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

  • Peter Krug (a1)

Extract

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.

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1 The term “international prosecution” will be used throughout to denote the normative, procedural, and institutional system for adjudication of alleged violations of international humanitarian and human rights law. For stylistic purposes, the adjudicatory institutions of this system of international criminal justice will be referred to collectively as “international courts.”

2 The term “defense” is used here to denote both “justifications” and “excuses,” which act as a matter of law either to bar individual liability completely even though all elements of criminality are satisfied, or to serve as a basis for mitigation of punishment. See Albin Eser, “Defences” in War Crime Trials, in War Crimes in International Law 251 (Yoram Dinstein & Mala Tabory eds., 1996) (difficulties in terminology in this area leave no other solution but to resort to the term “defences”). It therefore does not include a “failure of proof” defense involving questions of fact, under which the prosecution is unable to prove all the elements of criminality, including the requisite mental state of the accused. A “justification” provides exculpation for acts that are viewed as not wrongful and eliminates in all respects the criminal character of the act in question, whereas an “excuse” may exculpate a particular accused from accountability for a wrongful act under the unique facts of the concrete case. See Draft Code of Crimes Against the Peace and Security of Mankind, Art. 14 (Comment 2), in Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 14, UN Doc. A/51/10 (1996), available in <> [hereinafter 1996 ILC Draft Code]; see also George P. Fletcher, Rethinking Criminal Law 759 (1978).

3 Rome Statute of the International Criminal Court, July 17, 1998, Arts. 31 (grounds for excluding criminal responsibility) and 33 (superior orders and prescriptions of law), UN Doc. A/CONF. 183/9*, available in <>, reprinted in 37 ILM 999 (1998) [hereinafter ICC Statute]. Art. 32 of the ICC Statute excludes mistake of fact and mistake of law from the list of defenses, but states that they can relieve an individual of criminal responsibility if they negate the requisite mental element of the crime. Id. This Note assumes that the ICC Statute will receive the necessary 60 ratifications required for its entry into force. Meanwhile, the Appeals Chamber of the ad hoc Yugoslavia Tribunal has taken the position that the provisions of the ICC Statute serve as evidence of customary international law. See Prosecutor v. Tadić, No. IT–94–1–A, Judgement, para. 223 (July 15, 1999), available in the ICTY Web site, <> [hereinafter ICTY Web site].

4 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Statute, Arts. 2(d), 3(b) (“military necessity” is a basis for justification), UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute]. Art. 7(4) of the ICTY Statute, while stating that “superior order” is not a defense to liability, adds that it may be considered in mitigation of punishment. Id.

5 International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, Statute, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute]. Art. 6(4) of the ICTR Statute includes the same provision as that found in Art. 7(4) of the ICTY Statute. ICTY Statute, supra note 4, Art. 7(4).

6 This inference is drawn from the separate opinions of the ICTY Appeals Chamber judges in Prosecutor v. Erdemović, judgement, No. IT–96–22–A (Oct. 7, 1997), including the Joint Separate Opinion of Judges McDonald and Vohrah, paras. 32–89, the Separate and Dissenting Opinion of Judge Cassese, paras. 11–49, the Separate and Dissenting Opinion of Judge Li, para. 5, and the Separate and Dissenting Opinion of Judge Stephen, paras. 23–68 (including summary of the similar position taken by the Trial Chamber), available in the ICTY Web site, supra note 3. The important point is the Appeals Chamber did not consider a categorical rejection of duress in all circumstances, but only specifically when the underlying crime was the killing of innocent persons. For discussion of this issue in Erdemović, see Peter Rowe, Duress as a Defence to War Crimes After Erdemović: A Laboratory for a Permanent Court?, 1 Y.B.Int’l Humanit.L. 210 (1998); David Turns, The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case, 47 Int’l & Comp. L.Q. 461, 470–72 (1998).

7 Although this area of law is marked by absence of consensus even on fundamental points, see infra note 13 and accompanying text, it can be said that this list includes the closely circumscribed defenses of involuntary intoxication, self-defense, and duress (see ICTY Statute, supra note 3, Art. 31(1)), superior orders (see id., Art. 33 (1)), and military necessity (see ICTY Statute, supra note 4, Arts. 2(d), 3(b)). For general discussion about these and other possible defenses, see: 1996 ILC Draft Code, supra note 2, Art. 14 (Comments 4–12); M. Cherif Bassiouni, Crimes Against Humanityin International Criminal Law 448–509 (2d rev. ed. 1999); Eser, supra note 2; Yoram Dinstein, The Distinctions Between War Crimes and Crimes Against Peace, in War Crimes in International Law, supra note 2, at 1, 6–15; Gerry J. Simpson, War Crimes: A Critical Introduction, in The Law of War Crimes: National and International Approaches 1, 14–16 (Timothy L. H. McCormack & Gerry J. Simpson eds., 1997). Regarding specific defenses, see Jordan J. Paust, Superior Orders and Command Responsibility, in 1 International Criminal Law 223 (M. Cherif Bassiouni ed., 2d ed. 1999); Rowe, supra note 6.

