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WHO AND WHAT ARE SUBJECTS OF INTERNATIONAL LAW

international law , law

Introduction

 A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level.  Traditionally, States have been the only subjects or persons of International Law.  However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities.  Thus, international organizations become subjects or persons of International Law.  Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality.  Special international status was granted to the Holly See and the Vatican City, and the Sovereign Order of Malta.  Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law. 

 These persons and subjects of International Law are discussed in the following.

States

States are the original and major subjects of International Law.  Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality. 
 International Law is primarily concerned with the rights, duties and interests of States.  Normally the rules of conducts that International Law prescribes are rules which States are to observe.

Since a State is the primary concern of International Law, it is necessary to study it in a separate posts.  Thus, the next post of this series is devoted to the study of a State as a subject of International Law.

 International Organizations

An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries.  It is for certain purposes a subject of International Law.

The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law.  International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties.  Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.

International organizations include universal all purposes organizations, universal functional organizations, and regional organizations.  Generally, the treaty creating a public international organization indicates its nature, purposes and powers.  The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it.  The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations.  The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level.  Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice.  In its advisory opinion in the Reparation for InjuriesCase of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State.  The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court.  Such capacity to perform legal acts is a prerequisite of international legal personality.

In reality, international organizations have exercised their legal capacity in a great variety of ways.  They have concluded treaties, created military forces, convened international conferences, and brought claims against States.

Non-State Entities

There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law.  Such entities have certain rights and duties under International Law.  They can participate in international conferences and enter into treaty relations.

However, the rights and duties of these entities in International Law are not the same as those of the States.  They have a sort of international personality.  The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform. 

 These entities fall into the following categories:

  • Members of composed States or federal States: 


The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane.  Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice.   The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States.  State practice has granted international personality to certain component units of the federation.  For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality.  Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.

  •  Insurgents and Belligerents:


Insurgents are individuals who participate in an insurrection (rebellion) against their government.  Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war.  For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de facto governments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents.  They are bound by the rules of International Law with respect to the conduct of hostilities.

National liberation movements:

 In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements. In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations.  The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.

International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties.  The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.

International territories:   

The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements.  The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence.  The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions.  Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).

The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law.  Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence.  Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.

Special case entities

There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City. 

 a) The Sovereign Order of Malta:  The Sovereign Order of Malta was established during the Crusades as a military and medical association.  It ruled Rhodes from 1309 to 1522.  It was entrusted to rule Malta by the treaty with King Charles V of England in 1530.  It lost its rule of Malta in 1798.  In 1834 the Order established its headquarters in Rome as a humanitarian organization.  The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States.  Today, the Order maintains diplomatic relations with over forty States.

(b) The Holy See and the Vatican City:  The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope.  It is not a State in the normal sense of the word.  It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City.  Apart of some one thousand Church functionaries, it has no permanent population of its own.  Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty.  Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties. 

5.  Individuals

The ultimate concern for the human being has always been the essence of International Law.  This concern was apparent in the Natural Law origin of the classical International Law.  The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.

 In the Twentieth Century, International Law became again concerned with individuals.  In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded. During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security. The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace.  On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established.  The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity.  The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law.  The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.

 Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law).   On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.

The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration.  In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference.  The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.” 
  
In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms.  The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples.  Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection.  Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.

Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals.  Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969,the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.

      
In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law.  This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law.  Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law.  International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.

6.  Minorities
  The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labour standards.  After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general.

The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community.  Various efforts have been made on the global and regional level to improve the legal protection of minorities.  On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”.  On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities”] adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.

Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law?  Do minorities have international legal personality?

There is no clear answer to these questions.  Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs.  For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.

 7.  Indigenous Peoples
     In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand.  Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.

      In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality.  They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality.  International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.



