AGE OF RESPONSIBILITY
· Recommendation: As stated in Section B, the ICC should have jurisdiction only over persons who have attained eighteen years of age at the time of the commission of the crime in question. Article 2,6 dealing with the age at which a person shall be deemed criminally responsible under the statute, is therefore unnecessary and should be deleted.
STATUTE OF LIMITATION
· Recommendation: The statute should exclude any statute of limitation for the core crimes within the jurisdiction of the Court.
Comment: The ICC must not allow for the prescription of the very serious crimes within its jurisdiction. The crimes in question are of such gravity that they do not prescribe as a matter of international law and the ICC statute should adhere to this legal principle.
The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity187 provides at Article 1 that there shall be no statutory limitation for war crimes188, crimes against humanity, apartheid and genocide. The European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes,189 enumerates thesame list of crimes but adds that "any other violation of a rule or custom of international law which may hereafter be established and which the Contracting State concerned considers as being of a comparable nature...." shall likewise not be subject to statutory limitation.
Moreover, it should be clear that the existence of statutes of limitations on the national level should not have any effect on proceedings before the Court, on the basis that the Court must apply international law and international standards, consistent with the international nature of the crimes.
As stated in other contexts, the protection of the rights of the suspect or the accused must be unequivocally guaranteed throughout the statute. The right to prepare one's defense is a fundamental human right.190 Inherent in the enjoyment of this right is knowledge of the defenses the Court will and will not consider. One consequence of not making the defenses explicit in the statute is the uncertainty it creates for the accused as to whether a particular defense is possible, which may in turn affect the plea tendered by the accused.191 Thestatute should therefore set out an extensive but non-exhaustive list of possible defenses.
Delegates are urged to keep firmly in focus, in considering applicable defenses, the need for uncompromising fairness to the accused, as expressed by one writer in the following terms:
"[F]airness requires giving due notice of what constitutes prohibited conduct and of what will happen if the line between permissible and prohibited conduct is crossed. Insofar as the object is to indicate where to draw the line, and therefore to provide a practical guide to permissible conduct, it would follow that the law should not only define offenses but also specify in advance the kind of justifications that will render otherwise prohibited conduct permissible."192
In this section, we present our recommendations on specific defenses, following the order in which they appear in the statute.
· Recommendation 1: Mistake of fact or law should not be cited as a ground for excluding criminal responsibility.
Comment: Mistake of fact should extinguish criminal responsibility only in so far as it negates the mental element in crime. As such, its inclusion within the statute as a defense is unnecessary, as it is already covered under the relevant mens rea provisions.
Mistake of law should also be excluded from possible defenses, given the extremely grave nature of the crimes within the Court's jurisdiction. While mistake of law is recognized in many systems as a defense to the commission ofcertain crimes,193 rarely does it extinguish responsibility for crimes as egregious as those falling within the jurisdiction of the ICC. Option 1 of Article 30 seeks to reflect this distinction by allowing the exclusion "provided that the mistake is not inconsistent with the nature of the alleged crimes." However, in the light of the limited scope of the Court's jurisdiction over genocide, crimes against humanity and war crimes, mistake of fact or law should be considered inconsistent with the nature of all of these crimes. In addition to the practical evidentiary problems that would result from having to ascertain the subjective question of whether such a "mistake" was or was not made, to allow this defense would undermine the seriousness of the crimes in question. Option 2, without the text that currently appears in brackets, is therefore the preferred option.
Article 31(a): mental disease
· Recommendation: Retain the defense of incapacitating mental disease or defect.
Comment: This defense is widely established as a full defense in civil and common law systems alike, often expressed as the defense of insanity. This was implicitly recognized by the Report of the Secretary General to the Security Council upon submitting the draft statute of the International Criminal Tribunal for the Former Yugoslavia.194 The current text of Article 31(1)(a) should be supported. This defines the defense as such a mental disease or defect which, at the time of the commission of the crime, destroyed the person's capacity either to appreciate the criminality of his or her conduct or conform that conduct to the requirements of the law.
Article 31(1)(b): involuntary intoxication
· Recommendation 3: Retain the defense of involuntary intoxication that, at the time of the commission of the crime, destroyed the person's capacity either to appreciate the criminality of his or her conduct or conform that conduct to the requirements of the law.
Comment: Intoxication per se should not constitute an absolute defense. Where the extent of the intoxication is such that the person remains able to control his or her actions and appreciate the wrongfulness of them, or where the state of intoxication was freely entered into, the person should remain criminally responsible. It is worth noting that in circumstances of forced intoxication which does constitute a defense for the person forcibly intoxicated, the person responsible for inducing the state of intoxication could, of course, be responsible for the consequences of so doing, depending on all the facts and circumstances of the case.
The meaning of "involuntary" in this context is problematic, particularly with regard to drug or alcohol addiction, but this should be a matter for interpretation by the Court rather than requiring specific definition in the statute itself.
