Concluding Remarks

Abstract

Mistake of law may excuse the perpetrator of an international crime. The provision in the ICC Statute, nevertheless, does not provide for this excuse. Based on the common law approach towards mistake of law, Article 32 is limited to a failure-of-proof defence. Only when the mistake negates the required intent will the defendant be exculpated. In truth, however, mistake of law does not concern the issue of intent; mistake of law concerns the culpability of the defendant. The result of the current codification is twofold. First, some mistakes, namely mistakes as to the prohibition as such and mistakes about justifications, are unduly not covered by the Statute. Second, under the current codification there is no room for differentiation according to the culpability of the defendant in making the mistake.