Self-Defence in the Rome Statute of the International Criminal Court

Abstract

This paper will explore the possibility of defendants before the International Criminal Court (ICC) defending their crimes with the defence of self-defence. It will first look in detail at the elements of self-defence in the Rome Statute of the International Criminal Court (Rome Statute). It will then look at the elements of each of the four crimes under the Rome Statute, and compare these elements with the elements of self-defence to see whether they can exist simultaneously. It will only be necessary for a defendant to claim self-defence if the elements of a crime under the Rome Statute are first established. Self-defence is a justification, which means it acts to justify the actor’s behaviour in the circumstances rather than excuse the actor for lack of the appropriate mental element. The actor commits a crime, but does so in self-defence. By exploring whether the elements of the crimes and the element of self-defence can coexist, it can be seen whether it is legally possible for a defendant to establish self-defence before the ICC. This is an interesting question because self-defence seems to be out of place in the Rome Statute. The Rome Statute covers the “most serious crimes of concern to the international community as a whole”. It will surely be a very unusual situation where such a crime can be committed in self-defence.