Defences to Criminal Liability

Document Type

Contribution to Book

Publication Date


Publication Title

The African Court of Justice and Human and Peoples' Rights in Context Development and Challenges

First Page



Modes of Participation, Immunity, Defences, Sentences, Reparations

Last Page



Defences to criminal liability have played a very limited role in the existing jurisprudence of the contemporary international criminal courts and tribunals. In fact, they have been described as ‘an oft-forgotten aspect of international criminal law’. This is likely due in part to the fact that the existing international criminal courts and tribunals prosecute only a small number of potential perpetrators. The selectivity exercised by the prosecutor limits the cases pursued to those individuals who are most responsible and against whom the prosecutors have the strongest case. This likely excludes those cases where there may be a strong defence which would exclude criminal culpability. It has also been suggested that the lack of attention may also be due to ‘a lack of sympathy’ for the accused. However, all criminal trials, including for the gravest international or transnational crimes, must be conducted in full accordance with general principles of criminal law including all accepted grounds for excluding criminal responsibility.



Book edited by Charles C. Jalloh, Florida International University , Kamari M. Clarke, University of California, Los Angeles , Vincent O. Nmehielle, The African Development Bank