VIII Grounds Excluding Responsibility (‘Defences’)

Abstract

This chapter provides first the groundwork of any analysis of ‘defences’, namely the broad or narrow meaning of the concept (substantive vs. procedural defences) and the different types or forms of defences, including their effect and procedural implications (standard and burden of proof). This contributes to a better understanding and proper interpretation that suggest major differentiation criteria with regard to ICL. Then, a detailed analysis of the substantive and procedural defences relevant in ICL is offered. This analysis starts with conceptual explanations (e.g. regarding the relevant point in time) and examines, on the basis of a thorough comparative law research, most important and well known defences like mental disease, intoxication, self-defence, duress and necessity, mistake of fact and law, superior order, immunities, but also looks at less prominent ones such as consent, reprisals or abuse of process.