Under the Rome Statute (the Statute of the International Criminal Court (ICC)), the grounds for excluding criminal responsibility (defences) are catalogued mainly under Articles 31 and 32. It is a fundamental principle of the Rome Statute that in order to establish criminal responsibility, the Prosecutor must prove three elements, the material element, the mental element and the contextual element. As concerns the mental element, Casten Stahn argues that cotemporary international criminal law recognizes a number of grounds for excluding criminal responsibility, which generally acknowledge that punishment is only justified if the underlying act is unwarranted and the offender is blameworthy. In this paper, it is argued that some of the grounds for excluding criminal responsibility provided in the Rome Statute are classified as grounds for excluding criminal responsibility relating to the mental capacity of the accused person. They are based on the contention that each of them shows that the accused person lacked the ability to act autonomously due to lack of mental capacity. The said grounds are insanity, automatism and other involuntary conduct, epilepsy, sleepwalking, diabetes, intoxication and mistakes that negative mens rea. The definition, the scope, the burden, the conditions for admissibility, the effect for each of the grounds when admitted have been examined. In conclusion, it is submitted that in spite of the importance of these grounds they are not usually invoked before the ICC because of the egregious nature of the crimes and the high profile of the accused persons who are held responsible because of their leadership role (being the brain behind the crimes) rather than for having carried out the material elements of the crimes.
criminal responsibility, mental capability, accused person
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