ABSTRACT
The concept of ‘defence’ in international criminal law is neither self-evident, nor does it clearly possess an autonomous meaning. Instead, it derives its legal significance as a result of its transplantation from domestic criminal justice systems through the appropriate processes of international law. Nonetheless, its definition, elaboration, evolution or application do not depend on the relevant processes of any single criminal justice system-nor combinations thereof-although these may have persuasive value. This is even more so in the context of a self-contained, highly elaborate and sophisticated legal system, such as the International Criminal Court (ICC), where reliance on domestic rules is the exception-or at least, a judicial act of last resort-rather than the norm.1 Despite these observations, however, the fact remains that the underlying theoretical underpinnings of the concept of ‘defences’ is premised on well established notions of criminal law, originating from both the common law and the civil law traditions. Despite the elaborate character of the ICC Statute, its drafters have been wise in detecting the inadequacy of the fledgling international criminal justice system, thus necessitating recourse to national legal concepts and constructs. This is well evident as far as defences are concerned.2
