Some Observations on the Lack of a Specific Diminished Responsibility Defence under the ICC Statute

Abstract

Investigating the nature of criminality, particularly in the context of ICC core crimes, seems fundamental in a quest to discover the truth and produce an accurate historical record; both of these aims are in the long term interests of justice, the inter-national as well as local communities. Whilst the ICC is based on strong punitive ideals, similar to those endorsed by ICTY and ICTR in particular, the ICC is in a unique position to depart from a merely pragmatic/administrative exploration of facts and history. In fact, in recent prosecutions rehabilitation aims have frequently been substituted with an “attempt to stigmatise the most serious violations of international humanitarian law.”1 The results orientated approach of ICTY/ICTR, which includes, inter alia, charge bargaining in alleged genocide cases, should be departed from in ICC proceedings in favour of more holistic and interdisciplinary justice methods which strive to not only achieve punitive goals but also promote rehabilitation of of-fenders and ultimately reconciliation.