International Law and the Challenge of Affirmative Defenses

Charles Anthony Smith University of California –Irvine

casmith@uci.edu

Adam Shniderman University of California –Irvine

Abstract: The International Criminal Court has institutionalized the concept of individual responsibility for gross human rights violations. The jurisprudence of international criminal law has developed along with the institution. An emerging dimension of international criminal procedure is the role of affirmative defenses in the mitigation or avoidance of responsibility. Of the variety of affirmative defenses, the diminution of legal culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. We demonstrate that international criminal procedure will either accept neuroscience-based affirmative defenses, to the detriment of victim classes, or reject these types of defenses to the detriment of the rights of the accused.

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Introduction and Overview: the challenge of affirmative defenses

From the earliest show trials to the institutionalization of a permanent structure through the

International Criminal Court (ICC), international criminal law has developed along a trajectory

that aims to hold individuals accountable for bad acts committed through the apparatus of state

or under color of state and quasi-state authority (Smith 2012). The ICC is one facet of the

emergent legal regime that shapes the jurisprudence of individual accountability for gross

violations of human rights by those who have access to state resources. Although the ICC

represents a hallmark of maturation for the international criminal legal regime, the international

jurisprudence lags behind the municipal legal regimes of the states that constitute the

international system. Here, we are concerned with the development of affirmative defenses and

in particular affirmative defenses that are based on recent developments in neuroscience.

Generally, the now mature jurisprudence of affirmative defenses requires the defense in

question to be established by the defendant by a preponderance of the evidence. Often these

affirmative defenses encompass some bar to culpability grounded in some challenge to the mens

rea dimension of criminal liability (see, e.g. Osenbaugh 1976). For example, intoxication,

coercion, and duress are affirmative defenses (see United States Model Penal Code 3.01). Some

affirmative defenses, such as the demonstration of an alibi or a claim of self-defense, present

alternatives to the prosecution’s version of events. For our purposes, we are most interested in

affirmative defenses that rely on some neurological-based claim of diminished capacity which

undermines the assertion by the prosecution of criminal responsibility. While the municipal

systems have faced and, at least arguably, managed to accommodate the advance of the scientific

understanding of the brain, the international system has only now begun to be challenged by and

maneuver through the issue of neuroscience based affirmative defenses.

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Conceptually, the ICC provides an institutionalized venue for the resolution of claims of

egregious behavior both by individuals acting through states and quasi-states. The ICC also

serves as an avenue of administrative grievance resolution by individual members of some

specified classes of victims. The ICC is an embodiment of the development of a jurisprudence of

criminal liability for gross human rights violations through a global diffusion of norms and

processes. Because the ICC is still a portrait in the process of becoming, the emergent issue of

neuroscience based affirmative defenses and the difficult decisions that accompany the

consideration of these types of defenses should be vetted now rather than after an idiosyncratic

jurisprudence has set. The fundamental problem in this context is that, if neuroscience is allowed

into the ICC as a foundation upon which affirmative defenses can be constructed, perhaps the

worst violators of human rights may face reparative rather than punitive consequences for the

most egregious actions. That is, to the extent a defendant can demonstrate sociopathic or

neurological defects that diminish criminal responsibility, that defendant may face a punishment

that is less severe or punitive. Alternatively, if neuroscience is not allowed into the ICC as a

foundation upon which affirmative defenses can be constructed, then the jurisprudence of justice

at the international level will be institutionally frozen in time or otherwise constrained with

respect to this area. In essence, a prohibition on this sort of affirmative defense means over time

the municipal structures and the legal structures will diverge, perhaps dramatically, so that the

international system will provide a lesser capacity for a full defense than the municipal systems.

Accordingly, the international criminal legal system is at an unfortunate cross-road. On one

hand, neuroscience based affirmative defenses might allow the most brutal criminals to escape or

diminish the punishments. On the other hand, categorical exclusion of neuroscience based

affirmative defenses means the international system will provide a diminished defense structure

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compared to the municipal systems. The concept of justice may suffer regardless of which

unpleasant alternative is chosen.

The Development of the Jurisprudence of the ICC

The adoption of the Rome Statute, which established the ICC, was constructed through a

lengthy and wide ranging negotiation among multiple stake holders. Negotiating participants

included 33 inter-governmental coalitions, 236 non-governmental organizations, and 160 states

(Rome Statute 1998). The Court was formed through an accommodation of the values and

interests of those individuals, states, and non-states that shared a common desire of promoting

the global rules and norms embodied in the design and structure of the ICC (Roach 2009, p.7).

