Mens rea and

defences

Jo Stigen, 23 February 2015

• Punishment is an expression of condemnation • Based on the free will of persons; we punish a

person who has chosen to do the wrong

– Presupposes some purpose and/or knowledge

• What do we mean by the volative and cognitive

components of guilt? • What are the different degrees of mens rea? • Compare common law and civil law

• Who are typical defendants in ICL?

– Not necessarily the direct perpetrator

– Military and civilian leaders

– Participants in joint criminal enterprises

• How does this affect the mens rea quirement?

Intent

– Volative

– Cognitive

– With regard to

• Circumstances

• Conduct

• Consequences

Auschwitz Consentration Camp – what did the persons involved intend know?

• ”Joint criminal enterprise” (JCE) will be discussed later

• With JCE a person acting together with others with a common criminal purpose, can be held responsible without knowledge or intent

• Sufficient that the particular killing etc. was a forseeable consequence of the group’s pursuing of the common purpose

ICC Art. 30

Mental element

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

Negligence

• For some perpetrators

• Conscious or unconscious neglect

– Military leaders

– Civilian leaders

• Proving intent or knowledge is difficult

Article 28

• Military commanders:

“… knew or, owing to the circumstances at the time, should have known that the forces were

committing or about to commit such crimes …”

General Yamashita

• Civilian superiors:

“… knew, or consciously disregarded information

which clearly indicated, that the subordinates were committing or about to commit such crimes …”

• How to prove intent or knowledge?

• ICTY/ICTR cases:

Tadic; Kordic; Celebici; Kayishema; Stakic

• Why the difference between military and civilian superiors?

• The military superior is professional; expected to know, have control

• The likelihood that subordinates will commit crimes is much greater

DEFENCES

• Punishment only makes sense when the actor is blameworthy

– I can kill a POW intentionally, but circumstances may

exist which make the act justified or excusable

– Recognized by all criminal justice systems

• All these circumstances cannot be described in each crime definition – instead general defences

• Defences in international criminal law

– Pragmatic and moral and reasons for reluctance

• The gravity

• Need to establish guilt

• Protect potential victims

– More reluctance when enemies are accused?

• Defences most likely to succeed with war crimes

• Possible defences:

– Insanity

– Intoxication

– Self-defence

–Duress

– Superior orders

Sources of law:

• Nuremberg, Tokyo, ICTY and ICTR: few regulations

• Most important; Nuremberg: “superior orders no defence”

• Official capacity – no defence

• Otherwise: Judged by each tribunal from case to case on the basis of “general principles”

• ICC: articles 27, 31 and 33.

• Article 31(3): other defences

• ICC statute roughly reflects customary international law

SUPERIOR ORDERS • No defence has been invoked more often • In its pure form: The accused was given an order, and

orders must be obeyed • Arguments

– Orders should be obeyed – why?

• Otherwise chaos • Respect for humanitarian law • But only lawful orders should be obeyed

- Difficult situation for subordinate

• Complex law

• Should not think twice?

• Must be protected

• Otherwise will not obey

• But only when acts in good faith…

• If taken to the extreme: Only the one person at the top…

• What about risk of reprisals?

– Instead duress

• Rarely been regarded as valid defence, and when successful:

– The subordinate did not understand and should not have understood that the order was unlawful; or

–Combined with other defence: duress

• Historical development:

• Around 1900 – superior alone was considered responsible (English and US Military Handbooks)

• Nuremberg article 8 – turned it upside down

”The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

• I. G. Farben:

”[T]he IMT recognised that […] an order emanating from a superior officer or from the government is not, on itself, a justification for the violation of an international law.”

“International Common Law must be superior to and, where it conflicts with, take precedence over National Law or directives issued by any national governmental authority. A directive to violate International Common Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive.”

“The defendants in this case who received obviously criminal orders were placed in a difficult position but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognised as a defence.”

• Among the academics two schools developed:

– Categorical rejection

– Defence if 1) did not know that illegal, and 2) not manifestly illegal

• Latter inspired by Llandovery Castle in Leipzig 1922. The accused had used a torpedo against a hospital ship that transported sick and wounded back home to Canada, killing 234 persons. Ordered by captain of the Submarine. Clear signs that it was a hospital ship.

Llandovery Castle (26 February 1918)

”It is certainly to be urged in favour of the military subordinates that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including the accused, to be without any doubt whatever against the law.”

• “including the accused” is a bit problematic..

• In Nuremberg no such exception, but these accused were high ranked

IMT-defendants, left to right: Hermann Goering, Joachim von Ribbentrop, Wilhelm Keitel, and Alfred Rosenberg. Back row, left to right: Karl Doenitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, and Alfred Jodl.

• However, the 12 subsequent Nuremberg trials were more neuanced

• High Commands case:

“[I]t is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors […] are in conformity with International Law. […] They were soldiers – not lawyers [and] cannot be expected to draw fine distinctions and conclusions as to legality in connection with orders issued by his superiors”

“At any rate, it appears that the illegality of such use [of prisoners of war in constructing fortifications] was by no means clear [and] in view of the uncertainty of International Law […] […] not criminal upon their face but a matter which a field commander had the right to assume were properly determined by the legal authorities upon higher levels.”

• A curiosity: Reich Propaganda Minister Goebbles wrote in an article in 1944:

”It is not provided in any military law that a soldier in the case of a despicable crime is exempt from punishment because he passes the responsibility to his superior, especially if the orders of the latter are evident to all morality and every international usage of warfare.”

• In the ICTY and ICTR statutes the categorical rule from the Nuremberg Charter is used.

