DEFENCES IN INTERNATIONAL CRIMINAL LAW
6.1 THEORETICAL UNDERPINNINGS OF CRIMINAL DEFENCES
The concept of ‘defence’ in international criminal law is neither self-evident, nor does it clearly possess an autonomous meaning. Instead, it derives its legal significance as a result of its transplantation from domestic criminal justice systems through the appropriate processes of international law. Nonetheless, its definition, elaboration, evolution or application do not depend on the relevant processes of any single criminal justice system—nor combinations thereof—although these may have persuasive value. This is even more so in the context of a self-contained, highly elaborate and sophisticated legal system, such as the International Criminal Court (ICC), where reliance on domestic rules is the exception—or at least, a judicial act of last resort—rather than the norm.1Despite these observations, however, the fact remains that the underlying theoretical underpinnings of the concept of ‘defences’
is premised on well established notions of criminal law, originating from both the common law and the civil law traditions. Despite the elaborate character of the ICC Statute, its drafters have been wise in detecting the inadequacy of the fledgling international criminal justice system, thus necessitating recourse to national legal concepts and constructs. This is well evident as far as defences are concerned.2
In its most simple sense, a defence represents a claim submitted by the accused by which he or she seeks to be acquitted of a criminal charge. The concept of defences is broad, and this may encompass a submission that the prosecution has not proved its case. Since a criminal offence is constituted through the existence of two cumulative elements, a physical act(actus reus)and a requisite mental element(mens rea), the accused would succeed with a claim of defence by disproving or negating either the material or the mental element of the offence charged. Domestic criminal law systems generally distinguish between defences that may be raised against any criminal offence (so called general defences), and those that can only be invoked against particular crimes (so called special defences).3Another poignant distinction is that between substantive and procedural defences. The former refer to the merits, as presented by the prosecutor, while the latter are used to demonstrate that certain criminal procedure rules have been violated to the detriment of the accused, with the consequence that the trial cannot proceed to its merits. This distinction is not always clear cut, but one may point to the following often claimed procedural defences: abuse of process,4ne bis in idem,5nullum crimen nulla poena sine lege scripta,6 passing of statute of limitations,7retroactivity of criminal law.8This chapter will
1 ICC Statute, Art 21(1)(c).
2 Ibid,Art 31(3).
3 An example of a special defence is that of the ‘battered wife syndrome’. See C Wells, ‘Battered Woman Syndrome and Defences to Homicide: Where Now?’, 14LS(1994), 266.
4 SeeBarayagwiza v Prosecutor,Appeals Decision (3 November 1999), Case No ICTR-98–34-S, as well as the reversal of parts of the latter decision by the Appeals Chamber in its decision of 31 March 2000.
5 ICC Statute, Art 20.
6 Ibid,Arts 22 and 23.
focus only on substantive defences. Although our analysis covers substantive defences as these have evolved through domestic and international developments, the detailed ICC legal framework will serve as the basis of discussion.
Another seminal aspect of any discussion on defences relates to the allocation of the burden of proof. Article 66 of the ICC Statute postulates the ‘presumption of innocence’ until proven guilty beyond reasonable doubt. This means that, and in accordance with universal standards of justice, the prosecution carries the onus of proving the material and mental elements constituting an offence. On the other hand, facts relating to a defence raised by the accused, and being peculiar to his or her knowledge, must be established by the accused.9Article 67(1)(i) at first glance seems to possibly attack the burden of proof set out in Art 66, by declaring that ‘the accused shall be entitled…not to have imposed on him or her any reversal of the burden of proof or any onus or rebuttal’. This would not be a correct interpretation, as it would run contrary to the object and purpose of the ICC Statute and general international law. The correct view is that Art 67(1)(i) should be read in conjunction with Arts 31(3) and 21, which as explained in the following section, give authority to the Court to introduce defences existing outside the Statute, only if they are consistent with accepted treaty and custom or general principles of domestic law. Thus, no defence introduced by the Court in the proceedings under Art 31(3) can ever override the burden of proof established in accordance with Art 66. Essentially therefore, while the accused has the burden of proving the particular claim invoked in his or her defence (for example, that he faced death if he did not execute the order of his superior), the burden is on the Prosecutor to prove the overall guilt of the accused.
All substantive defences represent claims that the material element of the offence was indeed committed by the accused, but for a reason which is acceptable under the relevant criminal justice system. In this respect, domestic legal systems distinguish between two types of defence in which the accused claims to lack the requisitemens reato commit the underlying crime: justification and excuses. Defences operating as justifications usually regard the act as harmful but not as wrong in its particular context, whereas excuses are grounded on the premise that although the particular act was indeed wrongful, its surrounding special circumstances would render its attribution to the actor unjust.10
7 Ibid,Art 29. The crimes contained in the ICC Statute are not subject to a statute of limitations under general international law. See 1968 United Nations (UN) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 754 UNTS 73.
8 Ibid,Art 24.
9 Prosecutor v Delalic and Others(Celebicicase), Judgment (16 November 1998), 38 ILM (1998), 57, para 1172. In English law, the burden of proof is always on the prosecution even with regard to defences raised by the defendant, with the exception of insanity and certain statutory exceptions (including diminished responsibility). See R May,Criminal Evidence, 1999, London: Sweet &
Maxwell, pp 53–60.
10 Several theories have been elaborated in this respect, such as the ‘character theory’ and the ‘fair opportunity theory’. See W Wilson,Criminal Law,1998, London: Longman, pp 206–19; see Draft Code of Crimes against the Peace and Security of Mankind, Art 14 (Comment 2), inILC Report on the Work of its Forty-Eighth Session,UN GAOR 51st Sess, Supp No 10, UN Doc A/51/10 (1996), p 14.
