Sonderdrucke aus der Albert-Ludwigs-Universität Freiburg
ALBIN ESER
Grounds for excluding criminal responsibility
[Article 31 of the Rome Statute]
Originalbeitrag erschienen in: Otto Triffterer (Hrsg.): Commentary on the Rome Statute of the International Criminal Court. München [u.a.]: Beck [u.a.], 2008, S. 863-893 ALBIN ESER
GROUNDS FOR EXCLUDING CRIMINAL RESPONSIBILITY [Article 31 of the Rome Statute]
Reprint from:
Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court - Second Edition -
C.H. Beck/Munchen • HartiVolkach • Nomos/Baden-Ba,den 2008
Article 31 Grounds for excluding criminal responsibility 1. In addition to other grounds for exc1udin4 criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which Is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against 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 a threat may either be: (1) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.
Literature: Kai Ambos, DER ALLGEMEINE TEIL DES VOLKERSTRAFRECHTS ANSATZE EINER DOGMATISIERUNG (2002); id., Other Grounds for Excluding Criminal Responsibility, in: Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1003, Vol. 1 (2002): id., General Principles of Criminal Law in the Rome Statute, 10 CRIM. L.F. 1 (1999); id., Zur Rechtsgrundlage des Internationalen Strafgerichishoft — Eine Analyse des Rom-Statuts, 111 ZSTW 175 (1999); has Bantekas/Susan Nash. INTERNATIONAL CRimINAL LAW (rd ed. 2003); M. Cherif Bassiouni (ed.), INTERNATIONAL CRIMINAL COURT COMPILATION OF UNITED NATIONS' DOCUMENTS AND DRAFT ICC STATUTE BEFORE THE DIPLOMATIC CONFERENCE (1998); Christopher Blakesley, Comparing the Ad Hoc Tribunal for Crimes against Humanitarian Lau., 67 REVUE INTERNATIONALE DE DROIT PENAL 139 (1996); Kristen Boon, Rape and Forced Pregnancy under the ICC Statute; Human Dignity, Autonomy, and Consent, 32 COLUMBIA HUM, RTS. L. REV. 625 (2001); Antonio Cassese, INTERNATIONAL CRIMINAL LAW 219 et seg. (2003); id., Justifications and Excuses in International Criminal Law, in: Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 951, Vol. 1 (2002); id., The Statute of the International Criminal Court; Some Preliminary Reflections, 10 EUR. J. INTI L. 144 (1999); Yoram Dinstein, Defences, in:
Albin Eser 863 article 31 Part 3. General principles of criminal law
Gabrielle Kirk McDonald/ Olivia Swaak-Goldman (eds.), SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW 371 (2000); Albin Eser, Individual Criminal Responsibility, in: Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 767, Vol. I (2002); id., Mental Elements - Mistake of Fact and Mistake of Law, in: Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 889, Vol. 1 (2002); id., "Defenses" in War Crime Trials, in: Yoram DinsteiniMala Tabory (eds.), WAR CRIMES IN INTERNATIONAL LAW 251 (1996), also published in: 24 ISRAEL \LB. HUM. RTS. 201 (1995); id., The Need for a General Part, in: M.Cherif. Bassiouni (ed.), COMMENTARIES ON THE INTERNATIONAL LAW COMMISSIONS 1991 DRAFT CODE OF CRIME AGAINST THE PEACE AND SECURITY OF MANKIND 43 (1993); id.. Justification and Excuse: A Key Issue in the Concept of Crime, in; Albin Eser/George P. Fletcher (eds.), RECHTFERTIGUNG UND ENTSCHULDIGUNG — JUSTIFICATION AND EXCUSE. COMPARATIVE PERSPECTIVES 17, Vol. I (1987); Paola Gaeta. May Necessity be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, 2 J. 1NT'L CRIM. JUST. 785 (2004); Sander Janssen, Mental condition defences in Supranational Criminal Law, 4 1NT'L CRIM. L. REV. 83 (2004); Hans-Heinrich Jescheck, The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute, 2 J. INT1 CRIM. JUST. 38 (2004); id., ZUM Stand der Arbeiten der Vereinten Nationen fir die Errichtung eines Internationalen Strafgerichtshoji, in: Albin Eser (ed.), FESTSCHRIFT FOR HARUO NISHIHARA 437 (1998); Nico Keijzer, Introductory Observations, 39 REVUE DE DROIT MILTTAIRE ET DE DROIT DE LA GUERRE 69 (2000); id., Self-Defence, 39 REVUE DE DROIT MILITAIRE ET DE DROIT DE LA GUERRE 100 (2000); Kriangsak Kittichaisaree, INTERNATIONAL CRIMINAL LAW (2001); Geert- Jan G.J. Knoops, DEFENSES IN CONTEMPORARY INTERNATIONAL CRIMINAL LAW (2001); Marcus Korte, DAS HANDELN AUF BEFEHL ALS STRAFAUSSCHLIEBUNGSGRUND (2003); Helmut Kreicker, Allgemeine Stralbarkeitsvoraussetzungen, in: Albin Eser/ Helmut Kreicker (eds.), NATIONALE STRAFVERFOLGUNG VOLKERRECHTLICHER VERBRECHEN, PART 1, DEUTSCHLAND 270 (2003); Claus Krea, Die Kristallisation eines Allgerneinen Tells des Viilkerstrafrechts: Die Allgemeinen Prinzipien im Stazut des Internationalen Strufkerichtshoft, 12 INFORMATIONSSCHRIFTEN HUMANITARES VOLKERRECHT 4 (1999); Peter Krug, The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation, 94 Am. J. INA L. 317 (2000); Reinhard Merkel, Griinde fir den Ausschluss der Strajbarkeit im Vbikerstrafrecht, 114 ZSTW 437 (2002); Christiane