Defenses

A legal defense is the offering of substantive and procedural obstacles to the prosecution of a crime in a court of law. Regarding crimes of genocide, war crimes, and crimes against humanity, the first issue to consider is whether a particular defense or defense strategy can be sustained according to the general principles of international criminal law. Article 31 of the Rome Statute of the International Criminal Court (ICC) is significant in this regard. This statute is based on a mixture of common and civil law principles, as well as provisions drawn from comparative criminal law, and refers to "grounds for excluding criminal responsibility." However, Article 31 of the ICC statute accentuates the civil law dimension of this concept by refraining from the common law practice of distinguishing between certain types of defenses.

Significantly, the ICC statute does not differentiate between justifications and excuses offered in regard to the commission of a crime. A justification is a defense to the extent that the defendant argues that he is not to be punished for breaking a law, because certain special (justifying) circumstances exist that legitimize the particular action. An excuse, on the other hand, does not legitimize the criminal act. Rather, it amounts to the claim that the defendant cannot be held personally responsible for his act at the time of the crime. In the case of excuses, the act remains criminal, and therefore punishable—it is the perpetrator who is excused from culpability.

Many legal systems do differentiate between a defense based on justification and one that offers an excuse. This distinction seems relevant when seeking an exoneration for a charge of genocide and crimes against humanity. A justification emerges when a particular act is deemed to be morally just, whereas an excuse only exonerates the accused—not his or her act. An excuse, therefore, identifies the blameworthiness of the perpetrator. At its most fundamental level, therefore, the qualification of a defense to a charge of genocide or crimes against humanity may be perceived as a personal excuse, offered on a purely personal level, on the presumption that the accused cannot be held personally responsible for the particular genocidal act, since any ordinary person would have behaved in the same way.

Contrary to the 1948 Genocide Convention, which only addresses the issue of defenses in Article IV (which deals with the defense of heads of state), the ICC Statute (in Article 31) codifies a potentially wider scope of defenses that, at first sight, embraces the crime of genocide. Article 33(2) of the ICC Statute, however, places certain limits on defenses, declaring that orders to commit genocide or crimes against humanity are manifestly unlawful, which raises an obstacle for mounting a defense based on claims that the accused was following the orders of his or her superior.

The Status of Defenses to Genocide and Crimes against Humanity

The International Law Commission Draft Code of Crimes against the Peace and Security of Mankind, in its report of July 26, 1996, mentions that a competent court shall determine the admissibility of defenses "in accordance with the general principles of law, in the light of the character of each crime." These general principles of law include the contents of the Genocide Convention and the jurisprudence, which evolved from the Nuremberg Trials. This jurisprudence, as well as international legal instruments, have focused primarily on the defense of duress in connection with superior orders; and on defense claims of insanity, diminished responsibility, and intoxication, as well as self-defense, which did not feature in the Nuremberg Trials.

The law of the International Criminal Tribunals is informed by the fact that nearly every major legal system in the world recognizes a similar collection of defenses as admissible. However, the ICC at times employs somewhat different criteria in assessing the admissibility of some of these defenses.

The Head-of-State Immunity Defense

Claims of immunity for heads of states were not found admissible at the Nuremberg Trials or in other post–World War II international legal proceedings. Article IV of the Genocide Convention provides that a head of state's defense based on claims of immunity from prosecution cannot be invoked in case of a genocide charge. The inadmissibility of this defense therefore expresses a general principle within the meaning of Article 38(1)(c) of the International Court of Justice (ICJ) Statute.

Article 7 of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Statute and Article 6 of the International Criminal Tribunal for Rwanda (ICTR) Statute also disallow a defense based on the claim of head-of-state immunity from prosecution. Specifically, the official position of any accused person, including the position of head of state, does not relieve such person of criminal responsibility, nor can it be used to mitigate punishment. Article 27 of the ICC Statute thus reaffirms the existing customary international law. In fact, it goes further, by specifically excluding this defense in the realm of genocide and crimes against humanity.

