The Insanity Defence under International Criminal Law

Abstract

The insanity defence was not provided for explicitly by the charter that set up the International Military Tribunal, which formed the basis for the Nuremberg trials, or by legislation underpinning the International Criminal Tribunal for the Former Yugoslavia (ICTY) or Rwanda (ICTR). It was not formally recognized until the Rome Statute of the International Criminal Court which came into force in 2002. However, even under the Rome Statute the threshold criteria are extremely demanding, requiring destruction of the accused person’s capacity to appreciate the unlawfulness or nature of their conduct, or the person’s capacity to control their conduct to conform to the requirements of law. A conse..