The architects of the ICC overcame a multitude of challenges such as the harmonization

of prosecutorial regimes across states and the mediation of variant claims regarding the

parameters and dictates of justice. The difficulty in conforming the institution to meet the needs

and expectations grounded in the wide range of municipal systems was made even more complex

because the mere existence of the Court was a conceptual challenge to the sovereignty of the

constituent states. The ICC had to be constructed in order to accomplish the goals without

undermining the states that created it (Smith 2012, p. 185). In addition to the challenges of

cross-state harmonization of norms, the ICC also sought to construct a process for the

implementation of transnational law in order to govern cross-border and solely municipal

activities. The fundamental rivalry between an international court and the premise of state

sovereignty in concert with the challenge to a regional privilege claimed by the powerful states

might have doomed the effort from the outset. The advocates of the ICC perhaps prevailed in

part owing to an enhanced international embrace of a diffuse jurisprudence about criminal

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culpability for gross violations of human rights during conflict or war. That is, because municipal

legal structures had begun to embrace the diffusion of legal norms on these issues, the premise of

a global structure was perhaps less objectionable.

Much of the literature about the ICC posits that it is designed to serve the needs of the

most powerful states and enforce the constraints against gross violations of human rights only

against the weakest states or actors with little power in the international sphere (Smith and Smith

2006, Smith and Smith 2009, Roach 2009), the existence of the ICC marks a serious

development in the jurisprudence of the protection of human rights (Smith 2012). This evolving

jurisprudence has widespread global implications and has, perhaps, contributed to stability and

peace in a variety of venues (Kaminski and Nalepa 2006; Rotberg and Thompson 2002; Waldorf

2006; Kirsch and Holmes 1999). While the efficiency of the Court, and initially even its creation,

has led to some controversy, (Goldsmith 2003, Sadat-Wexler 1999; Schabas 2004; Scharf 2001;

Scharf 2004; Scheffer 1999a; Scheffer 1999b; Scheffer 2001), the global jurisprudence of an

expectation of real responsibility for gross violations of human rights has taken hold (Smith

2012). Realistically, the ICC is unlikely to take jurisdiction over the agents of the most powerful

states because various institutional elements act as virtually complete bars to any such

jurisdiction. In particular, Article 17 of the Rome Statute constrains the Court through

complementarity. That is, the ICC complements but generally cannot rival municipal court

jurisdiction. In short, the Court administers international criminal law for narrow purposes in

constrained circumstances. That is, the ICC is designed to be responsive to specific

circumstances and cannot directly promote global justice in a broad or comprehensive way

(Franceschet 2004). Some critics of the Court contend these limitations present the primary

drawback to the structure (Sadat-Wexler 1999). The prosecutorial agenda of the ICC is

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constrained by complementarity and under the control of the prosecutor. The Court has

contributed to the evolution of the development of a global human rights regime in a variety of

ways including in the assumption of jurisdiction over individuals from non-signatory states. This

moves well past the Vienna Convention on the Law of Treaties, which includes restrictions on

the mechanisms by which treaties can create obligations for non-parties (Morris 2001). This

pushes the jurisprudence of international criminal law in a dramatic step towards establishing

universal jurisdiction even if that universal jurisdiction is narrow and only vests in insular

circumstances. Subject matter jurisdiction has expanded concurrently with this expansion in the

scope of personal jurisdiction. In particular, the Court acts as a global institutional assessment of

the validity of the scope of state use of violence. Certainly there are severe institutional bounds

to this role of the Court as the judge of appropriate belligerence. Still, that a review of the range

of acceptable political violence exists even in concept is a substantial step in a systematic

protection of human rights. The ICC stands as an institutional representation of an a global norm

that asserts limits to state immunity and enhanced accountability for individuals gross violations

of rights (Wise 1999). Although the ICC is certainly not perfect, even accounting for the

institutional design flaws, it serves as an embodiment of the concept of the rule of law and justice

in the global sphere of jurisprudence. In other words, despite any shortfall in capacity or

mission, the Court promotes enhanced rights recognition and justice, and substantially improves

the jurisprudence of global criminal prosecutions.

From the General to the Specific: from protecting the world to protecting the accused

The Court is instrumentally a vehicle of the evolution of a globalized legal regime for the

prosecution of the egregious behavior. It establishes a framework for development of a

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prosecutorial legal regime even if it also serves as a shield for the most powerful states. Although

the institution has built in limitations, it still provides an near global declaration that some

conduct is simply not acceptable to the international community. The violation of the human

rights of individuals is the foundation of the prosecutorial structure of the Court. This remarkable

development in international jurisprudence reveals progress from a primary concern about the

state sovereignty to a imperative concern about individual sovereignty. The Nuremberg trials

after World War II were primarily about an unlawful war, not particularized violations of the

human rights of individuals. The movement from criminal accountability for acts against states

to criminal accountability for the deprivation of the rights of individuals marks a significant

maturation of the jurisprudence of international criminal law.