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Difference between Crime and morality

criminal , law

What is a crime?
To date there is no agreed definition of the term crime. Various writers have tried to define this term differently depending on their philosophical outlook and other various material factors in the society they come from. 
Some criminologists, namely Michael J, and Mortimer J, define the term crime as;
“…The most precise and least ambiguous definition of crime is that which define it as a behaviour which is prohibited by the criminal code….this is the only possible definition of crime…”

Criminal Law and Social Science New York, 1933, at p. 2.
Another legalistic definition says crimes are;
“…Wrongs which judges have held or parliament has from time to time laid down as sufficiently injurious to the public to warrant the application of criminal procedure to deal with them…”  Smith, J.C. and Hogan Criminal Law 6thEd.
According to Osborn, P.G. in his concise law Dictionary 5th Ed. Crime is defined as;
“…An act, default or conduct prejudicial to the community, the commission of which the law renders the person responsible liable to punishment by a fine or imprisonment in special proceedings…”
In Kenny’s Outline of Criminal Law 17th Ed. At p.5 there major characteristics of crime are pointed out;
i) That it is a harm brought about by human conduct which the sovereign power in the state desire to prevent.
ii)That among the measures of prevention selected is the threat of punishment.
iii)That the legal proceedings of a special kind are employed to determine the guilty of the accused before being punished.

 What is Criminal Law?
Is a branch of public law (public law include; Administrative law, Constitutional law, and Criminal law) and it is designated to protect the interest of the public.
It defines the duty, which a person owes to the society in contrast to civil law, which primarily concerned with rights of individuals among themselves.
In criminal law it is the state, which prosecutes. When we talk of criminal law is that where the state is directly interested. The end result of any criminal offence procedure is to determine whether the person is guilty or innocent. 

 Crime and Morality.
There is a difference between crime and morality. As you know each society has its morals. However you may find that sometimes morals and crimes coincides.
Morals emerged earlier than the state and law. Morals and customs regulated the relations of people during the primitive mode of production. Where there is a class society the dominant system of moral is that of the ruling class. This is so because by the use of apparatus of ideological influence, political and legal institutions the dominant class strives to impose its morals on the whole society.

At one point there was an attempt to extend criminal law to morals. “This however has led to some legal problems. In the case of Shaw V. DPP [1962] AC 220, Shaw published a “Ladies Directory” in order to help prostitutes to get customers and he was charged, interalia, with conspiracy to corrupt public morals. He was convicted of this offence, and the Court of Criminal Appeal and the House of Lord upheld his conviction. Lord Simonds at page 267 said he entertained no doubt that in the sphere of criminal law;

“…There remains in courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard against attacks which may be more insidious because they are morals…”

We see that this decision was extending criminal law to morals. However this decision did not stand the test of time. The case of Knuller L.T.D. V DPP [1973] AC 435reversed the position. In this case the House of Lords emphasized that the courts did not have residual powers to extend criminal law by creating newer offences and widening existing ones, to enforce good morals.

You have to note that many of the rules enforced by criminal law have nothing do to with morality, and many of the rules of morality are not enforced by criminal law.
Law consists of rules established in a specific way by the state organs and fixed in legal acts. Morals however do not include just norms but also concepts, views and feelings.
Legal acts consist of the will of the class in power while moral may include this will in the form of public opinion.
Moral norms embrace a sphere of relations that is considerably broader than that regulated by law.
Law and morals are also based on measures of coercion but these differ. In morals coercion takes the form of public opinion. Moreover, moral norms do not regulate in advance specific measures and form of coercion.
In the event of violation of law, however, corresponding law enforcement agencies are obliged to take measures envisaged by the law.

Sources of Criminal Law
1. The Constitution
The constitution provides for the rights and duties of its citizens. The constitution of Tanzania for example provides for the presumption of innocence to the accused person. The constitution is the basic source of criminal law.

2. Statutes
Statutes consists of Acts of Parliament and Subsidiary legislation. The laws that were passed by the legislature council in the colonial period are referred to as Ordinance, whereas, after independence laws passed by the parliament are known as Acts of the Parliament. The major source of criminal law is the penal code (cap 16). This was introduces in the country in 1930.
There are other statutes, which cover specific crimes or group of crimes e.g. The Prevention of Corruption Act, Economic and Organized Crimes Control Act, The Road Traffic Act. Persons or bodies to whom power has been delegated by the Parliament make subsidiary legislations. Normally this power is delegated to the Minister, Local Government Authorities, and Public Corporation. The reason for delegating power is to fill in more details giving effect to the principles of enabling Act. These subsidiary legislations cover vast areas of life such as commerce, health, sanitation etc. in these legislations penal provisions are always provided for defaulters.