8 The term “mental incapacity” is taken from paragraph 58 of the UN Secretary-General Report that recommended establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993) [hereinafter Report of the Secretary General]. The term “mental incapacity” will be used throughout this Note as shorthand for the variety of formulations that establish the mental condition of the accused at the time of the acts in question either as a basis for a complete or partial bar to liability, or as grounds for mitigation of punishment.

9 ICTY Rules of Procedure and Evidence, Feb. 11, 1994, 67(A) (ii) (b), UN Doc. IT/32, available in the ICTY Web site, supra note 3, reprinted in 33 ILM 484 (1994) [hereinafter ICTY RPE]; ICTR Rules of Procedure and Evidence, June 29, 1995, 67(A)(ii)(b), UN Doc. ITR/3 (1994), available in the ICTR Web site <> [hereinafter ICTR RPE].

10 Prosecutor v. Delalić, Judgement, No. IT–96–21–T (Nov. 16, 1998), available in the ICTY Web site, supra note 3, summarized in 38 ILM 57 (1999) [hereinafter Čelebići Camp Judgement]. See also the case note by Olivia Swaak-Goldman, Prosecutor v. Delalić, 93 AJIL 514 (1999), which covers the many issues in the Judgement other than mental incapacity.

11 In keeping with standard usage, I will refer to the legal system of England and Wales as the “English” legal system.

12 See Eser, supra note 2, at 252 (citing “psychological reservations”); Simpson, supra note 7, at 14; 1996 ILC Draft Code, supra note 2, Art. 14 (Comments 4–12).

13 The result has been development of an “unstructured conglomerate” of traditional defenses “assembled from different legal traditions.” Eser, supra note 2, at 273. Characterizing the doctrinal status of defenses as a “vast terra incognita,” id. at 252, Eser notes that the “whole area of defences requires a much more comprehensive and through elaboration than has been offered thus far.” Id. at 273. The scholarly discussions concerning defenses offer a number of divergent viewpoints. See sources cited supra note 7. The difficulty of achieving agreement on these questions is reflected in the ILC’s delegation of identification and definition of defenses to the courts: Article 14 of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind states in full that “The competent court shall determine the admissibility of defences in accordance with the general principles of law, in the light of the character of each crime.” 1996 ILC Draft Code, supra note 2, Art. 14. According to one commentator, the ILC’s commentary to Article 14 “suggests that this approach was taken because of the inability of the members to agree upon which defenses ought to be recognized or how they ought to be formulated.” Paul H. Robinson (commenting for the Association Internationale de Droit Penal), cited in M. Cherif Bassiouni (with the collaboration of Peter Manikas), The Law of the International Criminal Tribunal for the Former Yugoslavia 424 (1996) [hereinafter Bassiouni, The Law of the ICTY].

14 See The Statute of the International Criminal Court: A Documentary History 416, 491 (M. Cherif Bassiouni ed., 1998) [hereinafter ICC Statute: A Documentary History]. Two different formulations of the defense were among the proposed provisions compiled by the Preparatory Committee on the Establishment of an International Criminal Court in 1996. See id. at 491. The defense in its final wording was placed in the consolidated draft statute at the December 1997 meeting of the Preparatory Committee. See id. at 319.

15 See the prescient observation in M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law”, 11 Mich.J.Int’l Law 768, 769 (1990) (quite likely that “General Principles” will become the most important source of international law in the 1990s). The separate opinions in the ICTY Appeals Chamber decision in Erdemović, supra note 6, contain a spirited dialogue on the identification and use of general principles of law in determining the availability of duress as a defense. See Turns, supra note 6, at 470–72.

16 M. Cherif Bassiouni, Historical Survey: 1919–1998, in 3 International Criminal Law, supra note 7, at 597, 634.

17 Professor Bassiouni proposed codification of the principle in 1987 and set forth a formulation based on the Model Penal Code of the American Law Institute. M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal 110, 112 (1987) [hereinafter Bassiouni, Draft International Criminal Code]. In commentary on a 1945 decision by the U.S. Military Commission, the UN War Crimes Commission suggested that a “defense of madness” might have been raised. 3 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 60, 61 (1948) (trial of Peter Back) [hereinafter Law Reports]. In 1948, a Dutch court reduced an offender’s sentence for war crimes on the grounds of his mental condition at the time the acts were committed. See 13 Law Reports 131, 132, 137 (1949) (trial of Wilhelm Gerbsch). International tribunals have also received testimony from mental health professionals on other questions. At the Nuremberg Trials, defendants Rudolf Hess and Julius Streicher were examined to determine if they were fit to stand trial. Summarized in Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 149–51, 178–79 (1992). Two defendants before the ICTY, Dražen Erdemović and Esad Landžo, also underwent psychiatric examinations for this purpose. Prosecutor v. Erdemović, Sentencingjudgement, No. IT–96–22–T, paras. 5–8 (Nov. 29, 1996), available in the ICTY Web site, supra note 3; Čelebići Camp Judgement, supra note 10, para. 36 (examination of defendant Esad Landžo). Both were found competent, although Erdemović was first found unfit (a decision that was later changed). Also, in another ICTY proceeding, mental health professionals offered testimony concerning the mental condition of a key prosecution witness. See Prosecutor v. Furundžija, Judgement, No. IT–95–17/1–T, paras. 98–99, 103–04 (Dec. 10, 1998), available in the ICTY Web site, supra note 3. The defense unsuccessfully sought to establish that the witness’s post-traumatic stress disorder diminished her credibility. See id., paras. 108–09.