The institutionalization of the idea of criminal prosecution for acts that deprive

individuals of rights imports an array of correlative rights. In particular, for our purposes, the

more nuanced rights at issue in new regime of this global criminal jurisprudence include the

rights to both procedural and substantive due process for the accused. The jurisprudence of

substantive due process and procedural due process followed an arc of development that now

presents an expectation of basic fairness (Smith 2012). Minimally, basic fairness, or justice, can

be assessed for a prosecution through a determination of the extent the two predicate aspects of

process, procedural due process and substantive due process, are accommodated in the

prosecution in concert with an assessment of whether the two goals of justice, retribution and

deterrence, guide the process. That is, international criminal jurisprudence establishes that the

predicate aspects of justice are procedural due process and substantive due process delivered for

the purposes of providing retribution and deterrence (Smith 2012). Procedural due process is

concerned with how the prosecutions are conducted while substantive due process is concerned

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the range of crimes and the identities of the defendants. Due process issues encompass whether

the outcome of the trial is predetermined and whether the defendant had the opportunity to

receive a full and fair defense, among other issues. As the jurisprudence of the ICC developed

with broad concerns about what acts could result in prosecution and how the trials would be

conducted, the criminal justice systems of the constituent municipalities were maneuvering

through the challenges presented by the progress of science. We are especially concerned with

the challenges presented by defenses based neurological pathologies.

Twenty-First Century Defenses and Dilemmas

The modern perpetrator trial has made significant progress since the show trials that

dominated early efforts to hold heads of state individually accountable. In contrast to the first

war crimes trials, which were convened for the sole purpose of finding the defendant guilty, the

framers of the modern war crimes tribunals have taken great care to achieve a balance between

respecting the rights of the defendants and addressing the rights and needs of the victims. The

London Charter, which left many of the specific technical rules of procedure up to the trial

judges, included a section titled “Fair Trial for Defendants,” which contemplated a just, fair, and

unobjectionable process. The convening statutes of both the ICTY and the ICC are equally

carefully crafted, providing significant, detailed guidance on the substantive jurisdiction of the

crimes prosecuted and the procedural rules governing the trials, including the rights of the

accused. Unlike the IMT, the Rules of Procedure and Evidence of the ICTY and the ICC provide

detailed technical guidelines for the administration of the proceedings and admissibility of

evidence. With this care in crafting, has come the explicit recognition of psychologically-

oriented affirmative defenses as a legitimate response to criminal charges. Article 31(1)(a) of the

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Rome Statute of the ICC excludes individuals from the class of the criminally responsible if that

person “suffers from a mental disease or defect that destroys that person’s capacity to…control

his or her conduct to conform to the requirements of the law.” At the same time, the role of the

victim in the war crimes trial, and the importance of doing justice to the victim class have grown.

While the prosecution at the IMT relied heavily on the Nazi’s own documentation of their

criminal conduct, through the use of documentary video footage and extensive documents, the

victim witness was notably absent. However, beginning with the Eichmann trial, the role of the

victim in seeking justice has grown. Subsequent trials have had varying degrees of success in

incorporating victims into the process. The ad hoc International Criminal Tribunals for the

Former Yugoslavia and Rwanda have left the victim witness mostly absent, though the victim

witness has played a significant role in the media’s attention to Ratko Mladko trial before the

ICTY, while the International Criminal Court has gone to great effort to assure the victim

witness a place in the trial.

To the extent modern war crimes trials seek to model themselves after ordinary domestic

criminal proceedings, i.e., holding an individual responsible for his or her actions through the

adjudication of guilt followed by punitive sanctions, the presentation of psychological and

neuroscientific evidence to demonstrate lack of culpability leaves the court a “Sophie’s choice”

between the substantive and procedural rights of the accused and the rights and needs of the

victims.

However, because there is no clear legal precedent set at the international level about the

psychological affirmative defenses, important questions remain unanswered. What constitutes

“destruction” of capacity? What types of diseases or defects are sufficient to satisfy the standards

of the defense? The answers to these questions will have significant impact on the ICC as an

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international institution of justice, both in its actual administration and in its global image. If the

court elects to narrowly define the standard for an affirmative defense of “lack of capacity,” the

substantive and procedural fairness of the trial is likely to be significantly undermined. On the

other hand, if the court is credulous in its decision, construing the category of the legally

excludable too broadly rushing to accept the latest scientific findings, hope of doing justice to the

victim class is lost.

Certainly, the ICC could take a limited view of mental disease and defect, construing

many conditions as failing to rise to the level of destruction, or as simply irrelevant to the legal

standards. This has been the traditional approach to the insanity defense at the domestic level.

Under the laws of a variety of nations, particularly the United States, whose legal influence

cannot be underestimated, the psychological conditions that constitute an excuse from criminal

culpability have been fairly narrow and have changed very little in several decades.

Traditionally, only forms of psychosis have qualified as meeting the standards for legal insanity,

with paranoid schizophrenia being the most frequently employed (Knoll & Resnick, 2007).

While in most jurisdictions the ultimate decision about legal insanity is up to the trier of fact,

some jurisdictions in the United States (notably Oregon and California) have gone as far as

statutorily excluding personality disorders from the category of mental diseases or defects. This

narrow definition has kept the frequency and success rate of the insanity defense low, which for

most would be a positive trend to continue for an entity tasked with trying the most heinous

crimes. According to empirical studies, an insanity plea is entered in less than 1% of felony cases

in the United States, and is successful in only about one-quarter of those cases (Valdes, 2005).