3.  Common Law of England, Doctrine of Equity and Statute of General Application.
The laws we have in Tanzania are either whose we inherited from the colonial masters or have been enacted after independence. The laws of Tanzania are based on English Jurisprudence in which Common Law, Doctrine of Equity and Statutes of General Application forms an important part. This is another source of criminal law in Tanzania. The basis of this is the Tanganyika Order in Council of 1920, section 17 (which is commonly known as reception clause) which provides that; criminal jurisdiction in

Tanganyika, so far as circumstances admit, shall be exercised in conformity with the Criminal Procedure and Penal Code of India and where the same was not applicable, the courts were to apply Common Law, Doctrine of Equity and Statute of General Application in force in England on or before 20th day of July 1920. This position was reintegrated after independence by the reproduction of the section in section 2(2) of the Judicature and Application of Laws Ordinance 1961. In addition the Penal Code allows the application of the Common Law and Doctrine of Equity in the circumstances specified in section 3(1) PC.

4.  Precedent/Case Laws
The lower courts are bounded by the decisions of the superior courts. This is the practice of the inferior courts in common law jurisdiction. This being so, the decisions of the former East Africa Court of Appeal, the Court of Appeal of Tanzania and important decision of the High Court of Tanzania on important matters are also a source of criminal law.

5. International Law
The basic sources of International Law among others are treaties. These treaties however before binding to the country they have to be incorporated in the Local Act and this Act must be passed by the parliament. Some of these treaties deal with international criminal law. Some of the most outstanding international crimes are;
War crimes:
The Geneva Convention (I-IV)
Piracy on the High Seas:
The Convention of High Seas, 1958
The Seizure of Aircraft and Other Attack on the Security of Civil Action:
The 1950 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971. Montreal Convention for the Suppression of Unlawful Act Against the Safety of Civil Aviation.
Salve Trade:
The Slavery Convention of 1920 as amended in 1953. the supplementary Convention on the Abolition of Slavery, Slave Trade and Institution and Practices similar to slavery, 1966, the Convention for the Suppression of Traffic in Person and the Exploitation and the Prostitution of other 1956.

The Nature and Function of Criminal Law Under Different Modes of Production.

i)  Primitive Mode of Production
In the primitive mode of production there was no law let alone criminal law. the law emerged together with classes.

ii) Slave Mode of Production
In this society there were two classes;
ü  The slave who were the main class
ü  Slave owner.

The law in the slave mode of production was used for two major functions; the suppression of resistance put by the slaves and other exploited strata of the population. E.g. The Greco-Lation Antiquity produced the law book of Gortyn, The Helensis. In Rome the Law of the Twelve Tablets, The Lex Aquilia and the Corpus Luis Civile. The codes offered a statutory definition of conduct constituting a danger to society (criminal law) conduct, which entitled the consequence, held out by the law and enforced by a sovereign power. Severe coercion e.g. death penalty were resorted to only against slaves.

The slave master could kill a slave of his own with impunity whereas the killing of a slave owned by another merely entailed the payment of compensation. The second function was the protection of the slave owner’s property. Ferocious sanctions were afflicted on offences against property. This was intended to safeguard the institution of private property and social order relying on this institution. In graver cases there was punished with death. E.g. In Rome according to the law of twelve    Tablets, for gravest theft, a freeman was reduced to slave whereas the slave had to suffer death. Milder case theft was maiming the offender.

iii) Feudal Mode of Production
Chronologically, the feudal state belongs to the Middle Ages (5th -17thA.D). This was also a class of society;
a)  The big land owner
b)  Mass of peasant Labour.
The main functions of criminal law were;
To put down resistance on the part of the exploited peasant masses as well as anti-feudal uprisings of the urban population.
Protecting feudal ownership of land and providing various forms of compulsion of the peasant to offer their labour for landlord.

iv)  Capitalist Mode of Production
The main functions of criminal law include;
The protection of the political foundations of the capitalist society.
To put down the resistance of the working class and other masses.
To take reprisals against political opponents.
Protection of private property.
Establishment of the general conditions for the functioning of the capitalist economy.
In the capitalist era criminality grew to a mass phenomenon and in particular offences against property showed an upward trend and manifested itself in entirely new forms.
Most offenders were workers, jobless and other poor people e.g. offences like corruption and extortion, industrial espionage sabotage etc were on the forefront.

v) Socialist Mode of Production
Criminal Law here is used for two main purposes;
To protect the socialist state system against opposition;
To protect the socialist property and its relation.
Property which was owned by private person was nationalized and taken by the state. Thus laws were enacted to safeguard the new property relations. The only effective method was the use of criminal law to control resistance or counter-revolution.

