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International Criminal Law

International Criminal Law (1st edn)

Douglas Guilfoyle
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date: 20 August 2022

p. 36113. Defences or grounds for excluding criminal responsibilitylocked

p. 36113. Defences or grounds for excluding criminal responsibilitylocked

  • Douglas GuilfoyleDouglas GuilfoyleAssociate Professor of Law, Monash University

Abstract

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.

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