18 Unless otherwise stated, this discussion will focus on the ICTY, and not the ICTR; to this author’s knowledge, the latter has not yet construed Rule 67(A)(ii)(b) of its RPE. For a detailed report on the ICTY’s overall jurisprudence, including extensive bibliography, see Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AJIL 57 (1999). A valuable source of documentation and commentary is Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis, (1995) [hereinafter Morris & Scharf, An Insider’s Guide to the ICTR].

19 Report of the Secretary-General, supra note 8. The ICTY was established pursuant to UN Security Council Resolution 827 of May 25, 1993. SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, UN Doc. S/INF/49 (1993).

20 Report of the Secretary-General, supra note 8, para. 58. The Security Council adopted the Secretary-General’s draft statute without change and without comment on the “mental incapacity” question. See 1 Morris & Scharf, An Insider’s Guide to the ICTR, supra note 18, at 33.

21 The ICTY adopted the RPE in plenary session on February 11, 1994, pursuant to the Security Council’s delegation of authority in Article 15 (“Rules of procedure and evidence”) of the ICTY Statute. ICTY Statute, supra note 4, Art. 15.

22 See ICTY RPE, supra note 9. This formulation tracks closely a recommendation submitted to the ICTY by the United States in November, 1993. See 1 Morris & Scharf, An Insider’s Guide to the ICTR, supra note 18, at 177; 2 Morris & Scharf, An Insider’s Guide to the ICTR, supra note 18, at 534.

23 Regarding the ICTR’s formulation and adoption of its RPE, pursuant to Art. 14 of the ICTR Statute, see 1 Virginia Morris & Michael P. Scharf, The International Criminal Tribunal for Rwanda 413–18 (1998).

24 ICC Statute, supra note 3, Art. 31(1)(a). This formulation is close to that proposed by Professor Bassiouni in 1987. See Bassiouni, Draft International Criminal Code, supra note 17, at 110. However, one potentially significant change in the wording is that the ICC Statute substitutes “destroys … capacity,” ICC Statute, supra note 3, Art. 31 (1)(a), for “lacking substantial capacity,” see Bassiouni, Draft International CRIMINAL CODE, supra note 17, at 110, thereby perhaps narrowing the availability of the defense.

25 This responsibility was mandated in Resolution F of the Final Act of the 1998 Rome Conference, available in <>. Regarding the ICC RPE (including the amendment thereof), see ICC Statute, supra note 3, Art. 51. See also William A. Schabas, Follow up to Rome: Preparing for Entry Into Force of the International Criminal Court Statute, 20 Hum. Rts. L.J. 157, 160–62 (1999).

26 The following account summarizes that section of the Čelebići Camp Judgement, supra note 10, paras. 1156–86, devoted to the mental incapacity question. It is important to note that the Trial Chamber’s treatment was limited to “diminished responsibility” and did not include detailed examination of the “lack of” component of the Rule 67(A)(ii)(b) formulation. See id.

27 Čelebići Camp Judgement, supra note 10, paras. 1173, 1181 (the interviews were conducted approximately six years after the acts in question occurred).

28 Dr. Landy Sparr testified that Landžo merely possessed certain personality “traits” that did not constitute a mental disorder. See Čelebići Camp Judgement, supra note 10, para. 1180. As to the significance of the term “traits,” see infra note 100 and accompanying text.

29 See Čelebići Camp Judgement, supra note 10, paras. 1173–1185. The three court-appointed experts originally were engaged to testify as to Landžo’s fitness to stand trial, and all found that he was fit to do so. Prosecutor v. Delalić (Čelebići Camp), Order That the Accused is Fit to Stand Trial, No. IT–96–21–T (June 23, 1997), available in the ICTY Web site, supra note 3. Landžo later called two of these experts as defense witnesses, along with the psychiatrist whom he had retained.

30 Čelebići Camp Judgement, supra note 10, paras. 78, 1159–60. Specifically, Landžo claimed that this withholding of the definition violated his rights under Articles 20(1), 21(4)(b), and 21(4)(e). See id.

31 This formulation means, the Chamber stated, a “state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.” Čelebići Camp Judgement, supra note 10, para. 1167. The Chamber adopted this construction from the English decision in Regina v. Byrne, 3 All E.R. 1, 4 (Q.B. 1960). In its application of the facts, the Chamber somewhat lackadaisically determined that this prong was satisfied, stating that “it does appear from the testimony of the experts that Mr. Landžo suffered from a personality disorder.” Čekbići Camp Judgement, supra note 10, para. 1186. The Chamber then tacitly concluded that therefore a personality disorder qualified as an “abnormality of mind, but did not specify which of the disorders described by the expert witnesses it found to be dispositive. Id.