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How attempts and conspiracy constitute an offence

criminal , law
Introduction


Attempts and conspiracies are known as ‘inchoate’ crimes. This is because the full actus reus of the principal offence has not been reached. However, as far as an attempt is concerned, the ‘full’ actus reus of the ‘attempt’ must be there. Attempt was originally an offence under the common law of England.  Attempt crimes are crimes where the defendant’s actions have the form of the actual nature of the crime itself, that is the actions must go beyond mere preparation.  The essence of the crime of attempt is that the defendant has failed to commit the actus reus of the full offence but has the direct and specific intent to commit that full offence.  
For an attempt to attract criminal liability, it must be more than just a preparatory act.  Equally, the defendant must embark on the full crime but fail to reach the full circle of the actual crime.
According to the proximity test as per Lord Diplock in the case of DPP v Stone house, the defendant must have crossed the ordinary preparation and or reached a proximate point of no return.  That is to  say,  the  defendant  must  have  reached  that  part  of  the series  of  acts,  which if  not  interrupted,  frustrated,  or  abandoned,  would  inevitably  result in  the  commission  of  the  intended offence.
Under the provision of section 380(1) and (2) and (3) of the penal code an attempt to commit an offence is by itself an offence, however for a crime of an attempt to be punishable the accused must have done some further acts than mere preparation. Several offences fall under this category including attempted rape, murder, fraud and so forth.

To constitute the offence of attempt, the following ingredients must be present that is intention to commit an offence, beginning to put an intention into execution by means adopted by its fulfillment, manifestation of intention by overt acts, but finally the person fails to fulfill the desired intention.
The problem with those crimes’ rests primarily on the question of actus reus and not mens rea because the actus reus is normally difficult to determine as sometimes it’s hard to draw the line between those acts that are merely preparatory and those went and executing a plan, will always go through a series of steps to arrive at the intended conclusion. Also, another reason that make actus reus to be difficult to be determined is the fact that some aspects of the execution of the act will be too remote or removed from full offence, and this is evidenced in the following decided cases: - 
R v Rukondo s/o Kamano, Accused was charged with attempted murder. There was evidence that accused and several others shot a shower of arrows at complainant and his companions in an attempt to recover meat which they believed complainant and his companions had taken from them.  They shot from about 40 paces away.  One of the arrows hit complainant in the buttock, causing a wound two inches deep.
It was held that (1) It was not satisfactorily proved that the arrow which hit complainant was shot by accused. However, accused and his company were all acting in concert and with common intention, and accused is therefore responsible for the injury even if he did not himself shoot the arrow.  (2) In view of the distance from which the arrows were shot and the other circumstances of the case, accused was guilty of the offence of an act intended to cause grievous rather than attempted murder.  The accused was then convicted of the former offence.
The case of R v Haruna Ibrahim, in this case the accused was convicted of attempted rape (c/s 132).  The evidence was that he had dragged the complainant to a ditch, placed his hand over the mouth and pulled down her underclothes while lying on her when he was observed by a passerby and fled. There was no evidence that at the time he fled, (he was) undressed.  The acts of the accused did not constitute attempted rape, since he had not yet undressed.  Rather, the acts constituted mere preparation for that crime. The  acts  however  did  constitute  the  crime  of  indecent  assault  (s. 135  (1)  P.  C.)  A conviction for indecent assault was substituted under section 185 of Criminal  Procedure  Code.
Another case which can throw more light is the case of Mwandikwa Mutisya v R , where in this case the appellant was convicted by resident magistrate for attempted theft of articles which were locked in the car. The facts found by trial court were that the appellant tried to unlock the door of the car and for this purpose was after an entry had been forced, to steal articles in the car. The appellant was caught before he was able to open the door of the car. The substantial point taken on appeal was whether the attempt to open the car was in circumstances immediately connected with his attempt to steal since the offence occurred at night, the appellant might not have known exactly what was in the car or if he did, he might not have intended to steal all the articles in the car. It was held that, it was an act which was immediately and not remotely connected with the intended theft and it was an act which went far beyond preparation.


