Permissibility Causes in International Criminal Law
Prof. Ali AlKahwaji
Criminal Law Professor at KILAW
The occurrence of a crime with its full elements and the proof of its commission by its perpetrators does not necessarily mean imposing a penalty on them, since a penalty preventive may exist for all or some of them such as infancy, mental disability, moral duress, or a case of necessity. In such cases, no penalty shall be imposed, however, the act remains illegal. It follows that the criminal liability in these cases is suspended but the civil liability remains. Also, there may be a permissibility cause that turns the wrongdoing into a legal act that exempt its doer from both criminal and civil liabilities, i.e. no penalty and no indemnity. These include defending oneself, performing a duty such as executing a provision of law or an order from one’s chief that must be obeyed.
The international custom and general principles of law recognize such permissibility causes including lawful defense, reciprocity, performance of duty. Some treaties expressly provide for such causes as in the case of the UN Charter stipulating the case of lawful defense, whereas the Rome Statute of the International Criminal Court does not expressly state the permissibility causes. Article 31 of Rome Statute states the penalty preventive including lawful defense, and article 33 mentioned the performance of duty. There is no mention of reciprocity.
Since lawful defense is considered a permissibility cause in domestic laws, international custom, the UN Charter, and other international treaties, the author believes it should also be considered as such for the purposes of international criminal law. Also, there has not developed a new international custom or a treaty that completely excludes reciprocity from the permissibility causes in international criminal law.
And since the performance of duty does not need a special analysis or an further elaboration in the field of international criminal law as it is well explained in domestic criminal law, the paper’s investigation will be limited to the causes of lawful defense and reciprocity as permissibility causes in international criminal law.