32 Čelebići Camp Judgement, supra note 10, paras. 1165–70. The definition is a synthesis of the formulations in Byrne, 3 All E.R. at 4 (“ability to control”), and Section 2(1) of the 1957 English Homicide Act (“substantially impaired”), Homicide Act, 5 & 6 Eliz. 2, ch. 11, § 2(1) (1957). Section 2(1) states:

When a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

Id.; see also R.D. Mackay, Mental Condition Defences in the Criminal Law 180 (1995). For background on the 1957 Homicide Act, see infra notes 83 and 87 and accompanying text.

33 Landžo has filed an appeal with the ICTY’s Appeals Chamber.

34 See discussion infra notes 79, 85, and 98–100 and accompanying text.

35 Whether the textual differences in these respective definitions will be significant must await further construction and application by the courts. For expression of general concern for the unity of international law amid the proliferation of international judicial institutions, see Gilbert Guillaume, The Future of International Judicial Institutions, 44 Int’l & Comp. L.Q. 848, 849, 861–62 (1995).

36 On the relationship between judges and experts generally, and on the challenges that specialists’ complex scientific testimony poses for both professional judges and lay fact-finders, see Mirjan R. Damaska, Evidence Law Adrift 33 n.16, 143–52 (1997).

37 To avoid confusion stemming from varying uses of the terms “expert” and “expert witness” in common law and Continental civil law systems, I will employ the term “expert” throughout this discussion. See David Kinley & Alan Rose, The Quest for the Truth: A Comparative Analysis of the Role of Experts in Litigation, 31 Australian J. Forensic Sci. 5, 8 (1999); Barbara Huber, Criminal Procedure in Germany, in Comparative Criminal Procedure 96, 149 (John Hatchard et al., eds., 1996).

38 The Trial Chamber in Čelebići Camp endorsed the value of expert testimony, stating that its two-part test of diminished responsibility could be satisfied only by “medical evidence” provided by medical experts. Čelebići Camp Judgement, supra note 10, paras. 1166, 1170. Experts can be expected to play a central role not only in the factual inquiry, but also in influencing the prospective shaping of the normative content of the mental incapacity defense, identifying for the courts the clinical classifications that the courts might employ in defining the contours of the “mental condition” element in the mental incapacity defense. For a recent summary of issues in the relationship between law and psychiatry in municipal legal systems, see Alan R. Felthous, Introduction to Mental Illness and Criminal Responsibility, 17 Behav. Sci. & L. 143 (1999).

39 The discussion in this section is limited to the ICTY and ICTR unless otherwise stated. The ICC Preparatory Commission passed its draft RPE, see supra note 25 and accompanying text, on first reading in December, 1999. See Criminal Court’s Preparatory Commission Winds Up Session with General Agreement on Key Texts, UN Press Release L/2939, Dec. 17, 1999, available in <>.

40 See Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 725, 727 (1999); Rod Dixon, Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals, 7 Transnat’l L. & Contemp. Probs. 81 (1997).

41 See ICC Statute, supra note 3, Arts. 67(1)(e), 69(3); ICTY Statute, supra note 4, Art. 21(4)(e); ICTR Statute, supra note 5, Art. 20(4)(e); ICTY and ICTR RPE, supra note 9, Common Rule Art. 85(A) & (B).

42 See ICC Statute, supra note 3, Arts. 64(6)(b) & (d), 69(3). Common Rule 98 (Power of Chambers to Order Production of Additional Evidence) of the ICTY and ICTR RPE states in full: “A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance.” See ICTY and ICTR RPE, supra note 9.

43 ICTY RPE, supra note 9. Rule 74b is was added to the ICTY RPE as part of Revision 13 on July 9–10, 1998. The wording of Rule 74bis of the ICTR RPE, as it appeared at the ICTR Web site, supra note 9, on Dec. 31, 1999, is slightly different, but not in a material way. Rule 74bis was added to the ICTR RPE on June 8, 1998, as part of Revision 5. Id.

44 The draft RPE of the ICC, considered by the Preparatory Commission during its second session from July 26, 1999, to August 13, 1999, contain a similar provision (Rule 6.13: Medical Examination of the Accused), available in <>. Proposed Rule 6.13 is very similar in substance to Common Rule 74bis. See ICTY RPE, supra note 9. It was apparently part of the draft RPE package approved by the Preparatory Commission on first reading at its meeting in December, 1999. See supra note 39.

45 This occurred in the Čelebići Camp proceeding. See supra notes 27–29 and accompanying text.

46 ICC Statute, Art. 69 (4); ICTY and ICTR RPE, Common Rule 89(C). In a number of common law jurisdictions that employ the lay jury as trier of fact, much controversy over the mental incapacity defense centers on the nature and extent of limits on admissibility. See Ralph Slovenko, Psychiatry and Criminal Culpability 61 (1995). However, in international prosecution, judges are the triers of fact; there are not any lay jurors. See ICC Statute, supra note 3, Art. 36(3)(a); ICTY Statute, supra note 4, Art. 13(1); ICTR Statute, supra note 5, Art. 12(1).

