Grounds for excluding criminal responsibility in international criminal law

Studies regarding grounds for excluding criminal responsibility in international criminal law are currently few in French literature. However, many issues remain unresolved, especially because international criminal law highlights the need to balance symbolic and juridical aspects. As a result, one can wonder how grounds for excluding criminal responsibility are taken into account by international criminal jurisdictions and even whether their mere existence in international criminal law is appropriate.

The Rome Statute of the International Criminal Court consecrated grounds to exclude criminal responsibility into the "General principles of criminal law" Part. However, those do not always reflect international criminal case-law. This dichotomy will certainly make it difficult to reconcile the Rome Statute and international criminal tribunals decisions and it will be for the International Criminal Court judges to resolve the issue. It then seems interesting to identify and try to resolve these difficulties in order to make international criminal justice more coherent.

From a substantive point of view, there might be a hierarchy of crimes between crimes against humanity on the one side and war crimes on the other side. Indeed, it seems that the former could never be justified or excused whereas the latter, under certain conditions, could be. The Rome Statute itself implicitly establishes such a hierarchy by reserving some grounds to exclude criminal responsibility, such as military necessity or superior orders, to war crimes only.

From a procedural point of view, the application of grounds to exclude criminal responsibility might prove difficult, especially regarding evidence rules. Indeed, article 67 of the Rome Statute prevents "any reversal of the burden of proof or any onus of rebuttal" on the accused. Such a prohibition seems to be absolute but, regarding grounds to exclude criminal responsibility and based on very few decisions, the burden is traditionally on the accused. It is therefore necessary to study the relationship between the Rome Statute prohibition and the traditional way of understanding grounds to exclude criminal responsibility, both in international criminal law and in national law.

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