Social and Legal Studios

Abstract

The article analyzes the defences (circumstances excluding criminal liability) for the commission of international crimes. With the establishment of the International Criminal Court the first comprehensive codification of international criminal law was achieved. The strong support of the Court by civil society, academic institutions and more than hundred states quickly turned the Court’s Statute and its complimentary norms into the fundamental points in international jurisprudence. As to the “defences”, the Statute is still silent, it does not mention this term. Article 31 of the International Criminal Court Statute contains explicit rules regarding “grounds for excluding responsibility” distinguishing between mental disease or defect, intoxication, self-defence and duress/necessity. This list is not exhaustive. Pursuant to the Article 31 (2) the Court may consider other grounds for excluding individual criminal responsibility. These are other defences provided by 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 other source of law as referred to in Article 21 of the Statute, especially from customary international law and general principles of law (military necessity, reprisals). The case law, especially from the ad-hoc tribunals for the former Yugoslavia and Rwanda, is an important source in interpretation and application of the defences. Apart from these substantive defences relating to the conduct in question, the Statute of the International Criminal Court provides also defences addressed to the jurisdiction (exclusion from the jurisdiction of persons under 18 years – Article 26) and the right of a court to try an accused (immunities – Article 27). These procedural defences are beyond the scope of this research. The analysis in this work will follow the structure of Articles 31-33 of the Statute

Keywords: international criminal law, defences, self-defence, necessity, mental incapacity

Suggested citation