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The defences of Conspiracy and accomplice

criminal , evidence


 Question 
Dawn lives in an apartment with her dog Fluffy and her boyfriend Bill. A year ago Bill began buying and selling illegal drugs.
One day Bill asked Dawn to deliver a plastic bag containing a white powder to a house on Main Street. Dawn believed the bag contained cocaine and refused, saying, "I wish you would stop dealing cocaine. I want nothing to do with your dirty business."

Bill flew into a rage. He said, "I am sick and tired of your superior attitude. If you don't deliver this bag, then I am going to kill Fluffy." He then grabbed the dog and held a knife against its side until Fluffy began to squeal.
Afraid for Fluffy’s well-being, Dawn agreed to deliver the bag and its contents. She put the bag in her purse, got into her car, and drove towards Main Street. She drove very carefully and within the posted speed limit to avoid getting stopped by the police. As she approached Main Street, a two-year-old boy, Victor, darted out in front of Dawn's car. Her car struck Victor before she had a chance to apply her brakes. Victor was killed immediately by the impact.

While still at the accident scene, the police arrived and arrested Dawn. In searching her purse they discovered the white powder. Chemical analysis revealed that the white powder was cocaine.

With what crimes may Dawn be charged and what defenses could she raise?  Discuss.

 Answer

Answered by: Jason Temmy
University: Makerere university
Programme: Bachelor of Laws
Year  : III
Contact: Jasontemy1@gmail.com
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I.   Criminal Charges against Dawn


Accomplice

An accomplice is one who encourages, assists, aids, or abets in the commission of a crime. Here, Dawn delivered a plastic bag containing a white powder, later to be discovered as cocaine, to a house on Main Street. This act alone is sufficient to establish charging Dawn as an accomplice. Dawn, however, may have defenses to these actions discussed infra.


Dawn also, however, lives in an apartment with her boyfriend Bill and we are told that Bill began buying and selling illegal drugs a year ago. Dawn believed that the bag contained cocaine and attempted to refuse his request, saying, “I wish you would stop dealing cocaine. I want nothing to do with your dirty business.” If Dawn had been living with someone that she knew possessed and sold cocaine, some jurisdictions may hold her liable as an accomplice for this act alone and it may not be subject to the defenses discussed infra.


Conspiracy

Conspiracy occurs when there is an agreement between two or more people to do an unlawful act or a lawful act by unlawful means and the defendant commits an overt act in furtherance of the conspiracy. Here, Dawn agreed with Bill to deliver the bag that she believed contained cocaine and its contents (unlawful act) for Bill. Dawn’s act of putting the bag in her purse, getting in her car, and driving towards Main Street is an overt act in furtherance of their conspiracy. Dawn, however, did not have a “guilty mind” per se, as she did not want to commit the crime in question (infra). This fact and the defense of duress discussed below, however, may be a successful defense against conspiracy. Nonetheless, Dawn may be charged with conspiracy.


Pinkerton Rule

Under the Pinkerton Rule, coconspirators are guilty of the crimes that are a reasonably foreseeable consequence of the commission of the crime. Here, Dawn may be charged with any crimes that are a reasonably foreseeable consequence of her conspiracy with Bill.


Murder

Murder is the killing of another human being (homicide) with malice. Malice is established if the defendant acted with intent to kill, intent to cause grave bodily harm, with willful/wanton disregard for human life (depraved heart), or the homicide was committed during the commission of a dangerous felony (felony murder rule). Here, Victor darted out in front of Dawn’s car and her car struck Victor before she had a chance to apply her brakes. Dawn’s actions caused the death of Victor. Dawn, however, did not have an intent to Kill Victor, an intent to cause him grave/great bodily harm, nor did she act with wanton/willful disregard for human life. In fact, Dawn was driving very carefully and within the posted speed limit to avoid getting stopped by the police. Application of the felony murder rule, however, warrants discussion.

