . , vol. XV, p. 73.50 American Military Tribunals (see footnote 32 above), case No. 7,
vol. XI, p. 1303.
66 Documents of the thirty-eighth session
abetting. This form of complicity now constitutes anautonomous offence, according to article 86, para-graph 2, of Additional Protocol I to the Geneva Con-ventions.
(ii) Complicity and concealment
113. Complicity has on occasion been extended to in-clude concealment. This was particularly true of casesof illegal appropriation or disposal of goods which hadbelonged to Jews who were exterminated. In the Funkcase, the accused, in his capacity as Minister ofEconomics of the Third Reich and President of theReichsbank, had concluded an agreement under whichthe SS were to deliver to the Reichsbank the jewellery,articles of gold and banknotes having belonged to thepersons exterminated. The gold obtained from theframes of spectacles and from teeth had been depositedin the Reichsbank vaults. According to the NiirnbergTribunal: "Funk has protested that he did not knowthat the Reichsbank was receiving articles of this kind.The Tribunal is of the opinion that he either knew whatwas being received or was deliberately closing his eyes towhat was being done."31 There was express or tacit con-sent to acts of concealment of goods improperly ac-quired by the bank, subsequent to the death of theirowners.
114. The judgment rendered in the Pohl case is evenmore explicit. The United States Military Tribunalstated: "The fact that Pohl himself did not actuallytransport the stolen goods to the Reich or did nothimself remove the gold from the teeth of dead inmatesdoes not exculpate him. This was a broad criminal pro-gram, requiring the co-operation of many persons, andPohl's part was to conserve and account for the loot.Having knowledge of the illegal purposes of the actionand of the crimes which accompanied it, his active par-ticipation even in the after-phases of the action makeshim particeps criminis in the whole affair."52
(iii) Complicity and membership in a group ororganization
115. Within an organization, all members do not playthe same role. There is an internal hierarchy of leadersand subordinates, of those who organize and those whoexecute orders. As the above discussion of the links be-tween complicity and the position of leader has shown,it is difficult to separate these two categories into actualperpetrators and accomplices. They could as well beseparated into physical perpetrators and originators,into direct perpetrators and indirect perpetrators.
116. Here, however, the act characterized as a crime isof a different nature, namely voluntary membership inthe organization, or voluntary participation in a group.Rather than trying in vain to establish who within thegroup or organization is the perpetrator and who is theaccomplice, Law No. 10 of the Allied Control Council,
31 See Trial of the Major War Criminals before the InternationalMilitary Tribunal (Nuremberg, 14 November 1945-1 October 1946)(official English text, 42 volumes) (Nurnberg, 1947-1949), vol. I,p. 306; cited in Meyrowitz, op. cit. (footnote 9 above), p. 377.
52 American Military Tribunals (see footnote 32 above), case No. 4,vol. V, p. 989.
in article II, paragraph 2 (e), makes membership in agroup or organization an autonomous offence from themoment when the entity in question becomes implicatedin a criminal affair. The necessary and sufficient con-dition is membership in the group or organization.
117. The Commission will have to consider whetherthe code should conform with Law No. 10 and theNurnberg Charter by making membership a separate of-fence, or whether, on the contrary, it should defer to thegeneral theory of participation and entrust to the judgethe task of determining, in each specific case, the roleplayed by the member of the organization.
B. The limits of extended complicity: complotand conspiracy
118. The question here concerns the limits of compli-city, complot and conspiracy. This is the situationenvisaged in the last paragraph of article 6 of the Nurn-berg Charter, which relates in particular to "ac-complices participating in the formulation or executionof a common plan* or conspiracy". According to thatprovision, persons who have participated in such a plan"are responsible for all acts performed by any persons*in execution of such plan". Law No. 10 deals with asimilar situation in article II, paragraph 2 (d) and (e).
119. It will be noted that, in this case, criminal respon-sibility is particularly broad since it goes beyond the actcommitted by a person. It involves a collective respon-sibility which goes even further than the concept ofcomplot as recognized in Continental law. In Frenchlaw, for example, a complot is regarded as anautonomous offence and punished as such. If a complothas been followed by commencement of execution, ag-gravating circumstances come into play which increasethe penalty incurred, since individual responsibility isinvolved. On the other hand, a complot is strictlylimited to acts which may affect the authority of theState or the integrity of national territory, or which maylead to civil war.
120. In the case of the last paragraph of article 6 of theNurnberg Charter and of article II, paragraph 2 id) and(e), of Law No. 10, the offence referred to rests, asalready stated, upon a collective responsibility and isnot dependent upon commencement of execution.Moreover, it is not limited, at least in the NurnbergCharter, to a single category of crimes, but covers allcrimes specified in that Charter: crimes against peace,war crimes and crimes against humanity. It is true thatthe Nurnberg Tribunal did not maintain this broaddefinition and restricted the application of the conceptto crimes against peace. Nevertheless, the provisions ofthe Charter went much further.
121. The reservations embodied in the decisions of theNurnberg Tribunal may be explained by the fact that theprovisions in question were based on a concept peculiarto common law, namely conspiracy. Conspiracy is anoriginal concept which characterizes as a crime an agree-ment between individuals with a view to committing acriminal act. It is the agreement itself which is criminal,independently of the criminal act which may have been
Draft Code of Offences against the Peace and Security of Mankind 67
committed. The agreement to commit murder ispunishable even if the murder has not been committedand even if there has been no commencement of ex-ecution. This offence is based on collective responsi-bility. Contrary to the general principle of criminal lawunder which an individual is responsible only for hisown acts, for acts which may be ascribed to him per-sonally, conspiracy attaches collective criminal respon-sibility to all those who have participated in the agree-ment. This responsibility is added to that incurred per-sonally by each individual for the acts which he has ac-tually committed as a result of this agreement. It wasthis concept of conspiracy which inspired the drafting ofthe above-mentioned texts and it was on this same con-cept that the charge was based.
122. The Niirnberg Tribunal did not agree with the in-terpretation advanced by the prosecution and was of theopinion that the wording of the last paragraph of ar-ticle 6 did "not add a new and separate crime to thosealready listed", but was simply "designed to establishthe responsibility of persons participating in a commonplan".53 Even in this case, the Tribunal set aside thecharge of conspiracy for war crimes and crimes againsthumanity and retained it only for crimes against peace.In other words, the Tribunal regarded it solely as acrime of responsible government officials, for a crimeagainst peace can be committed only by such officials.
123. Chief Prosecutor Robert Jackson, however, hadrequested the broadest possible application of con-spiracy, for which he offered an impressive andsystematic explanation. Among the principles enforcedevery day in the courts of Great Britain and the UnitedStates of America in dealing with conspiracy, thefollowing are the most important:
No formal meeting or agreement is necessary. It is sufficient,although one performs one part and other persons other parts, if therebe concert of action and working together understandingly with acommon design to accomplish a common purpose.
Secondly, one may be liable even though he may not have knownwho his fellow conspirators were or just what part they were to take orwhat acts they committed, and though he did not take personal part inthem or was absent when the criminal acts occurred.
Third, there may be liability for acts of fellow conspiratorsalthough the particular acts were not intended or anticipated, if theywere done in execution of the common plan. . . .
Fourth, it is not necessary to liability that one be a member of a con-spiracy at the same time as other actors, or at the time of the criminalacts. When one becomes a party to a conspiracy, he adopts andratifies what has gone before and remains responsible until he aban-dons the conspiracy with notice to his fellow conspirators.
Members of criminal organizations or conspiracies who personallycommit crimes, of course, are individually punishable for those crimesexactly as are those who commit the same offences without organiz-ational backing. The very essence of the crime of conspiracy ormembership in a criminal association is liability for acts one did notpersonally commit, but which his acts facilitated or abetted. The crimeis to combine with others and to participate in the unlawful commoneffort, however innocent the personal acts of the participants, con-sidered by themselves.54
53 Trial of t h e M a j o r War C r i m i n a l s . . . . o p . c i t . ( f o o t n o t e 5 1above), vol. I, p. 226; cited in Meyrowitz, op. cit. (footnote 9 above),p. 426.
54 Trial of t h e M a j o r War C r i m i n a l s . . . . v o l . V I I I , p p . 3 6 5 - 3 6 6 ;cited in Meyrowitz, op. cit., pp. 427-428.
The Chief Prosecutor explained that the basis andjustification for these sweeping principles was the needto defend society "against the accumulation of powerthrough aggregations of individuals".
124. The system thus described is therefore basedupon a twofold responsibility: individual responsibilityand collective responsibility, which are not mutuallyexclusive, but coexist. This concept of conspiracy,unknown in Continental law, does not coincide pre-cisely with any concept of Continental law. It is notprecisely the same thing as either complicity or complot.It is close to complicity, in that the participants"facilitate or abet", as the Chief Prosecutor said. But itis close to complot to the extent that it involves an agree-ment to execute a common plan.
125. In accepting the concept of conspiracy only forcrimes against peace and rejecting it for war crimes andcrimes against humanity, the Niirnberg Tribunal seemsto have accepted only the complot aspect of the concept.In fact, where crimes against peace as defined in theNiirnberg Charter are concerned (the preparation, in-itiation or waging of a war of aggression or a war inviolation of international treaties or agreements; par-ticipation in a plan or agreement for the accomplish-ment of any of these crimes), the agents, as has beensaid, can only be responsible government officialslinked to each other by their joint action. They are co-perpetrators and not accomplices, and their action maybe seen as a plot against the external security of anotherState.
126. However, the question may be asked whetherconspiracy is closely related only to complot, or whetherit is not also to some extent similar to complicity. ChiefProsecutor Jackson himself used the expression"facilitate or abet" in respect of the concept of con-spiracy, an expression which enters into the definitionof complicity. Conspiracy really seems to include thenotion of complicity when the plan is executed within anorganization involving hierarchical relations betweenthe leaders and the actual perpetrators, because, in thatcase, complicity may operate between leaders andsubordinates. According to Claude Lombois,55 con-spiracy, as a crime against peace, is a collective respon-sibility based on the solidarity of responsible govern-ment officials. As a war crime or a crime againsthumanity, conspiracy becomes a general theory ofcriminal participation which "makes it possible to holdresponsible those who planned the whole no less thanthose who executed the details". Thus conspiracy mayinclude both the principal acts (aggression) and acts ofcomplicity (execution of an order).
127. With regard to the limits of complicity, the ques-tion is whether complicity, even in a broad sense, shouldencompass acts committed by a member of an organiz-ation or acts committed in the execution of a commonplan, or whether membership in a criminal organizationor participation in a common plan should be qualifieddirectly as separate offences.
55 C. Lombois, Droit pe'nal international, 2nd ed. (Paris, Dalloz,1979), p. 155.
68 Documents of the thirty-eighth session
128. There are cases in internal law where these of-fences are autonomous. In French law, for example,apart from complot, the aim of which is to underminethe authority of the State, there is the association of per-sons for unlawful purposes, the aim of which is attackson persons and property. These offences are auto-nomous: they have been created by the law and do notarise from a jurisprudential construction based on thetheory of complicity. Generally speaking, it appearsthat, when the offence presents certain specificcharacteristics (preparation or execution within theframework of an organization or a common plan), thiscircumstance induces the national legislator to make itan autonomous offence, even if it might have beenpenalized on the basis of complicity.
129. The Charters of the international militarytribunals did the same in distinguishing between acts ofcomplicity and acts committed within the framework ofan organization.
130. As for the 1954 draft code, it was confined tocomplicity on the one hand, and conspiracy on theother, with no definition of their content. Moreover, itincluded no provision relating to membership in anorganization or participation in a common plan. TheCommission will have to discuss this point.
131. If the Commission decides to abide by what wasdone in 1954, i.e. to make complicity an offence withoutdefining it, it would then have to indicate in a commen-tary what content this concept should have in inter-national law: instigation, aiding, abetting, provision ofmeans, order, express or tacit consent, or subsequentacts of participation aimed at concealing the offender orthe corpus delicti. These concepts, in the view of theSpecial Rapporteur, should be part of the content ofcomplicity. In other words, complicity should beunderstood in the broad sense. On the other hand, theneed to extend it to membership in an organization orparticipation in a common plan must first be carefullydiscussed. Even though criminal responsibility is inprinciple based on individual and identifiable acts at-tributable to a specific perpetrator, it should not beforgotten that this is an area in which most actions areundertaken or executed jointly. Groups and organiz-ations are the privileged means for perpetrating masscrimes, as the crimes involved here often are, and it issometimes difficult to isolate the role of each person.These organizations, which provide a haven of criminalanonymity, must be discouraged. If the Commissiondecides not to make such phenomena autonomousoffences, they will then come within the ambit of ex-tended complicity, and this theory might, perhaps,cover the situations concerned. It is useful to note in thisconnection that the Convention on Genocide specifi-cally refers, in article III (b), to "conspiracy to commitgenocide", which is typically an application of thetheory of conspiracy. The difficulty of the problemsdealt with in this section derives from the fact that theyinvolve concepts whose limits are not clearly defined.Complicity and conspiracy are undoubtedly different atthe conceptual level, but there is always a certain degreeof complicity among the members of a conspiracy.