A case illustrating the inadmissibility of a head-of-state immunity defense is found in the ruling of the British House of Lords on March 24, 1999, in R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening). In this ruling, Lord Phillips of Worth Matravers held that it was superfluous to invoke Article IV of the Genocide Convention to exclude the head-of-state defense, because both customary international law and conventional codification already achieved this aim. Furthermore, Article 13 of the 1991 Draft Code of Crimes of the International Law Commission reaffirmed this position. He noted that Article 13 declares that heads of state should be held accountable for their crimes against the peace and security of mankind.

The "Superior Orders" Defense

The perpetration of an international crime as the result of an order of a superior appears to be excusable only if it is clear that the accused did not know the order was manifestly illegal. Accordingly, the defense of superior orders does not appear in the Genocide Convention, because any order to commit genocidal acts is considered to be manifestly illegal. The Apartheid Convention also does not address this defense directly, for similar reasons, whereas Article 2 of the 1984 Torture Convention explicitly excludes the use of this defense as a justification of torture. Furthermore, Article 8 of the Charter of the International Military Tribunal at Nuremberg also explicitly excludes any defense based on claims that the perpetrator was obeying superior orders. The Allied Control Council Law No. 10, which came into force on December 20, 1945, did not contain a similar provision. Nonetheless, several judicial pronouncements of the post–World War II U.S. military tribunals, including United States v. Von Leeb (the German High Command Trial) and United States v. Ohlendorf et al (the Einsatzgruppen Trial), did explicitly exclude this defense.

A review of scholarly opinions and judgments of post–World War II tribunals and international instruments leads to the conclusion that "obedience to superior orders" is not a defense under customary international law to an international crime when the order is manifestly illegal, even when the subordinate has no moral choice with respect to either obeying or refusing to obey the order. This reasoning also applies to charges of genocide or crimes against humanity. In cases where the subordinate is mentally compelled to fulfil the order, the claim of duress, as a personal excuse, is the applicable defense.

By contrast, Article 7(4) of the ICTY Statute and Article 6(4) of the ICTR Statute exclude the defense of superior orders as a means of claiming nonculpability, and offers no exceptions. They do, however, allow the invocation of this defense for a defendant who seeks a potential mitigation of punishment. Article 33 of the ICC Statute, however, follows a different approach by allowing this defense, but imposes certain conditions upon its use. Still, the practical effect of the various articles of the ICC Statute, when taken as a whole, is to limit the use of this defense to the punishment phase of a trial, where it may be introduced as a mitigating factor.

Self-Defense

The claim of self-defense can be advanced when the individual charged with committing a crime has resorted to the use of force specifically in order to defend himself (or herself) from the imminent threat of illegitimate force, and when the force used is proportionate to the threat that occasioned it. Self-defense can also be invoked when the force was used in defense of a third party. In principle, the plea of self-defense can be invoked in the context of any crime, even in the case of genocide and crimes against humanity. What matters in this defense is the specific intent of a person. He or she must have acted with the intent to protect his or her life or the life of another. This raises problems when the defense is used to answer a charge of genocide, which by definition requires its own specific intentionality: the intent to destroy a national, racial, ethnic, or religious group as such.

The concept of self-defense can be invoked at either the state or the individual level. Several major legal instruments recognize the right of an individual to use proportionate force when acting in legitimate self-defense. Article 2(2) of the European Convention on Human Rights refers to self-defense as an exception to the principle of respect for the right of life. During the Nuremberg Trials, however, self-defense was not accorded any status as an international criminal law defense. In U.S. v. Krupp et al., the claim of self-defense by individuals was assessed in connection with necessity. In one of the post–World War II cases (Tressmann et al.), this defense was accepted as "last resort." In several other post–World War II cases, this defense was invoked by individuals, and it was sometimes permitted, but not as a plea to genocide or crimes against humanity. Therefore it does not represent a rule of customary international law.

Self-defense is not explicitly mentioned in the ICTR and ICTY Statutes, but ICTY case law did refer to it. In the case of Kordic and Cerkez, the defense held that the Bosnian Croats acted in self-defense. The ICTY Trial Chamber, referring to Article 31(1)(c) of the ICC (Rome) Statute, ruled that military defensive operations in self-defense do not provide a justification for serious violations of international humanitarian law. This reasoning seems also relevant to the crime of genocide and crimes against humanity.

