Defences in International Criminal LawExceptions in International Law?

Abstract

This chapter analyses the concept of defences in international criminal law. It starts off with some general conceptual remarks defining defences, on a meta level, as exceptions to the (secondary) rule expressed by the respective offence; as such, they do not invalidate this rule—the prohibition sub poena by the offence—but entail its non-application. In the main part, the chapter proposes a systematization along the lines of a substantive/procedural distinction (substantive reasons to exclude individual criminal responsibility versus procedural obstacles/bars to criminal prosecution) and further distinguishing between full and partial defences, justifications and excuses, failure of proof defences, and alibi. On the basis of this classification, a hierarchy of defences is suggested.