However, the current domestic standards in many countries lag behind recent advances in

psychiatry and neuroscience.

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Joshua Greene and Jonathan Cohen contend neuroscience will challenge the status quo of

libertarianism1 that currently underlies the law, shedding greater light on an individual’s ability

to “control his or her conduct to conform to the requirements of the law” (Greene & Cohen 2004,

1776). The changes that Greene and Cohen predicted have begun. In 2010, the Supreme Court of

the United States issued an opinion in Graham v. Florida finding life imprisonment without the

possibility of parole (LWOP) unconstitutional, under the Eighth Amendment, for juveniles

convicted of non-homicide crimes. Justice Kennedy, writing for the Court, cited neuroscientific

evidence offered in several amicus curiae briefs that demonstrated that juvenile brains are

significantly different from adult brains in such a manner as to affect behavior (Graham v.

Florida, 560 U.S. ____, slip op. at 17). Admittedly, this decision has a fairly narrow scope.

Juvenile offenders will continue to be held responsible for their crimes. Their punishment will

simply be more limited, allowing for the possibility of one day returning to society. However,

Greene and Cohen contend that new neuroscientific discoveries will soon radically change our

intuitive sense of justice (our collective morality) (Greene & Cohen, 2004). For them, culpability

will be understood differently from the current assumptions of minimal rationality. To maintain

legitimacy and do justice to the accused, it would seem the court would be advised to construct

the affirmative defense broadly, allowing excuse for personality disorders and other

psychological disorders/defects that have a neurological component that have historically been

ignored.

A rigid, narrow construction of the class of the legally non-responsible, excluding

conditions shown to have significant neurologic components/impairments, might suggest to

1 Here the term libertarianism is not used in the political philosophical sense. Instead, the term libertarianism in the metaphysical philosophical sense describes an incompatibilist view that human beings are agents with free will. Therefore, determinism is false. Greene and Cohen assert that although the current legal doctrine is officially compatibilist, meaning determinism can be true and people can be agents with free will, the law is ultimately grounded in institutions that are philosophically libertarian.

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academic observers that these trials have not moved as far from the early show trials as scholars

would like to believe. If the court denies defendants the right to present a potentially exculpating

defense, and perhaps the only viable defense available in some instances, because of a value

judgment about the legitimacy of a psychological condition or the desert associated with that

condition, the courts would be undermining what the framers of international criminal tribunals

have worked hard to do: establish fair and legitimate trials for those accused of even the most

heinous crimes. The court runs the risk of convening a trial with only the façade of fairness,

which seeks only to convict a defendant without true consideration for the totality of the

circumstances. For many of these defendants, as with many of the defendants who employ an

insanity defense in domestic criminal trials, the affirmative defense based on neuro or

psychological science would be the only defense. Refusing to allow a class of disorders under

Article 31 seems particularly problematic. A verdict of “not guilty by reason of mental disease or

defect” or “not guilty by reason of insanity” (NGRI), while the insanity defense is an “excuse”

from criminal culpability, does not allow a defendant to walk out the door of the courtroom a

free person. An individual found NGRI is typically committed to a forensic psychiatric

institution, which has been empirically shown, in Europe, to lead to longer confinement than had

an individual been held fully responsible and sent to prison (Sparr, 2009). However, it is

reasonable to suggest that there is something gained from a guilty verdict, beyond isolation of the

offender.2

2 This paper does not endeavor to discuss the philosophical/theoretical justifications for a war crimes trial. However, particularly in the context of the war crimes trial, scholars find that facets of the trial process beyond adjudication of guilt carry significant value. Lawrence Douglas notes the didactic value of the war crimes trial. For Douglas, the trial process creates a forum for openly discussing atrocity and creating a historical record of the events, though he concedes these events are filtered through a legal lens that restricts discussion to what is relevant to the specific trial. See e.g., Douglas, 2006. Other scholars who advocate for the expressive value of a trial focus specifically on the value of a conviction. For these individuals, convicting and punishing the defendant represents a sign of solidarity with the victim class, recognizing the wrongs perpetrated against them and reaffirming the value of their experiences. See e.g., Wringe, 2006.

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If the court accepts the logic of science and excuses a broad range of disordered

offenders, several problems arise. First, hope of doing justice for the victim and the global

community may be completely lost. Second, and particularly relevant to individuals who use the

mechanisms of state to engage in criminal conduct, those most responsible for mass atrocity may

be held least responsible. The global community has come to expect individuals be held to

account for their crimes to do “justice” to the victims and to society. Admittedly, some contest

the justice done under the retributivist model, claiming any justice for the victim is a mere by-

product of punishing the offender, rather than a focus of the trial (Blumenson, 2006, 836).