Article 31(1)(c) of the Rome Statute expressly codifies the admissibility of self-defense in the event of the crime of genocide and crimes against humanity, as well as in the case of war crimes, if the defensive act is done to defend property that is essential for survival or property that is essential for accomplishing a military mission. However, defense of property is not admissible with respect to a charge of genocide or crimes against humanity.

Duress

The defense of duress is offered as an excuse (as opposed to a justification), and is based on an external circumstance that causes an extreme mental pressure that the accused cannot reasonably be expected to have resisted. This defense was referred to in the Nuremberg judgments, albeit in conjunction with necessity. However, despite the fact that the defense of duress to charges of war crimes was assessed by the United States Military Tribunal in the German High Command Trials (in the Krupp and Einsatzgruppen cases), it did not exempt the particular accused in these cases, nor did it exonerate Adolf Eichmann during his trial in Israel in 1961, because he was shown to have willingly volunteered and never to have protested against the heinous crimes.

The Genocide Convention is silent on the defense of duress. The special rapporteur of the International Law Commission, Doudou Thiam, argued that this defense was admissible as a plea to genocide in the event of "an imminent and grave peril to life or physical wellbeing," whereby this peril is irremediable and otherwise inescapable. The final report of the International Law Commission concluded that there exist different views as to whether even the most extreme duress can ever constitute a valid defense or extenuating circumstance with respect with a particularly heinous crime, such as the killing of an innocent human being.

A close reading of the judgment of the U.S. Military Tribunal in the mentioned Einsatzgruppen case discloses that a defense of superior orders was refused because there was no evidence of compulsion or duress. Therefore, it follows that the use of "following a superior's orders" is, in fact admissible, but only if it results in causing duress. The difference between a plea based on superior orders and one based on duress is that the former defense may be invoked without the presence of any threats to life or limb, whereas the latter defense can only be raised when someone is compelled to commit a crime by a threat of his or her life, or to the life of another person. A person acting in duress has no realistic moral choice. Only in such a situation is the plea of superior orders admissible as a defense against the charge of genocide or crimes against humanity.

This view was accepted by the ICTY Trial Chamber decision of November 29, 1996, in Prosecutor v. Erdemovic. However, the ICTY Appeals Chamber, in its decision of October 7, 1997, held that duress was not admissible as a defense to genocide or crimes against humanity. In contrast, Article 31(1)(d) of the ICC Statute allows for the defense of duress, even when it concerns a genocide charge, under certain specific conditions. The accused must have acted to avoid a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the accused must not intend to cause a greater harm than the one sought to be avoided. In other words, the accused's acts must have been necessary, reasonable, and proportionate to the threat. In the event of a genocide charge, it is questionable whether these conditions—and especially the condition of proportionality—can ever be met. According to Judge Cassese, in his dissenting opinion to the ICTY decision in Prosecutor v. Erdemovic, it may be possible to meet the conditions allowing for a defense of duress even in the case of genocide, if the innocent civilians would be killed no matter what the defendant might have done.

Article 31(1)(d) of the ICC Statute strongly suggests that only physical threats can result in the kind of overwhelming mental pressure required to justify the defense of duress. When duress is invoked because the imminent threat of harm was presented not to the accused but to a third party, there seems to be no requirement of any special relationship between the person threatened and the person accused. However, it is reasonable to assume that assessments of the mental pressure suffered by the accused might be valued differently in the event the person threatened is a relative of the accused.

It does not seem unreasonable to suggest that extreme duress might be admissible as a defense against a charge of war crimes, crimes against humanity, and genocide. It must be remembered, however, that duress qualifies as an excuse, unlike the defense of necessity, which can be offered as a justification. In case of necessity, the accused is faced with a choice of evils, which leads to a decision in favor of the lesser evil—the incriminating qualification of the act is superseded by the fact that the accused intended to protect a higher legal norm. A further distinction between the two defenses is that, in duress, the external pressure stems from an individual, whereas in the event of necessity, the pressure arises from natural causes. Duress only exonerates an accused from his or her criminal responsibility, while leaving the unlawfulness of the act intact.

