Killing is extremely broadly criminalised in legal systems across the world. The following section examines the crime of killing as an international crime and also includes examples of legislation recognising the different ways in which killing (and corporate killing) is proscribed as a domestic crime in different domestic jurisdictions.

International Criminal Law
Domestic Criminal Law

International Criminal Law

  1. Wilful killing / murder as a war crime
    The war crime of murdering or wilfully killing protected persons is a well-recognized international crime1, as it constitutes a grave breach of the law and customs applicable in an armed conflict, namely international humanitarian law (IHL), potentially giving rise to individual criminal responsibility under ICL.2
    The killing of ‘protected persons’ in violation of IHL is criminalised as a war crime under article 8(2)(a)(i) and article 8(2)(c)(i) of the Rome Statute.3  The IAC provisions of the Rome Statute refer to ‘wilful killing’ (article 8(2)(a)(i)) whereas the NIAC provisions refer to ‘murder’ (article 8(2)(c)(i)). Although the wording of the provisions differs, the basic elements of the crimes are the same and correspond to those for the crime against humanity of murder.4In order to prove that a perpetrator committed the crime of ‘wilful killing’5 or ‘murder’ by an unlawful act or omission, prosecutors must establish that:

    1. The perpetrator killed or caused the death of one or more persons
      For the first element to be satisfied, prosecutors must establish that the perpetrator killed/murdered or caused the death of one or more persons. In order to do so, they must demonstrate that: (i) a victim is dead; and (ii) the death of the victim must result from the perpetrator’s conduct (an act or an omission), thus establishing a causal link between the conduct and the result8. The victim’s death may be proven through the use of circumstantial evidence, meaning that mortal remains do not have to be recovered, provided that that is the only inference that may reasonably be drawn from the evidence in possession9. Circumstantial evidence which may succeed in proving the above, may include: 

      • proof of incidents of mistreatment against the alleged victim; 
      • pattern of mistreatment and disappearance of individuals in the location in question; 
      • general climate of lawlessness;
      • length of time which has elapsed since the person disappeared; 
      • the fact that the alleged victim has not been in contact with others whom he would have been expected to contact.10

      However, to the extent possible, practitioners will be expected to identify:

      • the location of the alleged murder; 
      • its approximate date; 
      • the means by which the act was committed; 
      • the circumstances of the incident; and 
      • the causal link between the perpetrator’s act or omission and the crimes.

      To establish this causal link, it must be established beyond reasonable doubt that the perpetrator’s conduct substantially (but not necessarily on its own) caused the death of the victim.11

    2. The victim(s) must be protected persons
      For the war crime of ‘wilful killing’ and ‘murder’ to be committed, the prosecutors must establish that victim(s) belonged to the category of protected persons. In the case of a IAC, Article 8(2)(a)(i), requires such persons to be protected under one or more of the Geneva Conventions of 1949; while for NIACs, Article 8(3)(c)(i), such persons must be hors de combat, civilians, medical personnel, or religious personnel taking no active part in the hostilities.12

    3. The crime was committed in the context of and associated with an armed conflict13, either of an international or non-international character
    4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict
    5. The perpetrator committed killing or murder with intent and knowledge
  2. Murder as a crime against humanity
    Pursuant to article 7(1)(a) of the Rome Statute14, murder as a crime against humanity will occur when a person kills or causes the death of another person by an unlawful act or omission15. The elements of the offence proving that a perpetrator committed the crime against humanity of murder are as follows: 

    1. The perpetrator killed or caused the death of one or more persons
      For the first element to be satisfied, prosecutors must establish that the perpetrator killed or caused the death of one or more persons. In order to do so, they must demonstrate that: (i) a victim is dead; and (ii) that there is a causal link between the perpetrator’s unlawful act or omission and that death. To establish that a victim is dead18, prosecutors do not have to recover the victim’s body19. Where they rely on circumstantial evidence to establish that a killing has taken place, they also do not have to identify the exact number or the precise identity of the alleged victims20, as long as their death is the only reasonable conclusion that can be drawn from the evidence21. However, to the extent possible they will be expected to identify:

      • the location of the alleged murder; 
      • its approximate date; 
      • the means by which the act was committed; 
      • the circumstances of the incident; and 
      • the causal link between the perpetrator’s act or omission and the crimes.

