Defences Flashcards
Art. 31 Rome Statute of the ICC
Grounds for excluding Criminal Liability
Circumstance that makes the conduct of the accused preferable to even worse alternatives. (Conduct is right, or at least not undesirable).
Justification
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).
Excuse
31(1)(a)
Mental Incapacity
Mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness.
Destruction=High Standards
Jelisic - Not proven
31(1)(b)
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
31(1)(c) - Self Defence
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.
Kordic - broadens customary international law
War crimes - defending property, which is essential for survival or success of the mission.
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.
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.
31(1)(d) Duress - Necessity
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.
31(2) The Court should determine the applicability of the grounds for excluding criminal liability provided in this statute in the cases before it.
31(2) The Court should determine the applicability of the grounds for excluding criminal liability provided in this statute in the cases before it.
32 Mistake of fact or law
- 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 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.
Art 33 Superior Orders
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.
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.
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.
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”.
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”.
Llandovery Castle
Three principles:
- As a general rule, a subordinate committing a criminal act following an order by a superior should not be criminally responsible.
- The general rule does not apply when the subordinate knew that the order was unlawful and nonetheless acted upon it.
- Manifest illegality
Absolute liability
Obedience to an order is never a defence.
Absolute liability
Obedience to an order is never a defence.
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.
“The alleged difference between the two approaches appears to be only aparent”.
Gaeta: advantages of art. 33
Advantages of Art. 33
- Ruled out the defence for genoice and crimes against humanity
- Reverse the presumption - burden on the defence
- Its existence in itself.
Gaeta - Disadvantages
Disadvantages:
Departs from customary international law without any good reason.
Manifest liability
manifestly in conflict not only with criminal law but also with the customs of war of civilised people
Gaeta
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.
Gaeta
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.