C. Attempt
132. The 1954 draft code makes attempt an offence,but again does not indicate the content of the concept. Itis therefore necessary to consider whether attemptshould be regarded in international criminal law, andparticularly in the case of offences against the peace andsecurity of mankind, as having the same content as ininternal law.
1. CONTENT IN INTERNAL LAW
133. The content of attempt in internal law is notalways easy to determine. We know that attempt meansany criminal enterprise which has failed only as a resultof circumstances independent of the perpetrator's inten-tion, but there is still lively debate about when attemptbegins and what its point of departure is.
134. It is customary to divide the criminal process intophases. The Her criminis, the "path of the crime" or the"trajectory of the crime", includes four successivestages: the project phase, which may be oral or written;the preparatory phase, which may involve tangible acts(organization, plans, setting up of necessary equipment,etc.); the commencement of execution; and lastly the ac-tual commission of the crime. The problem is to deter-mine at what stage attempt begins, which is somewhatlike trying to square the circle. Following their own in-clinations, some consider that attempt begins with theintention, whereas others consider that it begins with thepreparatory acts, and still others link it to the com-mencement of execution.
135. It would certainly be going too far to equate asimple intention, even one that is publicly expressed,with attempt. It is true that certain legislations havedefined simple intentions (threat, association of personsfor unlawful purposes, conspiracy, etc.) as separatecrimes, but those acts were identified and defined ascrimes because of their particular seriousness. Ingeneral, however, a simple intention, even if expressedout loud, does not constitute attempt.
136. Consideration of the theory that attempt existswhen there are preparatory acts likewise indicates that apositive reply cannot be taken for granted. The oper-ations which enter into the preparation of an act mayhave many purposes, and it cannot be determined in ad-vance what the author's purpose was. Some might teardown a fence to prevent a fire from spreading, but theymight also tear it down to take advantage of the fire andenter somebody else's house. Someone might breakdown a door to save a person in danger, but they mightalso do so to take advantage of that person's difficultiesin order to commit theft, and so forth.
137. The question then arises whether it is commence-ment of execution which constitutes attempt. That is thesolution adopted, for example, in the French PenalCode, which regards as attempt any commencement ofexecution which failed or was halted only because of cir-cumstances independent of the perpetrator's intention.Even so, it is necessary to determine what constitutescommencement of execution. It is not easy to draw adistinction between commencement of execution andpreparatory acts. Some turn to objective criteria: the ac-
Draft Code of Offences against the Peace and Security of Mankind 69
quisition of the physical means for committing thecrime, for example, would constitute a preparatory act,but when one "starts to make use of them", that is thecommencement of execution. Others turn to subjectivecriteria: the intention to use those means.
138. Certain national legislations did not, at first, con-cern themselves with these subtleties. Soviet law, for ex-ample, in the Leading Principles of Criminal Legislationof the RSFSR (1919) specifically stated that "the stageof execution of the intention of the perpetrator does notin itself influence the penalty, which is determined bythe extent of the danger which the offender" (art. 20)"and the act he has committed represent" (art. 21). In acircular relating to the draft penal code of 1920, it wasstated that "the outward forms of execution of the act,the degree to which intentions were realized, the formsof complicity in violating the law lose their meaning aslimits necessarily defining the extent of the punishmentor the penalty itself". Today, the Fundamental Prin-ciples of Criminal Legislation of the USSR and theUnion Republics (1958) provide for the penalization ofboth attempt and preparatory acts, and the court isobliged to take into consideration "the nature anddegree of social danger of the acts committed, the extentto which the criminal intent is realized and the factorswhich prevented the offence from being perpetrated"(art. 15).56
139. As regards the penalization of attempt, thesocialist countries can be divided into three groups. Thefirst group consists of those which abide by the generalprinciple of penalizing attempt and preparatory acts.Apart from the USSR, these include Albania,Czechoslovakia, the Democratic People's Republic ofKorea and Poland. In the second group, attempt ispenalized as a general rule, but preparatory acts arepenalized only in the cases provided by law: this is thecase, for example, of the Bulgarian Code (art. 17) andthe Hungarian Code (art. 11 (1)). In the last group, at-tempt and preparatory acts are penalized only in thecases stipulated by law. For example, in Yugoslavia, the1951 Penal Code (art. 16) and the 1976 Penal Code (art.19) penalize attempt to commit offences that arepunishable by imprisonment of five years or more.57
140. This is a solution closely related to that adoptedin the French Penal Code, which lays down the generalrule that attempt is punishable only in the case ofcriminal offences, but that attempt to commit correc-tional offences may be qualified as an offence only inthe cases stipulated by law.
56 See Andrejew, op. cit. (footnote 47 above), p. 60."Ibid., pp. 60-61.
141. It is clear, therefore, that legal systems vary. Asfor the content, some legislations draw a distinction be-tween attempt and preparatory acts, with each categorybeing the subject of separate provisions. Other legis-lations do not draw this distinction and make attempt acrime only in the case of serious offences; others makeattempt a crime without drawing a distinction betweenserious offences and other offences. All, however,recognize attempt as a juridical concept.
2. CONTENT IN INTERNATIONAL LAW
142. Where offences against the peace and security ofmankind are concerned, the problem is more delicate.The 1954 draft code made preparatory acts and attempttwo separate offences.
143. If those two offences are maintained, drawing adistinction between preparatory acts and attempt will beeven more difficult. In fact, many preparatory acts areambiguous ones which can just as easily be interpretedas acts preparing a defence as acts preparing an aggres-sion. Their lawfulness depends on the intention, andthat is not always easy to determine. The borderline be-tween attempt and preparation will be a moving one andoften elusive.
144. If the Commission does not retain preparatoryacts, the difficulty will remain; but it will not, as in theprevious case, be a matter of establishing the borderlinebetween two wrongful acts, but rather of establishingthe borderline between what is lawful and what isunlawful. The scope of attempt may be more or less ex-tended depending on the jurisdiction that is required toconsider, in each case, whether or not the act involvedfalls within the ambit of attempt. The Charters of theinternational military tribunals contained no provisionsrelating to attempt. Is that because in the minds of theirdrafters attempt was confused with preparatory acts?We cannot say. On the other hand, we may assume that,since those Charters were designed to deal with aspecific set of circumstances, namely the need to punishacts committed by a regime, they did not need to refer toa crime which was unlikely to occur. In fact, abortiveactions, i.e. criminal enterprises which failed despite theintentions of their perpetrators, were rare during theregime of that brutal and domineering dictatorship,which for a time encountered no insurmountableobstacle in its path. But attempt does not exist unless theenterprise has been thwarted by an event outside thecontrol of its perpetrator.
145. Today, attempt has entered international law byway of the 1948 Convention on Genocide, article III (d)of which refers specifically to this offence.
70 Documents of the thirty-eighth session
PART IV
General principles
146. The general principles may be classified accord-ing to whether they relate to:
(a) The juridical nature of an offence against thepeace and security of mankind;
(b) The official position of the offender;(c) The application of criminal law in time;(d) The application of criminal law in space;(e) The determination and extent of responsibility.
A. Principles relating to the juridical nature ofan offence against the peace and security of mankind
147. This part needs no lengthy explication. Its con-tent has already been established in the Principles of In-ternational Law recognized in the Charter of the Niirn-berg Tribunal and in the Judgment of the Tribunal, af-firmed by the General Assembly in its resolution 95 (I)of 11 December 1946. The offences involved are crimesunder international law, defined directly by the Niirn-berg Charter, independently of national law. Hence thefact that an act may or may not be punishable under in-ternal law does not concern international law, which hasits own criteria, concepts, definitions and characteriz-ations.
B. Principles relating to the international offender
1. T H E OFFENDER AS A SUBJECT OF INTERNATIONAL LAW
148. We shall not revert to the disputes which,throughout the consideration of previous reports, havepitted the partisans and adversaries of the criminalresponsibility of States against each other. The Com-mission has decided for the time being to confine itselfto the criminal responsibility of individuals; conse-quently any individual guilty of a crime under inter-national law is subject to punishment.
2. THE OFFENDER AS A HUMAN BEING
149. The rights of the offender are those of anyhuman being appearing before a criminal jurisdiction toanswer for an offence. According to this principle,every individual accused of a crime enjoys the jurisdic-tional guarantees granted to every human being, as pro-vided, for example, in the Nurnberg Charter (art. 16),the Tokyo Charter (art. 9), the Universal Declaration ofHuman Rights (art. 11, para. 1) and Additional Pro-tocol II to the Geneva Conventions (art. 6, para. 2).
C. Principles relating to the applicationof criminal law in time
150. Two principles are involved here: that of the non-retroactivity of criminal law and that of the applicability
of statutory limitations in criminal law. We shall nowconsider how these two principles of internal law are ap-plied in international law.
1. THE NON-RETROACTIVITY OF CRIMINAL LAW
(a) Content of the rule
151. The content of the rule nullum crimen sine lege,nulla poena sine lege may vary according to the sourcesof law cited.
152. According to a legalistic conception preferred incertain systems of law, the only law is written law. Ac-cording to this school of thought, a system of law basedon custom necessarily ignores the principle nullumcrimen sine lege, because custom is not law, just asgeneral principles, natural law and moral orphilosophical maxims and prescriptions are not law.The strictness of this theory finds its origin andjustification in the break with the often arbitrary prac-tices of the Ancien Regime.
153. The rule first appeared in France during theRevolution, and spread throughout ContinentalEurope. Even though it disappeared for a time in certaincountries (in Germany, for example, under the NationalSocialist regime, with the application in 1935 of article 2of the Penal Code, which introduced "the sound in-stinct of the people" as the source of criminal law), orunderwent certain changes when recourse was made tointerpretation by analogy, the rule nullum crimen sinelege has remained a fundamental principle of Continen-tal criminal law and of the legal systems based on it. Inrefusing to surrender the ex-Emperor of Germany,William II, to the Allies in 1920, the Netherlandsdeclared that "if in the future the League of Nationswere to set up an international jurisdiction competent totry, in the case of a war, acts described as offences inand subject to penalties prescribed by pre-existinglegislation, it would be a matter for the Netherlands toassociate itself with the new system".58
154. The idea was referred to again a quarter of a cen-tury later by Andre Gros, the representative of France atthe International Conference on Military Trials (Lon-don, 1945).59 Proceeding from the principle that, underexisting international law, a war of aggression was stillnot a wrongful act, he declared:
We do not want criticism in later years of punishing something thatwas not actually criminal, such as launching a war of aggression. . . .It is said very often that a war of aggression is an international crime,as a consequence of which it is the obligation of the aggressor to repairthe damages caused by his actions. But there is no criminal sanction. Itimplies only an obligation to repair damage. We think it will turn out
" See the Jackson Report, cited in footnote 96 below.
1950, vol. II,
Draft Code of Offences against the Peace and Security of Mankind 71
that nobody can say that launching a war of aggression is an inter-national crime—you are actually inventing the sanction.60
155. This point of view, which in the context of cur-rent international law seems almost heretical, was not soat the time, at least for the supporters of written law asthe source of criminal law. Vespasien Pella thought that"international order can be maintained or secured onlyon the basis of written law. . . . Governments and publicopinion will. . . never agree to a system under which afew judges, however eminent and respected, havesovereign discretion and are bound by no writtenlaw."61 The dissenting opinion of Henri Bernard, aJudge of the Tokyo Tribunal, was similar: "the Charterof the Tribunal itself was not based on any law in ex-istence when the offences took place . . . [So] manyprinciples of justice were violated during the trial thatthe Court's judgment certainly would be nullified onlegal grounds in most civilized countries."62
156. However, this rigid idea is not widely shared.Everything depends on what meaning is ascribed to theword lex in the maxim nullum crimen sine lege. If theword lex is understood to mean not written law, butdroit in the sense of the English word "law", then thecontent of the rule will be broader. It will cover not onlywritten law, but also custom and general principles oflaw. It has been said that the rule nullum crimen sinelege is foreign to the Anglo-American system preciselyby reference to written law alone. But that is incorrect.The rule nullum crimen sine lege, nullapoena sine lege isbased upon the protection of the individual against ar-bitrary action. But protection of the individual is one ofthe most solid traditions of common-law countries. Thefact that the rule is not explicitly formulated in certaincountries in no way means that it is unknown there.