      To establish this causal link, prosecutors must prove that the relevant action or omission was a substantial (but not necessarily the sole) cause of death.22

    2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population
    3. The perpetrator knew or intended the conduct to be part of a widespread or systematic attack directed against a civilian population
    4. The perpetrator committed the murder with intent and knowledge
  3. Murder as an act of genocide
    Pursuant to article 6(a) of the Rome Statute, murder as an act of genocide will occur when a person kills or causes the death of another person23. The elements of the offence are that:

    1. The perpetrator killed or caused the death of one or more persons
      The physical element of the crime of genocide by killing is common to the crime against humanity of murder under article 7(1)(a) of the Rome Statute. The only difference is that genocidal killing must also be directed against members of a national, ethnical, racial, or religious group25. Therefore, for the first element to be satisfied, practitioners must establish that the perpetrator killed or caused the death of one or more persons26. In order to do so, they must demonstrate that: (i) a victim is dead; and (ii) that there is a causal link between the perpetrator’s unlawful act and that death27. To establish this causal link, it must be established beyond reasonable doubt that the perpetrator’s conduct substantially caused the death of the victim.28These requirements are identical to those physical elements of the crime against humanity of murder.
    2. The victims 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
    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 

Domestic Criminal Law

The crime of killing is widely present in domestic criminal codes across the world as homicide, murder, negligent homicide, manslaughter, or other variations. Soon, information on 10 jurisdictions will be provided and accessible here.

 

