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Albin Eser Grounds for Excluding Criminal Responsibility Article 31

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Albin Eser Grounds for Excluding Criminal Responsibility Article 31 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
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