47 See discussion supra notes 24, 31–32, and 35 and accompanying text.

48 A recurring debate in municipal systems is whether the test of mental incapacity should include the notion that emotion (volition) can render a person incapable of controlling his or her actions even though, as a matter of reason (cognition), he or she knows or appreciates what he or she is doing and the fact that it is wrong. Because volitional impairments include character disorders, their inclusion in the definition expands the range of potentially applicable mental states considerably beyond the psychotic or biological conditions that compromise cognition. See Slovenko, supra note 46, at 6, 20, 27, 41; Mackay, supra note 32, at 181, 185. Psychiatry’s identification and classification of mental disorders, particularly those at times deemed within the notion of volition, is dynamic and in a state of constant flux (see Slovenko, supra note 46, at 63): among those falling within the volitional concept are anxiety disorders, such as post-traumatic stress disorder (PTSD), and personality disorders.

49 The Čelebići Camp Trial Chamber expressly stated that the mental disorder “need not be congenital” to qualify as an “abnormality of mind.” Čelebići Camp Judgement, supra note 10, para. 1168. Also, in concluding that Landžo satisfied the first prong of the test, the Chamber accepted the evidence provided by the experts, none of whom testified that he suffered from a cognitive disorder, but four of whom cited disorders associated with volitional impairments.

50 Much of the trial record for the Čelebići Camp proceeding is not yet available; however, of the available transcripts, 102 pages are devoted to testimony on one day (July 28, 1998) by the defense expert, Dr. Edward Brown Gripon, available in the ICTY web cite, supra note 3 (Transcript 980728ed).

51 See Slovenko, supra note 46, at 61 (specific standards narrow the role of the expert witness).

52 See id. at 64.

53 See N. Sartorius, International Perspectives of Psychiatric Classification, 152 Brit. J. Psychiatry 9–14 (Supp. I 1988).

54 See Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals 66–117 (1996).

55 See ICC Statute, supra note 3, Art. 66; ICTY Statute, supra note 4, Art. 21(3); ICTR Statute, supra note 5, Art. 20(3).

56 ICC Statute, supra note 3, Art. 67 (1)(i).

57 See Kenneth S. Gallant, Individual Human Rights in a New International Organization: The Rome Statute of the International Criminal Court, in 3 International Criminal Law, supra note 7, at 693, 711 (suggesting that the prosecution bears the burden, under a standard of proof of beyond a reasonable doubt); Panel Discussion: Association of American Law Schools Panel on the International Criminal Court, 36 Am. Crim. L. Rev. 223, 253 (1999) (remarks of Christopher L. Blakesley).

58 Čelebići Camp Judgement, supra note 10, paras. 78, 1160, 1172. In municipal legal systems, the English Homicide Act, sec. 2(2), imposes the burden on the accused to prove the elements of the diminished incapacity defense, see Mackay, supra note 32, at 180, and many jurisdictions in the United States place both the burden of production and persuasion on the defendant, see 2 Paul H. Robinson, Criminal Law Defenses 284 (1984 & Supp. 1999).

59 See Gillian M. White, The Use of Experts by International Tribunals 2–14 (1965) [hereinafter White (1965)]. See also Gillian White, The Use of Experts by the International Court, in Fifty Years of the International Court of Justice 528–34 (Vaughan Lowe & Malgosia Fitzmaurice eds., 1996) (including examples from a range of adjudicatory settings at 528–529); Kazazi, supra note 54, at 170–73; Shabtai Rosenne, The World Court and How It Works 130–31 (5th rev. ed. 1995).

60 On the use of experts in the Continental civil law procedural model generally, see Kinley & Rose, supra note 37, at 8–10; Damaska, supra note 36, at 78, 150–51; Robert F. Taylor, A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practice, and Procedure, 31 Texas Int’l L.J. 181 (1996); Richard Vogler, Criminal Procedure in France, in Comparative Criminal Procedure, supra note 37, 14, 76–77; Huber, supra note 37, at 149–51; Neil Netanel Weinstock, Expert Opinion and Reform in Anglo-American, Continental, and Israeli Adjudication, 10 Hastings Int’l & Comp. L. Rev. 9, 37–44 (1986); Horst Schroeder, Problems Faced by the Impartial Expert Witness in Court: The Continental View, 34 Temple L.Q. 378 (1961); Morris Ploscowe, The Expert Witness in Criminal Cases in France, Germany, and Italy, 2 Law & Contemp. Probs. 504 (1935).

61 See White (1965), supra note 59, at 38–39, 64, 81.

62 See John Bell et al., Principles of French Law 229–30 (1998). Italy has taken steps to permit considerable participation by party-appointed experts within the rubric of the Perizia: the psychiatric examination and report performed and presented by the court-appointed expert. The prosecutor and the defense may each name an expert consultant who is permitted to participate with the appointed expert in all expert examinations required by the court, to examine the appointed expert’s official report, and to provide his or her own report to the court. See J. Richard Ciccone & Stefano Ferracuti, Comparative Forensic Psychiatry: II. The Perizia and the Role of the Forensic Psychiatrist in the Italian Legal System, 23 Bull. Am. Acad. Psychiatry & L. 453, 454–57 (1995). For an assessment of the Continental approach in contrast to the adversary system from the point of view of a Dutch professor of forensic psychiatry, see F. H. L. Beyaert, Different Penal Systems and Some Consequences for Forensic Psychiatry, 5 Int’l J. L. & Psychiatry 425 (1982). A critical appraisal of me influence of court-appointed psychiatrists in the People’s Republic of China is found in Cheng Yang, The Insanity Defence in China, 4 Int’l Bull. L. & Mental Health 8, 9–12 (1993). Sweden’s use of court-appointed psychiatrists was assessed by a U.S. attorney in Lloyd K. Moyer, The Mentally Abnormal Offender in Sweden: An Overview and Comparisons With American Law, 22 Am. J. Comp. L. 71, 78–85 (1974).