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CORPORATE CASES >
1Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (‘Rome Statute’), article 8(2)(a)(i) and (c)(i); UN Security Council Resolution 827: Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993, last amended 9 July 2009) S/RES/827 (‘ICTY Statute’), article 2(a); UN Security Council, Resolution 955: Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 (8 November 1994 last amended 14 August 2002) S/RES/955 (‘ICTR Statute’), article 4(a); ICRC, Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287 (‘Geneva Convention IV’) article 147; Geneva Conventions I-IV, common article 3.
2Rome Statute, article 8; Cryer et al., An Introduction to International Criminal Law and Procedure (4th ed, CUP 2019) (‘Cryer et al., (2019) p.264; ‘How grave breaches are defined in the Geneva Conventions and Additional Protocols’ (International Committee of the Red Cross (‘ICRC’) 2004); ICRC, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31 (‘Geneva Convention I’), article 50; ICRC, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 85 (‘Geneva Convention II’), article 51; ICRC, Geneva Convention (III) Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135 (‘Geneva Convention III’), article 130; Geneva Convention IV, article 147.
3 Rome Statute, article 7
4 Prosecutor v. Blagojević, IT-02-60-T, Trial Judgment, 17 January 2005 (Blagojević & Jokić Trial Judgment’), para. 556; Prosecutor v. Krnojelac, IT-97-25-T, Judgment, 15 March 2002 (‘Krnojelac Trial Judgment’) para. 323; Prosecutor v. Naletilic and Martinovic, IT-98-34-T, Judgment, 31 March 2003 (‘Naletilic and Martinovic Trial Judgment’), para. 248; Prosecutor v. Taylor, SCSL-03-01-T, Judgment, 18 May 2012, (‘Taylor Trial Judgment’), para. 412; A Zimmermann et al, ‘Article 8: War Crimes’ in O Triffterer et al. (eds), The Rome Statute of the International Court: A Commentary (Beck/Hart 2016), pp. 329-330, 549.
5 See ICC, Elements of Crimes, (‘ICC Elements of Crimes’), article 8(2)(a)(i)(2): ‘The term “killed” is interchangeable with the term “caused death”. See also K Dörmann, ‘Article 8: War Crimes’ in O Triffterer et al. (eds), The Rome Statute of the International Court: A Commentary (Beck/Hart 2016), p.330.
6 In the case of a IAC, Article 8(2)(a)(i), requires such persons to be protected under one or more of the Geneva Conventions of 1949; while for NIACs, Article 8(3)(c)(i), such persons must be hors de combat, civilians, medical personnel, or religious personnel taking no active part in the hostilities.
7 ICC Elements of Crimes, article 8 (2)(a)-I. The test was referenced by the ICTR in Prosecutor v. Kayishema et al., ICTR-95-1-T, Judgment, 21 May 1999 (‘Kayishema et al. Trial Judgment’) para. 187.
8 Prosecutor v. Bemba, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009,(‘Bemba Decision on the Confirmation of Charges’) para. 274. See also Prosecutor v. Katanga and Ngudjolo Chui, ICC-0 01/04-01/07, Decision on the confirmation of charges, 26 September 2008, (‘Katanga & Chui Decision on the Confirmation of Charges’), para. 287.
10 Krnojelac Trial Judgment, para. 327.
11 Prosecutor v. Orić, No. IT-3-68-T, Judgment, 30 June 2006 (‘Orić Trial Judgment’), para. 347; Prosecutor v. Brima et al., SCSL-04-16-T, Judgment, 20 June 2007, (‘Brima et al. Trial Judgment’) para. 689; Taylor Trial Judgment, para. 413.
12 Geneva Convention I, articles 12-13, Geneva Convention II, articles 12-13; Geneva Convention III, article 4; Geneva Convention IV, articles 4, 147; Rome Statute, article 8(2)(a); Geneva Conventions I-IV, Common article 3; Katanga, ICC-01/04-01/07-3436, Judgment, 7 March 2014 (‘Katanga Trial Judgment’) para.789.
13 ICC Elements of Crimes, article 8 (2)(a)-I. The test was referenced by the ICTR in Prosecutor v. Kayishema et al., ICTR-95-1-T, Judgment, 21 May 1999 (‘Kayishema et al. Trial Judgment’) para. 187.
14 Rome Statute, article 7(1)(a). The crime against humanity of murder is also prohibited by: UK, USA, France and USSR, Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (8 August 1945) 280 UNTS 1951, article 6 (c); UN, Charter on the International Military Tribunal for the Far East – Special proclamation by the Supreme Commander for the Allied Powers (19 January 1946), Treaties and Other International Act Series 1589, article 5(c); ICTY Statute, article 5 (a); ICTR Statute, article 3(a); UN Security Council, Resolution 1315: Statute of the Special Court for Sierra Leone (16 January 2000) S/RES/1315 (‘Statute of the Special Court for Sierra Leone’), article 2(a); UN & Royal Government of Cambodia, Law on the Establishment of the Extraordinary Chambers in the courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, (27 October 2004) NS/RKM/1004/006 (‘Law on the Establishment of ECCC’), article 5.
15 Katanga & Chui Decision on the Confirmation of Charges, para. 287; Bemba Decision on the Confirmation of Charges, para. 132; Prosecutor v. Akayesu, ICTR-96-4-T, 2 September 1998, (‘Akayesu Trial Judgment’) para. 589; Prosecutor v. Kupreškić  et al., No. IT-95-16-T, Judgment,  14 January 2000, (‘Kupreškić Trial Judgment’) paras. 560–561.
16 ICC Elements of Crimes, article 7(1)(a), fn. 7 states: ‘The term “killed” is interchangeable with the term “caused death” This footnote applies to all elements which use either of these concepts’.
17 ICC Elements of Crimes, article 7(1)(a); Akayesu Trial Judgment, para. 589; Prosecutor v. Jelisić, IT-95-10-T, Judgment, 14 December 1999 (‘Jelisić Trial Judgment’), para. 35.
18 Bemba Decision on Confirmation of Charges, para. 132; Akayesu Trial Judgment, para. 189; Prosecutor v. Blaškić, IT-95-14, Trial Judgment, 3 March 2000 (‘Blaškić Trial Judgment’), paras 216-217. 
19 Bemba Trial Judgment, para. 88.
21 Katanga Trial Judgment, para. 768; Bemba Decision on Confirmation of Charges, para. 132; Krnojelac Trial Judgment, para. 326; Brđanin Trial Judgment , para. 385; Prosecutor v. Popović et al., IT-05-88-T, Judgment, 10 June 2010 (‘Popović et al. Trial Judgment’), para. 789.
22 Katanga & Chui Decision on the Confirmation of Charges, para. 296; Krnojelac Trial Judgment, paras. 328-329, 342; Delalić et al. Trial Judgment, para. 424.
23 ICC Elements of Crimes, article 6(a)(1)  fn.2.
24 ICC Elements of Crimes, article 6(a)(1) .
25 Prosecutor v. Kayishema and Ruzindana, , ICTR-95-1-A, Appeals Judgment,1 June 2001, (‘Kayishema et al., Appeals Judgment’) para. 151; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment)(2015) ICJ Reports 3 , para. 156; Prosecutor v. Al Bashir, ICC-02/05-01/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010, (‘Al Bashir, Second Decision on the Prosecution’s Application for a Warrant of Arrest’) para. 20.
26  ICC Elements of Crimes, article 6(a)(1) fn.2.
27 Bemba Decision on Confirmation of Charges, para. 132; Akayesu Trial Judgment, para. 189; Blaškić Trial Judgment, paras 216-217.
28 Prosecutor v. Kordić et al., Case No. IT-95-14/2-T, Judgment, 26 February 2001, (‘Kordić et al. Trial Judgment’) paras. 229, 236; Krnojelac Trial Judgment, , paras. 323-324.