Ambos, Kai --- "Defences in international criminal law" [2011] ELECD 105; in Brown, S. Bartram (ed), "Research Handbook on International Criminal Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on International Criminal Law

Editor(s): Brown, S. Bartram

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202789

Section: Chapter 13

Section Title: Defences in international criminal law

Author(s): Ambos, Kai

Number of pages: 32

Extract:

13 Defences in international criminal law
Kai Ambos*



INTRODUCTION
With the establishment of the International Criminal Court (ICC),1 the first comprehensive
codification of international criminal law (ICL) was achieved. The strong support of the ICC
by civil society, academic institutions and more than a hundred states has quickly turned the
ICC Statute and its complementary norms into the fundamental reference points of modern
ICL. As to `defences', however, the Statute is silent; it does not even mention this term. The
drafters consciously avoided certain `catch words' too closely associated with either the
common law or the civil law system. They wanted to make sure the Statute would be truly
universal and would not be interpreted by way of recourse to a specific type of national
systems.2
Article 313 of the ICC Statute contains explicit rules regarding `grounds for excluding crim-
inal responsibility' distinguishing between mental disease or defect, intoxication, self-defence
and duress/necessity.4 This list is not exhaustive. Pursuant to article 31(3), the Court may
consider others grounds for excluding individual criminal responsibility. The Statute sets out
some of these explicitly5 such as mistake of fact and mistake of law (article 32) and superior
orders (article 33). Additional grounds for excluding criminal responsibility may arise from
any source of law as referred to in article 21 of the ICC Statute, especially from customary



* I am grateful to my senior research assistant Dr. Stefanie Bock and student research assistant
Moritz Eckhardt for invaluable assistance in preparing ...