Killing by Omission: Our Collective Crime Against Gaza

The Origin of Killing: A Positive Act or a Crime of Omission?

In principle, killing is an active act, meaning that one performs an action to kill another person.

However, there is a situation in law where a killer is punished without doing anything! Or rather, because they did nothing, which is known as killing by omission, or failure to act. This refers to a situation where you witness someone dying in front of you, yet you refrain from helping them and leave them to their fate.

Jurists have stipulated that, in this case, for punishment to be imposed, the passive killer must be capable of offering assistance, must have enough time to help, and must have some responsibility toward the person facing death.

There are many examples..

In fact, the law contains a situation where killing by omission, without justification, meets all the elements of intentional killing, and in this case, the killer by omission is subject to punishment for intentional killing.

Negative crimes are those that occur through omission, and their material element consists of the perpetrator refraining from performing a positive action that they are legally obligated to perform, assuming they are capable of doing so. Negative crimes, in this sense, are exceptional crimes that the legislator has sanctioned out of respect for and in pursuit of certain ethical considerations.

The essence of the negative crime lies in the existence of a duty imposed by law, where punishment is applied simply for failing to carry out a specific act. If omission or failure to act occurs, the negative crime is established because criminal law is imperative, and when it commands an action, failing to perform it becomes a negative crime.

Sometimes, refraining from doing something that you are required to do is like doing something you should not have done—and even worse!

Humanitarian, international, Arab, and Islamic institutions are currently accused of committing a negative crime through omission and refraining from taking effective measures to stop racial assaults and genocide against civilians in all areas of the Gaza Strip and the occupied territories.

The essence of the negative crime is the existence of a duty imposed by law, such as when a doctor refrains from treating a patient or when a nurse refuses to administer a dose of medicine. Therefore, a duty must be imposed on the person for the condition of punishment to be met by mere omission.

Criminal law is imperative, and when it orders an action to be taken, the failure to take that action constitutes a negative crime. Therefore, no duty = no punishment.