Defences in International Criminal Law
RESEARCH HANDBOOK ON INTERNATIONAL CRIMINAL LAW, Bertram S. Brown, ed., Cheltenham et al, Elgar, 2011
16 Pages Posted: 13 Dec 2011
Date Written: December 12, 2011
With the establishment of the International Criminal Court (ICC) the first comprehensive codification of international criminal law (ICL) was achieved. The strong support of the ICC by civil society, academic institutions and more than hundred states has quickly turned the ICC Statute and its complimentary norms into the fundamental reference points of modern ICL. As to ‘defenses’, however, the Statute is silent; it does not even mention this term. The drafters consciously avoided certain ‘catch words’ too closely associated with either the common law or civil law system. They wanted to make sure the Statute would be truly universal and would not be interpreted by way of a recourse to a specific national system.
Article 31 of the ICC Statute contains explicit rules regarding ‘grounds for excluding criminal responsibility’ distinguishing between mental disease or defect, intoxication, self-defense, and duress/necessity. This list is not exhaustive. Pursuant to article 31 (2), the Court may consider others grounds for excluding individual criminal responsibility. These are first and foremost other defenses provided for in the Statute such as mistake of fact and mistake of law (article 32) and superior orders (article 33). In addition, other grounds may arise from any source of law as referred to in Article 21 ICC Statute, especially from customary international law or general principles of law. In this regard, the classical humanitarian law defenses of military necessity and reprisal are or particular importance (see the discussion of Other Defences, infra.) The case law, especially from the UN ad-hoc tribunals for the former Yugoslavia and Rwanda, may serve as an important source aiding in the interpretation and application of these defenses.
Apart from these substantive defenses relating to the conduct in question, the ICC Statute also provides for procedural defenses addressed to the jurisdiction and the right of a court to try an accused. The latter include for example the exclusion of jurisdiction over persons under eighteen years (Art. 26), immunities (Art. 27) as well as amnesties and the statute of limitations not regulated in the Statute. These procedural defenses are beyond the scope of this paper but are partly treated in other chapters of this handbook. The following analysis will follow the structure of articles 31–33 and complement these with some considerations on other defenses.
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