1. Defences Grounds excluding Criminal Liability

2. Justification and Excuse  JUSTIFICATIONS are pleas that the conduct of the defendant was acceptable, and thus necessarily lawful.  EXCUSES do not seek to defend the conduct of the defendant per se, but seek to say that, in the particular instance, the defendant ought not be blamed for what he or she did.

3. ICC Perspective  Procedural defences  ‘ne bis in idem’ in Article 20; ‘non-retroactivity ratione personae’  „grounds for excluding criminal responsibility”  Rome Statute art. 31  Rome Statute codifies defences in articles : 31,32,33  Possibility to raise an uncodified defence under the Rules of procedure and Evidence  rule 80

4. Defences :  Mental incapacity  Intoxication  Self-defence, defence of others and property  Duress and necessity  Mistake of facts and law  Superior orders  Other ‚defences’

5. Defences: Mental capacity Duress and necessity  person is unable to understand the nature of his or her conduct  person is incapable of understanding the unlawfulness of his or her conduct.  ‘irresistible impulse’  1. a threat of imminent death or continuing or imminent serious bodily harm against the person concerned or another person  2. a necessary and reasonable reaction to avoid threat  3. the intent not to cause a greater harm than the one sought to be avoided

6. Defences: Mistake of Facts and Law Superior orders  Mistake of facts: if a person bombed a civilian bunker believing it was a military command centre, there would not be liability on the basis of this provision  no requirement of reasonableness  Mistake of law: where a person takes property under a mistaken belief that he or she was its owner  Millitary discipline  the person obeying the order must be under a legal obligation to obey orders in domestic law.  Obligation to obey just lawful orders ?

7. Intoxication  Notion of international crimes v. intoxication : I. the Second World War the Sonderkommandos II. Rwanda Genocide  Elements of intoxication  Volountary and involountary intoxication  Destruction of capacity  Complete defence

8. Intoxication Structure : I. State of intoxication II. Persons capacity to appreciate and control is destroyed III. The accused was not volountairly intoxicated

9. Intoxication intoxication is dealt with in Article 31(1)(b) of the ICC Statute, which provides for the exclusion of responsibility when: „The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;”

10. Intoxication  Destruction of Capacity  Person need to unable to act in a reasonable way, control the conduct  culpa in causa When the accused puts forward a plea of intoxication and produces evidence of the state intoxication, the prosecution has the onus of proving that the accused either : a) intentionally became intoxicated b) he knowingly took the risk of that

11. Intoxication as a defence - criticism „While soldiers and thugs under the influence of drugs and alcohol may commit many individual war crimes, the court was established for a relatively small numbers of leaders organisers and planners, in cases of genocide, crimes against humanity and large-scale war crimes. The nature of such crimes, involving planning and preparation, is virtually inconsistent with a plea of voluntary intoxication. In practice, examples in case law, even for mere war crimes, are as infrequent as in the case of insanity” Schabas (1998), p. 423.

12. Self –defence This concept raises three difficulties :  The defence exists on two levels : mikro- individual and makro-State  Distinction can be made in light of criminal law and self defence in context of law of war ( lawful under state of war)  Distinction between those acting in public capacity ( state officials) and individuals

13. Self - defence  International crimes such as genocide, crime against humanity, war crime may be committed in both individual and official capacity; and in both cases those who committed the crime may be held liable under international criminal law.

14. Self – defence  Art. 31(1)(c) of Rome Statute : The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.

15. Self – Defence  Four requirements; the accused must have been acting : I. Reasonably II. Proportionately against III. Immanent IV. Unlawful Use of force The defence must be consistent with art. 21(1a-c)

16. Self defence and requirements of art. 21(1a- c)  The defence of self-defence cannot be granted when it violates : a) The Statute; elements of Crime, Rules of procedure b) Applicable treaties, principles and rules of international law c) General principles of was derived by the Court from the national laws of the legal systems of the world including the national laws of States that would normally exercise jurisdiction over the crime

17. Reasonableness  Test 1: What reasonable person under the same circumstances would do ?  Test 2: did the accused reasonably believed that he was unlawfully attacked ?  All exceeding actions undertaken by the accused shall be taken into account

18. Proportionality  Self – defence is not unlimited action; the use of force must be proportionate to attack. Its hard to imagine situation when we can commit genocide in self –defence.  Wording of the article 31 of the Rome Statute : The person ‚acts ………… to defend’

19. Immanent and unlawful use of force  Force is not specified and can be understood to extent of both physical attack and psychic threat.  Immanent  direct threat of force, or the force is already deployed / taking place, or the force is ongoing  The use of force must be unlawful to exempt the act of defence from criminal liability.

20. Thank you for your attention!