Defences

Question 1

Art. 31 Rome Statute of the ICC

Answer 1

Grounds for excluding Criminal Liability

Question 2

Circumstance that makes the conduct of the accused preferable to even worse alternatives. (Conduct is right, or at least not undesirable).

Answer 2

Justification

Question 3

An action, while voluntary, nevertheless was produced by an impairment of a person’s autonomy to such an extent to excuse its blameworhtiness. (Conduct is undesirable but the author is not blamed for it because of a certain reason).

Answer 3

Excuse

Question 4

31(1)(a)

Answer 4

Mental Incapacity
Mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness.
Destruction=High Standards
Jelisic - Not proven

Question 5

31(1)(b)

Answer 5

Intoxication
Very strict conditions!
It needs to negate the mens rea and not be a vouluntary intoxication knowing or recklessly ignoring the possibility of that intoxication to have these effects.
Kvoča - Defence denied

Question 6

31(1)(c) - Self Defence

Answer 6

Requirements:

1. Response to imminent or actual unlawful attack.
2. No other way to prevent the attack.
3. Unlawful attack not caused by the person who claims self defence.
4. Proportionate response to that unlawful attack.

Question 7

Kordic - broadens customary international law

Answer 7

War crimes - defending property, which is essential for survival or success of the mission.

Question 8

Cassese: The ICC statute upholds a broader definition of self defence than the understanding in customary law.

Schultz, Chusaburo - Cases in which this defence failed.

Answer 8

Cassese: The ICC statute upholds a broader definition of self defence than the understanding in customary law.

Schultz, Chusaburo - Cases in which this defence failed.

Question 9

31(1)(d) Duress - Necessity

Answer 9

Imminent threat of imminent death or serious bodily harm - nothing else would suffice.
Necessary and reasonable actions are undertaken to avoid the threat.

Erdemovič: Did not apply to killing civilians.

Question 10

31(2) The Court should determine the applicability of the grounds for excluding criminal liability provided in this statute in the cases before it.

Answer 10

31(2) The Court should determine the applicability of the grounds for excluding criminal liability provided in this statute in the cases before it.

Question 11

32 Mistake of fact or law

Answer 11

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.
2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

Question 12

Art 33 Superior Orders

Answer 12

This defence shall not work unless:

1) The person was under a legal obligation to obey orders.
2) The person did not know that the order was unlawful
3) The order was NOT manifestly unlawful

Genocide and Crimes Against Humanity are manifestly unlawful.

Question 13

Nuremberg Trial - Justice Jackson

One many NOT be able to take refuge in superior orders nor in the doctrine that his acts were acts of states.

Answer 13

Nuremberg Trial - Justice Jackson

One many NOT be able to take refuge in superior orders nor in the doctrine that his acts were acts of states.

Question 14

Llandovery Castle case the court talks about the universally known illegality of some orders: “ The firing on the boats was an offense against the law of nations…The rule of international law, which is here involved, is simple and universally known”.

Answer 14

Llandovery Castle case the court talks about the universally known illegality of some orders: “ The firing on the boats was an offense against the law of nations…The rule of international law, which is here involved, is simple and universally known”.

Question 15

Llandovery Castle

Answer 15

Three principles:

1. As a general rule, a subordinate committing a criminal act following an order by a superior should not be criminally responsible.
2. The general rule does not apply when the subordinate knew that the order was unlawful and nonetheless acted upon it.
3. Manifest illegality

Question 16

Absolute liability

Obedience to an order is never a defence.

Answer 16

Absolute liability

Obedience to an order is never a defence.

Question 17

Gaeta
Some commentators argue that the two approaches are radically different and cannot be reconciled and thus there is no customary international law due to lack of communis opinio.

Answer 17

“The alleged difference between the two approaches appears to be only aparent”.

Question 18

Gaeta: advantages of art. 33

Answer 18

Advantages of Art. 33

1. Ruled out the defence for genoice and crimes against humanity
2. Reverse the presumption - burden on the defence
3. Its existence in itself.

Question 19

Gaeta - Disadvantages

Answer 19

Disadvantages:

Departs from customary international law without any good reason.

Question 20

Manifest liability

Answer 20

manifestly in conflict not only with criminal law but also with the customs of war of civilised people

Question 21

Gaeta

Answer 21

Puts forward the idea that the communis opinio amongst the states tends to show that obedience of superior orders can never amount to a defence for war crimes.

Question 22

Gaeta

Answer 22

In article 33, the two positions were reconciled by placing both in the same rule. Absolute liability for Crimes against humanit and genocide and conditional liability for the others.