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

112 introduction to the international criminal court
If the codification of an uncontroversial definition of the insanity defence
seems somewhat unnecessary, given the rare cases where this will arise in
practice, the provision that follows, concerning intoxication, seems to go
from the sublime to the ridiculous. Drafting of the provision was troublesome,
and the final result ‘had the benefit of not satisfying anyone’. 96 Many
individual war crimes may be committed by soldiers and thugs under the
influence of drugs and alcohol, but the Court is surely not intended to deal
with such ‘small fry’. This is a Court established for ‘big fish’, a relatively
small number of leaders, organisers and planners, in cases of genocide,
crimes against humanity and large-scale war crimes. The nature of such
crimes, involving planning and preparation, is virtually inconsistent with a
plea of voluntary intoxication. In practice, examples in case law, even for
mere war crimes, are as infrequent as in the case of insanity. The Rome
Statute admits the defence of intoxication if it has destroyed the accused’s
capacity to appreciate the unlawfulness or nature of his or her conduct, or
the capacity to control his or her conduct to conform to the requirements
of law. But the defence cannot be invoked if the person became voluntarily
intoxicated knowing of the likelihood that he or she would engage in such
terrible crimes. This is the case of somebody who drinks in order to get up
courage to commit an atrocity.
The Statute allows a defence of self-defence or defence of another person
where an accused acts ‘reasonably’ and in a manner that is ‘proportionate’ to
the degree of danger. These terms are common in national legal norms that
deal with the use of force, and there will be no shortage of authority to guide
theCourt. 97 Ajudgmentoftheadhoctribunalshasnotedthattheprincipleof
self-defence enshrined in Article 31(1)(c) corresponds to provisions found
in most national criminal codes and may be regarded as constituting a
rule of customary international law. 98 But a disturbing compromise during
the Rome Conference resulted in recognition of the defence of property,
although it is confined to cases of war crimes. The property defended must
be ‘essential for the survival of the person or another person’ or ‘essential for
accomplishing a military mission, against an imminent and unlawful use
of force’. In practice, these terms are narrow enough that the troublesome
96 Saland, ‘International Criminal Law Principles’, p. 207.
97 One interesting source may be the case law of the European Court of Human Rights in the
interpretation of Art. 2(2) of the European Convention on Human Rights, allowing for selfdefence
as an exception to the right to life.
98 Prosecutor v. Kordic and Cerkez (Case No. IT-95-14/2-T), Judgment, 26 February 2001, para. 451.