• ICC rule is more neuanced:

Art. 33 - Superior orders and prescription of law

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in question;

(b) The person did not know that the order was unlawful;

(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”

[So the practical significance is for war crimes.]

• Three cumulative criteria:

– a legal obligation to obey

• some pressure not enough

• but perhaps duress…

– must not have understood that unlawful

• the core of the Nuremberg principle: a soldier shall not obey orders that he knows to be unlawful

• what did he know?

• military education…

– not manifestly unlawful

• really a presumption of knowledge?

• difficult to prove knowledge

• some commentators have argued that ICC art. 33 is a step backwards

• but Nuremberg Charter was meant for higher officers

• ICC rule realizes the dilemma of the soldier

• the worst crimes will be manifestly unlawful

• genocide and crimes against humanity are always manifestly unlawful

• the order can be considered as a mitigating circumstance

DURESS

• Difference between “duress” and “necessity”

• Most criminal systems have a general rule that duress might be a defence

• This is therefore considered customary international law

• The problem occurs when innocent life has been taken

• Here a division common law - civil law

• In many common law systems: innocent life – categorically rejected

• Always mitigating circumstance

• Einsatzgruppen – a liberal view:

”Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to put a lethal lever.”

• In Eichmann – the possibility raised, but

“performed the order of extermination [of jewes] at all times con amore …”

• In some Italian cases after the WWII accused convicted because they had acted under the following threat:

“If you refuse I shall have you shot, and I shall also have the three partisans shot!”

• The judges in these cases stressed that refusing to kill the innocent people would not have saved their lives

• Also some German jurisprudence after WWII

• These cases represented civil law

• Erdemovic (Appeals Chamber):

• The accused argued that the victims - and he - would have been killed anyway

• The majority decided the question from a normative point of view:

”It must be our concern to facilitate the development and effectiveness of international humanitarian law and to promote its aims and application by recognising the normative effect which criminal law should have upon those subject to them.”

• The majority in Erdemovic rejected what they called a utilitarian view – the lesser evil

• One life can never be weighed against another

(You are not God!)

• The minority (Cassese) argued:

• Only heroes can live up to this

• A higher standard than most people can live up to

• Can the accused really be blamed?

“Our International Tribunal [...] should refrain from relying exclusively on notions, policy considerations or the philosophical underpinnings of common law countries, while disregarding those of civil-law countries or other systems of law.”

“[T]he customary rule of international law on duress […] does not exclude the applicability of duress to war crimes and crimes against humanity whose underlying offence is murder or unlawful killing. However, as the right to life is the most fundamental human right, the rule demands that the general requirements for duress be applied particularly strictly in the case of killing of innocent persons.”

“Law is based on what society can reasonably expect of its members. It should not set intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards.”

“Consider the following example. A driver of a van unwittingly transporting victims to a place of execution, upon arrival is told by the executioners he must shoot one of the victims or he himself will be shot. This, of course, is done in order to assure his silence since he will then be implicated in the unlawful killing. The victims who are at the execution site will certainly die in any event. Can society reasonably expect the driver in these circumstances to sacrifice his life ?”

“In such situations it may be too demanding to require of the person under duress that they do not perpetrate the offence. I should add that the war in the former Yugoslavia furnishes us with so many examples of such atrocities that this International Tribunal ought not to dismiss any possible scenario as fanciful or farfetched.”

“Let us consider another case. […] An inmate of a concentration camp, starved and beaten for months, is then told, after a savage beating, that if he does not kill another inmate, who has already been beaten with metal bars and will certainly be beaten to death before long, then his eyes will , then and there, be gouged out.”

“He kills the other inmate as a result. Perhaps a hero could accept a swift bullet in his skull to avoid having to kill, but it would require an extraordinary – and perhaps impossible - act of courage to accept one's eyes being plucked out. Can one truly say that the man in this example should have allowed his eyes to be gouged out and that he is a criminal for not having done so?”

“This example, and one can imagine still worse, is one of those rare cases, in my opinion, where duress should be entertained as a complete defence. Any answer to the question of duress has to be able to cope with such examples which the war in Yugoslavia - and wars throughout the world - have generated and, regretfully, will continue to generate.”

• ICC ARTICLE 31(1) (d)

The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid

this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.

• In line with Cassese’s view:

– Threat of death or bodily harm

– Imminent or continuing

–Necessarily – no lesser evil possible

–Reasonable

Drazen Erdemovic

SELF-DEFENCE

• perhaps the most obvious defence

• deeply planted in our consciousness

• typical in an armed conflict – a soldier’s duty to defend himself and others

• little jurisprudence – no general provision before ICC

Art. 33 (c)

The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. […]

• Kordic – ICTY (Trial Chamber, 2001):

“[self-defence] forms a part of the general principles of criminal law which the International Tribunal must take into account inn deciding cases before it.”

”(t)he principle of self-defence enshrined in this provision reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law”.

• ICC article must be considered as customary international law

• Five criteria (mistake of fact can be relevant):

– unlawful use of force

– threat against life or physical integrity

– imminent

– to defend

– reasonable

INSANITY

• ICC art. 31(1) (a)

The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law

• Criteria

–mental disease or defect

–destroys capacity to

• appreciate unlawfulness

• control conduct

• conform to the law

INTOXICATION

• The controversial: Voluntary intoxication

• Rome Statute article 31(1) (b):

The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the

jurisdiction of the Court;

Masiaka (Sierra Leone), June 2000—A child soldier downs his daily “Busta,” gin and drugs, in preparation for a fight against the rebels of the RUF.

MISTAKE OF FACT

• Also a part of the mens rea discussion

• Compare the requirements of intent and knowledge

Article 32 (1) Mistake of fact

A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.