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Chapter

Cover International Criminal Law

13. Defences or grounds for excluding criminal responsibility  

This chapter addresses one of the more contentious issues in international criminal law: the extent to which a defendant should be able to plead that there are circumstances excusing or justifying what will invariably be appalling crimes. It first notes that while the distinction between justifications and excuses is known in a number of national legal systems, it is of no direct relevance to international criminal law. It then discusses the following defences before international criminal tribunals: mental incapacity, intoxication, self-defence, duress and necessity, mistake of fact and law, and superior orders. It also considers two defences which arise under the law of war crimes: reprisals and ‘tu quoque’, and military necessity.

Chapter

Cover Cassese's International Criminal Law

12. Justifications and excuses  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the notions of justifications and excuse. Circumstances can sometimes arise that either justify criminal conduct, or excuse the perpetrator for engaging in it. A justification is a circumstance that makes the accused’s conduct preferable to even worse alternatives. Among the circumstances that negate unlawfulness of what would otherwise be a criminal act are: self-defence; necessity (as justification); and belligerent reprisals (for war crimes). An excuse, such as duress, involves an action that, while voluntary, nevertheless was produced by an impairment of a person’s autonomy to such a degree as to negate their blameworthiness. Mistakes of law, mental incapacity, or intoxication are also usually categorized as excuses, although strictly speaking, these are cognitive impairments that preclude the formation of a guilty mental state in the first place.