Chapter 6: Defences in International Criminal Law
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Committee of the Whole by consensus, and finally also by the plenary of the
Diplomatic Conference.
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What has now emerged as Art 33 of the ICC Statute recognises the defence on the
basis of the three qualifications that exist in customary international law. The first
presupposes an existing loyalty or legal obligation, while the other two refer to the
requisite standards of knowledge, consisting of both the subjective knowledge of
the accused, and an objective test based on the ‘manifest illegality’ rule. The article
thus reads as follows:
1
The fact that a crime within the jurisdiction of the Court has been committed by
a person pursuant to an order of a Government or of a superior, whether military
or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the
Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2
For the purposes of this article, orders to commit genocide or crimes against
humanity are manifestly unlawful.
The presumption of knowledge inserted in para 2 seems to be unrebuttable. However,
since the commission of genocide and crimes against humanity involve large scale
action, often requiring minor operations in which the offender cannot always be
expected to be aware of the eventual aim, justice necessitates this presumption to be
a rebuttable one. Let us now proceed to examine the defence of ‘duress’, which has a
strong affiliation and is closely related to the defence of superior orders.
6.3
DURESS AND NECESSITY
The poor drafting of Art 31(1)(d) has its roots not in the ignorance of its drafters, but
rather on the divergent and inflexible views of the negotiating parties. It therefore
reflects, like many provisions in the Statute, a clause founded among other things
on compromise. What is not clear in the text of sub-para (d) is primarily the definition
of ‘duress’ and ‘necessity’ as two related but distinct concepts, as well as the question
whether this defence is also available to a charge of murder. The legislative history
of the Statute suggests that although initially the two concepts were included in
different Articles, by 1998 they had been moved to a single provision where moreover
‘necessity’ had been subsumed within the concept of ‘duress’.
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Furthermore, during
discussions before the Committee of the Whole, it was decided that the combined
defence encompassed in Art 31(1)(d) was available also to a charge of murder, since
the prior requirement necessitating an intention not to cause death had been deleted.
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Some isolated proposals to the effect that duress/necessity apply also in cases of
threats to property were unanimously rejected.
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