Introduction

In chapter 5, another aspect of selectivity was discussed, an aspect which is related to the scope of criminal liability. In short, when ‘safe’ ICTs have been set up, although there are some exceptions, the scope of liability tends to be broader than when ‘unsafe’ Tribunals are created. We saw that this tendency was identifiable with respect to the definitions of the core international crimes. This chapter is intended to complement chapter 5, by investigating whether or not the same process can be identified in relation to defences and the general principles of criminal liability, together sometimes known as the ‘general part’ of criminal law. The case can be made that it can.

It should come as no surprise that the argument can be made for either the definitions of crimes or the ‘general part’ of international criminal law. They are, after all, part of the same process, that of determining the parameters of criminal liability. This can be seen from one of the negotiating documents for the Rome Statute, a proposed new text for the Article on superior orders. After the document had set out a proposal for the defence of superior orders, which excluded crimes against humanity and genocide from the defence, a telling footnote recorded that ‘Some delegations are willing to accept the inclusion of crimes against humanity in this paragraph subject to the understanding that the definition of crimes against humanity will be sufficiently precise and will identify an appropriately high level of mens rea’.