1st Degree Murder

1st degree murder requires an intent to kill that is premeditated (thought about the act of killing before doing so) and deliberated (cool mind capable of reflection) or if the felony murder rule applies. From the facts, the only way Dawn can possibly be guilty of 1st degree murder is under the felony murder rule. Any other form of murder would be 2nd degree murder.


Felony Murder Rule

The felony murder rule holds that if the actor kills another human being while they are engaged in the commission of an inherently dangerous felony, the homicide is held as 1st degree murder. Here, Dawn killed Victor while she was delivering cocaine for Bill. If Dawn’s crime is considered an inherently dangerous felony, she may be charged with 1st degree murder under the felony murder rule. Dawn, however, will have a defense against the underlying crime of being an accomplice and/or transporting/possession of a controlled substance (infra) and these defenses may also impact her likelihood of being successfully charged with murder and mitigate her charge accordingly to either voluntary manslaughter or, more likely, involuntary manslaughter.



Voluntary Manslaughter

Voluntary manslaughter is murder that is mitigated due to provocation (heat of passion), unreasonable mistake, coercion, or necessity. Here, Dawn may be able to mitigate a charge of murder to voluntary manslaughter due to acting under duress from Bill. A fortiori, however, Dawn had no intent to kill and murder will only need to be mitigated if Dawn is guilty under the felony murder rule. If there is no murder, involuntary manslaughter is the more likely charge.


Involuntary Manslaughter

Involuntary manslaughter is the accidental killing of another human being due to gross criminal negligence/recklessness. Here, Dawn killed Victor by hitting him with her car. This act appears to be involuntary manslaughter on its face. Dawn, however, does not appear to have been operating her vehicle with gross criminal negligence. She was driving very carefully and within the posted speed limit to avoid getting stopped by police. The court, however, may find that the reason she was driving in the first place (delivering cocaine) suffices to establish gross criminal negligence for her conduct. Dawn may be charged with involuntary manslaughter of Victor.


Possession of Controlled/Illegal Substance

Illegal possession of a controlled or illegal substance is a crime in the majority of jurisdictions. Here, Dawn was delivering cocaine for Bill and, while the police were at the accident scene of her and Victor, they found the cocaine in Dawn’s purse. Chemical analysis revealed that the white powder was cocaine. Also, Dawn believed that the powder was cocaine before she began the delivery and prior to the analysis confirmation. Thus, whether the jurisdiction holds such possession as a crime requiring knowledge of the substance or it is a strict liability crime (guilty without fault), Dawn will be charged with possession of a controlled/illegal substance. Defenses, however, may apply (infra).


Attempt to Distribute Controlled/Illegal Substance

Attempt requires that the defendant have the specific intent to perform acts which, if they are carried out, will result in the target crime and the defendant takes a substantial step in furtherance of her goal. Here, Dawn technically intended to perform the act of delivering the controlled substance. Her act of placing the cocaine in her purse, getting in her car, and driving towards Main Street is a substantial step in furtherance of the goal. Dawn, however, was doing so under duress and did not have a criminal or guilty state of mind when committing these acts. Thus, her charge may be successfully defended against. Nonetheless, she may be charged with attempting to distribute a controlled/illegal substance.


Defenses:
Duress (conspiracy, attempt, possession, murder)

Duress is a defense holding that the defendant reasonably believed she was under the threat of imminent physical harm or death unless she committed the crime in question. This defense essentially holds the key to Dawn’s guilt on most of the aforementioned charges. Here, Dawn agreed to deliver the cocaine and actually did so only because Bill was threatening to kill Dawn’s dog, Fluffy. Dawn initially resisted Bill’s solicitation of her to commit the crime, saying, “I wish you would stop dealing cocaine. I want nothing to do with your business.” Bill, however, flew into a rage, saying “If you don’t deliver this bag, then I am going to kill Fluffy.” Bill then grabbed the dog and held a knife against its side until Fluffy began to squeal. Importantly, the threat of harm/death was to Fluffy and not Dawn. The fact dogs are considered property and not on level legal ground with humans will play a factor. Nonetheless, many people form strong bonds with their animals and would not want to see them harmed or killed and may be willing to commit the crime in question to save their dog. If this threat of imminent physical harm or death to Fluffy is enough to make a reasonable person commit the crime in question, then Dawn may have a successful defense against the charges noted supra.



