Divergence in a System of Complementarity? The Incorporation of dolus eventualis in the interpretation of criminal intent for serious crimes of international concern: A comparison of the International Criminal Court and the national legal system of Canada

Abstract

The creation of the first, permanent International Criminal Court by multilateral treaty was destined to be problematic. The specificity demanded by elements of criminal law does not sit easily with the compromise required in order for agreement to be reached on the Rome Statute. A clear example of this tension is Article 30 of the Rome Statute. Article 30 is the first time that a general provision defining the intent required to establish criminal responsibility has been included in the statute of an international criminal tribunal. This provision has been the subject of different opinions in respect to the forms of intent that are incorporated in it. In particular, there is disagreement as to whether dolus eventualis or recklessness is included as a form of intent. The International Criminal Court itself has provided conflicting opinions on whether dolus eventualis is incorporated within Article 30. Commentators have observed that the prevailing view of the International Criminal Court – that dolus eventualis is not a form of intent included in Article 30 – is contrary to the position of a number of national legal systems in which dolus eventualis is recognised as a legitimate form of criminal intent. The question has therefore been posed: is this creating a dual system of criminality between the International Criminal Court and national legal systems? Examination of this possible divergence to date has focused predominantly on civil law national legal systems. This thesis will examine the common law jurisdiction of Canada in order to ascertain whether this divergence in interpretation applies more broadly to both civil law and common law jurisdictions. The forms of criminal intent recognised in Canada will be considered and, in particular, whether recklessness (the common law equivalent of dolus eventualis) is identified as part of Canadian criminal law. This thesis will then consider whether a dual system of criminality is as problematic as has been suggested and will ask: could this divergence be recognised instead as a natural progression of the system of complementarity in place between the International Criminal Court and national legal systems? Does this divergence reflect more on the division of case types between the International Criminal Court and national legal systems rather than a true difference in the forms of criminality found in each of these jurisdictions? Should the willingness of Canadian courts to incorporate dolus eventualis or recklessness in their interpretation of the intent required for serious crimes of international concern be viewed more positively as evidence that national courts of member States to the Rome Statute are gaining confidence in their roles as primary prosecutors of such crimes?