Mental condition defences in supranational criminal law

Abstract

With the establishment of the International Criminal Court (ICC) a new supranational criminal code – the Rome Statute of the International Criminal Court (ICC Statute) – has come into effect. This new code contains elements of both civil law and common law jurisdictions, and constitutes a new, unprecedented system of criminal law and procedure. This essay will not examine the procedural rules, the Rules of Procedure and Evidence, but will focus on the grounds for excluding criminal responsibility as laid down in Article 31. More specifically it will consider those sections that deal with the defences of mental incapacity and psychological pressure: Articles 31(1)(a) and 31(1)(d). Both defences will first briefly be compared with their “national” predecessors. Next, this essay will examine the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which deals with roughly the same crimes as the ICC. The interpretation of these defences by the ICTY could be indicative of future interpretations by the ICC. Combining the new ICC Statute, the national angle and the jurisprudence of the ICTY, it should be possible to determine the scope of insanity and duress in contemporary supranational law and, finally, predict their efficacy under the ICC Statute.