157. It is this flexible content which is best suited tothe spirit of international law and the techniques for itselaboration. Nevertheless, precisely because of thedebates to which its content gave rise, the application ofthis rule was disputed at the Niirnberg trial.
(b) The rule nullum crimen sine legeand the Niirnberg trial
158. For some, the rule was violated; for others, it wasrespected.
(i) The rule was violated
159. According to one theory, the Niirnberg Charterand Law No. 10 of the Allied Control Council weresubsequent to the acts described as offences, and thoseacts, at least in the case of crimes against peace andcrimes against humanity, did not constitute criminal of-fences. For the supporters of this theory, the violationwas even more flagrant in respect of crimes againsthumanity, that concept being very recent, since it dated
from the Charter of the Niirnberg Tribunal. Accordingto Henri Donnedieu de Vabres, the French Judge on theTribunal, incrimination for crimes against humanityconstituted a flagrant violation of the spirit and letter ofthe principle of the legality of offences and penalties.63
(ii) The rule was respected
160. Those who maintain that the rule was respectedascribe to it a different content. For them, the rule ofnon-retroactivity is not limited to formulated law; italso relates to natural law, which existed before the actsdescribed as crimes were committed. Even if the textswere new, the law which inspired them was not new law.From this standpoint, the judgment had a declaratorycharacter. That was the argument of the NurnbergTribunal. But the judgment was also based on con-siderations of justice. Law, to be worthy of the name,must also meet the requirements of justice. If the maximnullum crimen sine lege is not confined to sovereignty, itis a rule only generally adhered to. To assert that it isunjust to punish those who in defiance of solemnassurances and treaties have attacked neighbouringStates without warning is obviously untrue, for in suchcircumstances the attacker must know that he is doingwrong. Far from it being unjust to punish him, it wouldbe unjust if his wrong were allowed to go unpunished.
161. This concept of justice, going beyond the letter ofthe law, was the decisive factor. Summum jus, summainjuria, the formula of Cicero, could not find a betterapplication. Many writers have recalled it at suitablemoments. According to the United States Judge FrancisBiddle: "The question then was not whether it waslawful* but whether it was just* to try Goering and hisassociates for letting loose, without the slightestjustification, the brutally aggressive war which engulfedand almost destroyed Europe. Put thus the answer is ob-vious."64 Jean Graven also stressed the idea of justice:It is incorrect to think that this principle—the principle of a reactionwhich is just at a given time or in given circumstances—is necessarilythe guarantee of the law and that it may not be disregarded withoutviolating the law. The traditional rule does not, and cannot, constitutean absolute, constant obstacle to prosecution and punishment. Itmust, and should, protect the innocent, not the criminal. The higherprinciple underlying the law must be sought not in the form but in thesubstance. It must not be forgotten that the form is only a way of en-suring respect for the law."
Kelsen had the same thought when he declared that"justice required the punishment of these men, in spiteof the fact that under positive law they were notpunishable at the time they performed the acts madepunishable with retroactive force. In case two postulatesof justice are in conflict with each other, the higher oneprevails".66
60 Jackson Report, p. 295, document XXXVII, minutes of sessionof 19 July 1945; cited by Pella, Yearbook . . . 1950, vol. II,pp. 311-312, document A/CN.4/39, para. 62.
" Yearbook . . . 1950, vol. II, p. 314, document A/CN.4/39,para. 66.
" New York Herald Tribune, 14 November 1948, p. 27; cited byPella, Yearbook . . . 1950, vol. II, p. 312, document A/CN.4/39,para. 62.
" H. Donnedieu de Vabres, Le proces de Nuremberg, doctoralcourse (Paris, Domat-Montchrestien, 1948), p. 243; cited inMeyrowitz, op. cit. (footnote 9 above), pp. 350-351.
44 F. Biddle, "The Nurnberg trial", Proceedings of the AmericanPhilosophical Society (Philadelphia, Pa.), vol. 91, No. 3 (1947),p. 297.
65 Discussion on the principle nullum crimen sine lege and its ap-plication to the Nurnberg trial, Radio Geneva, 28 January 1946.
" H. Kelsen, "Will the judgment in the Nuremberg trial constitutea precedent in international law?", The International Law Quarterly(London), vol. 1, No. 2 (1947), p. 165.
72 Documents of the thirty-eighth session
(c) Non-retroactivity and contemporary law
162. Non-retroactivity in contemporary internationallaw derives from international instruments. The Univer-sal Declaration of Human Rights,67 in article 11,paragraph 2, provides:
No one shall be held guilty of any penal offence on account of anyact or omission which did not constitute a penal offence, undernational or international law, at the time when it was committed. Norshall a heavier penalty be imposed than the one that was applicable atthe time the penal offence was committed.
The European Convention on Human Rights68 uses ap-proximately the same wording in article 7, paragraph 1,but adds in paragraph 2 a very explicit provision con-cerning general principles:
This article shall not prejudice the trial and punishment of any per-son for any act or omission which, at the time when it was committed,was criminal according to the general principles of law recognized bycivilized nations.
163. In conclusion, the rule nullum crimen sine lege,nulla poena sine lege is applicable in international law;but the word "law" must be understood in its broadestsense, which includes not only conventional law, butalso custom and the general principles of law.
2. NON-APPLICABILITY OF STATUTORY LIMITATIONS TOOFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
164. It must be noted at the outset that the applicationof statutory limitations in internal law is neither ageneral rule nor an absolute one.
165. This concept is unknown in the internal law ofmany countries. It is unknown in Anglo-American law.It did not exist until recently in the laws of countriessuch as Austria, Italy and Switzerland. It appeared inthe French Code during the time of Napoleon, dictatedby considerations of convenience or criminal policy. Itis justified by the need to refrain from reopening closedwounds or reawakening calmed emotions or passions.
166. Nor is the application of statutory limitations anabsolute rule, because, even in the countries which doapply them, there are exceptions. In France, for ex-ample, such limitations are not applicable to seriousmilitary offences or offences against national security.
167. Lastly, many regard the application of statutorylimitations not as a substantive rule, but only as a pro-cedural rule. Of course, this opinion is not unanimous.Some feel that the application of statutory limitations isa substantive rule because it deals with punishment. Butthe very existence of this controversy shows how relativethe scope of the rule is.
168. In international law, the application of statutorylimitations is not recognized in the writings of jurists.One would also seek it in vain in the conventions anddeclarations that appeared before or after the SecondWorld War. The concept is not mentioned in the 1942St. James Declaration, the 1943 Moscow Declaration orthe 1945 London Agreement. The fact that the problem
subsequently became a source of concern is due to thecircumstances. After Niirnberg, the prosecution andtrial of war criminals had to continue; but the rule con-cerning the application of statutory limitations in cer-tain national legal systems might have prevented theirextradition.
169. Pending the drafting of an international conven-tion, several countries tried to solve the problem in theirown internal law. The Soviet Union, for example, pro-mulgated the law of 4 March 1965 on the non-applicability of statutory limitations to war crimes andcrimes against humanity committed by the NationalSocialist regime, "whatever time has elapsed" since thecrimes were committed. Poland introduced a similarprovision in its new Penal Code (19 April 1969). InFrance, the Act of 26 December 1964 declared thatstatutory limitations were not applicable to crimesagainst humanity because of their nature.
170. In other States, the limitation period was ex-tended or distinctions were made between categories ofoffences. In the Federal Republic of Germany, for ex-ample, the limitation period was extended from 20 yearsto 30 years for murder, whereas statutory limitationswere declared to be non-applicable in the case ofgenocide (art. 78 of the Penal Code).
171. The Council of Europe, for its part, rec-ommended that the Committee of Ministers:
invite member Governments to take immediately appropriatemeasures for the purpose of preventing that, by the application of thestatutory limitation or any other means, crimes committed forpolitical, racial and religious motives before and during the SecondWorld War, and more generally crimes against humanity, remain un-punished."
It should be noted, however, that the French Act of 26December 1964 and the Recommendation of the Coun-cil of Europe referred only to crimes against humanity.
172. These examples, cited by way of illustration, donot exhaust the question, but indicate the various ap-proaches taken by States when the Economic and SocialCouncil of the United Nations prepared a draft conven-tion on the non-applicability of statutory limitations towar crimes and crimes against humanity, which wasadopted on 26 November 1968. This Convention70 issimply declaratory in character. Because the offences in-volved are crimes by their very nature, statutory limi-tations are not applicable to them, regardless of whenthey were committed.
D. Principles relating to the applicationof criminal law in space
173. There is hardly any need to recall the principleswhich determine the rules of competence in criminalcases: the principle of the territoriality of criminal law,the principle of the personality of criminal law, the prin-ciple of universal competence, etc. Whereas the prin-ciple of territoriality gives competence to the judge of
67 General Assembly resolution 217 A (III) of 10 December 1948." Convention for the Protection of Human Rights and Fundamen-
tal Freedoms (Rome, 4 November 1950) (United Nations, TreatySeries, vol. 213, p. 221).
" Council of Europe, Recommendation 549 (1969), para. 8 (a)(document 2506).
70 United Nations, Treaty Series, vol. 754, p. 73.
Draft Code of Offences against the Peace and Security of Mankind 73
the place where the crime was committed, the principleof the personality of criminal law gives competenceeither to the judge of the nationality of the perpetratoror to the judge of the nationality of the victim. The thirdprinciple, however, gives competence to the court of theplace of arrest, regardless of where the offence wascommitted. Lastly, there could also be a system givingcompetence to an international court.
174. After the Second World War, several systemswere combined, including that of international com-petence with the establishment of the InternationalMilitary Tribunal at Niirnberg, reservation being madefor the dispute which arose as to whether that Tribunalwas international or not.71 For some writers, the Niirn-berg Tribunal was an inter-Allied court rather than aninternational one; for others, it was a court of occu-pation. But that is not the problem under considerationhere. Parallel to that Tribunal, which had competenceto try the major war criminals regardless of where thecrimes may have been committed, there were courtsestablished under Law No. 10 of the Allied ControlCouncil. Those courts were not national courts either,but international courts established pursuant to the 1945London Agreement. Those courts did not differ innature from the Niirnberg Tribunal. There was only adistribution of competence, or, as Georges Scelle wouldhave said, a division of functions. Lastly, there werenational courts established by Governments with com-petence to judge war crimes at the places where they hadbeen committed. The various systems described abovewere thus combined.
175. Such crimes were punished not only on the basisof territorial competence, but also, at times, on the basisof universal competence. This system, based on theright to punish, dates back a long time. Even Grotiushad taught that:. . . kings, and those who possess rights equal to those kings, have theright of demanding punishments not only on account of injuries com-mitted against themselves or their subjects, but also on account of in-juries which do not directly affect them but excessively violate the lawof nature or of nations in regard to any persons whatsoever.72
This principle gives rise to the maxim aut dedere autpunire. There are numerous examples of such universalcompetence being applied to war crimes. A Britishmilitary tribunal, for example, judged crimes commit-ted in France against British prisoners of war (Wupper-tal, May 1946).73 Another British tribunal judged crimescommitted in Norway against British prisoners of war(Brunswick, July-August 1946).74 It might, of course, beconcluded that competence was assumed in those casesbecause the victims had been British. But there is also anexample of a British tribunal, sitting at Almelo in theNetherlands (November 1945), judging crimes commit-ted in the Netherlands one of the victims of which was a
" P. Reuter, "Le jugement du Tribunal militaire international deNuremberg", Recueil Dalloz 1946 (Paris), chronique XX.
72 H. Grotius, De Jure Belli ac Pads, Libri Tres (1646), book II,chap. XX, para. XL.l (trans. F. W. Kelsey, in The Classics of Inter-national Law, J. B. Scott, ed. (Oxford, Clarendon Press, 1925), vol.II, p. 504).
