Defences for War Crimes

This chapter examines the rules on defences - i.e. the legal arguments that the person on trial can invoke to seek mitigation or exoneration from criminal responsibility-in international criminal law. It does so with particular reference to defences against charges of war crimes and to the framework established by the Rome Statute of the International Criminal Court. The chapter begins by clarifying the concept of defences, and outlining different categories such as failure-of-proof defences, substantive defences, procedural defences, justifications, and excuses. The chapter then explores the relevant legal sources, starting from Articles 31 and 32 of the Rome Statute as paradigmatic provisions and highlighting the non-exhaustive nature of the grounds excluding criminal responsibility listed therein. In addition, it considers the rules of procedure concerning defensive claims, such as those on the burden of proof. Subsequently, the chapter analyses the most relevant substantive defences available to individuals charged with war crimes: insanity; intoxication; self-defence (including defence of others and defence of essential property); duress and state of necessity; and mistakes of fact and law. For each defence, the chapter explores the rationale, doctrinal foundations, and the conditions under which it may exclude or mitigate criminal responsibility, drawing in particular on the relevant jurisprudence of international criminal tribunals.