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

general principles of criminal law 111
for uncodified defences would include alibi, military necessity, abuse of process,
consent and reprisal. 88 Nevertheless, where the defence intends to raise
an uncodified defence, it is required by the Rules of Procedure and Evidence
to give notice to the Prosecutor prior to trial, and to obtain a preliminary
ruling on the admissibility of the defence from the Trial Chamber. 89 Other
defences are formally excluded, either by the terms of the Statute itself –
defence of official capacity, 90 lack of knowledge (in the case of command
responsibility) 91 and superior orders (in cases of genocide and crimes against
humanity) 92 – or by international case law – for example, tu quoque (literally,
I can do to you what you have done to me). 93
Insanity as a defence has arisen only rarely in the case law of major war
crimes prosecutions. Rudolf Hess unsuccessfully raised it at Nuremberg.
The text of Article 31(1)(a) echoes the so-called M’Naghten rules derived
from the common law, 94 but would also seem to be generally consistent with
the approach taken in Romano-Germanic and Sharia systems. An individual
whosucceedswithapleaofinsanityisentitledtoadeclarationthatheorsheis
not criminally responsible. The Statute does not speak directly to the burden
of proof in cases of the defence of insanity. Is a defendant required only to
raise a doubt about mental capacity, or must he or she actually prove such an
exception based on a preponderance of evidence? Domestic justice systems
take different views of this matter. The International Criminal Tribunal
for the Former Yugoslavia has opted for the preponderance of evidence
standard, making proof of insanity more difficult for the accused. 95 Yet
Article 67 of the Statute, which shields the accused from ‘any reversal of
the burden of proof or any onus of rebuttal’, may compel the less onerous
requirement that the accused only raise a reasonable doubt.
88 Eser, ‘ “Defences” ’, pp. 266–7. Note, however, attempts in the Elements of Crimes, Arts.
8(2)(b)(x), n. 46 and 8(2)(e)(xi), n. 68, and the Rules of Procedure and Evidence, Rule 70,
to limit the defence of consent.
89 Rules of Procedure and Evidence, Rule 80.
90 Rome Statute, Art. 27. 91 Ibid., Art. 28. 92 Ibid., Art. 33.
93 Prosecutor v. Kupreskic et al. (Case No. IT-95-16), Decision on Defence Motion to Summon
Witness, 3 February 1999; Prosecutor v. Kupreskic et al. (Case No. IT-95-16), Decision on Evidence
of the Good Character of the Accused and the Defence of Tu Quoque, 17 February 1999.
94 M’Naghten’s Case (1843) 10 Cl. & Fin. 200, 8 ER 718.
95 Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Order on Esad Landzo’s Submission Regarding
Diminished or Lack of Mental Capacity, 18 June 1998; Prosecutor v. Delalic et al. (Case No. IT-
96-21-T), Order on Landzo’s Request for Definition of Diminished or Lack of Mental Capacity,
15 July 1998; Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998,
(1999) 38 ILM 57, para. 1160; Prosecutor v. Delalic (Case No. IT-96-21-A), Judgment, 20 February
2001, para. 582.