Nill-Theobald, "DEFENCES" BEI KRIEGSVERBRECHEN AM BEISPIEL DEUTSCHLANDS UND DER USA. ZUGLEICH SIN BEITRAG ZU EINEM ALLGEMEINEN TEIL DES VOLKERSTRAFRECHTS (1998); Leila Sadat Wexler, MODEL DRAFT' STATUTE FOR THE INTERNATIONAL CRIMINAL COURT BASED ON THE PREPARATORY COMMITTEE'S TEXT TO THE DIPLOMATIC CONFERENCE, Rome June 15 — July, 17, 76 (1998); Leila Nadya Sadat, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW 211 C! seq. (2002); Per Saland. International Criminal Law Principles, in: Roy S. Lee (ed.), THE INTERNATIONAL CRIMINAL COURT — THE MAKING OF THE ROME STATUTE 189 et seq. (1999); Massimo Scaliotti, Defences before the international criminal court: Substantive grounds for excluding criminal responsibility, Part 1, 1 Nit CRIM. L. REV. 111 (2001), Part 2, 2 INT'L CRIM. L. REV. 189 (2002); William A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (2001); id., General Principles of Criminal Law, 6 EUR. J. CRIME, CRIM. L. & CRIM. JUST. 400 (1908); Elies van Sliedregt et Self:Defence, REVUE DE DROIT MILITAIRE ET DE DROIT DE LA GUERRE 225 et seq. (2000); id., THE CRIMINAL REsPoNstsiLITY OF INDIVIDUALS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW (2003); Gerhard Werle, VOLKERSTRAFRECHT (2003); Edward Wise, General Principles of Criminal Law, in: Leila Sadat Wexler (ed.), OBSERVATIONS ON THE CONSOLIDATED ICC TEXT BEFORE THE FINAL SESSION OF THE PREPARATORY COMMITTEE 43 (1998); Andreas Zimmermann, Superior Orders, in: Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 957, Vol. 1(2002).
Contents: margin No. A. General Remarks/Introduction 3. "At the time of that person's Scope and genesis of the provision 1 conduct" 21 1. Exclusion of criminal II. Paragraph I (a): Incapacity 22 responsibility outside of article 31 1. "Suffers from a mental disease 1. Abandonment or defect" 23 (article 25 para. 3 (0) 8 2. "Destroys" the person's 1 Exclusion of jurisdiction of "capacity to appreciate" the persons over 18 (article 26) 9 unlawfulness or the "capacity to 3. Mistake of fact and mistake of control" the conduct 26 law (article 32) 10 III. Paragraph 1 (b): Intoxication 30 4. Superior orders and prescription 1. "State of intoxication" 33 of law (article 33) II 2. "Destroys" the person's IL Missing defences 12 "capacity to appreciate the I Explicitly rejected defences to unlawfulness" or the "capacity ICC crimes: Official capacity to control the conduct" 34 and statutory limitations 13 3. Unless "voluntarily intoxicated" 2. Non-addressed defences 15 in that the person "knew or B. Analysis and interpretation of elements disregarded the risk" of being 1. Paragraph 1: Chapeau "likely to engage in conduct I. "Grounds for excluding criminal constituting a crime within the . responsibility" . 17 jurisdiction of the Court" 35 2. "In addition to" other grounds 1V. Paragraph 1 (c): Self-defence, ... "provided for in this Statute" .. 18 defence of another person and defence of property in war crimes 37
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Grounds for excluding criminal responsibility article 31
I. "Person" (not merely) "involved 1. "The Court shall determine the in a defensive operation" 38 applicability" of the 2. "imminent and unlawful use of (exclusionary grounds) "to the force" against (specific) legally case before it" 65 protected interests 41 2. Grounds for excluding criminal 3. "Reasonably acts to defend ... responsibility "provided for in in a manner proportionate to the this Statute" 67 degree of danger" 46 3. Paragraph 2 in the light of the V. Paragraph I (d): Duress' 49 principle of legality 1. "Conduct alleged to constitute a VII. Paragraph 3: Other (international or crime within the jurisdiction of national) sources for exclusionary the Court" 52 grounds 72 2. "Duress" resulting from a "threat I. "At trial the Court may of imminent death" or of consider" a ground for "continuing or imminent serious excluding criminal bodily harm" against "that person responsibility "other than those or another person" whereby the referred to in paragraph I" 73 threat is either "made by other 2. Where such a ground is "derived persons" or "constituted by other from applicable law as set forth circumstances beyond that in article 21" 75 persons control" 53 3. "The procedures relating to the 3. The person acts necessarily and considerations of such a ground reasonably to avoid this threat" 58 shall be provided for in the 4. "Provided that the person does Rules of Procedure and not intend to cause a greater Evidence" 76 harm than the one sought to be C. Outlook 77 avoided" 60 VI. Paragraph 2: The implementation by the Court in the case before it 63
A. General Remarks/Introduction Scope and genesis of the provision
