26 Jul A Word on Criminal Omission and its Prominence in International Criminal Law
[Ana Srovin Coralli is a PhD Candidate at the Geneva Graduate Institute, a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and, at the time of writing, a Missing Migrants Officer at the International Committee of the Red Cross.]
Recently, I read a blog post suggesting that a commander’s failure to prevent and punish a subordinate’s crime is a ‘crime of omission’. This and many other mentions of omission (see here and here) urge me to discuss what a crime by omission is and how to conceptualise omission liability. Occasional lack of a clear-cut understanding of different types of omissions and failure to distinguish between superior and other forms of omission liability are just two among many examples testifying to a pressing need to further explore this highly complex debate.
On the one hand, omissions have been analysed quite substantially in domestic criminal law and, at the international level, there is some case law dealing with the responsibility of states for omissions. On the other hand, the few decisions of international criminal courts dealing with omissions suggest that omissions in international criminal law (ICL) in the strict sense have so far limited practical value (to my knowledge, no international criminal tribunal has ever passed a judgment based exclusively on omission liability).
In this blog post, I aim to understand why international criminal courts largely abstain from dealing with criminal omissions as well as how we should strive for potential changes. I first explore the conceptualisation of omissions in domestic criminal jurisdictions. An examination of omissions in international criminal settings, particularly by the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), follows. Next, I assess the status of omissions at the International Criminal Court (ICC) and continue with the practical implications of charging someone with criminal omissions at the international level. In conclusion, I briefly reflect on how to deal with omissions in the future.
Omissions in Domestic Criminal Jurisdictions
The notion of omission, similar to most other concepts in ICL, originates in national criminal jurisdictions. In most simple terms, omission is a failure to act in violation of a legal duty. Domestic criminal jurisdictions distinguish between offences that directly criminalise failure to act (crimes of proper omission) and crimes that are in principle phrased to require action, but may be carried out by omission (crimes of improper omission). An emblematic example of the proper omission is the failure to rescue a person in imminent peril (see Article 195 of the Spanish Criminal Code). A crime of improper omission could be a homicide, which can be committed through omission when someone in a position of a guarantor fails to prevent the harm by omitting to act despite the legal duty to do so (for instance, a mother fails to provide her child with food resulting in the child’s death).
Closely linked to crimes of improper omission is the concept of commission by omission. The latter denotes a distinct mode of criminal liability arising from committing a crime of improper omission as a principal perpetrator. Commission by omission as a distinct mode of criminal liability is most evident in those countries whose criminal codes explicitly regulate the possibility to commit active crimes by omission by putting failure to act on the equal footing with carrying out criminalised action (see Section 13 of the German Criminal Code).
Omissions in International Criminal Jurisdictions
In contrast to domestic criminal law jurisdictions, statutes of international criminal courts and tribunals have so far made no clear division between proper and improper omission. In the absence of explicit regulation of the subject, it is questionable whether ICL provides for any crime of proper omission, even though the first part of the provision on war crime of starvation under the Rome Statute (RS) has been cited as such an example (p. 61-62, para. 10). At the same time, it is disputed if the RS allows for improper omission.
Following the conclusions reached by the ICTY and the ICTR, crimes within their jurisdiction may be carried out by omission provided the existence of a legal duty (ICTY Appeals Chamber, Prosecutor v Blaškić, para. 663). Other international criminal tribunals have followed this legacy in recognising that the actus reus (Specialist Chambers of Kosovo, Prosecutor v Thaci et al, paras. 79 and 98) or ‘commission’ may cover omission (Special Court for Sierra Leone, Prosecutor v Brima, Kamara and Kanu, para. 762; Extraordinary Chambers in the Court of Cambodia, Case 001, para. 479). Based on these conclusions, one may assume that, as a matter of principle, the wording of crimes in active terms (for instance ‘killing’ or ‘attacking’) does not preclude from interpreting the criminal conduct as encompassing omissions.
Omission Liability Before the ICTY and the ICTR
Most of the ICTR and ICTY decisions discussed omissions when dealing with the objective element of various forms of accessory liability, namely criminal responsibility for assisting or contributing to the main crime. It was their view that not all forms of accessory liability can be carried out by omission. An example is ordering, which requires a positive act (ICTY Appeals Chamber, Prosecutor v Milošević, para. 267).
The two tribunals have also confirmed that commission by omission as a distinct mode of principal liability is possible under their Statutes. According to the ICTY, commission by omission is different from superior responsibility in that the role of the perpetrator in the former context goes beyond the role of a commander; shows an additional aspect of guilty mind; and has more direct influence on the criminal acts (p. 59–60, para. 4; ICTY Appeals Chamber, Prosecutor v Blaškić, para. 664). Additionally, commission by omission does not depend on formal authority or perpetrator’s status and the blame is based not only on failing to act but also on the ‘material impact that non-compliance has exerted on the course of events’ (p. 63–64, para. 17).
