國際刑事裁判所 규정상의 抗辯

International criminal law (at least at the present phase of its development) does not comprise any offence entailing strict liability. That is to say, all recognized international offences - whether they exist under customary or conventional international law - have two cumulative constituent elements: a criminal act (Actus reus) and a criminal consciousness (mens rea). In some treaties, the indispensability of mens rea as an essential component of any international offence is stated in explicit terms. It follows from the present commentary that the accused in international penal proceedings can benefit from a limited number of legitimate defences based on lack of niens rea (duress, mistake and insanity). The availability of each of these defences depends on the occurrence of special circumstances, and often the precise scope of application (pre-eminently in the sphere of duress) is quite controversial. Core defences can be encrusted with pleas that do not provide the accused with any independent shield, yet - when appropriate - may call criminal responsibility into question in light of a core defence. This is the position where obedience to superior orders is concerned:the real issue is duress or mistake (namely, lack of mens rea). Attempts to broaden the gamut of legitimate defences have not been crowned with success. In particular, claims of obedience to national law and attribution of criminal acts to the state have been clearly stigmatized as fictitious defences. In many instances, when an accused fails to elude criminal conviction altogether, he may still benefit from mitigation of punishment. Nevertheless, such mitigation cannot be taken for granted: it is a matter of discretion depending on the nature of the offence as well as the actual conduct of the accused.