LING 530 Lecture Notes - Lecture 7: Representative Democracy, Rome Statute Of The International Criminal Court, Grievous Bodily Harm
27 Jun 2018
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March 20, 2018
GROUNDS FOR THE EXCLUSION OF CRIMINAL RESPONSIBILITY:
JUSTIFICATIONS AND EXCUSES
Defences raises a number of theoretical and practical issues for the application of ICL
Before turning to the relevant provision of the ICC statute (art 31) we will go through
general thoughts about the general principles of criminal law:
oMuch of ICL didn’t really have a basis in international treaty law or international
customary law (sources under art. 38(1) of the ICC). With the exception of the
Nuremberg precedent, ICL was largely dormant in terms of a jurisdiction until
the establishment of the ICTY in 1993
oOnce the ICTY was established in 1993, it had to address issues of criminal
liability including grounds for the exclusion of criminal liability, it had a problem
in so far as Nuremberg was a basic statute and didn’t spell out defenses in any
detail – it simply provided that the status of a public official should not be a
ground for exclusion of criminal liability
Between Nuremburg and ICTY, there was no international treaty that spelled out what
defences are applicable in ICL. Article 7 of the ICTY Statute established the basis for
criminal liability but not available defences.
It was only with the ICTY Statue that we had a clearer idea of available defences to
international crimes.
Erdemović case is duress available as a defence for murder?
oCML: duress available to all crimes except murder
More pragmatic, policy oriented, exception for murder therefore makes
sense
oCVL: available to all crimes including murder
Doctrinal and theoretical approach so either defence available to all
crimes or no crimes.
oThe judge in Erdemović (1997) needed to choose between CML and CVL (general
principles and customary law did not provide an answer).
oThe dissenting opinion of Cassese is that duress is available as a defence. The
exception is that it does not apply to murder in CML jurisdictions.
Article 38(1)(c) ICJ Statute refers to general principles and not specific
rules.
Duress is available as a defence and we do not need to look at the
specific rule in the CML, where duress does not apply to murder.
The majority (including the two CML judges) say that there is no
applicable norm in international law. Therefore, they looked at
considerations of public policy and legislate what the applicable law is.
This was blasphemy for Cassese, civil law background. Judges
apply the law not legislate.
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All ambiguities must be resolved in favour of the defendant
(principles of legality in criminal law).
The next year, in 1998, the ICC Statute was adopted and duress was available to all the
crimes. It adopted a civilian/ categorical approach. This is without the ad hoc policy
oriented exceptions in the CML approach.
General Principles (ICC)
General principle section (arts 22-33)
oCanadian Criminal Code is misleading it is a codification of judicial precedent.
oHere, it reflects the general part in a civilian code.
The general part sets forth the general principles of criminal law which apply to all
crimes. The special part defines specific crimes.
oEx: Article 22 sets forward the principle of legality (nullum crimen sine lege)
which provides extension of crimes by analogy, expansive interpretations,
retroactive application, etc.
oEx: Article 25 stipulates principles of individual responsibility.
oEx: Article 27 refers to irrelevance of official capacity.
General Principles (History)
Article 38 ICTY doesn’t have a hierarchy of treaty law, principles, etc.
oCustomary law and treaty law are closely related.
Ex: Although grave breaches originated as treaty law, they codified pre-
existing customary law.
oWhen you approach via customary law, you don’t have to worry whether there is
universal ratification of a treaty.
oGeneral principles, however, are viewed with suspicion. They are subjective.
They are not objectively ascertainable like the other sources.
oThere was a problem of the subject matter jurisdiction of the IMT Charter for
war crimes. The problem was criminalizing atrocities against civilians that were
not the nationals of a belligerent state. General principles leant itself to this
category because there was a certain flexibility and visceral core to the notion of
general principles. The drafters of the Charter figured that mass atrocities shock
the conscious of humankind and even though we don’t have a precedent we can
extract CHA from general principles.
CHA were the biggest development of the IMT Charter. They carried the
notions of universal human rights irrespective of nationality and armed
conflict, mass atrocities against civilians should be criminalized and give
rise to a CAH.
oIn 1993, when the ICTY Statute was adopted, general principles were not
mentioned. Only reference was to customary law.
oBetween 1945 IMT and 1993 ICTY, there was no international jurisdiction. So, the
questions of available defences were academic. Nuremberg did not have to
worry too much about defences because the Nazi crimes were so overwhelming.
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In drafting the ICC Statute, the negotiators had to turn to general principles. You cannot
apply the criminal law of a particular jurisdiction. They had to extract general principles
which applied across multiple jurisdictions. The ICC was meant to be a permanent court.
So, you couldn’t have a crude statute like with ICTY and ICTR – which were ad hoc
tribunals.
This is incredible because grafting general principles from domestic law onto an
international jurisdiction.
Article 32: Mistake of Fact or Law
Art. 32(1) “Negates the mental element”: Mistake of Fact has to do with mens rea
(subjective state of mind of the accused).
Ex: target a location that you think is a military post but is actually a school. This is an
honest but mistaken belief (NOT wilful blindness). This would negate the mens rea of
the crime of unlawful attack against civilians and civilian objects. The mistake of fact
would negate the mens rea.
oThere is a difference between defences that negate the mens rea and those that
excuse criminal conduct (see below)
Art. 32(2) “manifestly unlawful”: if a specific crime includes a mens rea element which
requires knowledge of the unlawfulness of the conduct, it may be relevant. Otherwise,
mistake of law is irrelevant to criminal liability. In any case, you have to look at the
elements of the mens rea. That is, what are the mental elements required for conviction
for that crime.
Difference between justifications & excuses
Justification: moral blameworthiness goes to mens rea. We punish people because their
conduct is morally blameworthy. Even if someone acted with the requisite mental
intent, that their conduct was justifiable and therefore there is no moral
blameworthiness.
oE.g. self defence: If someone attacks you with a knife or with a gun with the
intention to kill you and you use proportionate force in defending yourself and in
doing so you kill that person, you may have acted with the requisite element of
murder (inflicted grievous bodily harm knowing that death might result). But, the
justification is that your conduct was not morally blameworthy because you
were defending yourself.
Excuse: an act is morally blameworthy.
oE.g. duress: someone puts a gun to your head and tells you to rob a store.
Robbing is the lesser of two evils: losing your life vs. robbing.
oAn excuse applies to a crime that is consummated and morally blameworthy but
we believed that there is an element of moral involuntariness that we excuse the
punishment of the perpetrator.
In all of these, the crime is consummated and then the defences arise!
Article 31: Grounds for excluding criminal responsibility
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Document Summary
Defences raises a number of theoretical and practical issues for the application of icl. Between nuremburg and icty, there was no international treaty that spelled out what defences are applicable in icl. Article 7 of the icty statute established the basis for criminal liability but not available defences. It was only with the icty statue that we had a clearer idea of available defences to international crimes. Erdemovi case is duress available as a defence for murder: cml: duress available to all crimes except murder. More pragmatic, policy oriented, exception for murder therefore makes sense: cvl: available to all crimes including murder. The exception is that it does not apply to murder in cml jurisdictions. Article 38(1)(c) icj statute refers to general principles and not specific rules. Duress is available as a defence and we do not need to look at the specific rule in the cml, where duress does not apply to murder.