63 See ICC Statute, supra note 3, Art. 67; ICTY Statute, supra note 4, Art. 21; ICTR Statute, supra note 5, Art. 20.

64 See White (1965), supra note 59, at 11–14.

65 See Bassiouni, The Law of the ICTY, supra note 13, at 606. The only formal reason in the normative structure for a party to designate a witness as an “expert” (as distinct from perceived enhancement of credibility) is that the “experts” are allowed to be present in the courtroom when other witnesses are testifying. See ICTY RPE and ICTR RPE, supra note 9, 90(D). The literature also contains little on the topic of experts in international prosecution. For example, despite their detailed analyses of development in procedure and evidence, the recent article by May & Wierda, supra note 40, and Dixon, supra note 40, do not discuss questions associated with the role of experts.

66 For argument that expert testimony is inherently different from other evidence, see Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1125, 1208; Eric Ilhyung Lee, Expert Evidence in the Republic of Korea and Under the U.S. Federal Rules of Evidence: A Comparative Study, 19 Loy. L.A. Int’l & Comp. L.J. 585, 625 n.239 (1997); White (1965), supra note 59, at 12.

6 For a study of such interaction in a municipal law system (Israel), see Weinstock, supra note 60, at 44–52. According to Weinstock, the attempted “co-existence” of impartial court experts with common law adversarial principles has been the most troublesome area of Israel’s introduction of a judicial power to appoint experts in civil proceedings. Id. at 47.

68 For example, in France, applicants for the list of court-appointed experts are scrutinized by an independent advisory committee that interviews the candidates and make recommendations to a committee of judges, which makes the final decision. See Kinley & Rose, supra note 37, at 9.

69 Rule 39.1 of the Rules of the Inter-American Court of Human Rights applies the standard found in Article 19.1 of the Court’s Statute, which governs disqualification of judges. Article 19.1 states:

Judges may not take part in matters in which, in the opinion of the Court, they or members of their family have a direct interest or in which they have previously taken part as agents, counsel or advocates, or as members of a national or international court or an investigatory committee, or in any other capacity.

Rules of Procedure of the Inter-American Court of Human Rights, available in <>. Rule 67 of the Rules of Court of the European Court of Human Rights, in contrast, states in relevant part: “The Chamber shall decide in the event of any dispute arising from an objection to a witness or expert.” European Court of Human Rights Rules of Court, available in <>.

70 See discussion infra at notes 101–07 and accompanying text.

71 For Rule 98, see supra note 42 and accompanying text.

72 See ICC Statute, supra note 3, Art. 74(2) and (5); ICTY Statute, supra note 4, Art. 23(2); ICTR Statute, supra note 5, Art. 22(2). Art. 74(2) of the ICC Statute states in part: “The Court may base its decision only on evidence submitted and discussed before it at the trial.” ICC Statute, supra note 3, Art. 74(2).

73 In connection with this, see the critical comments in Kazazi, supra note 54, at 173, regarding occasional cases when the Iran-U.S. Claims Tribunal has sought assistance from experts during the deliberation stage in the proceedings without notification to the parties.

74 See discussion in Kinley & Rose, supra note 37; White (1965), supra note 59, at 38–39, 64, 81.

75 Regarding development of the “equality of arms” principle at the ICTY, see May & Wierda, supra note 40, at 733, 739, 757.

76 Common Rule 94bis(A) (“Testimony of Expert Witnesses”) states:

[T]he full statement of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty-one days prior to the date on which the expert is expected to testify.

ICTY RPE and ICTR RPE, supra note 9.

77 For example, the ICTY and ICTR RPE are subject to periodic review and amendment by the plenary bodies of those tribunals. As of this writing, the ICTY RPE have been amended at least 17 times, the most recent being November 30, 1999, and the ICTR, 5 times, the most recent being June 8,1998. In addition, the formulation of draft rules of procedure and evidence is on the agendaof the ICC Preparatory Committee. See supra note 25 and accompanying text.

78 See supra note 24 and accompanying text.

79 It is unclear how, if at all, the Chamber would have made a distinction between the consequences resulting from a finding of “diminished responsibility” and those following from a finding of “lack of responsibility.” The latter, which was not at issue in the case, would presumably provide the basis for a complete defense. See also discussion infra notes 85, 98–100 and accompanying text.

