New Clause 3 - Defence against unlawful use of force
International Criminal Court Bill [Lords]
9:55 am
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
I can give the assurance that the hon. and learned Gentleman seeks. We have deliberately not introduced into the Bill the defences available under article 31 of the ICC statute. As the hon. and learned Gentleman has said, we are incorporating domestic law defences under clause 56—an approach adopted in previous legislation such as the Geneva Conventions Act 1957—because existing defences under our own law, which the courts use every day, are the best defences for individuals. Of course, under domestic law, defences of self-defence and of duress already exist.
I am sure that the hon. and learned Gentleman's assertion that the defendant must establish the defence of self-defence on the balance of probabilities was a slip of the tongue. If the issue is raised, the onus is on the prosecution to exclude that particular defence. Any move away from such a defence would reduce the protection of individuals.