An Introduction To The International Criminal Court - Institute for ...

110 introduction to the international criminal court
content, 82 essentiallybecauseofproblemsindefiningthenotionofomission.
During the debates, the Chair of the Working Group noted that Article 22(2)
prohibiting analogies would ensure that judicial discretion on the subject
of omissions was never abusive. A footnote to the Working Group’s report
stated: ‘Some delegations were of the view that the deletion of article 28 [on
omission] required further consideration and reserved their right to reopen
the issue at an appropriate time.’ 83 However, nothing more was heard of the
subject.
Defences
A defence is an answer to a criminal charge. It is used to denote ‘all grounds
which, for one reason or another, hinder the sanctioning of an offence –
despite the fact that the offence has fulfilled all definitional elements of a
crime’. 84 Previous international criminal law instruments have made no real
attempt at even a partial codification of defences, confining themselves to
rather limited issues such as the inadmissibility of the defence of superior
orders. Case law on war crimes prosecutions suggests that, aside from superior
orders and command of the law, the main pleas invoked by the accused
are acting in an official capacity, duress, military necessity, self-defence,
reprisal, mistake of law or fact, and insanity.
The Rome Statute partially codifies available defences in Articles 31,
32 and 33. Article 31, entitled ‘Grounds for excluding criminal responsibility’,
85 deals specifically with insanity, intoxication, self-defence, duress
and necessity. Article 32 addresses mistake, and Article 33 concerns superior
orders and prescription of law. The Statute allows the Court to accept
other defences, 86 relying on the sources set out in Article 21(1). Indeed, it
affirms a general right of the accused to raise defences. 87 Obvious candidates
82 ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’,
UN Doc. A/50/22, Annex II, p. 58; ‘Report of the Preparatory Committee on the Establishment
of an International Criminal Court’, UN Doc. A/51/22, vol. I, p. 45; ‘Report of the Preparatory
Committee on the Establishment of an International Criminal Court’, UN Doc. A/51/22, vol. II,
pp. 90–1; UN Doc. A/AC.249/1997/L.5, pp. 26–7; UN Doc. A/AC.249/1997/WG.2/CRP.5; UN
Doc. A/AC.249/1998/L.13, pp. 58–9; UN Doc. A/CONF.183/2/Add.1, pp. 54–5.
83 UN Doc. A/CONF.183/C.1/WGGP/L.4/Add.1/Rev.1, p. 3, n. 3.
84 Albin Eser, ‘“Defences” in War Crime Trials’, in Yoram Dinstein and Mala Tabory, eds., War
Crimes in International Law, The Hague, Boston and London: Kluwer Law International, 1996,
pp. 251–73 at p. 251.
85 Albin Eser, ‘Article 31’, in Triffterer, Commentary, pp. 537–54.
86 Rome Statute, Art. 31(3). 87 Ibid., Art. 67(1)(e).