73 Law Reports of Trials . . . , op. cit. (footnote 36 above), vol. V,pp. 45 et seq.
74 Ibid., vol. XI, pp. 18 et seq.
Netherlands civilian.73 The United States courts pro-ceeded in the same way. At Wiesbaden (October 1945),a United States military commission judged crimes com-mitted in Germany against more than 400 Soviet andPolish nationals.76
176. It is clear from the foregoing that, in the absenceof an international jurisdiction, the system of universalcompetence must be accepted for offences against thepeace and security of mankind. Because of their nature,they clearly affect the human race wherever they arecommitted and irrespective of the nationality of theperpetrators or the victims.
E. Principles relating to the determinationand extent of responsibility
1. GENERAL CONSIDERATIONS
177. Having established the principle that anywrongful act entails the responsibility of its author, theexceptions to this principle, also known as "justifyingfacts", must be examined. We shall also examine theconcepts of extenuating circumstances and exculpatorypleas, which, however, are not on the same level.
178. Justifying facts concern primary rules, that is tosay the basis of responsibility. In the case of the inter-national responsibility of States, there are circumstancesprecluding wrongfulness, which are dealt with inchapter V of the present draft articles on that topic;similarly, in the case of the criminal responsibility of in-dividuals, the question arises whether the existence ofcertain facts does not remove the criminal character ofan act. Thus posed, the problem is whether or not an actis lawful. What is in question is not the material ex-istence of the act, but rather its wrongful character.
179. On the other hand, extenuating circumstancesand exculpatory pleas are situated on the level of secon-dary rules, in that they concern not the basis, but thescope of responsibility. Once the criminal character of agiven act has been established, the consequences arisingtherefrom for the perpetrator may vary according to thedegree to which he is responsible. We come here to thequestion of penalty or punishment. In internal law, it isthe judge who, on the basis of objective and subjectiveconsiderations, determines the penalty to be imposed onthe perpetrator of the act, within a given range ofpenalties and taking into account the circumstances ofthe offence, the personality of the perpetrator, hisbackground, his family situation, and so forth.
180. Extenuating circumstances differ from ex-culpatory pleas in that, unlike the latter, they do notpreclude the imposition of a penalty but can onlymitigate it. However, both exculpatory pleas and ex-tenuating circumstances are situated at the level of theimposition of penalties. Unlike justifying facts, they donot efface the wrongful character of the act. Justifi-cation, on the other hand, does efface its wrongfulcharacter. In a sense, it constitutes an exception to the
73 Ibid., vol. I, pp. 35 et seq.76 Ibid., pp. 46 et seq. On all these points, see Meyrowitz, op. cit.
(footnote 9 above), pp. 163-166.
74 Documents of the thirty-eighth session
principle of criminal responsibility in that an act which,as a general rule, constitutes an offence loses itswrongful character as a result of a justifying fact.
181. It is clear that consideration of penal justificationfalls within the scope of the present study, since itrelates to the basis of responsibility, but it may be ques-tioned whether extenuating circumstances and ex-culpatory pleas should be considered here. We have seenthat these concepts are related to the imposition ofpenalties. However, the Commission has not yet de-cided clearly whether the draft under considerationshould also deal with the penal consequences of an of-fence. If, as seems likely, the present draft is to belimited to a list of offences, leaving it to States to decideon their prosecution and punishment, then it will be forStates to apply their own internal laws in the matter ofcriminal penalties. However, there is no reason whyconsideration should not be given to the possibility ofthe draft indicating the offences for which exculpatorypleas could be offered or extenuating circumstancesraised, leaving it to judges in national courts to acceptor reject such pleas.
182. The application of the principle nullum crimensine lege would lead us to consider the completeautonomy of the code of offences vis-a-vis the draft onState responsibility. There is also a second reason: thecode will also apply to individuals, whatever definitionof the subjects of law is agreed upon. The responsibilityof individuals, however, is necessarily governed by aregime different from that of State responsibility.Moreover, certain concepts which exist in criminal lawand which are applicable here are not applicable to thedraft on State responsibility. This is so in the case ofcommand of the law or superior order, since States haveno superiors and receive orders only from themselves.Moreover, in the case of States, the question of thecapacity in which they acted does not arise, whereas, inthe case of individuals, it is not immaterial to knowwhether they acted in their personal or official capacity.
183. Differences also appear when the question is ex-amined from another standpoint. Although an inter-national crime is defined in part 1 of the draft articles onState responsibility, that draft is concerned primarilywith the "civil" consequences of such a crime, that is tosay principally with reparation (restitutio in integrum orcompensation); it is not concerned with the punitiveconsequences.
184. It therefore seems necessary to consider here,from the angle of individual criminal responsibility, thefacts which preclude that responsibility or which con-stitute exceptions to it.
2. EXCEPTIONS TO CRIMINAL RESPONSIBILITY
185. In certain legal systems, exceptions to the prin-ciple of criminal responsibility may have two sources: alegal source and a source in judicial practice. In Frenchlaw, for example, some legal authors draw a distinctionbetween justifying facts, which are exceptions based onthe law, and causes of non-imputability, a jurispruden-tial construction which goes beyond legal exceptions.Legal exceptions are necessarily limited. Since the rule is
that there must be a legal basis for every offence—in ap-plication of the principle nullum crimen sine lege—anyexception to this rule must likewise have a legal basis.One principle is the corollary of the other.
186. The very rigidity of this system, however, quicklyled legal writers and judicial organs to go beyond thenarrow confines of formal law to seek solutions bettersuited to the complex realities of criminal responsibility.There are situations for which the law makes no pro-vision, in which to condemn a person would be to com-mit an injustice, even if such condemnation were ir-reproachable in the strictly legal sense. Culpability isoften based on the intention to commit an offence. As aresult of this evident fact, legal writers and judicialorgans have elaborated a whole theory of penaljustification by taking into account the concepts of will,intention, good faith, judgment and discernment. Onthe basis of these concepts, they have expanded thescope of exceptions to criminal responsibility to includecases for which the law makes no provision.
187. Thus, besides legal justifications which eliminatethe wrongful character of an act, such as self-defence, acommand of law or order of a lawful authority, there isalso state of necessity, which derives from judicial prac-tice. Naturally, this expansion has been effected pru-dently and with restraint so as not to undermine theprinciple of responsibility itself. However, the existenceof these two sources, which are to be found in certainlegal systems, is explained by the fact that written law,which predominates in such systems, is incapable ofadapting to and expressing all the contours and nuancesof a reality that is ever-changing, particularly in the fieldof human psychology. Thus French legal writersdistinguish between the objective causes and the subjec-tive causes of non-responsibility, the first having theirorigin in law and the second in judicial practice.
188. In reality, the distinction drawn between excep-tions that are legal in origin, known as justifying facts,and exceptions originating from judicial practice,known as causes of non-culpability, is of interest onlyfrom the doctrinal angle, in so far as it classifies theseconcepts according to their source, and in so far as, inthe first case, the offence does not exist, whereas in thesecond case it exists but cannot be attributed to itsauthor in the absence of culpability. In both cases,however, the consequences are identical so far ascriminal responsibility is concerned. Both preclude suchresponsibility.
189. Such considerations are not of particularsignificance in common law, where the legal element isnot predominant in the definition of the offence. An of-fence is constituted by a material element, which is theact, and a moral element, which is the intention. The in-tervention of written law is not necessary.
190. This brief overview enables us to define the con-tent of the concept of the justifying fact for the pur-poses of the draft under consideration. One cannotadopt a strictly legalistic approach in defining this con-cept. Rather, it must be interpreted in its broad sense asany fact, whatever its provenance, which contributes tothe elimination of responsibility, any fact which con-
Draft Code of Offences against the Peace and Security of Mankind 75
stitutes an exception to the principle of criminal respon-sibility. We will therefore consider the following:
(a) Coercion;(b) State of necessity and force majeure;(c) Error;(d) Superior order;(e) The official position of the perpetrator of the of-
fence;(/) Reprisals and self-defence.
(a) Coercion
191. Coercion involves the threat of an imminent perilfrom which it is impossible to escape except by commit-ting the offence. The peril itself must constitute a gravethreat, its gravity being determined by precise criteria:an immediate threat to life or to physical well-being. Ofcourse, coercion can be either moral or physical. In bothcases, it is considered a justifying fact.
192. In the Krupp case, the United States militarytribunal ruled that the question of coercion "is to bedetermined from the standpoint of the honest belief ofthe particular accused in question" and that "the effectof the alleged compulsion is to be determined not by ob-jective-but by subjective standards".77 In that case, itwas moral coercion that was involved. In the Einsatz-gruppen case, the tribunal was even more explicit: itruled that "there is no law which requires that an inno-cent man must forfeit his life or suffer serious harm inorder to avoid committing a crime which he condemns.. . . No court will punish a man who, with a loaded pis-tol at his head, is compelled to pull a lethal lever."78
193. In other words, the exception of coercion may beaccepted if it constitutes an imminent and grave peril tolife or physical well-being. It goes without saying thatthis peril must be irremediable and that there must be nopossibility of escaping it by any other means.
(b) State of necessity and force majeure
194. Unlike coercion, state of necessity takes accountof the will of the perpetrator. A person faced with adanger chooses to commit a wrongful act in order toescape that danger. The case of the mother who steals aloaf to prevent her children from starving to death is theclassic example of an offence committed throughnecessity. In French law, an offence committed throughnecessity is a construction derived from judicial prac-tice. But judicial practice has attached strict conditionsto state of necessity, notably the condition that anecessary offence is justified only in so far as it hassafeguarded an interest greater than or at least equal tothe interest sacrificed. This is somewhat similar to therule contained in article 33 of part 1 of the draft articleson State responsibility, which provides that state ofnecessity cannot be invoked against a peremptory normof international law (para. 2 (a)).
195. State of necessity must be distinguished from cer-tain similar concepts, particularly coercion and force
77 American Military Tribunals (see footnote 32 above), caseNo. 10, vol. IX, p. 1438.
71 Ibid., case No. 9, vol. IV, p. 480.
majeure. Whereas, in the case of coercion, theperpetrator has no choice, in the case of state of necess-ity a choice does exist. By making a choice, theperpetrator avoids one event rather than another. Thisis an important element, which also distinguishes stateof necessity from force majeure. In the case of forcemajeure, as in the case of coercion, the perpetrator issubjected to an unforeseeable and irresistible force. Theconcept of state of necessity therefore possesses a cer-tain conceptual autonomy, despite the similarities andthe elements which it has in common with the other con-cepts we have just examined.
196. Despite the differences mentioned above, the ex-ceptions of necessity, coercion and force majeure aresubject to the same basic conditions:
(i) There must be a grave and imminent peril;(ii) The perpetrator must not have contributed to the
emergence of this peril;(iii) There should be no disproportion between the in-
terest sacrificed and the interest protected.
197. These last two conditions have been explicitly setout also in judicial decisions. In the /. G. Farben case,the tribunal stated that "the defence of necessity is notavailable where the party seeking to invoke it was,himself, responsible for the existence or execution ofsuch order or decree, or where his participation wentbeyond the requirements thereof, or was the result of hisown initiative".79 The situation was the same in theFlick case, where the defendants had not only obeyedinstructions, but, on their own initiative, had requestedan abnormal increase in the number of workers assignedto them.80 Thus fault on the part of a defendant who in-vokes the exception renders his argument inadmissible.
198. In the Krupp case, the condition of propor-tionality was formulated in the following terms:. . . in all fairness it must be said that in any view of the evidence thedefendants, in a concentration camp, would not have been in a worseplight than the thousands of helpless victims whom they daily exposedto danger of death, great bodily harm from starvation, and therelentless air raids upon the armament plants; to say nothing of in-voluntary servitude and the other indignities which they suffered. Thedisparity in the number of the actual and potential victims is alsothought provoking."
In other words, there must be proportionality betweenthe interest being protected and the interest sacrificed,which excludes from the scope of application crimesagainst humanity and crimes against peace. Such crimesare out of proportion to any other act.
199. The basic conditions applicable to the three con-cepts of coercion, state of necessity and force majeurebeing the same, the distinctions that have just beendiscussed do not exist in all legal systems. In commonlaw, for example, force majeure, state of necessity andcoercion are sometimes indistinguishable.
200. The Commission, in chapter V of part 1 of thedraft articles on State responsibility, devoted separate
79 Ibid., case No. 6, vol. VIII, p. 1179." ibid., case No. 5, vol. VI, p. 1202." Ibid., case No. 10, vol. IX, p. 1446. Concerning the above-
mentioned judgments, see Meyrowitz, op. cit. (footnote 9 above),pp. 404-405.
