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International Criminal Law Defenses Originating From Customary International Law

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Chapter Summary

In the identification process of defenses in international criminal law (ICL), a distinction has to be made between, on the one hand, the evolution of defenses from customary international law-i.e. obedience of superior orders in connection with the concept of command responsibility, as well as duress and immunity of heads of state-and, on the other hand, legal defenses in ICL emerging from the discipline of comparative criminal law. The purpose of this chapter is to catalogue all ICL defenses with sources in customary international law. The implementation of the defense of duress before international tribunals as being a legal, permanent and independent defense is an appropriate accommodation to the complex interrelation with the non-physical element of mens rea. The concept of criminal responsibility of heads of state, as well as the exclusion of the defense of sovereign immunity, evolved more pronouncedly at the outbreak of World War II.

Keywords: command responsibility; customary international law; duress; heads of state; international criminal law (ICL); legal defenses; mens rea; sovereign immunity; superior orders

10.1163/ej.9781571051585.i-334.19
/content/books/10.1163/ej.9781571051585.i-334.19
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