80 See Faye Boland, Anglo-American Insanity Defence Reform:The War Between Law and Medicine 99 (1999).

81 This term will be employed because the variant’s origins are in legal systems of Continental Europe, even though it has been also adopted in numerous non-European states. Examples of the variant are found in the penal codes of France, Art. 122–1[2]) (translated in The French Penal Code of 1994, as amended as of January 1, 1999, at 38 (Edward A. Tomlinson trans., 1999)); Germany, Art. 21 (translated in The Penal Code of the Federal Republic of Germany 56 (Joseph J. Darby trans., 1987)); Italy, Art. 89 (translated in The Italian Penal Code 32–33 (Edward M. Wise trans., 1978)) Japan, Art. 39(b), and the Russian Federation, Art. 22 (translated infra note 82). For translation of Art. 39(b) of the Japanese Penal Code, and examples of its judicial application, see J. Mark Ramseyer & Minoru Nakazato, Japanese Law: An Economic Approach 155–58 (1999). Regarding operation of Art. 122–1 [2] of the 1994 French Penal Code, see Bell et al., supra note 62, at 229–30.

82 The provisions of the recently-enacted Criminal Code of the Russian Federation (1996) are illustrative:

Article 21. Insanity

1. A person who at the time of committing a socially dangerous act was insane, that is, not capable of comprehending the actual nature or social dangerousness of his or her acts (or omissions) or of controlling them due to a chronic or temporary mental disorder, mental deficiency, or other mental condition, shall not be subject to criminal responsibility.

2. The court may impose medical treatment, as set forth in this Code, upon a person who committed a socially dangerous act while insane as contemplated in the criminal law.

Article 22. Criminal responsibility of a person with a mental disorder other than insanity

1. A sane person who at the time of committing a crime was not capable because of a mental disorder to comprehend fully the actual nature and social dangerousness of his or her acts (or omissions), or to control them, shall be subject to criminal responsibility.

2. A mental disorder other than insanity shall be taken into account by the court when it imposes punishment, and may serve as the basis for imposition of medical treatment.

Ugolovnyi kodeks rossiiskoi federatsii [Criminal Code of the Russian Federation], in Sobranie Zakonodatel’stva Rossiiskoi Federatsii, Issue No. 25, Item No. 2954, at 6012–13 (1996) [translated by the author].

83 See §2(1) of the Homicide Act, supra note 32. This discussion is based on Boland, supra note 80, at 98–101; Mackay, supra note 32, at 180, 183–86; K. J. M. Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957, at 329–31 (1998).

84 But cf. discussion infra at note 96 and accompanying text.

85 However, it is difficult to see how the Chamber would have put this into effect, given the structure of crimes and sentencing in international criminal law. See discussion infra notes 94–95 and accompanying text. It is also possible, though doubtful, that the Chamber might have viewed “diminished responsibility” as a basis for mitigating Landzo’s punishment; the Chamber mitigated Landzo’s sentence on the basis of mental condition, see supra note 34 and accompanying text, even though it rejected his diminished responsibility defense, see Čelebići Camp Judgment, supra note 10, para. 1284.

86 Because of Čelebići Camp and the unknown resolution of the ambiguities in Article 31(1)(a) of the ICC Statute, it is evident that the direct influence of the Continental variant on the embryonic international law notion of reduced capacity is more limited. However, it is not evident that the Čelebići Camp Chamber intended to disregard it; instead, it appears that the Chamber misread the Continental statutory authorities it cited in the Judgement, thereby erroneously concluding that there are no relevant or material differences between the English and Continental variants. See Čelebići Camp Judgement, supra note 10, para. 1171 (citing the French, German, and Italian statutory versions of the reduced capacity concept, see supra note 81).

87 Thus, diminished responsibility is not available for crimes other than murder because it is not necessary: other crimes are not subject to mandatory sentencing. Because of the government’s apparent desire to retain the mandatory death penalty for murder (upon parliamentary suspension of the death penalty in 1965 and its indefinite extension in 1969, life imprisonment became the mandatory sentence), Parliament in 1957 borrowed the diminished responsibility mechanism from Scottish law and placed it in the amended Homicide Act. See Boland, supra note 80, at 101, 115–16; Mackay, supra note 32, at 180. It is noteworthy that the 1975 Butler Report, in one of the periodic efforts to reform the English scheme, declared that the diminished responsibility scheme should be discarded if it could be accompanied by abandonment of the mandatory life sentence for murder. See Mackay, supra note 32, at 203.

88 See Bartram S. Brown, The International Criminal Tribunal for the Former Yugoslavia, in 3 International Criminal Law, supra note 7, at 489, 501.

89 Prosecutor v. Erdemović, supra note 6, Joint Separate Opinion of Judge McDonald and Judge Vohrah, paras. 19–25.

90 See Eser, supra note 2, at 252–53; Morris & Scharf, An Insider’s Guide to the ICTR, supra note 18, at 111.

91 ICC Statute, supra note 3, Art. 5(1). See also the limitation of the jurisdiction of the ICTY and ICTR to “serious” violations of international humanitarian law. ICTY Statute, supra note 4, Art. 1; ICTR Statutes, supra note 5, Art. 1.

92 See, e.g., Prosecutor v. Erdemović, supra note 6, Separate and Dissenting Opinion of Judge Li, paras. 18–27. See also Turns, supra note 6, at 469.

