particular crimes (so called special defences).
3
Another 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,
4
ne bis in idem,
5
nullum crimen nulla poena sine lege scripta,
6
passing of statute of limitations,
7
retroactivity of criminal law.
8
This 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?’, 14
LS
(1994), 266.
4
See
Barayagwiza 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.
International Criminal Law
128
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.
9
Article 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 requisite
mens
rea
to 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
(
Celebici
case), 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), in
ILC Report on the
Work of its Forty-Eighth Session,
UN GAOR 51st Sess, Supp No 10, UN Doc A/51/10 (1996), p 14.
Chapter 6: Defences in International Criminal Law
129
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.
11
The next section, therefore, explores the general
conception of defences in the ICC Statute, with particular emphasis on primary and
secondary sources.
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