76 Documents of the thirty-eighth session
articles to force majeure and state of necessity.Moreover, it dealt with coercion in chapter IV, in con-nection with the responsibility of a State for an act ofanother State (art. 28, para. 2).
201. The question might be asked whether a special ar-ticle should be devoted here to force majeure. This con-cept, at least in certain legal systems, is more closelyrelated to the general theory of civil liability, and if itarises in criminal law, it does so in connection withunintentional offences such as homicide by negligence,resulting for example from a traffic accident. TheSpecial Rapporteur has nevertheless introduced this ex-ception because of the different meaning which it mayhave in other legal systems and in order to cover allpossible cases. It is for the Commission to decide.
(c) Error
202. The question arises whether error should be in-cluded among the exceptions to responsibility. Ifculpability rests upon intention, i.e. the will to committhe offence, then error must be included, if not amongthe causes which eliminate the offence, at least amongthe causes of non-imputability. Error, indeed, removesthe culpable intention. It is essential, of course, that theerror should not derive from an inexcusable fault on thepart of the person committing it.
203. There can be two forms of error: error of law anderror of fact.
(i) Error of law
204. Error of law is clearly related to the implemen-tation of an order which has been received, when theagent is called upon to assess the degree to which theorder is in conformity with the law. It may also exist in-dependently of any order, when the agent acts upon hisown initiative, believing that his action is in conformitywith the rules of law. Lastly, the error may exist on twolevels: the legality of the act in question in relation to theinternal order and the legality of the same act in relationto the international order.
a. Internal legality
205. The act in question may be in conformity with theauthor's national law. It may also violate that law. But,in either case, the problem is one of internal legality,which is not the concern of the present study.
b. Lawfulness of the act in international law
206. It nevertheless happens that an act which is inconformity with internal law may violate internationallaw. The case then involves a conflict between the inter-nal order and the international order, which must be set-tled in favour of the latter. This follows from the ap-plication of the general principle whereby a crime underinternational law exists independently of the internalorder, a principle which is consistent with the NiirnbergCharter (art. 6 (c)). An application of this principle isalso found in Law No. 10 of the Allied Control Council(art. II, para. 1 (c)), which set aside the benefits of anamnesty granted under the National Socialist regimeand reinstated the criminal nature of the acts.
207. While an exception based on error of law is notreadily admissible in internal law—a citizen may notclaim ignorance of his own national legislation—thequestion is treated differently in international law, par-ticularly with regard to war crimes and crimes againsthumanity. Sometimes, on account of the evolution ofinternational law and of the techniques of war, certainconcepts become obsolete and others emerge. Further-more, this is an area where rules and customary prac-tices which do not derive from any agreement tend toprevail.
208. It is for this reason that the decisions of the inter-national military tribunals admitted error of law in in-ternational law in certain cases. In the High Commandcase, the tribunal expressed the view that a militarycommander "cannot be held criminally responsible fora mere error in judgment as to disputable legal ques-tions".82 Error of law was also invoked in the /. G.Farben case, when the tribunal stated:. . . As custom is a source of international law, customs and practicesmay change and find such general acceptance in the community ofcivilized nations as to alter the substantive content of certain of itsprinciples. . . . Technical advancement in the weapons and tacticsused in the actual waging of war may have made obsolete, in somerespects, or may have rendered inapplicable, some of the provisions ofthe Hague Regulations having to do with the actual conduct ofhostilities and what is considered legitimate warfare.83
209. It therefore appears that error of law may, in cer-tain circumstances, be accepted as a defence; but only incertain circumstances. A distinction must be made herebetween war crimes and crimes against humanity. Whilethe argument based on error of law may be acceptedwith respect to war crimes, on account of certain doubtsconcerning the rules in question, it appears to be muchmore difficult to accept with respect to crimes againsthumanity. These crimes may not, in principle, be jus-tified on the grounds of error regarding wrongfulness.The judicial precedents set a condition which is almostimpossible to fulfil: the error must have beenunavoidable. In other words, the agent must havebrought into play all the resources of his knowledge, im-agination and conscience and, despite that effort, hemust have found himself unable to detect the wrongfulnature of his act. The Supreme Court of the BritishZone decided that: "it is not necessary that the agentshould have characterized his action and its conse-quences as wrongful; it suffices that he could have madethis characterization, a condition which will generally befulfilled. When an inhuman act has been committed, noone may exonerate himself from blame by pleading thathe did not detect or was blind to it. He has to answer forthat blindness.*"** If the perpetrator was blinded bydeep faith in a political ideology or led astray by thepropaganda of a regime, that would not exonerate himfrom blame. He should have known, by consulting hisconscience, that the act of which he is accused waswrongful.
210. The basis of this judicial practice appears, in thefinal analysis, to be the concept of fault. To be unaware
82 American Military Tribunals, case No. 12, vol. XI, p. 511.83 Ibid., case No. 6, vol. VIII, p. 1138.14 O.G.H. br. Z. (see footnote 11 above), vol. 1, p. 225; cited in
Meyrowitz, op. cit., p. 296.
Draft Code of Offences against the Peace and Security of Mankind 77
of a rule of law is a fault. In particular, a defendant whoinvokes internal legality should have been aware thatthis legality was inconsistent with international law.Thus a physician who believes in a political ideal andwho kills a mental patient in the name of that ideal mayperhaps be acting in conformity with the internal law ofhis country, but he is violating international law. Hisblindness is a fault. He has not drawn upon his internalresources or upon "that tension of conscience" whichwould have enabled him to detect the error regardingthe wrongfulness of his act. The German Federal Court,upon an appeal by the public prosecutor, quashed thejudgment of an assize court which had acquitted adefendant on the grounds that he had not been aware ofthe unlawful nature of the act with which he wascharged, and declared that "if the agent had subjectedhis conscience to the tension which one is entitled to ex-pect of him, he would have found the right answer tothe question of knowing what is lawful and what isunlawful".85
211. As a result of these judicial decisions, a crimeagainst humanity may not in practice admit of any justi-fying fact through an error of law. No error of law canexcuse a crime which is motivated by racial hatred orpolitical prejudices.
(ii) Error of fact
212. Error of fact relates to a false representation of amaterial fact, unlike error of law, which relates to afalse representation of a rule of law. In both cases, theerror must not involve fault if the person who commitsit is to be exonerated from responsibility.
213. Error of fact has been invoked, at times beforethe international tribunals. In the Carl Rath andRichard Thiel case, judged by a British military tribunal(Hamburg, January 1948), the Judge Advocate statedthat it would be a good defence to the charge of havingexecuted certain Luxembourg nationals if an accusedcould show that he honestly believed he had participatedin the execution of someone who had been conscriptedinto the German army and had been sentenced todeath.86
214. However, as was the case with respect to error oflaw, this concept cannot breach the barrier of crimesagainst humanity. This barrier is unbreachable, for noerror of fact can justify a crime against humanity.A person who mistakes the religion or race of a victimmay not invoke this error as a defence, since the motivefor his act was, in any case, of a racial or religiousnature.
215. With regard to war crimes, on the other hand, theerror must be of an unavoidable nature, i.e. it mustassume the characteristics of force majeure> in orderto relieve the person who commits it from any respon-sibility. An error which derives from negligence or im-prudence, in other words an error which could havebeen avoided, does not exonerate the person who com-
15 Juristenzeitung (Tubingen), vol. 8, No. 12 (1953), pp. 377-378;cited in Meyrowitz, op. cit., p. 298.
" See Law Reports of Trials . . . , op. cit. (footnote 36 above),vol. XV, p. 184, footnote 4.
mits it from responsibility. In that case, the error maysimply constitute a reason for reducing the penalty, butsuch a situation is not under consideration here.
216. To sum up, the error, whether of law or of fact,must be of an unavoidable nature in order to exoneratethe person who commits it from responsibility for a warcrime. It cannot in any circumstances justify a crimeagainst humanity or a crime against peace.
(d) Superior order
217. With regard to the question whether superiororder constitutes an autonomous justifying fact, itshould be noted that, in the case of compliance with awrongful order, three situations may arise. The personwho executes the order may have complied with it in fullknowledge of its implications, in which case he has com-mitted a fault which may be considered an act of com-plicity; or he may have acted under coercion; or he mayhave been the victim of an error. The two latter casesfall within the scope of the subject under discussion. Ac-cordingly, we shall consider the relationship of the orderto, respectively, coercion and error.
(i) The order and coercion
218. The principle of compliance with superior ordersgives rise to a very difficult problem, to which there arethree possible solutions: one can admit the theory ofpassive compliance, with the corollary that the personwho executes the order is freed from responsibility in allcases; one can admit the responsibility of that person,which implies that he has the right to criticize the orderand to refuse to execute it: this is the so-called "in-telligent bayonets" theory; or, lastly, one can adopt anintermediate solution which makes a distinction accord-ing to whether the wrongfulness was obvious or not.
219. Both the theory of passive compliance and the so-called "intelligent bayonets" theory have been rejectedin judicial practice and the writings of jurists, whichhave taken the concept of an obviously illegal order asconstituting the borderline between the duty to complyand the duty not to comply. When the wrongfulness ofan order is obvious, it is the duty of a subordinate torefuse to execute it. He may not, in principle, avoidcriminal responsibility when he executes an order whosewrongful character is beyond question.
220. However, it may be asked whether this ruleshould not be applied with some flexibility in the case ofcoercion. Coercion has been defined (para. 191 above)as a grave, imminent and irremediable peril whichthreatens life or physical well-being. In such cir-cumstances, it would be too much to demand that com-pliance be refused in all cases. Despite the strictness ofthe principle set forth in article 8 of the NiirnbergCharter, whereby an order from a superior does not freethe perpetrator of a crime from responsibility, it cannotbe forgotten that criminal responsibility rests onfreedom and that, in the absence of freedom, there canbe no responsibility. The Niirnberg Tribunal, comment-ing on article 8 of the Charter, stated: "The true test[for criminal responsibility], which is found in varyingdegrees in the criminal law of most nations, is not theexistence of the order, but whether moral choice was in
78 Documents of the thirty-eighth session
fact possible."87 The Tribunal thus stated clearly thatthe fact to be taken into consideration was not the orderitself but the freedom of the perpetrator to execute ornot to execute that order.
221. The rule which links the order, as a source ofnon-responsibility, to coercion was later set out in Prin-ciple IV of the Niirnberg Principles" and in the 1954draft code, article 4 of which reads:
The fact that a person charged with an offence defined in this Codeacted pursuant to an order of his Government or of a superior doesnot relieve him of responsibility in international law if, in the cir-cumstances at the time, it was possible for him not to comply with thatorder.
This provision is less strict than the principle set forth inthe Niirnberg Charter, where the strictness may be ex-plained by the fact that the Charter applied to majorwar criminals, persons whose level of authority wassuch that it was incompatible with blind obedience orcoercion. The offences of which they were accused werenot offences of persons executing orders, but offenceswhich were regarded as constituting abuse of their pos-itions of command. Here, on the other hand, it is aquestion of taking account of different circumstances,whereby the agent may have acted under the influenceof external factors which affected, guided or weakenedhis will.
222. These circumstances must certainly be carefullyexamined in each case. It is a question of specifics. Allthe objective and subjective elements, including the per-sonality of the perpetrator, the nature of his duties andthe context in which the order was given, must of coursebe assessed. In the High Command case, the tribunalestablished the bases upon which the defence of co-ercion might be accepted:
The defendants in this case who received obviously criminal orderswere placed in a difficult position, but servile compliance with ordersclearly criminal for fear of some disadvantage or punishment not im-mediately threatened cannot be recognized as a defence. To establishthe defence of coercion or necessity* in the face of danger there mustbe a showing of circumstances such that a reasonable man would ap-prehend that he was in such imminent physical peril as to deprive himof freedom to choose* the right and refrain from the wrong."
