Week 3(ii) - Grounds Excluding Responsibility

Question 1

What role has grounds excluding responsibility played in ICL historically? (6)

Answer 1

1) historically played a marginal role
2) no inclusion in IMT, ICTY or ICTR Statutes
3) Still discussed by IMT/ICTY/ICTR but more as MR negation (common law influence)
4) IMT: no inclusion because not strong desire to permit defences
5) ICTY/ICTR: more focus on fair trial
6) ICC: inclusion in Statute and generally more focus on equality of arms

Question 2

Where do grounds excluding responsibility mainly apply? (2)

Answer 2

1) mainly to war crimes
- these are committed under orders (argue superior orders)
- mistakes of fact can cause breach of principle of distinction

2) Rarely CaH and Genocide
- scale thresholds make difficult to argue

Question 3

What are 2 reasons that defences are rarely discussed in ICL?

Answer 3

1) reluctance to give defences to perpetrators of serious crimes
2) prosecutor tends to focus on people w/out potential defence

Question 4

What are the grounds excluding responsibility? (7)

Answer 4

1) Mental Disease or defect (Art 31(1)(a))
2) Intoxication (Art 31(1)(b))
3) Self-Defence (Art 31(1)(c))
4) Duress or necessity (Art 31(1)(d))
5) Other defences derived from applicable law (Art 31(3))
6) Mistake of fact or law (Art 32)
7) Superior orders and prescription by law (Art 33)

Question 5

What 3 things does ‘mental disease or defect’ cover? (4)

Answer 5

1) Art 31(1)(a)
2) Failure to appreciate nature of conduct¨
3) Failure to appreciate lawfulness of conduct; AND
4) inability to control conduct

Question 6

What level of severity is required by ‘mental disease or defect’? (2)

Answer 6

1) requires a degree of severity and permanence that ‘destroys’ the capacity

2) Insufficient:
- temporary exhaustion/excitement
- psychological disturbances (sorrow/rage - falling short of above)
- -> can be considered at sentencing tho

Question 7

What is a criticism of ‘mental disease or defect’? (1)

Answer 7

1) Upon acquittal under this defence no ‘special verdict’ (treatment)
- -> hopefully contracting States will provide this

Question 8

What does ‘intoxication’ cover? (5)

Answer 8

1) destruction by intoxication of ability to
2) appreciate unlawfulness
3) appreciate nature of conduct; OR
4) control conduct
5) except where voluntarily intoxicated where knowledge or recklessness of risk of likelihood of crime

Question 9

What ground of excluding responsibility would alcoholism/drug addiction fall under? (1)

Answer 9

1) Mental disease or defect (Art 31(1)(a))

Question 10

What are defences called negating MR?

Answer 10

‘Plea of failure of proof’

Question 11

What 3 components make up the self-defence ground?

Answer 11

1) Self-defence situation
2) self-defence measures
3) Mental element

Question 12

What does the self-defence situation require? (4)

Answer 12

1) Imminent and unlawful use/threat of force against a protected interest
2) threats suffice where causing immediate coercive situation (otherwiwse duress)
3) imminent = immediately impending or has already begun and ongoing
4) Defensible interests = life, bodily integrity. freedom of movement or property for war crimes

Question 13

What does the self-defence measures require? (2)

Answer 13

1) measures that are
i) reasonable and
ii) proportionate to the degree of danger

2) killing in self-defence must be last resort (no other reasonable way to avoid) (Gotovina ICTY)

Question 14

What is the mental element of self-defence? (2)

Answer 14

1) intent

2) to defend oneself, another or the property

Question 15

What 3 grounds for excluding responsibility are closely related?

Answer 15

1) duress
2) self-defence against threats
3) superior commands

Question 16

What are the requirements for ‘duress and necessity’? (5)

Answer 16

1) threat of imminent death; OR
2) threat of continuing or imminent serious bodily harm
3) by other person or circumstances beyond control
4) necessary and reasonable act in response
5) NO intention to cause greater harm than the one avoided

Question 17

What does ‘reasonableness’ and ‘necessity’ entail under ‘duress and necessity’? (3)

Answer 17

1) Necessity: there should not be non-criminal alternative
2) Reasonable: would a reasonable person have given in to the threat? (Eser)

3) Murder under duress?
- IL probably permits it but controversial

Question 18

What does ‘mistake of fact’ require? (4)

Answer 18

1) Art 32(1) Rome Statute
2) must negate the mental element of the crime
3) e.g. mistake civilian structure for command centre
4) no requirement for reasonable mistake

Question 19

What does ‘mistake of law’ require? (3)

Answer 19

1) Art 31(2) Rome Statute
2) must negate mental element required for crime
3) where element of crime requires legal evaluation
4) EX: mistakenly thinks person not to be PoW

Question 20

What is the rationale behind ‘superior orders’ as ground for excluding responsibility? (2)

Answer 20

1) subordinates must be able to trust orders for system to function
2) this means giving protection from personal responsibility

Question 21

What are requirements for ‘superior orders’? (5)

Answer 21

1) crime committed pursuant to order of superior
2) legal obligation to obey orders
3) no knowledge that order was unlawful; AND
4) order was not manifestly unlwaful
5) no exclusion for CaH or Genocide

Question 22

What are problems with ‘superior orders’? (2)

Answer 22

1) presumes War crimes are necessarily less serious than CaH and genocide
2) should it lead to complete exclusion of criminal responsibility and of everyone?

Question 23

What are other defences not enumerated in Rome Statute? (3)

Answer 23

1) Consent (sexual offences) (but not child soldiers - Lubanga)
2) Reprisals
3) Military necessity