The Defence of Mistake of Law in International Criminal Law A Study on Ignorance and Blame

by Coco, Antonio

• ISBN13: 9780192895745
• ISBN10: 0192895745
• Format: Hardcover
• Copyright: 2022-11-04
• Publisher: Oxford University Press

Summary

The adage 'ignorance of the law is no excuse' is significantly inaccurate. Ignorance and mistake of law do, under certain circumstances, exclude responsibility both in national and international criminal law. This monograph updates the existing reviews of law and practice on the topic, aiming to go a step further: it takes the analysis of mistake of law as a starting point for systematic observations about international criminal law in general.

First, the volume defines the contours of the defence of mistake of law in general theory of criminal law, distinguishing it from cognate defences and highlighting, most notably, its connection with superior orders. Secondly, it gives an overview of the possible approaches to the defence, offering examples from national law as terms of reference for the subsequent analysis of international criminal law. Thirdly, it surveys the relevant law and practice of international criminal tribunals, with a focus on the International Criminal Court, and it contemplates offences for which a defence of mistake of law may potentially succeed. Finally, the author tries to interpret what the rules on mistake of law applicable before international criminal tribunals imply about the purpose of punishing individuals and to the legitimacy of such punishment.

Whilst the discourse on international criminal law is more and more concerned with global politics, The Defence of Mistake of Law in International Criminal Law brings back the focus on the appropriateness of imposing a guilty verdict on the individual defendant, a human being constituting the basic unit of each society.

Table of Contents

Introduction
1. Object, Scope, and Aim of the Monograph
2. Importance of this Study in View of Individuals Difficulty to Know and Understand Provisions of International Criminal Law
3. Methodology
4. Challenges and Disclaimers
5. A Few Words of Caution about Terminology
Chapter 1: A General Definition of the Defence of Mistake of Law
1. Meaning and Rationale of a Defence of Mistake of Law
2. The Evolution towards Accepting a Defence of Mistake of Law in National Criminal Law
3. Mistake of Law as an Excuse or as a 'Denial of Mens Rea' Defence?
4. Distinguishing Mistake of Law from Cognate Defensive Arguments
Chapter 2: Mistakes of Law Excluding Criminal Responsibility in Domestic Criminal Law
1. Exonerating Value Attached to the Mistake s Character
2. Exclusion of Responsibility Based on a Special Mental Element Requirement
3. Mistake of Law on the Existence of a Justification
4. Mistakes of Law Based on the 'Estoppel' or 'Reliance' Rationale
5. Lessons from National Cases on International Crimes from the Inter-War and Post-World War II era
6. A Bridge towards International Criminal Law
Chapter 3: Mistake of Law at the International Criminal Court and other International Criminal Tribunals
1. The Context: Mistake of Law at International Criminal Tribunals Other than the International Criminal Court
2. A Short Introduction to Article 32 ICC Statute and a Quick Comparison with Domestic Approaches to Mistake of law
3. The Build-up to Article 32 ICC Statute: Drafting History of the Provision
4. A Ground for Excluding Responsibility: Mistakes Negating Mens Rea
5. Article 33 ICC Statute and Mistakes about the Lawfulness of Superior or Government Orders
6. Mistake of Law beyond Article 32(2) and Article 33 ICC Statute
7. Mistake of Law in Mitigation of Punishment
8. The Burden of Proving the Defendant's Guilt
9. Offences Susceptible to a Mistake of Law within the ICC Statute
10. Taking Stock of the ICC Approach to Mistake of Law
Chapter 4: The Message of Rules on Mistake of Law
1. Punishing Those Who Are Mistaken about the Law: What For?
2. The Significance of the Rules on Mistake of Law for the Legitimacy of Punishment Imposed by International Criminal Tribunals
3. Wrapping Up: On Pragmatism and the Balance between Punishment and Blame
Conclusion