 Answer B 

State v. Dawn

Conspiracy:

A conspiracy is an agreement between two or more persons to commit an unlawful act or a lawful act in an unlawful manner.

Here, Dawn agreed to deliver the bag and its contents. Dawn made the agreement with Bill. Dawn believed the bag contained cocaine. Since cocaine is illegal, the delivery of which [sic] would be an illegal act. Some jurisdictions require an overt act in furtherance of the conspiracy. The facts that Dawn believed the bag contained cocaine, put the bag in her purse, got into her car and drive towards Main Street, all attest to overt acts in furtherance of the conspiracy.

 Absent a valid defense, Dawn could be found guilty of conspiracy.


Defense(s)

Duress: Dawn will raise the defense of Duress.

Duress is the act of committing an unlawful act under threat or fear of harm.

Dawn will assert that she initially refused Bill by stating that she wished Bill would “stop dealing cocaine” and she wanted “nothing to do with” Bill’s dirty business. However, once Bill threatened Fluffy’s life, then she had no choice but to deliver the cocaine. This defense may fail, because Bill did not threaten Dawn or another human being.

Fluffy is a dog and a dog is property.


However, since a dog is a living creature, evidenced by Fluffy’s squeal, a person such as Dawn may feel compassion and not wish the dog to be harmed. The facts clearly state that Dawn was afraid for Fluffy’s well being. Overall, the defense for duress will most likely fail.


Feigned Agreement: A person may not be found guilty of conspiracy if they feigned the agreement. Dawn, afraid for Fluffy’s well being, did agree to deliver the cocaine.

Attempt to deliver illegal drugs.

An attempt is the specific intent to commit an act. It must go beyond the mere stages of preparation to perpetration. Dawn placed the bag of cocaine in her purse, got into her car and drove towards Main Street. Dawn had agreed to deliver a plastic bag she thought contained cocaine. Absent striking and killing Victor, the crime would have been completed. Therefore, Dawn could be found guilty of attempt to deliver illegal drugs, absent a valid defense.


Defenses

Duress: Discussed supra.

Homicide:

The killing of a human being by another.
Here, Dawn’s (D) car struck Victor (V). V was killed immediately by the impact. V was a human being. Therefore, a homicide was committed.


Murder:

Murder is a homicide committed with malice aforethought. Malice can be found by (1) Specific intent to kill, premeditation & deliberation, (2) Intent to cause grave bodily injury, (3) Wanton & Willful disregard for human life (“Depraved Heart”), or (4) Felony Murder. Here (D) did not have the specific intent to kill V. Nor do the facts support intent to cause grave bodily injury. D drove very carefully and within the posted speed limit, thus there is no indication of wanton or willful disregard to the value of human life.


Felony Murder: At common law if an innocent person died during the commission of a felony, such as burglary, arson, rape, robbery or mayhem, then the act of committing the felony would impute malice for murder. Here D was delivering a bag of cocaine, which is not one of the big five felonies at common law.
  •  Modernly the felony has to be inherently dangerous.
  • The driving of a bag of cocaine in and of itself is not inherently dangerous.
  • Therefore malice would not be imputed via felony murder.

Causation:

D would need to be both the actual and proximate cause of the death of V.

Actual Cause:

But for D striking V with her car, V would not have been killed. D is the actual cause of V’s death.


Proximate Cause:

D struck V before she had a chance to apply the brakes. V was killed immediately. D is the proximate cause of V’s death.


Involuntary Manslaughter:

Is when a homicide is committed without malice while conducting yourself in a lawful manner. D was the actual & proximate cause of V’s death. D was driving carefully and within the posted speed limit. Therefore, D was conducting herself in a lawful manner.
However, D was delivering cocaine, a misdemeanor.


Misdemeanor Manslaughter Rule:

If a person is killed during the commission of a misdemeanor then the defendant may be found guilty of manslaughter. Here, D was delivering cocaine, a misdemeanor, and V was killed during the act of the crime. Therefore, D may be found guilty of manslaughter.

Defenses

Duress – supra.


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