Coercion was also judged by the Supreme Court of theBritish Zone to absolve a person from his duty not tocomply with an order which was obviously wrongful.The Court stated that article II, paragraph 4 (b), of LawNo. 10 of the Allied Control Council, despite its formalstrictness, left room for the defence of coercion. Whathad to be established was whether the text ruled out theapplication of articles 52 and 54 of the German PenalCode concerning moral coercion in the case of an ob-viously illegal order. The response of the SupremeCourt was negative.90
223. However, this relaxation of article 8 of the Niirn-berg Charter and of article II, paragraph 4 (b), of LawNo. 10 should not give rise to the belief that the dams
17 Trial of the Major War Criminals . . . . op. cit. ( f o o t n o t e 51above), vol. I, p. 224.
" See footnote 8 above." American Military Tribunals, case No. 12, vol. XI, p. 509.90 O.G.H. br. Z. (see footnote 11 above), vol. 1, p. 313; cited in
Meyrowitz, op. cit., p. 405.
have been breached and that any fact may be consideredas a peril or a serious threat which may be equated withcoercion. The circumstances must be analysed and ex-amined with a fine-tooth comb. It is through consider-ation of the circumstances that the judge must becomeconvinced that the order was accompanied by coercion.
224. Thus he must be certain that it was coercion alonewhich led to compliance with the order. If it wereestablished that, despite the reality of the coercion, theagent was prompted by another motive, coercion wouldnot be retained as an admissible defence. Likewise, ac-count must be taken of the nature of the agent's dutiesand of the degree of risk associated with them. Thus, ifthe agent was aware in advance of the risk to which hewould be exposed as a result of the responsibilitieswhich he accepted, he would not be able to invoke co-ercion in his defence. An intelligence agent or a secretservice agent would not be able to invoke in his defencethe risk to which he was exposed by his duties if, undercoercion, he were to commit an act which was inconsis-tent with his allotted tasks. The Supreme Court of theBritish Zone judged that he had taken on his clandestinepolitical work with full knowledge of the implications,and that his was "one of those situations where the legalorder requires of a person, by exception, behaviour go-ing beyond human nature and consisting in overcomingthe instinct of self-preservation. Just as sailors,policemen, firemen . . . and soldiers in the course of war. . . are obliged to endure the danger which threatenstheir life or their physical well-being . . . so might thedefendant be required to endure the danger which hefaced as a result of a freely taken decision"."
225. Nevertheless, despite the necessary strictness ofthe conditions mentioned above, compliance with anobviously wrongful order may, if the order takes theform of an act of coercion, constitute an admissibledefence in certain circumstances.
226. Naturally, the unbreachable barrier of crimesagainst humanity remains, and no exception of any kindcan circumvent it. As has been stated, a crime againsthumanity, on account of its very characteristics, can ad-mit of no justification. No act of coercion can justifygenocide or apartheid, for example.
(ii) The order and error
227. It may be asked whether an order can constitutean exception on the grounds of non-responsibility incases other than that of coercion.
228. When an order is not obviously wrongful, its ap-praisal may leave room for a margin of error. We shallnot revert to the previous discussion on error of law. Anagent who receives an order may believe that it is lawfulif the wrongfulness is not obvious. He does not evenhave any reason a priori to suspect the order which hehas received if it emanates from a competent higherauthority. Moreover, it must be emphasized that, inprinciple, a lawful order is the rule and a wrongful orderthe exception. A commander generally takes care not toexceed the limits of the law: that is, indeed, the basis ofhis authority. Furthermore, since discipline is, as they
" O.G.H. br. Z., vol. 3, p. 130; cited in Meyrowitz, op. cit., p. 406.
Draft Code of Offences against the Peace and Security of Mankind 79
say, the strength of armies, and since promptness of ex-ecution is the prerequisite for efficiency, a subordinatecannot be expected to go too far in exercising his right tocriticize in this context.
229. Apart from this fact, legal rules are not alwayseasy to interpret, and this is particularly true in the caseof rules of international law. In such cases, the exe-cution through error of a wrongful order presents theproblem of the responsibility of the person who com-plied with it.
230. Certain legislative bodies have already attemptedto solve the problem within the context of internal law.Thus paragraph 509 (a) of the United States Army fieldmanual, The Law of Land Warfare, provides:
The fact that the law of war has been violated pursuant to an orderof a superior authority, whether military or civil, does not deprive theact in question of its character of a war crime, nor does it constitute adefence in the trial of an accused individual, unless he did not knowand could not reasonably have been expected to know that the actordered was unlawful. . . . "
It has already been noted that error cannot constitute acause of non-responsibility unless it was unavoidable,given the circumstances in which it was committed, andit is this idea which is expressed in the text just cited.
231. As for judicial practice, the same idea was ex-pressed by the tribunal in the Hostage case, concerningField Marshal List: "An officer is duty bound to carryout only the lawful orders that he receives. One whodistributes, issues or carries out a criminal orderbecomes a criminal if he knew or should have known ofits criminal character. Certainly, a field marshal of theGerman Army with more than 40 years of experience asa professional soldier knew or ought to have known ofits criminal nature."93 In the High Command case, thetribunal declared with regard to Field Marshal von Leeband the other defendants: "in determining the criminalresponsibility of the defendants in this case, it becomesnecessary to determine not only the criminality of anorder in itself, but also . . . whether or not such an orderwas criminal on its face".94
232. It follows from these various elements that com-pliance through error with a wrongful order may con-stitute an admissible exception. But here, as in the caseof an order executed under coercion, the factor to beconsidered is not the order but the error. The error mustpossess the characteristics specified in the paragraphsdealing with that concept. Provided that the errordemonstrates those characteristics, it may exonerate theperson who executed the order.
233. In conclusion, it may be asked whether com-pliance with a wrongful order resulting from coercion orerror constitutes an autonomous concept within thecontext of reasons for admitting absence of criminalresponsibility. It may also be asked why, in the writingsof jurists, a separate place is reserved for it among justi-fying facts or reasons for absence of responsibility. An
'2 United States of America, Department of the Army Field ManualFM 27-10 (July 1956).
93 American Military Tribunals, case No. 7, vol. XI, p. 1271."Ibid., case No. 12, vol. XI, p. 512. Concerning the above-
mentioned judgments, see Meyrowitz, op. cit., pp. 397-399.
order is not in itself a justification. It is an attribute ofthe position of command resulting from the normal ex-ercise of authority, without which there would beneither rigour nor discipline. Its corollary is compliance.Compliance is as normal as the order, and neithershould in itself justify a theory allowing exceptions tocriminal responsibility. If that has been the case, it isbecause they have mistakenly been confused with otherconcepts with which they may coincide, but must neverbe confused.
234. That being said, the Special Rapporteur never-theless proposes a provision on compliance with theorders of a superior, with the aim of opening a debateon the question (see article 8 in part V of the presentreport). It will perhaps be found that compliancethrough coercion or error formally demonstrates,despite everything, certain distinctive characteristicslinked to the existence of the order itself. That wouldalso be an acceptable theory. Moreover, the concept ofsuperior order already bears the stamp of respectabilityand now has a measure of acceptance in the manuals,and one should not always seek to upset establishedpractice.
(e) Official position of the perpetrator of the offence
235. A distinction must be drawn between politicalresponsibility and criminal responsibility.
236. Political responsibility obeys the constitutionalrules of the country concerned. This form of respon-sibility is outside the scope of the present study. Inter-national law cannot intervene in the process wherebypeoples choose their form of government, at least in thepresent circumstances. Similarly, the criminal respon-sibility of heads of State can be implemented at the in-ternal level without involving international law. This isso, for example, in the case of high treason, where theaccused are brought before national courts in appli-cation of internal law.
237. On the other hand, there are cases where thequestion arises whether the position of head of State,precisely because a head of State embodies thesovereignty of his country, would not be an obstacle tothe implementation (mise en oeuvre) of internationalcriminal responsibility. In principle, a State organ act-ing in this capacity is not responsible under inter-national law. This principle, however, admits of one ex-ception today, in the case of offences against the peaceand security of mankind. The previous report dealt atlength with the two capacities in which an individual canact: either as a private individual or as an organ of aState.95 The emergence of the individual as a subject ofinternational law coincided with the occurrence of of-fences imputable to individuals as organs of a State. Ithas been said that offences against the peace and secur-ity of mankind are often inseparable from the power ofcommand. If heads of State, members of Governmentsor responsible government officials were protected byimmunity, international criminal law would be renderedinoperative. The official position of the perpetrator of
95 Yearbook . . . 1985, vol. II (Part One), pp. 65-66, documentA/CN.4/387, paras. 11-17.
80 Documents of the thirty-eighth session
an international crime should not constitute a protectiveshield.
238. This rule was confirmed by article 7 of the Niirn-berg Charter. That article was the subject of two draftssubmitted to the 1945 London Conference, one by theUnited States of America and the other by the SovietUnion.96 According to the United States draft, submit-ted on 30 June 1945: "Any defence based upon the factthat the accused is or was the head or purported head orother principal official of a State is legally inadmissibleand will not be entertained."97 According to the Sovietdraft, submitted on 2 July 1945: "The official positionof persons guilty of war crimes, their position as headsof States or as heads of various departments shall not beconsidered as freeing them from or in mitigation of theirresponsibility."98 The text finally adopted is article 7 ofthe Niirnberg Charter, according to which:
The official position of defendants, whether as Heads of State orresponsible officials in government Departments, shall not be con-sidered as freeing them from responsibility or mitigating punishment.
239. Article 6 of the Tokyo Charter provides:Neither the official position, at any time, of an accused, nor the fact
that an accused acted pursuant to order of his Government or of asuperior shall, of itself, be sufficient to free such accused from respon-sibility for any crime with which he is charged, but such circumstancesmay be considered in mitigation of punishment if the Tribunal deter-mines that justice so requires.
240. The divergence between the two Charters withregard to mitigating circumstances is not of interest inthis part of the report, which is devoted exclusively tojustifying facts.
(f) Reprisals and self-defence
(i) Reprisals
241. Reprisals are defined as an act by which a Stateresponds to an earlier act by another State committed inviolation of international law. The aim of reprisals maybe to stop the earlier act, to prevent it from recurring, orsimply to avenge and punish.
242. The question arises whether reprisals, thus de-fined, are lawful, in other words whether they constitutea justifying fact that would absolve their perpetratorfrom all responsibility. The assumption here, of course,is that these are armed reprisals; unarmed reprisals donot figure in the context of the present report. Armedreprisals may be seen in two different ways. They maybe considered as an aggression and constitute a crimeagainst peace; or they may constitute a war crime if theyhave occurred during an armed conflict.
243. When armed reprisals are directed againstanother State, in one of the forms set out in the Defi-nition of Aggression,99 the question arises whether theseacts lose their wrongful character because they con-
stitute a response to an earlier wrongful act. The prob-lem was discussed in the Commission during thepreparation of the draft code, in 1950. The lawfulnessof reprisals was defended by the Special Rapporteur,Jean Spiropoulos, in the following terms:. . . In spite of the serious fears which have been expressed for theauthority of the code to be drafted, in the event of its acknowledgingthe plea of reprisals, we cannot see how the plea of reprisals could notbe admitted.
. . . we conclude that there cannot be any doubt that the plea ofreprisals must be admitted, provided the reprisals are legal, i.e. are ex-ercised in conformity with international treaties and customarylaw. . . .10°
Under this system of law, reprisals, although lawful,were bound by certain limits and were subject to pre-conditions; moreover, the measure of reprisal was notto be manifestly disproportionate to the earlier act(Naulilaa incident (1928)' °').
244. Today, the trend has been reversed, and theDeclaration on Principles of International Law concern-ing Friendly Relations and Co-operation among Statesin accordance with the Charter of the United Nationsprovides that "States have a duty to refrain from acts ofreprisal involving the use of force".102
245. The problem that arises with regard to the draftunder consideration is whether there should be a specialprovision indicating that armed reprisals do not con-stitute a justifying fact. It seems that the reply should benegative, for recourse to armed force under conditionsnot provided for in the Charter of the United Nationsconstitutes aggression as already defined in the draftcode and by the General Assembly in its resolution of 14December 1974.
246. Another problem is that of reprisals in time ofwar, which raise questions of humanitarian law. AsJean-Jacques Rousseau said:
War is not a concern between man and man but between State andState, in which individuals are enemies only accidentally, not as men,or as citizens, but as soldiers; not as members of a country, but as itsdefenders.103
247. Seen in this light, reprisals should be examined inrelation to humanitarian law, i.e. from the point of viewof their consequences for prisoners of war and civilianpopulations, in other words persons who are not or areno longer combatants. These categories of persons wereoften not spared during the Second World War.Reprisals occurred particularly in the form of the ex-ecution of hostages. Regrettably, such acts occur eventoday, in various theatres of operations throughout theworld.
