Mental disease or defect in International Criminal Law – Excluding Criminal Responsibility

• In Event: Criminal Courts in International Perspective

Abstract

Mental illnesses and legal sanity are among the topics that may reveal aspects of legal fairness of codifications in criminal law. Nevertheless, this issue is rarely discussed in International Criminal Law.
In Art. 31 (1) (a) ICC-Statute the requirement of legal sanity is codified. This shows that the principle of legal sanity is recognized in International Criminal Law. However, the practice and normative conceptualization of mental incapacity in the ICC-Statute have their deficiencies. On one hand the legal basis is not solid enough to be used in a satisfying way. On the other there are strong presumptions that the current practice regarding the insanity of accused persons in international processes are inconsistent with the current legal foundations.
These weaknesses are not unique for the ICC-Statute and practice at the ICC. Other tribunals appear to have similar deficiencies.
Examining current regulations concerning mental illnesses in International Criminal Law and analysing empirical data regarding the implementations and applications of these regulations, shortcomings of the legal practice and current law are identified.
The data for these empirical analyses are based on a complete collection of all decisions made by the ICC, the IMT, the Ad Hoc tribunals and the SCSL.

Author

• Lea Babucke, Universität Hamburg