Article 31(1)(c): self-defense or defense of others
· Recommendation 4: Retain self-defense or defense of others as a defense. This should not include defense of property.
Comment: Self-defense or defense of others should apply where the person acts reasonably to defend him or herself or another person from an imminent use of force, in so far as the force employed in defense is reasonable to avoid the harm feared and is proportional to it. A person should not be criminally responsible when he or she acts in self-defense or to defend others from an imminent attack, and in doing so uses only reasonable force to meet that objective. Generally, self-defense is understood to cover the situation in which a person uses force against the person responsible for posing the imminent threat. It would not therefore cover the situation where force is used by A against B in response to an imminent attack from C.195 The imminence requirement is an essential element in this defense, which distinguishes it from a premeditated reprisal.
Article 31(1)(d): threat of death or imminent bodily harm
· Recommendation 5: Retain as a defense the existence of a real and imminent threat of death or serious bodily harm, where the response to that threat did not cause greater harm than the one sought to be avoided. This should only apply where the person did not knowingly expose him or herself to the threat. Protection of property should not be among the defenses.
Comment: This defense should be available in exceptional circumstances.196 The existence of duress and coercion should not necessarily relieve an individual of criminal responsibility.197 However, where all the components of the above definition are present, such that the only choice was to inflict or to suffer serious bodily injury or death, the Court should be able to decide that the person was not criminally responsible. This corresponds with the view adopted by the Nuremberg Tribunal that an individual is not required to "forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns."198 The evidentiary difficulties which may arise in establishing the existence of all of the components is undeniable, but this is, of course, a matter for evaluation by the Court in the light of all the evidence in a particular case. The inclusion of this provision is necessary to enable the Court to carry out that evaluation.
This defense should not apply to a person who knowingly exposes him or herself to the threat and then seeks to rely upon it as a defense for crimes committed. However, in the light of the reality of forced recruitment to armedforces,199 and in particular the tragic and widespread recruitment of children,200 we do not believe that it can be generally assumed that by virtue of being a "soldier" one has voluntarily exposed oneself to the threat in question.201 Depending on the circumstances, this defense could apply to civilians or to members of armed forces.
This defense must be distinguished from the existence of superior orders as a defense which, as set out below, should be strongly opposed. While orders from superiors may in fact be coupled with the components set out above, such that the complete defense applies, the test "is not the existence of the order, but whether moral choice was in fact possible."202
Article 31 (c), (d), (e): the protection of property
· Recommendation 6: Omit the protection of property as a defense.
Comment: Defense of property should never constitute a full defense for crimes as egregious as those coming within the Court's jurisdiction. All references to property as a defense should therefore be deleted, in particular from Article 31(1), subparagraphs (c),(d),(e), where the reference now exists.
Article 32: Superior orders
· Recommendation 7: Omit from the statute the defense of superior orders.
Commentary: Superior orders must not constitute a defense to the crimes within the jurisdiction of the Court. Article 8 of the London Charter establishing the Nuremberg International Military Tribunal explicitly prohibited the application of superior orders as a defense, and this principle is by now well established in international law.203 The specific exclusion of superior orders as a defense is also expressed in international instruments such as the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment.204 The principle is reflected in Security Council Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda.205 Consistent with the approach developed since the Nuremberg Tribunal, such orders may be taken into account as a mitigating factor in determining punishment, but do not exonerate criminal responsibility.206
Article 34: Other grounds for excluding criminal responsibility
· Recommendation 10: The specified defenses should constitute a non-exhaustive list. The Court should be allowed to accept additional defenses to those specified in the statute, if it is satisfied that such defenses are enshrined in the principles of criminal law common to civilized nations.
Comment: The enumeration of a list of defenses should be strongly supported, in the interests of protecting the rights of the defendant, but that list should be non-exhaustive. The bracketed text of Article 34(1)(a) which suggests that where a defense exists in the "[principles of criminal law common to civilized nations]" the ICC should be able to apply any such defense, should be supported. The application of national law, as envisaged by the other bracketed option ("[in the State with the most significant contacts to the crime]"), should be opposed on the basis of the disparity in the treatment of accused persons that would follow from it. The Court should however be empowered to apply a defense which it finds to be supported by general principles of law,207 and able to look to general practice in national systems as a source from which to assess those principles. As the right of an accused person to present any relevant defense is a fundamental right which the statute must guarantee, the inclusion of this provision is important. Moreover, this provision would endow the Court with the necessary flexibility to respond to future developments in international law and principles.
187 New York, 26 November 1968, 754 U.N.T.S. 7, Reprinted in ILM 68 (1969); Schindler/Toman 837
188 The convention refers to war crimes as defined in the Charter of the Nuremberg International Military Tribunal and grave breaches of the Geneva Conventions
189 Strasbourg, 25 January,1974 ETS 82, Reprinted in 13 ILM 540
190 The International Covenant on Civil and Political Rights (ICCPR) states in Article 14(3) that "in the determination of any criminal charge against him, everyone shall be entitled" to the minimum guarantees of being informed "promptly and in detail" of the nature of the charges, in a language they understand; of having adequate time and facilities to prepare their defense; of being tried without undue delay, in their presence and with legal assistance, including the free assistance of an interpreter, if need be; and of being able to examine, or have examined, the witnesses against them. Similar language is reflected in the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(3), and in the American Convention on Human Rights, Article 8(2).
