Defensive Force under the Rome Statute

By Tonkin, Hannah | Melbourne Journal of International Law, May 2005 | Go to article overview

Defensive Force under the Rome Statute


Tonkin, Hannah, Melbourne Journal of International Law


[It seems extremely incongruous that genocide, crimes against humanity and war crimes could ever be justified or excused by 'defensive force'-- self-defence, defence of others and defence of property. Nonetheless, art 31(1)(c) of the Rome Statute of the International Criminal Court codifies defensive force as a ground for excluding criminal responsibility. This provision was controversial and extremely difficult to negotiate at the Rome Conference of 1998, largely due to the conceptual differences that exist in respect of criminal defences between the various domestic legal systems of the world. This paper analyses the drafting history and wording of art 31(1)(c) in order to clarify the precise scope of defensive force under the Rome Statute. It then seeks to ascertain the applicability of the provision to genocide, crimes against humanity and war crimes, and to thereby explore the nature of these crimes and the intended prosecutorial strategy of the International Criminal Court.]

CONTENTS

I   Introduction
II  The Road to Art 31(1)(c): Controversy and Compromise
III The Elements of Art 31(1)(c): A General Analysis
      A The Triggering Condition: An Imminent and Unlawful Use of Force
        Producing a Danger to a Person or Property
          1 Objective or Subjective?
          2 Imminent
          3 Unlawful
          4 Danger to Oneself, Another Person or Property
      B The Response: A Reasonable and Proportionate Act, Directed
        against the Attacker
          1 Reasonably Necessary
          2 Reasonably Proportionate
          3 Directed against the Attacker
      C Mental Element
IV  Article 31(1)(c) and Specific Crimes under the Rome Statute
      A Genocide
          1 Physical Elements
          2 Mental Element
      B Crimes against Humanity
          1 Physical Elements
          2 Mental Element
      C War Crimes
          1 Physical Elements
          2 Mental Element
V   Conclusion

I INTRODUCTION

The Rome Statute of the International Criminal Court, (1) which opened for signature on 17 July 1998 at the Rome Diplomatic Conference after years of painstaking preparatory negotiations, represents a major breakthrough in the codification and enforcement of international criminal law. It creates a criminal legal order applicable to all human beings, coupled with an impartial international criminal jurisdiction over four categories of crime: genocide, crimes against humanity, war crimes and aggression. The adoption of the Rome Statute marks the end of a historical process that commenced after World War I, as well as the beginning of a new phase of international justice, in which the international community no longer tolerates impunity for perpetrators of these heinous crimes. (2)

The preamble to the Rome Statute describes the crimes within the jurisdiction of the International Criminal Court ('ICC') as 'unimaginable atrocities that deeply shock the conscience of humanity', (3) so serious that they represent a 'concern to the international community as a whole'. (4) The notion of 'defences' to these crimes inevitably evokes certain emotional reservations. Could there ever be an excuse for genocide--a justification for a crime against humanity? The instinctive answer is, of course, no. From a legal perspective however, these crimes cannot be exempted from the general principles of criminal law that apply in domestic jurisdictions to 'normal' crimes. These principles provide the fundamental framework within which the criminal responsibility of a defendant may be determined. Central to these general principles of criminal law is the notion that certain criminal defences may justify or excuse conduct that would otherwise constitute a criminal offence. (5)

Accordingly, art 31 of the Rome Statute codifies four substantive grounds for excluding criminal responsibility: mental disease, intoxication, defensive force, and duress or necessity. …

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