248. The problem of protecting these categories ofpersons has been dealt with only in occasional andfragmentary provisions: article 50 of the Regulations
" See the Jackson Report, International Conference on MilitaryTrials, London, 1945, Department of State publication 3080(Washington (D.C.), 1949), p. 165, document XXIII (comparativetexts of the two drafts).
97 Ibid., p. 180, para. 16 of the annex to the draft." Ibid., art. 28 of the draft." General Assembly resolution 3314 (XXIX) of 14 December 1974,
annex.
100 First report by J. Spiropoulos, Yearbook . . . 1950, vol. II,pp. 273-274, document A/CN.4/25, paras. 141 and 147.
101 United Nations, Reports of International Arbitral Awards,vol. II (Sales No. 1949.V.I), p. 1011, at pp. 1025 etseq. {Question desrepresailles).
102 General Assembly resolution 2625 (XXV) of 24 October 1970,annex, first principle, sixth paragraph.
103 The Social Contract, book I, chap. IV.
Draft Code of Offences against the Peace and Security of Mankind 81
annexed to the Hague Convention (IV) of 18 October1907 respecting the Laws and Customs of War onLand;104 article 87, third paragraph, of the Geneva Con-vention (III) of 12 August 1949 relative to the Treatmentof Prisoners of War;103 article 33 of the Geneva Conven-tion (IV) of 12 August 1949 relative to the Protection ofCivilian Persons in Time of War.106
249. The first systematic attempt at a solution wasvery recent, in the form of Additional Protocol I107 tothe Geneva Conventions. According to the provisions ofpart IV of the Protocol, reprisals are prohibited: againstthe civilian population (art. 51, para. 6); against civilianobjects (art. 52, para. 1) or cultural objects (art. 53, sub-para, (c)); against objects indispensable to the survivalof the civilian population (art. 54, para. 4); and againstthe natural environment (art. 55, para. 2). As therepresentative of ICRC indicated at the DiplomaticConference on the Reaffirmation and Development ofInternational Humanitarian Law Applicable in ArmedConflicts, the application of this law was not based onreciprocity; the representative of the Ukrainian SovietSocialist Republic stated that, if it were, it wouldamount to introducing the law of retaliation.108 Thedebate concerning the effectiveness of the prohibitionsset forth in the Protocol will not be discussed here.Some writers have considered that the law relating toreprisals set out in Protocol I is "fictional law".
250. The problem that arises, de lege ferenda, iswhether reprisals carried out in violation of the above-mentioned provisions should be defined as a separateoffence. It would seem not. Indeed, such an offencewould quite simply be a violation of the "laws andcustoms of war", or, if one prefers, the law of armedconflicts. This question is already dealt with in the draftcode.
(ii) Self-defence
251. Self-defence can be invoked as a justifying factonly in the case of aggression. Where there is aggres-sion, the responsibility of the State and the responsi-bility of the individual have the same content rationemateriae. These two responsibilities, however, aresuperimposed on each other and do not merge. They donot have the same content ratione personae. Yet there isa tendency to confuse them simply because, in the caseof aggression, the individuals in question are of necess-ity responsible government officials. But the two con-cepts cannot be governed by the same rules, because ofthe diversity of juridical persons, and must therefore betreated separately.
252. Whereas self-defence can, as has just been said,be invoked as a justifying fact in the case of aggression,
104 See footnote 37 above.105 United Nations, Treaty Series, vol. 75, p. 135.106 Ibid., p. 287.107 See footnote 40 above."" See the discussion at the Conference on draft article 74, on
repression of breaches of Protocol I, in Official Records of theDiplomatic Conference on the Reaffirmation and Development of In-ternational Humanitarian Law Applicable in Armed Conflicts(Geneva, 1974-1977), vol. IX (Berne, 1978), especially summaryrecords of the 46th and 48th meetings.
it can never be invoked in the case of war crimes. Whenhostilities have broken out, armed conflict has begunand a state of war exists, one cannot speak of self-defence between the combatants, because the attack un-fortunately becomes as legitimate as the defence as longas the "laws and customs of war" are respected.
253. There will be no separate article on self-defence;it will be dealt with in relation to aggression under thegeneral heading of justifying facts.
3. SUMMARY
254. In brief, it can be seen that the theory of justify-ing facts, in practice and despite the generality of thewording used in the draft articles, involves varying ap-plications and has a different scope depending on theoffences or categories of offences in question. Thefollowing three propositions can be stated:
(a) Crimes against humanity cannot be justified bythe motives which inspire them and from which they areinseparable. No justification can be found in the fact ofkilling in order to destroy an ethnic group, or killing forracial or religious reasons;
(b) Crimes against peace can have no justificationother than self-defence in the case of aggression;
(c) Justifying facts and causes of non-responsibilitymay apply only in relation to war crimes—and in a verylimited number of cases. Even then, it should bespecified—but is it really necessary?—that this is trueonly if these war crimes do not, at the same time, con-stitute crimes against humanity.
4. EXCULPATORY PLEAS AND EXTENUATINGCIRCUMSTANCES
255. To speak of exculpatory pleas and extenuatingcircumstances in respect of offences against the peaceand security of mankind may appear incongruous.Could the perpetrators of the most serious, hateful andmonstrous crimes on the scale of offences be allowed tooffer exculpatory pleas or invoke extenuating cir-cumstances?
256. The reply could be affirmative in some cases. Butsuch exemptions or mitigation of punishment are thenlinked to questions of fact and not to questions of law,and are not likely to be found in a code if that code islimited to primary rules. Moreover, as has been said,they are linked to the application of penalties and areoften taken into consideration within the scale ofpenalties. A code which does not prescribe penaltiescannot contain provisions on exculpatory pleas or ex-tenuating circumstances.
257. The Nurnberg and Tokyo Charters left to thejudge the responsibility for establishing the applicablepenalty, which could be the death penalty. As a result,those Charters contained provisions concerning ex-tenuating circumstances. The Nurnberg Charter (art. 8)admitted extenuating circumstances when the defendanthad acted pursuant to order of his Government or ofa superior. The Tokyo Charter (art. 6) allowed theTribunal the possibility of considering extenuating cir-cumstances either by reason of an order received or evenby reason of the official position of the accused.
82 Documents of the thirty-eighth session
258. Since the code, in its present state, does notprescribe penalties, it cannot prescribe measures con-cerning ways of applying penalties.
F. Conclusion
259. These seem to be the offences and the principlesgoverning the matter. It will undoubtedly be noted thatthe texts and judicial decisions analysed are, unfor-tunately, too closely linked to the circumstances of the
Second World War. However, it should be recalled thatthe expression "offence against the peace and securityof mankind" is itself a result of those circumstances.Some decisions have, of course, been rendered by na-tional courts since that war, particularly concerning warcrimes. Those decisions do not contribute anything par-ticularly new in relation to the judicial practice whichhas been analysed here and from which we have soughtto isolate certain elements which, detached from theircontext, may be general and abstract enough to beraised to the level of legal concepts and rules.
PART V
Draft articles
260. The draft articles relate to the subject as a whole.The following remarks may be made:
(a) Draft articles 1, 2 and 3 as originally submitted109
have been reworded. A number of members of theCommission and representatives in the Sixth Committeeof the General Assembly did not consider it necessary toinclude a precise definition of an offence against thepeace and security of mankind. In addition, the defini-tions proposed, and particularly the one taken from ar-ticle 19 of part 1 of the draft articles on State respon-sibility, were very controversial. The new article 1 nowproposed avoids these difficulties;
(b) Any reference to political organs and anyelements that would encroach on the domain of thejudge have been removed from the definition of aggres-sion;
(c) The definitions of the other offences are based onexisting conventions, sometimes reproducing the textsthereof in full or in part. More general alternatives arealso proposed, however, so as to enable the Commissionto choose between the texts or combine them;
(d) The general principles have emerged either fromthe study of existing conventions or from the study ofjudicial precedents. Some principles will apply moregenerally to crimes against peace or to crimes againsthumanity, while others will apply more generally to warcrimes. They are, however, formulated according to asomewhat synoptic approach, in order to respect theunity of the subject-matter, while provision is made forexceptions and restrictions in certain individual cases.
261. The draft articles comprise two chapters: onecontains an introduction and the other a list of offences.
"" Yearbook . . . 1985, vol. II (Part One), pp. 81 et seq., documentA/CN.4/387, chap. III.
CHAPTER I
INTRODUCTION
PART I. DEFINITION AND CHARACTERIZATION
Article 1. Definition
The crimes under international law defined in thepresent Code constitute offences against the peace andsecurity of mankind.
Article 2. Characterization
The characterization of an act as an offence againstthe peace and security of mankind, under internationallaw, is independent of the internal order. The fact thatan act or omission is or is not prosecuted under internallaw does not affect this characterization.
PART II. GENERAL PRINCIPLES
Article 3. Responsibility and penalty
Any person who commits an offence against thepeace and security of mankind is responsible thereforand liable to punishment.
Article 4. Universal offence
1. An offence against the peace and security ofmankind is a universal offence. Every State has the dutyto try or extradite any perpetrator of an offence againstthe peace and security of mankind arrested in its ter-ritory.
2. The provision in paragraph 1 above does not pre-judge the question of the existence of an internationalcriminal jurisdiction.
Draft Code of Offences against the Peace and Security of Mankind 83
Article 5. Non-applicability of statutory limitations
No statutory limitation shall apply to offences againstthe peace and security of mankind, because of theirnature.
Article 6. Jurisdictional guarantees
Any person charged with an offence against the peaceand security of mankind is entitled to the guarantees ex-tended to all human beings and particularly to a fairtrial on the law and facts.
Article 7. Non-retroactivity
1. No person shall be convicted of an act or omis-sion which, at the time of commission, did not con-stitute an offence against the peace and security ofmankind.
2. The above provision does not, however, precludethe trial or punishment of a person guilty of an act oromission which, at the time of commission, wascriminal according to the general principles of inter-national law.
Article 8. Exceptions to the principleof responsibility
Apart from self-defence in cases of aggression, no ex-ception may in principle be invoked by a person whocommits an offence against the peace and security ofmankind. As a consequence:
(a) The official position of the perpetrator, and par-ticularly the fact that he is a head of State or Govern-ment, does not relieve him of criminal responsibility;
(b) Coercion, state of necessity or force majeure donot relieve the perpetrator of criminal responsibility,unless he acted under the threat of a grave, imminentand irremediable peril;
(c) The order of a Government or of a superior doesnot relieve the perpetrator of criminal responsibility,unless he acted under the threat of a grave, imminentand irremediable peril;
(£0 An error of law or of fact does not relieve theperpetrator of criminal responsibility unless, in the cir-cumstances in which it was committed, it wasunavoidable for him;
(e) In any case, none of the exceptions in sub-paragraphs (b), (c) and (d) eliminates the offence if:
(i) the fact invoked in his defence by the perpetratoris a breach of a peremptory rule of internationallaw;
(ii) the fact invoked in his defence by the perpetratororiginated in a fault on his part;
(iii) the interest sacrificed is higher than the interestprotected.
Article 9. Responsibility of the superior
The fact that an offence was committed by a subor-dinate does not relieve his superiors of their criminalresponsibility, if they knew or possessed informationenabling them to conclude, in the circumstances then ex-isting, that the subordinate was committing or was go-
ing to commit such an offence and if they did not takeall the practically feasible measures in their power toprevent or suppress the offence.
Comments concerning articles 1 to 9
Articles 1 to 7 do not call for any particular comment,except to point out, with regard to the principle of non-retroactivity, that paragraph 2 of article 7 ensures thatthis rule is not restricted to sources of written law.
With regard to article 8, it will be noted that sub-paragraph (e) ensures that crimes against humanity andcrimes against peace are in effect excluded. The scope ofthe exceptions will be limited, in certain cases, mainly towar crimes.
With regard to article 9, the Commission may alsoleave the hypothesis in question to be covered by thegeneral theory of complicity. It should be remembered,however, that these are offences committed within theframework of a hierarchy, which therefore almostalways involve the power of command. It may thereforebe useful to provide a separate basis and an independentwritten source to cover the responsibility of the leader.
CHAPTER II
OFFENCES AGAINST THE PEACE ANDSECURITY OF MANKIND
Article 10. Categories of offences against thepeace and security of mankind
Offences against the peace of security of mankindcomprise three categories: crimes against peace, crimesagainst humanity and war crimes or [crimes committedon the occasion of an armed conflict].
PART I. CRIMES AGAINST PEACE
Article 11. Acts constituting crimes against peace
The following constitute crimes against peace:1. The commission by the authorities of a State of
an act of aggression.
