ICC Elements of crime/’Verbrechenselemente’

I had one question about the ICC (last entry on the topic). The term ‘elements of crime’ in the Statute of Rome is rendered in the official German version as ‘Verbrechenselemente’.

I asked why not Tatbestandsmerkmale. I got an interesting answer but it left me confused. Dr. Kaup said, ‘I’m glad you asked this – it gives me a chance to say something about “elements of crime”‘. Apparently the elements of crime were added by the Americans (before they decided not to ratify the Statute!). They were insistent on having these elements. We in Germany don’t have such a thing. Elements are like a list of requirements, a checklist that you tick off (Mr Casey was invited to give a better definition, but this definition is OK). – I was told that German law and international law doesn’t look at offences like this. I said I don’t need to understand the English, I need to understand the German, but obviously that was of no interest to many of the audience, and Dr. Sheldon told me that it’s legal translation we’re talking about, and it isn’t just like translating Bleistift as pencil. Huh! That shut me up.

In my opinion, elements has two meanings. Either it means actus reus and mens rea (these are close to the German objektiver Tatbestand and subjektiver Tatbestand), or it means smaller components of both those.

For instance, theft is defined in English law as follows:

bq. A person is guilty of theft if he (1) dishonestly (2) appropriates (3) property (4) belonging to another (5) with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly.
Theft Act 1968, s. 1

You could say theft has either 5 elements, or 2 – the actus reus (which is numbers 2, 3, and 4) and the mens rea (which is number 1 and 5)

But the German definition of theft is not so different

bq. Wer eine fremde bewegliche Sache einem anderen in der Absicht wegnimmt, die Sache sich oder einem Dritten rechtswidrig zuzueignen, wird mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe bestraft.
Strafgesetzbuch § 242
(A person who deprives another of movable property belonging to another with the intention of appropriating the property to himself or to another person shall be sentenced to imprisonment of up to five years or to a fine.)

Well, I need to look at a students’ textbook to see, but I think those elements are dealt with similarly in German.

Anyway, without pursuing that any further, I looked at the Statute again when I got home and saw that the elements of crimes were actually published as a separate document. I even mentioned this here, but without giving it much thought.

(I also saw that mental element (a more up-to-date version of mens rea) was translated as subjective Tatbestandsmerkmale). I wonder if they didn’t run out of vocabulary before adding the later elements of crime document.)

So we get in the Rome Statute, Article 6:

bq. For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group,

and in the Elements of Crimes, we get:

bq. Article 6 (a)
Genocide by killing
1. The perpetrator killed2 one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or
religious group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,
racial or religious group, as such.
4. The conduct took place in the context of a manifest pattern of similar conduct
directed against that group or was conduct that could itself effect such destruction.

I must admit, that makes sense to me. Why would it not make sense to the Germans? Well, it may be unusual in international criminal law, and it may be typical of civil law systems not to flesh things out in the statute, but I really think German criminal law and English criminal law are not far enough apart for elements and Tatbestandsmerkmale not to match up.

3 thoughts on “ICC Elements of crime/’Verbrechenselemente’

  1. I agree that Verbrechenselemente is made up for Am. benefit. Straftatbestände or Tatbestandsmerkmale are terms of art that show up in all German-speaking countries. The minor differences with Anglo-Am. countries are less significant than the broad similarities.

    Obviously, the Germans and Americans mixed up the subjective (mens rea)and objective (actus reus)’elements of a crime’ and the ‘ingredients of an offence’ that are often set out in a checklist in a UK/US statute or in an Eng. undergraduate-level criminal law textbook. I’m sure the architects of the ICC could have afforded a copy of Simith & Hogan.

  2. But the Americans do have mens rea and actus reus (my source is LaFave and Scott, the Smith and Hogan of the USA!) What I find odd is the use of ‘Verbrechenselemente’ in the official (amtlich) German translation (German is not one of the original languages of the Statute of Rome).
    There is a mention of mental element in Article 30 of the Statute, which defines intent and knowledge. The German heading is Subjektive Unrechtselemente (as a translation of Mental element – very strange). Maybe one of the books on the ICC that will be coming out will say more about the drafting of the Statute.

  3. Yuk! Subjektive Unrechtselemente sounds even more ludicrous, even to an Eng.- and Vienna-trained dabbler like myself. I hope these terms (mistranslations?) don’t become entrenched like Eurospeak.

    And, yes, the American lawyers must have a had a lapse of mens rea and actus reus memory or wanted to steer clear of Eng. Common Law bugbears.

    I don’t quite understand what the Yanks – calmouring for automatic immunity from prosecution – are doing in there anyway, as they’ve boycotted the ICC.

    It’s paradoxical to read in the UK newspapers last week how the Am. Courts-Martial system is swinging back into action for alleged Vietnam War Crimes committed by Am. soldiers over 30 years ago.

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