chapter 6 International Criminal Law Defenses
1 Introduction
Criminal defenses to international crimes are perhaps the most important instrument for defense counsels operating before icts to challenge a charge. Their invocation requires circumspection as to the legal parameters and the facts underpinning such defenses. Firstly, a defense may be based on proce- dural issues. Such a defense stands apart from the question of guilt or inno- cence; rather it focuses on the procedural dimension of a criminal case, meaning that the defendants fair trial rights have been violated predominantly in the course of an investigation and prosecution, thereby infringing upon the defendant’s fair trial rights. Procedural defenses embrace the defense of selec- tive prosecution, the defense of prosecutorial misconduct and the defense of immunities of (former) heads of State. Secondly, a defense may entail a justification for the crime(s) charged. A defense of justification relies on the claim that the defendant committed an alleged ‘criminal’ act, which was in the particular case justified. A justifica- tion defense includes claims of self-defense or defense of other persons or property. Thirdly, a defense may entail an excuse for the crime(s) charged. This line of defense relies on the claim that the defendant committed the crime charged, but that he or she had no other choice given the circumstances – due to a cer- tain mental state at the time the alleged crime was committed or due to a lack of mens rea – and should thus be excused. Defenses of excuse include defenses of insanity, duress, intoxication, diminished responsibility, and mistake of law or fact. Fourthly, the defendant can claim actual innocence and pursue an alibi defense in which he produces evidence or testimony which demonstrates his innocence. Several of these defenses involve questions of personal excuses, that may prevent the imposition of criminal responsibility or criminal sanctions.1 Since conditions of exoneration differ among the world’s major legal systems,2 it is
1 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 2nd rev. ed. (The Hague: Kluwer Law International, 1999), 448. 2 Ibid.
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(i) Procedural defenses (abuse of process, immunities, selective prosecu- tion, prosecutorial misconduct); (ii) Justifications (self-defense, necessity); (iii) Excuses (duress, superior orders, insanity, intoxication, diminished responsibility); (iv) Alibi defenses.
2 Procedural Defenses
Procedural defenses are abstracted from the question of guilt or innocence in criminal proceedings; rather they revolve around the accused’s fair trial rights that have been violated by claiming that procedural rules have not been respected or that the accused has been unjustly singled out in the criminal proceedings (i.e. principle of non-discrimination). The Statutes of icts bestow several rights to the accused, such as the right to a fair and public hearing, the right to be present during the trial, the right to be presumed innocent until proven guilty, the right to be tried without undue delay, the right to examine witnesses and the right to disclosure of evidence.3 A procedural defense may also aim at the exclusion of evidence, for example, when the accused made statements without presence of a lawyer or the exclusion of evidence obtained under torture.4 This paragraph discerns procedural defenses aiming at the
3 See for example, Article 63, 66, 67 ICCSt.; Article 20 ICTRSt.; Article 21 ICTYSt. 4 The un Convention against Torture provides that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”; the jurispru- dence of international criminal tribunals indicates that evidence obtained under torture should always be excluded, see for example: Prosecutor v. Lubanga, Prosecution’s Application for Admission of Documents from the Bar Table Pursuant to Article 64(9), Case No. ICC- 01/04-01/06, February 17, 2009 (“This is not evidence obtained through coercion or torture which would seriously cast doubt on its reliability”); Prosecutor v. Dragan Nikolić, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, Case No. IT-94- 2-PT, October 9, 2002 (“the Chamber holds that, in a situation where an accused is very seri- ously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment to the