Despite the existence of the aforementioned distinctions in both common and civil law traditions, they were not included in the ICC Statute, whose drafters agreed instead to use the general term ‘exclusion of criminal responsibility’, thus avoiding the need to insert terminology distinguishing between the two. Whether this intentional omission has any legal significance remains to be seen, judged on the appropriate sources of the court’s jurisdiction. The Rules of Procedure and Evidence provide that the accused must lodge his or her defence claim no later than three days before the date of the hearing.11The next section, therefore, explores the general conception of defences in the ICC Statute, with particular emphasis on primary and secondary sources.
6.1.1 Is there a place for domestic defences in the ICC Statute?
During the preparation of the Preparatory Committee (Prep Com) draft Statute there was strong divergence over the inclusion of an exhaustive or open list of defences.
Naturally, the proponents of an exhaustive list were apprehensive of the Court’s freedom and latitude were it to be authorised to determine defences beyond those enumerated in the Statute. The opposite side, however, stressed the impossibility of reaching precise definitions of all desired defences, thus necessitating an open list.
There was considerable support for a middle ground, whereby although there would be an enumerated list, the Court could under special circumstances introduce viable defences existing outside the Statute, in such a way that it would not make but rather apply the law.12Preference for this latter solution was finally reflected in Art 31(3), which reads:
At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 [ie, mental incapacity, intoxication, self-defence, duress] where such a ground is derived from applicable law as set forth in Article 21.
Article 21 sets out the sources available to the Court in its judicial function; in the same fashion this is prescribed for the International Court of Justice in Art 38 of its Statute. Article 21 is premised on a hierarchy of rules, on top of which lie the Statute, supplemented by the Elements of Crimes and the Rules of Procedure and Evidence.
Where the aforementioned sources fail to produce an appropriate result, the Court may turn to treaties and the principles and rules of international law, and failing that, to general principles of law derived from the national laws of the world’s legal systems. The examination of these sources does not fall within the purview of this chapter, but a brief discussion of the third source (that is, general principles) is warranted, because of the potential use by the Court of defences existing outside the Statute. General principles of municipal law are practices or legal provisions common to a substantial number of nations encompassing the major legal systems (common, civil and Islamic law). Under customary international law, reliance upon principles deriving from national legal systems is justified either when rules make explicit reference to national laws, or when such reference is necessarily implied by the very content and nature of the concept under examination. However, even within these confines, the freedom of extrapolation of general principles by a court is open to
11 Rules of Evidence and Procedure, r 121(9).
12 UN Doc A/CONF 183/C 1/WGGP/L 4/Add 1/Rev 1 (1998), commentary to Art 31(3).
abuse, as was the case in theFurundzija judgment, decided by an International Criminal Tribunal for the Former Yugoslavia (ICTY) Chamber.13It is evident that if the court possesses authority to freely employ general principles, the theoretical underpinnings of the distinction between ‘justifications’ and ‘excuses’ (constituting part and parcel of any domestic discussion on defences) is pertinent when general principles are used.
As a result of a compromise reached during the 1998 conference, whereby some delegations insisted that domestic law, especially that of the accused’s nationality or that of the territorial State, should be directly applicable apart from general principles,14the Statute extended the sources available to the Court. The compromise was basically a middle ground, whereby such domestic law could, if the Court deemed it appropriate, be included in the pool of sources. Article 21(1)(c) articulates the following sources, failing paragraphs 2 and 3:
[G]eneral principles of law derived by the Court from national laws of legal systems of the world,including, as appropriate, the national laws of states that would normally exercise jurisdiction over the crime,provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and principles [emphasis added].
A logical and realistic interpretation of this clause suggests that in the event the Court is unable to fill a legal lacuna on an issue pertaining to international law—in both a broad and narrow sense—it may turn to individual legal systems. Therein, the Court may not choose a particular law or provision for application or transplantation before the ICC; rather, it is bound to extract relevant principles from the rules of the legal system under consideration. This is an exercise that may turn out to be so cumbersome that it negates the initial utility of recourse to a particular legal system. A more realistic interpretation would reflect ICTY practice such as where the ad hoc tribunals take heed of the sentencing practices and legislation of the former Yugoslavia and Rwanda, unless these conflict with general international law.15The ICC could extend the direct application of domestic law to determination of procedural matters that have taken place on the territory of a State, where this is relevant to ICC proceedings (for example, in relation to testimony and other evidence taken by the surrendering State), as well as to elements of defences that are ill-defined in the Statute, as will become apparent in this chapter. Let us now proceed to examine in detail the substantive defences set out in the Statute, that is, superior orders, duress/necessity, self-defence, intoxication, mistake of fact and law, and mental incapacity.
As a matter of safeguard against abuse by the defendant of the rule enunciated in Art 31(3), the Rules of Procedure and Evidence require that the defence give notice to both the Trial Chamber and the prosecutor if it intends to raise a ground for excluding responsibility under Art 31(3). This must be done ‘sufficiently in advance
13 Prosecutor v Furundzija,Judgment (10 December 1998), 38 ILM (1999), 317, paras 182–86. See I Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law,2002, Manchester:
Manchester UP, p 28.
14 See P Saland, ‘International Criminal Law Principles’, in RS Lee (ed),The International Criminal Court:
The Making of the Rome Statute: Issues, Negotiations, Results,1999, Boston: Kluwer Law International, pp 214–15.
15 Art 24(1) of the ICTY Statute states that ‘[i]n determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia’.
of the commencement of the trial’.16Following such notice, the Trial Chamber shall hear the Prosecutor and the defence before deciding whether the defence can raise a ground for excluding criminal liability. If the defence is eventually permitted to raise the ground, the Trial Chamber may grant the Prosecutor an adjournment to address that ground.17