However, for most, the act of trying an individual and finding that individual guilty carries, at a

minimum, great symbolic significance. The act of convicting and punishing an offender

communicates messages about power, authority, legitimacy, and normality (Drumbl, 2007, ).

Perhaps most importantly, conviction and punishment demonstrates society’s disapproval for

particular behavior and reinvigorates society’s faith in the law (Ibid.). Holding the offender

responsible tells the world how the victims were wronged and how society is willing to hold

high-ranking individuals accountable for their conduct. Thus, while the act and severity of

punishment has significance, conviction and assignation of blame is at least equally important to

do justice. Seemingly, even if the ICC chose to interpret Article 31 as affording the court the

ability to find a defendant “Guilty but Insane,” a verdict that has replaced the traditional insanity

defense in several jurisdictions in the United States, that verdict loses some of the power to do

justice that a guilty verdict carries. While this verdict carries penal sanctions, often incarceration

in a psychiatric hospital with the burden on the convicted to demonstrate he/she is no longer a

threat to society, recognizing a mental condition as contributing to the criminal act dislocates

responsibility, placing at least partial blame on the individual’s “sickness.” Additionally, if the

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court accepts that an individual is not responsible by virtue of an array of psychological

disorders, particularly in light of the neurological components being discovered, those who are

most responsible for orchestrating mass atrocity would be least legally responsible.

Psychological/neurological affirmative defenses present a challenge for assigning

responsibility that neither duress nor superior orders poses. While unlikely to ever be successful,

a defense of duress or superior orders leaves the prosecution the opportunity to follow the “chain

of command” to hold those higher-ranking individuals responsible. That is to say, if a low-level

corporal who was engaged in the massacre of 1,000 individuals claims his family was threatened

or that he was simply following the orders of his superior is found to be not responsible for his

actions, the court can and likely will have already charged the corporal’s superior. Letting the

low level offender escape culpability does not foreclose the possibility of holding the higher-

ranking individual responsible, and arguably forces the court to assign blame to those who were

most responsible for the orchestration of mass atrocity. However, psychological defenses present

a radically different picture. If we accept Christopher Browning’s assertions in his work

Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, the “men on the

ground” carrying out the acts of atrocity are likely not to be “monsters” or “demons,” but

individuals carrying out duties because of peer pressure and obedience to authority. Thus, these

individuals are less likely to offer a psychological defense to their crimes. In connection with

Miale and Selzer’s studies on the personalities of Saddam Hussein, Kim Jon-Il, and Adolf Hitler,

which claim that these three heads of state, and those who rise to power under dictatorial

regimes, all likely suffer(ed) from significant personality disorders, psychological defenses prove

dangerous to the court’s mission to hold individuals responsible. If high-level officials are not

responsible by virtue of their psychological conditions, those most responsible are let go, while

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those committing the micro-level acts are the only individuals held responsible. Thus, allowing

for affirmative defenses undermines our ability to hold the appropriate individuals responsible.

A Case Study in Psychological Defenses: The Landzo Trial

The possibility that a defendant would employ a psychologically based affirmative

defense at a war crimes trial has loomed large since World War II. At the International Military

Tribunal (IMT), three defendants considered entering insanity pleas. However, all of these

defendants abandoned their plans by the time trial commenced. The first, and at the time of this

writing, only case of a defendant proceeding to trial with a psychological affirmative defense

before an international criminal tribunal occurred at the International Criminal Tribunal for the

former Yugoslavia (ICTY). The trial and subsequent appeals provide a unique pedagogical

moment, demonstrating the confusion that can ensue from inadequate preparation in considering

affirmative defenses before an international tribunal.

Esad Landzo, who was purported to be a guard at the detention facility in Celebici

between May and December 1992, was indicted and detained at the ICTY in 1996. Landzo was

charged with 24 counts of criminal conduct, including multiple counts of murder, torture, and

rape. Questions about Landzo’s psychological state began before the trial commenced. In

December 1996, the prosecution made an oral request that the court determine whether Landzo

was fit to stand trial (Sparr, 63). After renewing its request in writing, Landzo was evaluated by

three court-appointed European psychiatrists (Sparr, 63). Based on the psychiatrists’ findings, the

court found Landzo fit to stand trial in June 1997.

Landzo’s defense counsel requested the court-appointed psychiatrists further comment on

the existence of diminished or lack of mental responsibility (Sparr, 63). Based on initial findings,

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defense counsel decided to explore a diminished responsibility plea under Rule 67 (A)(ii) of the

ICTY rules of evidence and procedure. Rule 67 states “As early as reasonably practicable the and

in any event prior to the commencement of the trial […] the defense shall notify the Prosecutor

of its intent to offer: […](b) any special defense, including that of diminished or lack of mental

responsibility; in which case the notification shall specify the names and addresses of witnesses

and any other evidence upon which the accused intends to rely to establish the special defense.”

