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Offenses and Defenses

This chapter addresses the distinction between offenses and defenses in criminal cases. The Rome Statute draws a clear line between the four crimes subject to the jurisdiction of the Court and the grounds for excluding criminal responsibility in Article 31. The significance of the distinction between these offenses and defenses should not be underestimated. For example, the principle of nullum crimen sine lege, which applies to the former but not the latter, as evidenced by Article 31(3) permits the recognition of new defenses at trial. The four classic defenses of insanity, intoxication, self-defense, and duress spelled out in Article 31 are subject to controversy. Among the major legal systems of the world, there is considerable divergence in approaching these issues. Meanwhile, there are two reasons for the nullum crimen principle. One is to warn defendants of their possible liability. The other is to control the discretion of judges.