international criminal law

DEFENCES IN INTERNATIONAL CRIMINAL LAW
INTRODUCTION
The discussion on defences in war crimes law was for many years solely concerned with the
defence of superior orders, but in recent years, it has expanded to include other grounds for
excluding criminal responsibility as well. Since the ICTY ruling in the case of Erdemovic 1 ,
the defence of duress has received an increasing amount of attention, as did the defence of
mistake of fact after a NATO bomb had hit the Chinese embassy. Despite lively debates in
literature and academia, practice at international courts and tribunals has shown that there is a
reluctance to allow a defence to exclude criminal responsibility for war crimes, crimes against
humanity, and genocide. This reluctance was shared by some of the founding fathers of the
ICC Statute. Nevertheless, the Rome Statute contains a catalogue of defences in Articles
(a) International law defences and criminal law defences
The fact that, since Nuremberg, the ‘ Kelsenian view’ of international law was ousted in
attributing responsibility does not mean that the international law defences as such were
refuted. Classic ‘international law defences’ such as military necessity, reprisals, and tu
quoque still play a role in barring conviction for international crimes. 4 Together with the so-
called ‘criminal law defences’, which have a national criminal law pedigree and are
recognised as defences under the ICC Statute, ‘international law defences’ form a catalogue
of defences that individuals can invoke when charged with international crimes under IHL.
However, as the latter are governed by principles closely connected to the concept of State
responsibility, thus aiming at shielding of the State rather than protecting the individual, the
fusion of both groups is not necessarily a happy marriage. 5 It is clear that some of the classic
international law defences are not admissible in international criminal law.
(b) Justification and excuse
The term ‘defence’ derives from Anglo-American law and is a rather broad and
undifferentiated concept comprising both, substantive and procedural bars to punishability
and prosecution. Most civil law systems refrain from putting both types of exoneration under
one heading. They keep a strict separation between the substantive elements of a crime and
the procedural requirements for its prosecution. Although the ICC Statute contains procedural
defences, 6 they will not be discussed in the ambit of this research, which is primarily focused
on ‘substantive defences’ and the concept of criminal responsibility.
Most criminal law systems recognise the distinction between justifications and
excuses, between wrongdoing in the sense of wrongfulness or unlawfulness of the act, and
culpability in the sense of blameworthiness of the actor. 7 Some systems, like the German and
the Dutch systems, cultivate the distinction between justification and excuses as basic
elements in the structure of criminal acts. These systems, in doctrine and in law, construct a
crime in three stages or units. Conduct is only punishable when, firstly, it satisfies the
definitional elements of a crime, secondly, it is unlawful, and, finally, it is blameworthy.
Anglo-American law does not utilise this differentiation in the same fundamental way; the
criteria for justification and excuse are interwoven. This has been attributed partly to the
‘common law’s affection for reasonableness’ and its non-structured way of legal reasoning onthis point. 8 Assuming this proposition bears truth, the difference in legal reasoning can be
explained by the fact that the Anglo-American systems (but also the French and the Belgian
systems in a limited number of cases) employ a jury-system in which only one question needs
to be answered: guilty or not guilty. Greenawalt’s submission seems to confirm this:
If the law’s central distinction between justification and excuse is to follow from ordinary usage, it will be drawn
in terms of warranted and unwarranted behaviour. That, indeed, is the central distinction in existing American law
insofar as one can be discerned (…). 9
In the following, the distinction between justification and excuse will be utilised to illustrate
the differences between Anglo-American and continental law in excluding punishability. This
is of particular importance in the context of duress.
Not every defence, when successfully pleaded, leads to the exclusion of conviction. Some
pleas result in mitigation of punishment rather than exemption. Unlike justification and
excuse, mitigation presupposes that the person is convicted and liable to be punished.
Mitigating circumstances playing a role in the sentencing stage reduce the severity of a
punishment.
(c) Mens rea/mental element
In Anglo-American theory and legal practice, mens rea covers various cognitive gradations.
The knowledge element is the main fault element constituting mens rea. As one commenator
points out, intentional conduct basically turns on a person’s ‘conscious object’ and his
‘beliefs’. 10 The knowledge element is, however, limited to the world of fact. It does not
extend to awareness of legal rules. Making a mistake of law is seen as denying intention in
Anglo-American law. 11 This is not because the Anglo-American concept of
intention/knowledge includes awareness of legal rules and lawfulness of conduct. On the
contrary, Anglo-American law employs a so-called ‘neutral intention’. In the words of the
MPC in § 2.02(9),
Culpability as to Illegality of Conduct
Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the
existence, meaning or application of the law determining the elements of an offense is an element of such offense,
unless the definition of the offense or the Code so provides.
The neutral intention precludes the possibility of raising mistake of law as a ‘failure of proof
defence’. 12 How then does mistake of law negative the mental element in Anglo-American
legal systems? The answer lies in the absence of a distinction between justifications and
excuses enabling a perpetrator to be excused despite the fact that his conduct was unlawful.
No general culpability requirement, that is independent from a statutory provision, underlies
the Anglo-American concept of intent/mens rea. Its scope is strictly linked to the actus reus.
Only when the violated provision comprises a specific intention or separate ‘knowledge’
element can a mistake of law be a complete defence. Such an element can also be included
through judicial interpretation. Take, for instance, the case of Liparota v. U.S., where the
Supreme Court interpreted the element of ‘knowingly’ to require,
By interpreting ‘knowingly’ this way, the Supreme Court in Liparota expanded the neutral
intention concept to include awareness of unlawfulness and thus enabled the defendant to
successfully raise the defence of mistake of law. A different technique, but generating the
same result, is the insertion of an element of ‘unlawfulness’ into a crime’s definition. This
was done in the English case of R. v. Beckford, where the Privy Council ruled that,
(i) Unlawfulness is an element in all crimes of violence (ii) intent, knowledge or recklessness must be proved as to
the element and therefore (iii) a person who mistakenly believes in the existence of of circumstances which would
make the conduct lawful should not be criminally liable. 14
However, both cases constitute exceptions rather than rules. As will be set out later, the rule
that ignorance or mistake of law is not a defence is deep-rooted in Anglo-American law. 15 In
any event, the above shows that the defence of mistake of law in Anglo-American law is
regarded as negativing mens rea because of its strict connection with the actus reus.
In the past, civil law systems employed a so-called dolus malus. This dolus malus notion
differed from neutral intention in that it required - besides a will to commit the crime - an
awareness of the unlawfulness of the act. 16 These systems have now reverted to a concept of
‘neutral intention’. While Germany and the Netherlands have embraced the neutral intention
concept, Belgium and France still apply a type of dolus malus intention. Intention comprises
an element of awareness that the act is unlawful. Desportes and Gunehec define the French
‘dol’ as,