Although this article of the Rome Statute, as to be seen, certainly has its merits, it must be 1 made clear from the very outset that both its heading is misleading and its contents incomplete. When speaking of "grounds for excluding criminal responsibility" in such a general way, the provision seems to comprise all defences which may lead to the exclusion of criminal responsibility. This impression is, however, misguided from two countervening ends: On the one hand, as to be concluded from its paragraph 1, article 31 is not the only place in this Statute where grounds for excluding criminal responsibility may be found (infra B); in this respect, the provision has a supplementary function in that it regulates grounds for excluding criminal responsibility not yet recognized in other provisions of this Statute. On the other hand, article 31 is far from providing a complete supplement of all possible defences to an offence, as may be seen from the missing list (infra C). Thus this provision in fact solely deals with incapacity (infra D.II), intoxication (infra DIM self-defence and defence of property (infra DIV), and duress (infra D.V). Yet, this deficiency as well is consciously taken into account, firstly in paragraph 2 by giving the Court the power to determine the concrete applicability of the grounds for excluding criminal responsibility (infra D.V1), and secondly in paragraph 3 by allowing the invocation and development of further grounds for excluding criminal responsibility by reference to other applicable international and national law (infra D.VII). Beyond being merely supplementary and still incomplete, the manner in which these 2 grounds for excluding criminal responsibility are regulated is ambivalent insofar as it leaves open the question as to whether a specific ground may be considered as a justification of the offence or merely as an excuse of the offender, or whether other more procedural or political — reasons may lead to a discharge. In this respect, by abstaining from a closer differentiation between various types of exclusionary grounds, as known in most continental-European
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article 31 Part 3. General principles of criminal law
jurisdiction& , article 31 appears to have been phrased along common law propositions of a rather broad and undifferentiated concept of "defences". Although this common law point of departure has to be kept in mind when interpreting the defences of the Statute, the question remains whether the future development could aim at different ends (infra C). 3 With regard to the genesis of article 31, two lines of development are worth remarking; a more principal and a more formal one. The first is concerned with the question of whether the Statute should provide grounds for excluding criminal responsibility at all. In this respect, the development leads from almost zero to considerable heights, finally ending on a middle leve1 2. If, by neglecting earlier drafts 3, the 1994 ILC Draft Statute of may serve as starting point of the Rome Statute, it roust be realized that in this Draft grounds for excluding criminal responsibility are not mentioned at all; this, however, may be explained by the fact that the ILC Draft was by any means rather scarce in pronouncing general principles by merely explicitly expressing the principle of legality (article 39). Thus, in that Draft, solely its article 33 which deals with "applicable law", thereby allowing the application of "general international law" or "any (applicable) rule of national law", could have been used as source for excluding criminal responsibility. After this substantial lack of general requirements of and exemptions from criminal responsibility met with considerable criticism, supported by constructive proposals'', all further proposals and drafts of UN Committees contained a certain range of various defences. This new openness can be observed as early as in the Ad Hoc Committee Report of 1995, where in Annex Il a long list of possible defences can be found 5. Still more proposals of possible defences are put forward for consideration in a compilation by the Preparatory Committee of 19966. However, in all further recommendations of the Working Group on General Principles of Criminal Law Penalties, solely mistake of fact or of law were left as explicitly recognized'. The eventually decisive step was then taken by the Preparatory Committee at its December 1997 session, where it accepted the recommendations of the Working Group on General Principles of Criminal Law, as here the grounds for excluding criminal responsibility appear for the first time in the form in which it is, in principle, still represented in the present article 3P. 4 After these recommendations had basically been upheld by the Inter-Sessional Meeting of Januazy 19989 and finally found admittance into the Draft Statute of the Preparatory Committee