An overall discussion on the defences under International Criminal Law. Will be helpful for the students of International Criminal Law and especially the student of Law.
Philippine FIRE CODE REVIEWER for Architecture Board Exam Takers
Defences under International Criminal Law
1.
2. Defences in International Criminal Law
☞ Mental Incapacity
☞ Intoxication
☞ Self Defence
☞ Duress and Necessity
☞ Mistake of Fact and Law
☞ Superior Orders
☞ Other matters
3. Mental Incapacity
Article 31(1)(a) of the ICC Statute is the first codification of a defence of
insanity in international law, and applies when:
The person suffers from a mental disease or defect that destroys that
person’s capacity to understand the unlawfulness or nature of his or
her conduct
4. Mental Incapacity
☞ the mental state must be “destroyed”, not merely diminished,
in order to serve as a defence.
☞ There is no requirement that insanity is permanent.
☞ It is sufficient that the person’s capacity was destroyed at the
time of the impugned conduct.
☞ such a plea will require expert evidence from both sides.
5. Mental Incapacity
☞ The defendant’s diminished
mental responsibility is
relevant to the sentence to be
imposed and is not a defence
leading to an acquittal.
☞ Rudolf Hess Case 1945
Hitler with Hess
6. Intoxication
Intoxication can also exclude
criminal liability at the ICC.
In the Second World War many jews
were forced to work in the Nazi's
concentration camps, were
frequently given intoxicants.
Many of the participants in
Rwanda’s genocide were drunk
US soldiers in Vietnam war
unknowingly intoxicated with drugs
Child soldiers are often given drugs
or alcohol as a control mechanism,
to loosen their inhibitions and
increase their ferocity.
7. Leading Case Decisions
In Vasiljevic case,
trial chamber rejects a
defense case of incapacity
through chronic alcoholism
In Kvocka Case,
trial chamber held that,
intentional consumption of
alcohol canbe treated as an
aggravating factor in
sentencing.
8. Self Defence
The plea of Self Defence is allowed in the
following ground-
The person acts reasonably to defend himself
or another person or, in the case of war crimes,
property which is essential for the survival of
the person or another person or property
which is essential for accomplishing a military
mission, against an imminent and unlawful use
of force [Article 31(1)(c) of ICC statute]
Self-defence cannot be used to excuse a
deliberate attack upon a civilian
population.
9. Key ingredients of the plea of Self Defence
☞ There must be an Imminent, unlawful use of force
against the defendant
☞ Reasonable and proportionate response by the
defendant
☞ response must be proportionate to the degree of
danger
10. Duress and Necessity
Duress does not afford a complete defence to a soldier charged with
crimes against humanity or war crimes in international law when the
taking of innocent lives is involved, but it may be taken into account
in the mitigation of punishment.
The Rome Statute recognises duress as a defence when an accused
acts under duress from a threat of imminent death or continuing or
imminent serious bodily harm but the ICTY Statute does not include
a provision on duress and necessity.
11. Einsatzgruppen case (1948)
"Let it be said at once that there is no law which requires that an
innocent man must forfeit his own life or suffer serious harm in
order to avoid committing a crime which he condemns. The
threat, however, must be imminent, real and inevitable. No
court will punish a man who, with a loaded pistol at his head,
is compelled to pull at lethal lever."
12. Erdemović Case
Dražen Erdemović is a Bosnian Croat who fought during the Bosnian
War for the Bosnian Serb Army. When he and his unit were told to
massacre Muslim men and boys at Srebrenica he initially refused. He
was then told that his choice was either to shoot the Muslim men, or
to hand his gun to another and join the line of those to be killed.
Under the duress of this threat, he then killed a number of
them(approximately 70). He felt great remorse and admitted
participating in the killings. His case raised the issue of whether the
duress he suffered could serve as a defence.
13. This Erdemović case was significant in the Tribunal because it was the first
application of the defence of duress, claiming that his life had been
threatened and that he had no choice. It was found that it did not absolve
him of guilt, but could be a mitigating factor in his sentencing. On 29
November 1996, Erdemović was sentenced to ten years in prison,
convicted of murder as a crime against humanity by the ICTY Trial
Chamber. He was the first person to enter a guilty plea at the Tribunal.
Erdemović appealed and his sentence was later reduced by ICTY to five
years in 1998. The Trial Chamber considered such duress situation as a
mitigating factor.
14. Mistake of Fact and Law
• Article 32 of the ICC Statute is unequivocal. A mistake of fact
shall be a ground for excluding criminal responsibility only if it
negates the mental element required by the crime.
• A mistake of fact is only relevant if it show that the defendant
did not have the mens rea.
• A mistake about whether an act is a crime is not a defence at the
ICC.
• In case of superior orders mistake of law may be excusable
15. Superior Orders
☞ ICTY Statute Article 7(4) and ICTR Statute Article 6(4)
preclude superior orders being used as a defence, but permit
superior orders to be considered in mitigation of punishment.
☞ At the ICC(Article 33), however, superior orders can exclude
criminal liability in limited circumstances:
where the accused had a legal obligation to obey the orders
where the accused did not know the order was illegal
the order was not manifestly unlawful.
Superior orders are not a defence under the Charter, but
may go to mitigation of sentence.(Nuremburg Tribunal)
