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Cover Cassese's International Criminal Law

13. Obedience to superior orders and official capacity  

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

Individuals who committed international crimes were once able to rely on the expansive doctrines of superior orders, or acting in an official capacity, to excuse their liability. These doctrines, at least in their widest versions, were firmly repudiated in the London Charter. This chapter discusses the two circumstances where superior orders may still have some vitality as an excuse: mistake of law or duress. The overall position appears to be, however, that there is now little scope for mistake of law even in respect to superior orders, and that while duress certainly is a well-founded defence in principle, it is very rarely accepted in practice. Mistake of fact involves a different issue: non-awareness of certain facts that show the absence of mens rea. Superior orders may indeed be the source of such misleading information, but then the proper claim is properly the absence of mens rea that negates criminal liability, not excuse.

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.