While the ICTY left no doubt that superior responsibility should be distinguished from commission by omission liability, it has failed to specify the latter’s criteria. Nevertheless, on the basis of existing case law and literature, four elements are required for responsibility for commission by omission: the existence of a legal duty to act (outside of criminal law); the ability to carry out such a duty; the realisation of harm; and causality between the failure to act and the harm produced. Among these four requirements, the most challenging is the legal duty to act, in particular the source of such a duty. This is because the latter has so far been decided on a case-by-case basis, which makes drawing a general conclusion on how to approach the source of a duty in criminal omissions in ICL on future occasions almost impossible.
Omissions at the ICC
Even though the RS does not explicitly regulate omissions, the ICC has implicitly confirmed the possibility of carrying out criminal conduct through an omission (ICC Pre-Trial Chamber I, Prosecutor v Lubanga Dyilo, paras. 152, 351–352; Prosecutor v Katanga and Ngudjolo Chui, paras. 287, 310, 315, 357, 368-369, 529). This is quite revolutionary, given that preparatory works of the RS testify to the controversy over the issue. Moreover, while relying on divergent reasons (use of the term ‘conduct’ which normally covers actions and omissions throughout the RS; approaches of domestic criminal jurisdictions, which usually comprehend commission as covering omissions; the argument that crimes lose their scope if we limit the conduct to positive physical acts, among others), most of the academic debates favour the idea of subsuming omissions under the actus reus of ICC crimes.
Further clarity on omissions at the ICC will be important because any conclusion reached with regard to the RS is likely to influence the practice of other international (and potentially even domestic) criminal tribunals, whose statutes do not explicitly regulate the role of omissions. Additionally, omission is likely to become a more and more common way of carrying out criminal conduct due to technological evolution accompanied with the increase of remote warfare and in particular war crimes by omission. It is thus highly probable that the need to better understand what criminal omission means and whether the ICC is well equipped to address it will increase.
The Lack of Case Law on Omissions in ICL
At least in theory, omissions are often said to occupy the same importance as actions. But the theory needs to be supported by practice, and the latter is almost non-existing in the international jurisprudence on omissions. I assert this is due to the following reasons: first, we have no clear proper omission crimes, meaning the only way to establish omission liability is for crimes of improper omission. Nevertheless, given the lack of requirements for liability for such crimes, convicting someone on such a basis raises various concerns related to fundamental ICL principles. For instance, punishing someone for failing to fulfil a duty not enshrined in the statute of an international criminal law tribunal arguably results in a clash with the principle of legality (p.753). Undetermined sources of duty may also violate the principle of foreseeability.
Second, prosecuting omission is complicated due to the type of evidence required and the high standard of proof, which means that it is unlikely to be given prosecutorial priority. Proving mens rea for certain international crimes is much less likely to succeed when commission is carried out through an omission. For the crime of genocide particularly, where the active behaviour of perpetrators has been decisive to infer the specific intent, it is unlikely that deducing specific intent from omissive conduct exclusively would be equally convincing. Moreover, causality for omissions, which consists of a hypothetical assessment of facts between the failure to act and the harmful result, suggests that establishing individual criminal responsibility for omissions is more complex than proving liability for active conduct. Third, due to limited resources and time, which urge the selectiveness of international criminal justice, the latter needs to focus on those who were committing crimes by carrying out very visible actions. Indeed, prosecutorial strategy assumes the need to focus on the most serious crimes of concern, where the chances of obtaining a conviction are higher. Finally, the common perception that omissions are less blameworthy may explain why most efforts are directed at punishing active conduct.
In summary, practice suggests that there is a preference for charging active crimes, because such an approach ensures greater chances to achieve a conviction. In my view, such a finding clearly illustrates the limitations of ICL to fully address individual criminal responsibility. Also, such an approach ignores the reality in which international crimes might be carried out, which will be even more visible as the use of technology increases in the perpetration of atrocities.
Domestic criminal jurisdictions may equally not be perfectly equipped to deal with actions and omissions, but at least they manage to not disregard them completely. At the same time, it appears that international criminal justice offers little to no space to successfully prosecute criminal omissions. Perhaps a way forward would be to reflect on how to criminalise omissions in a more explicit way to ensure that, on the one side, omissions are being prosecuted and, on the other side, there is consistency in the jurisprudence. A first step could be to include a specific provision allowing for improper omission in statutes of international criminal courts. A next step could be to follow the approach adopted in certain national criminal codes (see Article 11 of the Swiss Criminal Code) and determine potential sources of a duty to act through statutes. Finally, the regulation of other requirements needed for omission liability in the statutes of international criminal tribunals, in particular commission by omission in the context of principal’s responsibility, would be a measure facilitating a coherent approach towards omissions.
Now, all the suggested changes need to take into account the view and practice of certain countries which are opposed to the explicit criminalisation of omissions and convince them to change their mind. This will be by no means an easy task.
Author’s note: My deepest gratitude for engaging with my writing goes to Lene Guercke and Lorenz Rubner. Most sincere thanks also to Professors Cécile Aptel, Andrew Clapham and Paola Gaeta for inspiring me. Finally, I am thankful to Agustina Becerra Vázquez, Tadesse Kebebew, Irene Manganini and Victoria Priori for their inputs on the previous versions of my blog post.