93 For example, the ICC Preparatory Commission is charged with drafting the elements of crimes by June 30, 2000. See Resolution F of the Final Act of the 1998 Rome Conference, supra note 25. Meanwhile, identification of the elements of crimes is an ongoing task in the jurisprudence of the ICTY and ICTR.

94 The international court statutes do not have mandatory sentencing provisions. The sentencing provisions in the ICC, ICTY, and ICTR Statutes are very similar. For example, Article 78(1) of the ICC Statute states:

In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.

ICC Statute, supra note 3.

The ICTY and ICTR Statutes (Arts. 24(2) and 23(2), respectively) contain a similar formulation, although they also state that the Tribunals “shall have recourse to the general practice regarding prison sentences in the courts of former Yugoslavia and Rwanda, respectively. ICTY Statute, supra note 4, Art. 24(2); ICTR Statute, supra note 5, Art.23(2). Regarding sentencing by international tribunals, see William A. Schabas, International Sentencing: From Leipzig (1923) to Arusha (1996), in 3 International Criminal Law, supra note 7, at 171–93. In 1996 the ICC Preparatory Committee considered (but ultimately rejected) arguments for very precise sentencing provisions, including minimum and maximum sentences for each infraction, see id. at 177. Regarding sentencing at the ICTY, see id. at 179–82.

95 See supra note 94 and accompanying text.

96 ICC Statute, supra note 3, Art. 31(1)(a); see also supra note 24 and accompanying text; discussion supra note 85 and accompanying text.

97 As stated supra note 94, the ICTY and ICTR Statutes, Arts. 25 and 24, respectively, state that sentences should take into account the “general practice” of the criminal courts in the former Yugoslavia or Rwanda. Therefore, the ad hoc tribunals should attempt to determine whether such general practice is discernible in regard to mental incapacity. However, it is doubtful that the tribunals are bound to follow such practice when it is discernible. See Murphy, supra note 18, at 91; Schabas, supra note 94, at 179–80.

98 See supra note 34 and accompanying text.

99 Čelebići Camp Judgement, supra note 10, para. 1284. The Chamber did not quantify the specific effect of mitigation upon the Landžo’s term of imprisonment.

100 See Čelebići Camp Judgement, supra note 10, para. 1180 (testimony of Dr. Landy Sparr). The manual of the American Psychiatric Association, often cited in the testimony of the expert witnesses in Čelebići Camp, defines “personality traits” as:

prominent aspects of personality that are exhibited in a wide range of important social and personal contexts. Only when personality traits are inflexible and maladaptive and cause either significant functional impairment or subjective distress do they constitute a Personality Disorder.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 770 App. C (4th ed. 1994).

101 In addition, it does not appear that provision has been made for an accused who is determined unfit to stand trial. Despite this, at least two defendants before the ICTY have been examined for purposes of this determination. See supra note 17. Concerns about this matter were raised in the drafting process of the ICC. See ICC Statute: A Documentary History, supra note 14, at 491. Questions of medical disposition are examined in Treatment of Offenders with Mental Disorders (Robert M. Wettstein ed., 1998); Christopher M. Green, Laurence J. Naismith, & Robin D. Menzies, Criminal Responsibility and Mental Disorder in Britain and North America: A Comparative Study, 31 Medicine, Sci. & L. 45 (1991). For a detailed description of the system in one country—the United Kingdom—see James C. Beck, Forensic Psychiatry in Britain, 23 Bull. Am. Acad. Psychiatry & L. 249, at 251–56 (1995).

102 Common Rule 99(A) of the ICTY RPE and ICTR RPE states that the accused shall be released immediately in case of acquittal. ICTY RPE and ICTR RPE, supra note 9.

103 See Slovenko, supra note 46, at 182.

104 See ICC Statute, supra note 3, Art. 106(1); ICTY Statute, supra note 4, Art. 27; ICTR Statute, supra note 5, Art. 26; see also Rules 104 of the ICTY RPE and ICTR RPE, supra note 9.

105 ICC Statute, supra note 3, Art. 85(1).

106 The ICC Statute stresses compliance with human rights standards. See Gallant, supra note 57, at 693–722 (including the possibly relevant consideration of rights of privacy, see id. at 706).

107 UN Press Release GA/8307, Jan. 21, 1992, at 322, available in <> (General Assembly documents); <>. Also, the human rights system under the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221) has developed an extensive body of case law on rights associated with involuntary commitment. For example, a recent European Court of Human Rights decision in this area is Erkalo v. Netherlands, Judgment, No. 89/1997/873/1085 (Sept. 2, 1998), available in the Web site of the European Court <http://www.echr.coe.int> (continued detention, absentjudicial order, of mentally ill person beyond expiration of initial placement order constituted an unlawful deprivation of liberty under Art. 5(1) of the European Convention on Human Rights).

* This comment expands on a paper presented at the annual conference of the International Academy of Law and Mental Health, held in Toronto on June 17, 1999. The author wishes to thank the University of Oklahoma College of Law for a summer research grant that provided support for this project.

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

  • Peter Krug (a1)

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