As the decision of the trial chamber notes, diminished or lack of capacity should be distinguished

from legal insanity (Decision of the Trial Chamber, ¶ 1156). As in the instant case, a plea of

diminished responsibility concedes that the accused recognized the wrongful nature of his/her

acts. However, because of an abnormality of the mind, the accused was unable to control his/her

actions. In contrast, the insanity defense is premised on the defendant’s inability to form a

rational judgment about whether his/her actions were right or wrong. This distinction will be

important, as future defenses grounded in neuroscientific evidence are likely to take the form of

diminished or lack of capacity, rather than insanity.

In the Landzo case, trouble began early with the lack of clarity in Rule 67. The rule is

broad and provided neither the precise definition/standards of a diminished responsibility or

diminished capacity defense, nor who bore the burden of proof. Additionally, the statute is

unclear whether the defense constitutes a complete defense or simply provides for mitigation.

The ambiguity led the defense to file for clarification of the definition and parameters of the

defense (. The trial chamber ruled that in the case of the affirmative plea of diminished or lack of

capacity, like in most domestic jurisdictions, the burden lay on the defense to prove its claim on

the balance of probabilities (citation). The court’s final judgment suggests that the ‘balance of

probabilities,’ could best be understood as similar to the American standard used in civil cases,

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“by a preponderance of evidence.” However, the court reserved judgment of the precise

definition of what constituted such a defense and to what extent such a defense excuses an

individual from committing a crime for its final judgment. The court’s resistance to providing a

specific definition left the defense counsel claiming that the defendant had been prejudiced under

Articles 20(1), 21(b) and 21 (e) of the Statute (Decision of the Trial Chamber, ¶ 1159), all of

which provide for respecting the rights of the accused, leaving the defendant fertile ground for an

appeal.

Perhaps because of the ambiguity of the standard of proof, the defense might be aptly

characterized as “throwing spaghetti at a wall and seeing what sticks.” Based on initial findings

that concluded the defendant suffered from post-traumatic stress disorder (PTSD), which the

defense contended made him unable to act of his own volition, defense counsel formally entered

its plea (citation). In total, five psychiatrists extensively examined the defendant and

subsequently testified at trial. Landzo’s defense team called Doctors A.M.H. Van Leeuwen,

Marco Laggazi and Edward Gripon. The trial chamber also heard testimony, favorable to the

defendant, from appointed psychiatrist Dr. Alfredo Verde. In rebuttal, the prosecution called Dr.

Landy Sparr (Decision of the appeal chamber). The five evaluations of the defendant yielded a

variety of diagnoses. With the exception of the prosecution’s expert, all agreed that Landzo

suffered from personality disorders. However, each of the four came to different conclusions

regarding what, specifically, the defendant suffered from (Sparr).

According to the judgment of the court, Dr. Van Leeuwen was of the opinion that the

defendant suffered from a mixed personality disorder with dependent and schizoid traits. Based

on his diagnosis, Dr. Van Leeuwen concluded that the defendant’s mental disorder could be

described as an abnormality of mind leading to diminished capacity to exercise free will.

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However, he did concede that the defendant knew the difference between right and wrong at the

time he committed the crimes, leaving the possibility that some of his actions were of his own

volition. Dr. Verde came to the conclusion that the defendant suffered from borderline

personality organization, which influenced his ability to control his behavior in his position as a

guard. Thus, Dr. Verde concluded that the defendant was in a state of diminished mental capacity

(citation). Dr. Gripon concluded that Landzo exhibited “schizoid” personality disorder, often

called antisocial personality disorder in the United States (1178). As a result of his personality

disorder, Landzo would have been unable to resist following any orders given to him,

particularly if his personality disorder had been compounded by PTSD. Dr. Lagazzi agreed with

Gripon that Landzo’s free will was restricted with regards to following orders as a result of his

abnormality of the mind (1179). As a result of these widely varied diagnoses, the defense

focused less on the diagnosis in relation to the Diagnostic and Statistical Manual of Mental

Disorders (DSM) or the International Statistical Classification of Diseases and Related Health

Problems (ICD) and emphasized the generally abnormal personality traits of the defendant.

Expressing yet another different opinion, Dr. Landy Sparr testified for the prosecution that

Landzo’s abnormal personality had no pathological origins and was simply representative of

personality traits.

In its judgment, the court found the opinions of the defense psychiatrists unreliable. The

court asserts that the diagnoses were grounded in inconsistent and questionable statements, many

of which Landzo admitted at one point or another during the trial were not true (1182). As such,

the court was not persuaded by the defense of diminished responsibility and found the accused

guilty. At the urging of his defense counsel, the court did take Landzo’s age and mental status

into account in sentencing. In its judgment, the court wrote,

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Nonetheless, there are certain features of Mr. Landzo's case that must be taken into

account in his favour when deciding upon the measure of sentence to be imposed upon

him. First, there is his relative youth - he was only nineteen years of age at the time of

commission of the offences - and his poor family background. Related to these

considerations is his immature and fragile personality at that time, which is undisputed

between the parties and has been testified to by several expert witnesses. While the

special defence of diminished responsibility, raised by the Defence, has been rejected by

the Trial Chamber above, the Trial Chamber may nonetheless take note of the evidence

presented by the numerous mental health experts, which collectively reveals a picture of

Mr. Landzo's personality traits that contributes to our consideration of appropriate

sentence (Prosecutor v. Delalic, Mucic Delic and Landzo, Case No. IT-96-21-T,

Judgment, Int’l Crim Trib. For the Former Yugoslavia Nov. 16, 1998, para. ____)

.