Military Necessity

The defense of military necessity relates to a choice of evils, similar to necessity as a criminal law defense. The choice is between military and humanitarian interests, and implies a deliberate choice to negate a norm of international humanitarian law. It appears to be admissible, even when it concerns a war crime charge. The distinguishing characteristic of military necessity is that it is affiliated with the furtherance of a specific interest of the state in the context of a particular armed conflict, so that this defense can only be used to exonerate an individual in his or her capacity as an instrument of the state.

The ICC Statute does not mention this defense explicitly in Article 31(1). However, Article 8(2)(e)(xii) defines destruction of property as a war crime when it is not justified by military necessity. Furthermore, close reading of the documents generated during the preparation of the ICC Statute discloses that the drafters believed that this defense could be admitted as one of the special defenses referred to in Article 31(3). Nonetheless, it is unlikely that a defense based on the claim of military necessity could encompass the killing of innocent civilians. Such a defense is therefore not likely to be admissible against a charge of genocide or crimes against humanity.

Insanity, Mental Defect, and Diminished Responsibility

The defense of insanity or mental incapacity as such has no origin in international law. Instead, it was developed based on national criminal law, especially framed on the famous M'Naghten case of 1843, which was tried in a common law system. This defense played a modest role during the later Nuremberg Trials. For instance, the trial against Rudolf Hess suggests that insanity can indeed be of relevance in establishing criminal responsibility for international crimes.

It is better to speak of mental disease or defect, rather than insanity, and in fact this terminology has been adopted in Article 31 paragraph 1(a) of the ICC Statute, which article reflects the M'Naghten jurisprudence. Although the M'Naghten case was based on common law, the civil law systems generally follow the same reasoning with regard to the defense of mental disease or defect.

The M'Naghten rules are based on the concept of a disease of mind which produces such a defect of reason that the accused does not know the nature of his or her act, or, if he or she does, then the accused does not know that the act was wrong. Proof of either of these matters entails that the accused is legally insane.

The mental defect defense should be distinguished from the defense of diminished mental capacity. To claim mental defect requires the destruction—and not merely the impairment—of the defendant's mental condition. Such a claim, if proven, may lead to an acquittal. From a common law point of view, the defense of diminished mental capacity, when offered in response to a murder charge, eliminates the requirement of special intent, namely the elements of premeditation and deliberation, and is therefore not only relevant to the sentencing. Similarly, this defense could affect the special intent required for a charge of genocide as well as the intent required for crimes against humanity.

The ICTY and ICTR refer to this defense only in its Rules of Procedure and Evidence (RPE). The rules require that the prosecution must be informed of the intent to invoke this defense prior to the start of the trial, and must be provided with details regarding potential expert witnesses whom the accused intends to rely on for his or her defense.

In Prosecutor v. Delalic et al. (November 16, 1998), the ICTY Trial Chamber rejected the defense of diminished responsibility as put forward by the accused, noting that the defense did not establish the fact that the accused was unable to distinguish between right and wrong. The ICTY relied on the expert opinions offered by three forensic psychiatrists who were called by the accused to testify on his behalf, and a fourth who was called upon by the prosecution to offer a rebuttal. All of the defense expert witnesses agreed that the accused suffered from a personality disorder. The Trial Chamber opined that the burden of proof was not met by establishing a disorder as such, making a distinction between suffering from a personality disorder on the one hand, and being unable to control one's physical acts on account of abnormality of mind, on the other hand. Only the latter situation may justify this defense, which may be invoked in defense against a charge of genocide or crimes against humanity.

In Prosecutor v. Vasiljevic, Mitar Vasiljevic was charged with ten counts of crimes against humanity under Article 5 of the ICTY Statute, as well as with violations of the laws on customs of war (Article 3). In its judgment of November 29, 2002, the ICTY found Vasiljevic guilty of persecution and murder—he allegedly participated in leading seven Bosnian Muslim men to the bank of the Drina River, where five of them were shot to death (the other two managed to escape). As an alternative defense, the accused claimed that his sentence should be mitigated because during the incident he had suffered from diminished responsibility as a result of chronic alcoholism, and backed up his claim with testimony from three expert witnesses.