191 This arose in the recent case before the ICTY, the case of Prosecutor v. Drazen Erdomovic, ICTY, IT-96-22, (1996). The statute of the ICTY does not enumerate possible defenses. Although the accused originally pled guilty, he did so having made statements claiming he committed the crimes in question under duress. An appeal of the conviction was lodged alleging that "the offenses were committed under duress and without the possibility of another moral choice...and on the grounds that he was not accountable for his acts...." The Appeals Chamber decided duress or coercion did not constitute a complete defense to the killing of innocent people by a soldier. The chamber decided, however, that in the circumstances the guilty plea was not informed and ordered that "the case must be remitted to a Trial Chamber...so that the Appellant may have the opportunity to replead in fullknowledge of the nature of the charges and the consequences of his plea." This situation may have been avoided if the statute of the Tribunal had specified which defenses the Tribunal could consider and which it could not.
192 See Edward Wise, "General Rules of Criminal Law," 25 Denver Journal International Law & Policy 313.
193 These might be categorized as crimes which are "mala prohibita," r acts the criminality of which derive from particular laws, rather than "mala in se" which are criminal due to their inherent wrongfulness. See Michael L.Travers, Comment, Mistake of Law in Mala Prohibita Crimes, 1995, 62 University of Chicago Law Review 1316.
194 The Report indicated that "[t]he International Tribunal itself will have to decide on various personal defenses which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognized by all nations."
195 Recommendation 4, following this comment, in respect of real and imminent threat of death or serious bodily harm.
196 This is, we suggest, ensured by the above formulation which requires that the threat be real, serious and imminent, that the response must be proportional, and the person must not have knowingly exposed him or herself to the threat in question. See The United States v. Otto Ohlendorf, IV Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p. 411 (1950), hereinafter referred to as the "Einsatzgruppen judgment." The Nuremberg Tribunal in that case said that a threat that could absolve criminal responsibility had to be "imminent, real and inevitable."
197 The existence of these factors short of satisfying the far higher threshold necessary for the purposes of this defense, may be taken into account as mitigating circumstances in sentencing, as set out in Section L on Penalties, below.
198 Einsatzgruppen judgment, at p. 480.
199 See, for example, Human Rights Watch/Americas, "Return to Violence: Refugees, Civil Patrollers, and Impunity," A Human Rights Watch Short Report, vol. 8, no. 1 (B), January 1996.
200 See in particular, Human Rights Watch/Americas, "Return to Violence: Refugees, Civil Patrollers, and Impunity"; Human Rights Watch/Asia, "Burma: Children's Rights and the Rule of Law", A Human Rights Watch Short Report, vol 9. No 1, January 1997; Human Rights Watch/Africa, Children of Sudan: Slaves, Street Children and Child Soldier, (New York: Human Rights Watch, 1995); Human Rights Watch/Africa, The Scars of Death: Children Abducted by the Lord's Resistance Army in Uganda (New York, Human Rights Watch: 1997); Human Rights Watch, " Children In Combat," A Human Rights Watch Short Report, vol. 8, no. 1 (G), January 1996.
While Human Rights Watch opposes the ICC assuming jurisdiction over persons under the age of eighteen, many persons over eighteen at the time of the commission of the crime will have been forcibly recruited prior to that age.
201 See, in this respect, the separate opinion of Judge McDonald and Judge Vohrah of the Appeals Chamber decision in Prosecutor v. Erdomovic, ICTY, IT-96-22-A, (7 October 1997). See above, Section F, on defenses.
202 The judgments of the Nuremberg Tribunal considered the defense of superior orders where circumstances were such that the subordinate was deemed to have had no moral choice or alternative to carrying out the order.
203 In the trial of Adolf Eichmann, the Israeli district court observed that the rejection of the superior orders defense in the prosecution of war criminals had been acknowledged by the United Nations in 1946 and had "now become general in all civilized nations." A.G. of the Government of Israel v. Adolf Eichmann, (Dec. 12, 1961) 36 International Review 18, 20 (1968), at p. 257, affirmed Text of Judgment of the Supreme Court (May 29, 1962), p. 317-18. See also U.N.G.A. Res. 95(1).
204 See Article 2(3).
205 S/RES/955 (1994) November 8, 1994. Art. 6(4) of the statute of the International Criminal Tribunal for Rwanda states that "the fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires."
206 The London Charter allowed for superior orders to constitute a mitigating factor but not a full defense. This was contrary to what most military laws provided for at the time World War II started.
207 Article 38 of the statute of the International Court of Justice provides that general principles of law common to civilized nations is a source of international law applicable by that Court.
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