Ultimately the trial proceedings left significant questions unanswered. In its refusal to

specifically define the defense of diminished capacity, the court created no precedent for future

war crimes trials. It remains unclear what type of evidence, what level of abnormality or

impairment, and what class of abnormalities would be required to satisfy the requirements of the

special defense. As a result, the defense appealed the conviction. In 2001, the appeals chamber’s

decision, while providing some clarity in the instant case shed little light on the future of

psychological affirmative defenses before international criminal tribunals.

The appeals chamber found that the trial court did not err in any respect. First, the appeals

chamber held that the court’s refusal to define the special defense in advance did not constitute a

denial of the defendant’s right to a fair trial (Appeals Judgment 577). According to the appeals

19

judgment, the trial chamber was under no obligation to define the special defense prior to

hearing all of the relevant evidence. The appeals chamber did shed light on the issue of whether a

defense of diminished responsibility was simply mitigation or constituted a complete defense to

the charges. According to the appeals judgment, Rule 67(A)(ii)(b) must be interpreted as

referring to diminished responsibility as a matter in mitigation, rather than exculpation. In

avoiding answering fundamental questions about psychological affirmative defenses, we are left

with unanswered questions.

The ICTY appeals chamber dismisses the issues in the Landzo case as no longer relevant

because the framing of the psychological defense at the ICC is radically different (584). Indeed,

the ICC does not refer to diminished capacity. Instead, Article 31(1)(a) of the Rome Statute

excludes individuals from the class of the criminally responsible if that person “suffers from a

mental disease or defect that destroys that person’s capacity to…control his or her conduct to

conform to the requirements of the law.” However, it is not at all obvious what level of

impairment or what types of impairment constitute volitional “destruction.” The inexactitude of

psychological science and neuroscience makes it difficult to create a bright line distinction

between partial impairment and complete “destruction.” Without a clear precedent from the

Landzo case, the framing of the affirmative psychological defense at the ICC remains open to

interpretation and refinement.

Thinking About The Court and The Future

While affirmative defenses before an international criminal tribunal are hardly novel,

psychological and neuroscience based affirmative defenses provide a unique set of challenges to

the International Criminal Court. This subset of affirmative defenses also highlights important

distinctions between war crimes trials and ordinary criminal trials and raises questions about the

20

way academics think about international, or perhaps more appropriately, “supranational”

criminal trials. This paper contends that, unlike duress and superior orders, psychological

defenses create a difficulty in assigning appropriate levels of blame and complicate the delicate

balancing act between the rights of the defendant and the rights, needs, and wants of the victim

and society. While the court is unlikely to accept either duress or superior orders defenses, doing

so would not prove fatal to the mission of the ICC. If the court accepts that immediate (duress) or

distant (superior orders) threat to life or liberty constrained an individual’s ability to freely

choose his actions, thus diminishing culpability, the court can simply follow the chain of

command or find the other individual(s) bearing responsibility. The same cannot be said of

psychological defenses.

The ICTY, in the Landzo case, was the first international court to face the affirmative

defense of diminished or lack of capacity. The court’s statute and rules of procedure provided

little guidance about the scope of the defense and the bar that must be met for success.

Ultimately, the trial and appeals chambers avoided answering important questions, except to

state that Landzo had not mounted a successful defense and to suggest that the language of the

equivalent defense at the ICC foreclosed the issues faced by the Celebici court. Without any

international legal precedent or clear guidance on the defense of lack of capacity, the ICC can

and should choose to define the defense set forth in Article 31(1)(a).

The language of Article 31(1)(a) has imposed an unrealistic expectation on the scientific

community, expecting it be clear what constitutes a “destruction” of capacity. Psychological and

neurological science does not lend itself to such a bright line distinction, and there is likely to be

little consensus among scientific experts about where to draw any legal lines.3 In drawing its own

3 This situation is not unique to psychological affirmative defenses. Rather, there are numerous legal standards related to capacity and psychology that are predicated on bright lines distinctions. Where the psychological

21

distinctions and clarifying the defense, the court faces a difficult decision that will almost

certainly result in failure to achieve one of the goals of international criminal tribunals. As such,

the court may, in keeping with the model of several European nations, choose to recognize a

broad range of diseases and disorders that affect and potentially “destroy” mental capacity. In

doing so, the court arguably would achieve its goal of providing a fair trial (some might argue a

more than fair trial), particularly in light of developments in behavioral science that demonstrate

statistically significant correlations between some neuropathologies and deviant subgroups (see

e.g., Nilsson, 2006; Alia-Klein et al., 2008; Buckholz & Meyer-Lendenberg, 2008; Wahlund &

Kristiansson 2009). However, in broadly construing the defense, the court opens the possibility

of being forced to find a defendant not responsible for mass atrocity by virtue of a psychological

condition, undermining the courts ability to satisfy society and victims and punish offenders

under a retributive theory of punishment.