The Trial Chamber held that the accused bears the onus of establishing the defense of mental disease or diminished mental responsibility. This standard means that the accused must show that more probably than not, his impaired condition existed at the time of the commission of the crime. It also opined that the defense of mental disease or diminished responsibility is only admissible in two (alternative) events: either the accused must have been unable to appreciate the unlawfulness of or the nature of his conduct; or he must have been unable to control his conduct in order to conform to the requirements of the law.

The ICC Statute, in Article 31(1)(a) and (b), sets the standard for the defense of mental disease (and for the related defense of intoxication). The article is in general agreement with the findings of the ICTY Trial Chambers, but does not touch upon the requirement that the defendant bear the burden of proof to establish the defense. In practical terms, this could lead to a situation where mere reasonable doubt concerning the existence of sufficient mental capacity is sufficient to meet the requirements for mounting this type of defense.

Intoxication

A defense based on claims of intoxication is closely related to one based on mental defect or diminished responsibility. Most criminal law systems do not recognize a separate statutory exception in the case of intoxication. Furthermore, at the level of international criminal litigation, the defense of intoxication has played almost no role. There are no precedents for this defense at the level of genocide and crimes against humanity. One of the rare occasions in which this defense was invoked concerned the case of Yamamoto Chusuburo, tried in 1946 by the British Military Court in Kuala Lumpur. In this case, the defense of intoxication was actually tried on the basis of British legal doctrine regarding voluntary drunkenness.

This defense lacks a foundation in international criminal law, but, it evolves at the international level from comparative criminal law. Its international status emerged for the first time within the Draft International Criminal Code and the ILA Model Draft Statute for the ICC. It is reasonable to conclude, therefore, that the defense of voluntary intoxication is not considered to be part of any rule of international customary law. Generally the defense of intoxication may be qualified as a derivative of the mental disease exception. It is important to note, however, that the ICC Statute codifies the defense of intoxication in its Article 31, paragraph 1, sub-paragraph (b).

The drafters of the Rome Statute followed the same approach as that taken by the British Military Court in the Yamamoto Chusaburo case. In practical terms, however, this defense as a plea to a genocide charge will be restricted to low-ranking officers and soldiers. Furthermore, the fact that acts of genocide generally take place over protracted periods of time, which further militates against the admissibility of an intoxication defense, due to an exception provided in Article 31(1)(b): "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 constituted a crime (. . .)." In contrast, it may be argued that an intoxication defense could erase the special knowledge element required for bringing a charge of crimes against humanity.

A defendant invokes the defense of intoxication in order to advance the claim that he or she lacked the requisite mental element of intentionality. It is, therefore, a claim to exoneration, not mitigation. However, any such claim must meet specific criteria if it is to be successful.

Article 31(1)(b) of the ICC Statute sets forth just such criteria. It allows for the defense of intoxication if that intoxication has destroyed the accused's capacity to control his or her conduct to conform to the requirements of law. The intoxication need not be caused by alcohol, but may have derived from the use of drugs or medication. This condition is treated as the equivalent of a mental defect.

The intoxication defense fails if it can be shown that the accused became intoxicated voluntarily, knowing the risk of indulging in criminal behavior but disregarding it. This provision raised two questions that the ICC Statute leaves unanswered. First, it fails to define the term voluntary. Can an addict be considered to have voluntarily become intoxicated when the addiction is beyond his or her mental control? Second, does this defense also potentially apply to military commanders, or is its use restricted to cases involving individual soldiers? The ICC was founded with the intention to prosecute mainly political and military leaders and policy-makers. If the intoxication defense can only be admitted for lower-ranking individuals, why would it be specifically included within the ICC Statute? Apparently, the ICC drafters did not exclude this defense at the latter prominent level and even not with regard to heinous crimes.

SEE ALSO Crimes Against Humanity; International Court of Justice; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Nuremberg Trials; Tokyo Trial; War Crimes

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Geert Jan Alexander Knoops