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76GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10This defence seems to be broader than the defence of intoxication in Article 31 (b) of the RomeStatute. Unlike Ghanaian law, the Rome Statute does not provide for a voluntary intoxicationdefence based on temporary insanity (although it may be possible that the defence of insanity underthe Rome Statute would apply in this case, independently of the intoxication defence). Instead,Article 31 (b) of the Rome Statute only includes a voluntary intoxication defence in very limitedcircumstances. It provides:“[i]n addition to other grounds for excluding criminal responsibility provided for in this Statute,a person shall not be criminally responsible if, at the time of that person’s conduct:(b) The person is in a state of intoxication that destroys that person’s capacity to appreciate theunlawfulness or nature of his or her conduct, or capacity to control his or her conduct toconform to the requirements of the law, unless the person has become voluntarily intoxicatedunder such circumstances that the person knew, or disregarded the risk that, as a result of theintoxication, her or she was likely to engage in conduct constituting a crime within thejurisdiction of the Court[.]”Defences – compulsion, duress and necessityAs Amnesty International has argued, compulsion, duress and necessity should not be defences tocrimes under international law, but should simply be grounds for mitigation of punishment. 223intoxication rendered him temporarily insane). Section 28 of the Criminal Code states:“(1) Except as provided in this section, intoxication is not a defence to a criminal charge.(2) Intoxication is a defence to a criminal charge if by reason of the intoxication the person charged, at thetime of the act complained of, did not know that the act was wrong or did not know what that person wasdoing anda. The state of intoxication was caused without the consent of that person by the malicious ornegligent act of another person, orb. The person charged was, by reason of intoxication, insane, temporarily or otherwise, at thetime of the act.(3) Where the defence under subsection (2) is established, thenc. In a case falling under paragragh (a), the accused shall be discharged, andd. In a case falling under paragraph (b), the special verdict provided for by the Criminal andOther Offences (Procedure) Act, 1960 (Act 30) in the case of insanity shall apply.(4) Intoxication shall be taken into account for the purpose of determining whether the person charged hadformed an intention, specific or otherwise, in the absence of which the person charged would not be guiltyof the criminal offence.(5) For the purposes of this section “intoxication” includes as state produced by narcotics or drugs.”223Amnesty International, Making the right choices, Sect. VI.E.3 & 4. The Committee against Torture hasrecommended that states parties “completely remove necessity as a possible justification for the crime oftorture”. Concluding observations – Israel, U.N. Doc. CAT/C/ISR/CO/4, 23 June 2009, para. 14 (http://daccess-Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 1077However, in a regrettable political compromise, that has no basis in international criminal law,Article 31 (1) (d) of the Rome Statute permits, in strictly limited circumstances and only in trialsbefore the International Criminal Court, defences of duress in response to threats from anotherperson and of necessity (called “duress”) in response to threats from circumstances beyond aperson’s control. 224Compulsion or duress. Ghanaian law does not expressly provide for the defence of compulsion orduress. 225 This exclusion of duress as a defence is narrower than Rome Statute, which provides inArticle 31 (1) (d):“[i]n addition to other grounds for excluding criminal responsibility provided for in this Statute,a person shall not be criminally responsible if, at the time of that person’s conduct:(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court hasbeen caused by duress resulting from a threat of imminent death or of continuing or imminentserious bodily harm against that person or another person, and the person acts necessarily andreasonably to avoid this threat, provided that person does not intend to cause a greater harmthan the one sought to be avoided. Such a threat may be:(i) Made by other persons, or(ii) Constituted by other circumstances beyond that person’s control.”The scope of Article 31 (1) (d) has yet to be interpreted by the International Criminal Court.dds-ny.un.org/doc/UNDOC/GEN/G09/431/65/PDF/G0943165.pdf?OpenElement) (emphasis in original).224Article 31 (1) (d) of the Rome Statute provides that“[i]n addition to other grounds for excluding criminal responsibility provided for in this Statute, a personshall not be criminally responsible if, at the time of that person’s conduct:…(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been causedby duress resulting from a threat of imminent death or of continuing or imminent serious bodily harmagainst that person or another person, and the person acts necessarily and reasonably to avoid this threat,provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such athreat may either be:(i) Made by other persons; or(ii) Constituted by other circumstances beyond that person’s control.”225Instead, duress is a factor that negates consent where consent is an element to a crime. Henrietta Mensa-Bonsu, The General Part of the Criminal Law – A Ghanaian Casebook 179 (2001).Index: AFR 28/004/2012 Amnesty International November 2012
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