The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation

Abstract

The norms and mechanisms for international prosecution of humanitarian law and mass human rights violations have been refined in the 1990s to include affirmation of the principle that separate (or “affirmative”) defenses to individual liability are admissible in international criminal law. Explicit recognition of the availability and nature of separate defenses is found in the statute of the international criminal court (ICC). Indirect application is found to a very limited extent in the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), but not in the Statute of the International Criminal Tribunal for Rwanda (ICTR). Moreover, although the Appeals Chamber of the ICTY has rejected the argument that duress is a complete defense under customary international law or general principles of law to a charge of crimes against humanity involving the taking of innocent lives, it has implicidy accepted that duress could be available in other circumstances.