Lecture 8 - Defences

What is the core principle of superior responsibility under International Criminal Law?

A commander or superior can be held criminally responsible for crimes committed by subordinates if they failed to exercise control properly.

What are the two types of superior responsibility recognized by the ICC Statute?

Responsibility based on a military relationship (Art. 28(a)) and responsibility based on a non-military relationship (Art. 28(b)).

According to Article 28(a) of the ICC Statute, what specific relationship is required for military superior responsibility?

A military commander or a person effectively acting as a military commander over forces.

What is the "Bemba TC ICC" six-part test for military superior responsibility?

It requires: (i) crimes within ICC jurisdiction by forces; (ii) accused is a military commander (or effectively acting as one); (iii) had effective command and control; (iv) knew or should have known; (v) failed to take necessary and reasonable measures; (vi) crimes were a result of the failure.

What does "effective command and control" mean in the context of military superior responsibility?

The power to give orders to subordinates within a de jure or de facto chain of command, including the material ability to prevent or repress crimes.

What are some factors that may exclude "effective control" of a military commander?

The existence of a different exclusive authority, disregard of orders, or a weak chain of command.

What are some examples of "necessary and reasonable measures" a military commander should take to exercise control properly?

Ensuring adequate IHL training, establishing effective reporting systems, and taking corrective actions.

What mental element is required for military superior responsibility regarding the crimes committed by subordinates?

The commander knew or should have known that the forces were committing or about to commit crimes.

How does the mental element differ for non-military superior responsibility (Art. 28(b)) compared to military (Art. 28(a))?

For non-military superiors, they must have known or consciously disregarded information which clearly indicated that subordinates were committing or about to commit crimes. This is a higher threshold than "should have known".

What type of superior-subordinate relationships are covered under Article 28(b) of the ICC Statute?

Non-military, hierarchical relationships where the superior has de jure or de facto authority to control subordinates, such as in political parties or businesses, specifically for work-related activities.

What is "incitement" under the ICC Statute, and what article defines direct and public incitement to commit genocide?

Convincing, encouraging, or persuading others to commit a crime. Article 25(3)(e) defines direct and public incitement to commit genocide.

What are the key differences between "incitement" and "instigation"?

Incitement is an inchoate offence not requiring the principal crime to be committed, must be direct and public, and currently only applies to genocide. Instigation is a mode of responsibility requiring the crime to be committed or attempted, does not need to be direct or public, and applies to any ICC crime.

What are the actus reus and mens rea requirements for direct and public incitement to commit genocide?

Actus reus: directly and publicly incites. Mens rea: with intent to make others commit genocide, and seemingly the inciter must also have the special intent to destroy a protected group.

How does the ICC Statute define "attempt" to commit a crime?

Taking action that commences the execution of the crime by means of a substantial step, but the crime does not occur due to circumstances independent of the person’s intentions.

What are the "objective" and "subjective" elements of an "attempt" according to the ICC jurisprudence?

commencement of execution by a substantial step. Subjective: intent to commit the crime (dolus).

Under what conditions can a person who attempted to commit a crime under the ICC Statute not be held liable?

If the person completely and voluntarily gave up the criminal purpose and either abandoned the effort or prevented the completion of the crime.

What are the general categories of "grounds for excluding responsibility" under ICL?

Situations where the conduct is justified (not wrong in the circumstances) or excused (wrong, but the person is not blameworthy).

What is the definition of "duress" as a ground for excluding criminal responsibility under Article 31(1)(d) of the ICC Statute?

Conduct caused by a threat of imminent death or continuing or imminent serious bodily harm against that person or another, where the person acts necessarily and reasonably to avoid the threat, without intending to cause greater harm.

What are the key elements of the "duress" defense under the ICC Statute?

A threat of imminent death or serious harm, the person felt unable to withstand the threat and was driven to the conduct, the action was necessary and reasonable to avoid the threat, and the person did not intend to cause a greater harm.

How did the ICTY's approach to duress differ from the ICC's in cases involving the taking of innocent lives?

The ICTY in Erdemović did not accept duress as a complete defense to a soldier charged with crimes against humanity and war crimes involving the taking of innocent lives due to policy considerations. The ICC Statute allows for duress under stricter conditions.

What are the conditions under which following a "superior order" will relieve a person of criminal responsibility under Article 33 of the ICC Statute?

Only if: (a) the person was under a legal obligation to obey the order; (b) the person did not know the order was unlawful; and (c) the order was not manifestly unlawful. These conditions are cumulative.

When are orders considered "manifestly unlawful" according to the ICC Statute?

Orders to commit genocide or crimes against humanity are always considered manifestly unlawful. In case of doubt, an order is not considered manifestly unlawful.

What is the general principle regarding "mistake of law" as a ground for excluding criminal responsibility under the ICC Statute?

Generally, a mistake of law as to whether conduct is a crime shall not be a ground for excluding responsibility.

Under what specific circumstances can a "mistake of law" be a ground for excluding criminal responsibility under the ICC Statute?

If the mistake of law negates the mental element required by the crime, or as provided for in Article 33 (superior orders).

What is the condition for a "mistake of fact" to be a ground for excluding criminal responsibility under the ICC Statute?

Only if the mistake of fact negates the mental element required by the crime.

According to Article 31(1)(a) of the ICC Statute, what is the definition of "mental incapacity" that can exclude criminal responsibility?

Suffering from a mental disease or defect that destroys the capacity to appreciate the unlawfulness of their actions or to control their conduct at the time of the act.

What are some key considerations for the "mental incapacity" defense under the ICC Statute?

The incapacity must be severe and completely negate mens rea, temporary insanity usually does not suffice, and the defense requires medical and psychological evidence.

Under Article 31(1)(b) of the ICC Statute, when can "intoxication" exclude criminal responsibility?

If the person was intoxicated at the time of the crime, and the intoxication destroyed their capacity to appreciate the unlawfulness of their conduct or control their actions.

What is the general stance on "voluntary intoxication" as a defense under the ICC Statute and in other legal systems?

Voluntary intoxication is generally not a defense unless it results in complete incapacity, which is rare. Domestic and international courts rarely accept it.

According to Article 31(1)(c) of the ICC Statute, what are the conditions for "self-defense" to exclude criminal responsibility?

Acting in reasonable defense of themselves, another person, or essential property against an imminent and unlawful attack, using proportionate and necessary force. Deadly force is only justified to prevent death or serious harm.