(a) Definition of aggression(i) Aggression is the use of armed force by a
State against the sovereignty, territorial in-tegrity or political independence of anotherState, or in any other manner inconsistentwith the Charter of the United Nations, as setout in this definition;
(ii) EXPLANATORY NOTE. In this definition, theterm "State":a. is used without prejudice to questions of
recognition or to whether a State is aMember of the United Nations;
b. includes the concept of a "group ofStates", where appropriate.
(b) Acts constituting aggressionAny of the following acts, regardless of a
declaration of war, shall qualify as an act of
84 Documents of the thirty-eighth session
aggression, without this enumeration being ex-haustive:
(i) the invasion or attack by the armed forces ofa State of the territory of another State, orany military occupation, however tem-porary, resulting from such invasion or at-tack, or any annexation by the use of forceof the territory of another State or partthereof;
(ii) bombardment by the armed forces of a Stateagainst the territory of another State or theuse of any weapons by a State against theterritory of another State;
(Hi) the blockade of the ports or coasts of a Stateby the armed forces of another State;
(iv) an attack by the armed forces of a State onthe land, sea or air forces or marine and airfleets of another State;
(v) the use of armed forces of one State whichare within the territory of another State withthe agreement of the receiving State in con-travention of the conditions provided for inthe agreement or any extension of theirpresence in such territory beyond the ter-mination of the agreement;
(vi) the action of a State in allowing its territory,which it has placed at the disposal ofanother State, to be used by that other Statefor perpetrating an act of aggression againsta third State;
(vii) the sending by or on behalf of a State ofarmed bands, groups, irregulars ormercenaries which carry out acts of armedforce against another State of such gravityas to amount to the acts listed above, or itssubstantial involvement therein.
(c) Scope of this definition(i) Nothing in this definition shall be construed
as in any way enlarging or diminishing thescope of the Charter, including its provi-sions concerning cases in which the use offorce is lawful;
(ii) Nothing in this definition, and in particularsubparagraph (b), could in any way preju-dice the right to self-determination, freedomand independence, as derived from theCharter, of peoples forcibly deprived of thatright and referred to in the Declaration onPrinciples of International Law concerningFriendly Relations and Co-operation amongStates in accordance with the Charter of theUnited Nations, particularly peoples undercolonial and racist regimes or other forms ofalien domination; nor the right of thesepeoples to struggle to that end and to seekand receive support, in accordance with theprinciples of the Charter and in conformitywith the above-mentioned Declaration.
Comments
This definition is taken from General Assemblyresolution 3314 (XXIX) of 14 December 1974, but it
does not reproduce the passages relating to evidence andthe consequences of aggression or to interpretation.This is because interpretation and evidence are matterswithin the competence of the judge. The penal conse-quences are the subject of the present draft.
2. Recourse by the authorities of a State to thethreat of aggression against another State.
3. Interference by the authorities of a State in the in-ternal or external affairs of another State, including:
(a) fomenting or tolerating the fomenting, in the ter-ritory of a State, of civil strife or any other form ofinternal disturbance or unrest in another State;
(b) exerting pressure, taking or threatening to takecoercive measures of an economic or political natureagainst another State in order to obtain advantages ofany kind.
Comments
Paragraph 2 does not call for any comment; it istaken from the 1954 text. Paragraph 3, concerning in-terference, is a revised version of the 1954 text. It is in-tended to cover not only the fomenting of civil strife,but all forms of internal disturbance or unrest. Para-graph 3 (b) expands the scope of interference beyondpolitical forms, and includes coercive measures of aneconomic nature.
4. The undertaking, assisting or encouragement bythe authorities of a State of terrorist acts in anotherState, or the toleration by such authorities of activitiesorganized for the purpose of carrying out terrorist actsin another State.
(a) Definition of terrorist actsThe term "terrorist acts" means criminal acts
directed against another State or the populationof a State and calculated to create a state of terrorin the minds of public figures, a group of persons,or the general public.
(b) Terrorist actsThe following constitute terrorist acts:
(i) any act causing death or grievous bodilyharm or loss of freedom to a head of State,persons exercising the prerogatives of thehead of State, the hereditary or designatedsuccessors to a head of State, the spouses ofsuch persons, or persons charged with publicfunctions or holding public positions whenthe act is directed against them in their publiccapacity;
(ii) acts calculated to destroy or damage publicproperty or property devoted to a public pur-pose;
(Hi) any act calculated to endanger the lives ofmembers of the public through fear of acommon danger, in particular the seizure ofaircraft, the taking of hostages and any otherform of violence directed against personswho enjoy international protection ordiplomatic immunity;
(iv) the manufacture, obtaining, possession orsupplying of arms, ammunition, explosives
Draft Code of Offences against the Peace and Security of Mankind 85
or harmful substances with a view to thecommission of a terrorist act.
Comments
This text reproduces, as regards the definition of ter-rorism, the terms of the 1937 Convention,110 but alsocovers certain new forms of terrorism, such as theseizure of aircraft and violence against diplomats.
5. A breach of obligations incumbent on a Stateunder a treaty which is designed to ensure internationalpeace and security, particularly by means of:
(i) prohibition of armaments, disarmament, orrestrictions or limitations on armaments;
(ii) restrictions on military preparations or onstrategic structures or any other restrictions ofthe same kind.
6. A breach of obligations incumbent on a Stateunder a treaty prohibiting the deployment or testing ofweapons, particularly nuclear weapons, in certain ter-ritories or in space.
Comments
This text supplements the 1954 draft by envisagingcertain acts covered by subsequent conventions on thedeployment or testing of weapons.
7. The forcible establishment or maintenance of col-onial domination.
8. The recruitment, organization, equipment andtraining of mercenaries or the provision to them ofmeans of undermining the independence or security ofStates or of obstructing national liberation struggles.
A mercenary is any person who:(i) is specially recruited locally or abroad in order to
fight in an armed conflict;(ii) does, in fact, take a direct part in the hostilities;
(iii) is motivated to take part in the hostilities essen-tially by the desire for private gain and, in fact, ispromised, by or on behalf of a party to the con-flict, material compensation substantially in ex-cess of that promised or paid to combatants ofsimilar rank and functions in the armed forces ofthat party;
(iv) is neither a national of a party to the conflict nora resident of territory controlled by a party to theconflict;
(v) is not a member of the armed forces of a party tothe conflict;
(vi) has not been sent by a State which is not a partyto the conflict on official duty as a member of itsarmed forces.
Comments
This definition is taken from article 47 of AdditionalProtocol I111 to the 1949 Geneva Conventions.
110 Convention for the Prevention and Punishment of Terrorism,signed at Geneva on 16 November 1937 (League of Nations, documentC.546.M.383.1937.V.).
1. Genocide, in other words any act committed withintent to destroy, in whole or in part, a national, ethnic,racial or religious group as such, including:
(i) killing members of the group;(ii) causing serious bodily or mental harm to
members of the group;(iii) deliberately inflicting on the group conditions of
life calculated to bring about its physical destruc-tion in whole or in part;
(iv) imposing measures intended to prevent birthswithin the group;
(v) forcibly transferring children from one group toanother group.
Comments
This definition is taken from the 1948 Convention onthe Prevention and Punishment of the Crime ofGenocide"2 (art. II).
2 (FIRST ALTERNATIVE). Apartheid, in other wordsthe acts defined in article II of the 1973 InternationalConvention on the Suppression and Punishment of theCrime of Apartheid and, in general, the institution ofany system of government based on racial, ethnic orreligious discrimination.
2 (SECOND ALTERNATIVE). Apartheid, which in-cludes similar policies and practices of racial segregationand discrimination to those practised in southernAfrica, and shall apply to the following inhuman actscommitted for the purpose of establishing and main-taining domination by one racial group of persons overany other racial group of persons and systematically op-pressing them:
(a) denial to a member or members of a racial groupor groups of the right to life and liberty of person:
(i) by murder of members of a racial group orgroups;
(ii) by the infliction upon the members of a racialgroup or groups of serious bodily or mentalharm, by the infringement of their freedom ordignity, or by subjecting them to torture or tocruel, inhuman or degrading treatment orpunishment;
(iii) by arbitrary arrest and illegal imprisonment ofthe members of a racial group or groups;
(b) deliberate imposition on a racial group or groupsof living conditions calculated to cause its or theirphysical destruction in whole or in part;
(c) any legislative measures and other measurescalculated to prevent a racial group or groups from par-ticipation in the political, social, economic and culturallife of the country and the deliberate creation of condi-tions preventing the full development of such a group orgroups, in particular by denying to members of a racial
112 See footnote 18 above.
86 Documents of the thirty-eighth session
group or groups basic human rights and freedoms, in-cluding the right to work, the right to form recognizedtrade unions, the right to education, the right to leaveand to return to their country, the right to a nationality,the right to freedom of movement and residence, theright to freedom of opinion and expression, and theright to freedom of peaceful assembly and association;
(d) any measures, including legislative measures,designed to divide the population along racial lines bythe creation of separate reserves and ghettos for themembers of a racial group or groups, the prohibition ofmixed marriages among members of various racialgroups, and the expropriation of landed propertybelonging to a racial group or groups or to membersthereof;
(e) exploitation of the labour of the members of aracial group or groups, in particular by submitting themto forced labour;
if) persecution of organizations and persons, bydepriving them of fundamental rights and freedoms,because they oppose apartheid.
Comments
This definition is taken from the 1973 InternationalConvention on the Suppression and Punishment of theCrime of Apartheid"1 (art. II).
3. Inhuman acts which include, but are not limitedto, murder, extermination, enslavement, deportation orpersecutions, committed against elements of a popula-tion on social, political, racial, religious or culturalgrounds.
4. Any serious breach of an international obligationof essential importance for the safeguarding and preser-vation of the human environment.
PART III. WAR CRIMES
Article 13. Definition of war crimes
FIRST ALTERNATIVE
(a) Any serious violation of the laws or customs ofwar constitutes a war crime.
(b) Within the meaning of the present Code, the term"war" means any international or non-internationalarmed conflict as defined in article 2 common to theGeneva Conventions of 12 August 1949 and in article 1,paragraph 4, of Additional Protocol I of 8 June 1977 tothose Conventions.
SECOND ALTERNATIVE
(a) Definition of war crimesAny serious violation of the conventions, rules and
customs applicable to international or non-internationalarmed conflicts constitutes a war crime.
(b) Acts constituting war crimesThe following acts, in particular, constitute war
crimes:(i) serious attacks on persons and property, in-
cluding intentional homicide, torture, inhuman
113 United Nations, Treaty Series, vol. 1015, p. 243.
treatment, including biological experiments, theintentional infliction of great suffering or ofserious harm to physical integrity or health, andthe destruction or appropriation of property notjustified by military necessity and effected on alarge scale in an unlawful or arbitrary manner;
(ii) the unlawful use of weapons, and particularly ofweapons which by their nature strike in-discriminately at military and non-militarytargets, of weapons with uncontrollable effectsand of weapons of mass destruction (in particularfirst use of nuclear weapons).
Comments
The first alternative uses the term "war" in itsmaterial sense and not in its formal sense. The secondalternative uses the term "armed conflict" in preferenceto the word "war". Subparagraphs (i) and (ii) are com-mon to the two alternatives.
PART IV. OTHER OFFENCES
Article 14
The following also constitute offences against thepeace and security of mankind:
A (FIRST ALTERNATIVE). Conspiracy [complot] tocommit an offence against the peace and security ofmankind.
A (SECOND ALTERNATIVE). Participation in an agree-ment with a view to the commission of an offenceagainst the peace and security of mankind.
Comments
The two alternatives for A will enable the Commis-sion to hold a discussion on the content of conspiracy[complot]. The question arises whether an agreement tocommit an offence, i.e. "conspiracy", should also betreated as an offence.
B. (a) Complicity in the commission of an offenceagainst the peace and security of mankind.
(b) Complicity means any act of participation priorto or subsequent to the offence, intended either to pro-voke or facilitate it or to obstruct the prosecution of theperpetrators.
Comments
If the Commission does not wish to define complicity,the content of subparagraph (b) could be included in acommentary.
C. Attempts to commit any of the offences definedin the present Code.
Comments
Since the offences defined in the present Code are themost serious offences, attempts to commit them arenecessarily punishable and there is no need todistinguish here between instances in which the attemptwould be punishable and instances in which it wouldnot.
