Towards Justice: Neuroscience and Affirmative Defenses at the ICC

Abstract

The International Criminal Court has institutionalized the concept of individual responsibility for human rights violations. The jurisprudence of international criminal law has developed along with the institution. Affirmative defenses in the mitigation of punishment or avoidance of responsibility are becoming increasingly important in international criminal procedure. We contend that diminished culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. Of the variety of affirmative defenses, emerging neuroscience-based defense provides the most challenging set of choices for the international legal community. The Esad Landzo case at the ICTY brings these challenges into focus. We discuss the difficult choices the ICC will have to make to balance the rights and needs of the victims, and the due process rights of the accused.

Keywords: international criminal law, neuroscience, due process, justice