On the other hand, the ICC could choose to adopt the approach of American courts

(which would be interesting given the United States refusal to ratify the Rome Statute), narrow

approach to the defense suggesting that only schizophrenia and other psychotic disorders

constitute a destruction of mental capacity. This would undoubtedly satisfy victims and society

to a greater extent. But, does this mean that the trials are simply show trials? Are these war

crimes trials not a sort of show trials already?

community exhibits more fluidity in diagnosis, particularly with regard to the DSM and other diagnostic guidelines, the law cannot be so individual oriented. For example, the United States Supreme Court in Roper v. Simmons ruled that minors are ineligible for capital punishment. In part, the Court based its decision on neuroscience that demonstrated that minors’ lack of full cognitive development. This legal distinction, which literally can mean life or death, draws a bright line between 18 and 17 year olds. Is an 18 year old so significantly different from someone a year younger? It is unlikely that science would demonstrate that is the case (in fact we know from neuroscience that the frontal lobe, which played a key role in the Roper decision is not fully developed until age 25). However, the need for standardization, predictability, and expedience prevent the law from venture to evaluating the cognitive functioning of every individual near the age of majority to assess whether he/she should be eligible for execution.

22

Perhaps these trials are “show trials.” Here, we use the term not in the traditional

pejorative sense to suggest these trials represent a mere façade of justice, but in a way that is

meant to capture some practical differences between trials before the ICTs and an ordinary

domestic criminal court that lead to a near certainty of conviction. The determination of guilt

may be a foregone conclusion in a trial before an ICT. However, this near certainty of guilt does

not necessarily stem from a socio-cultural or even procedural bias that undermines the fairness of

the trial process. Instead, the likelihood of guilt may be higher than in a traditional trial because

of the level of investigation and proof required to obtain an indictment. Under ordinary criminal

law, the standard of proof required to bring charges and proceed to trial is fairly low, typically

requiring a showing “probable cause.” Before the International Criminal Court, the process is far

more complex. After an extensive pre-trial investigatory process, the prosecution is required to

bring forth evidence in a pre-trial hearing to confirm charges (Rome Statute, Art. 61). In a

pretrial evidentiary hearing, or at a grand jury, to issue an indictment in an ordinary criminal trial

the prosecution need only demonstrate “probable cause” that a crime was committed, a standard

far lower than the “guilty beyond a reasonable doubt” standard for conviction. In the United

States the standard for indictment is the same as the standard required for a lawful arrest. In

contrast, the Rome Statute has increasing standards of proof as the defendant moves through the

criminal justice process. The Pre-Trial Chamber must determine if “there is sufficient evidence

to establish substantial grounds to believe that the person committed each of the crimes charged”

(Rome Statute, Art. 61 Par. 7). The court clearly intends that this standard fall somewhere

between the standard for arrest or summons to appear outlined in Article 58(1)(a) of the Rome

Statute, which is similar to the “probable cause” standard and the standard for conviction, which

requires a showing of guilt beyond a reasonable doubt (Miraglia, 2008). As such, cases do not

23

proceed to trial unless the prosecution has significant evidence against the defendant, inherently

decreasing the likelihood of an acquittal.

Is it possible that the idealism of international law scholarship has scholars have come to

expect too much of courts faced with the worst offenders in history? There are very real

differences in the scale and nature of the crimes tried before ICTs and ordinary criminal trials.

Continued legitimacy may lie in the recognition that there are limits to the fair judicial process

when individuals have used the mechanisms of state to attempt to eradicate an entire ethnic

group. Ordinary domestic criminal law subjects the guilty to punishment grounded in notions of

rehabilitation, retribution, and deterrence (specific and general) (Packer, 1968). While

reformation and rehabilitation play no part in the extant literature on supranational punishment,

deterrence and retribution play a prominent role in punishment before ICTs (See e.g., Hassan,

1983; Douglas, 2007a). Might retribution be an ideal that society is not prepared to stand by

when science suggests an offender is not deserving of punishment, but treatment? Instead, the

academic and legal communities may reinvigorate discussions of expressivism and lustration as

justification for punishment in war crimes trials (See e.g., Douglas, 2007b; Drumbl, 2007;

Wringe, 2006 for discussions of lustration and expressivism).

As psychological science and neuroscience develop, the court will face difficult

decisions. Whatever the choice the ICC makes in defining its terms in Article 31(1)(a), one side

is sure to be disappointed. However, the trial model is not doomed. With care and consideration

the court can maintain legitimacy in the face of these choices by being honest about the

justification for these trials and for punishment.

24

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