Mistake of legal element, the common law, and article 32 of the rome statute

Journal of International Criminal Justice

Volumn 6, Issue 3, 2008, Pages 419-445

  Heller, Kevin Jon ^a  

^a NONE

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EID: 49449105891     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqn032     Document Type: Article

References (162)

1. F. Dutile and H. Moore, 'Mistake and Impossibility: Arranging a Marriage Between Difficult Partners', 74 North Western University Law Review (1979) 166, at 176.
2. M. Kelman, 'Interpretive Construction in the Substantive Criminal Law', 33 Stanford Law Review (1981) 591, at 631.
3. K.W. Simons, 'Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay', 81 Northwestern Journal of Criminal Law and Criminology (1990) 447, at 458.
4. To be sure, only one ICTY or ICTR case has involved an MLE defence. See Judgment, Delalić and others (IT-96-21-A), Appeals Chamber, 20 February 2001, 3§74. The absence of such defences at the ad hoc tribunals, however, most likely reflects three statutory factors that do not apply to the ICC: (1) the absence of a general provision on mens rea; (2) the absence of a comprehensive list of elements of crimes; (3) the lack of express recognition of mistake as a cognizable defence. Given the combination of those factors with the complexity of mistake doctrine generally, it is not surprising that MLE defences have been so rare at the ad hoc tribunals.
5. A. Eser, 'Mental Elements - Mistake of Fact and Mistake of Law', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. I (Oxford: Oxford University Press, 2002) 889, at 941.
6. Ibid., at 934.
7. Rome Statute, Art. 30.
8. See G. Werle, Principles of International Criminal Law (The Hague: TMC Asser Press 2005) 97.
9. Rome Statute, Art. 8(2)(a)(viii).
10. Werle, supra note 8, at 97-98.
11. Rome Statute, Art. 8(2)(a)(iii).
12. D.K. Piragoff, 'Article 30: Mental Element', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer's Notes, Article by Article (Baden Baden: Nomos, 1999), 529.
13. Ibid., Art. 8(2)(b)(v).
14. E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003), 302.
15. Rome Statute, Art. 8(2)(b)(xxvi).
16. O. Triffterer, 'Article 32', in Triffterer, supra note 12, at 563.
17. See e.g. Rome Statute, Art. 7(1)(e).
18. See e.g. M. Kelt and H. von Hebel, 'General Principles of Criminal Law and the Elements of Crimes', in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, N.Y.: Transnational Publishers, 2001), 29.
19. Ibid., at 16
20. see also Eser, supra note 5, at 917 ('As according to Article 30(3), the object of knowledge must be "circumstances" and "consequences" and as in both cases knowledge is understood as "awareness".').
21. See Simons, supra note 3, at 465.
22. I.H.E. Patient, 'Mistake of Law - A Mistake?', 51 Journal of Criminal Law (1987) 326, at 337.
23. See Simons, supra note 3, at 465.
24. See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, Art. 50(3).
25. Model Penal Code commentaries, 2§.02, at 250 (1985).
26. Eser, supra note 5, at 922 (emphasis added).
27. Triffterer, supra note 16, at 563-564 (noting that, because the imprisonment must be 'in violation of fundamental rules of international law ... [t]he existence of such rules is a prerequisite for the definition of the crime and therefore has to have been known by the perpetrator with the "mental element required".').
28. Ibid., at 564.
29. Werle, supra note 8, at 152 ('A relevant mistake of law is present, for example, if a perpetrator holding a trial of a prisoner of war considers an objectively insufficient hearing of the defendant to be sufficient. In such a case, the perpetrator is not responsible for a war crime.').
30. Eser, supra note 5, at 922.
31. Ibid., at 927.
32. Ibid., at 922 ('This is the case with the war crime of compelling a prisoner of war or other "protected person" to serve in hostile forces. Whereas the "person" is a descriptive element, its character as "protected" cannot be determined without reference to certain protective norms.').
33. van Sliedregt, supra note 14, at 303 ('If the emblem is clearly visible to A but A is ignorant on the rules of distinctive emblems and shoots B, his ignorance of protective criteria might qualify as mistake of law.').
34. T. Weigend, 'The Harmonization of General Principles of Criminal Law', 19 Nouvelles Etudes Penale (2004) 319, at 333 ('Can the commander use his error as a defence against the charge ... even though his mistake pertains to legal issues, namely the existence of property rights? Art. 32 sec. 2 ... suggests an affirmative answer to this question.').
35. Werle, supra note 8, at 54-55.
36. Simons, supra note 3, at 457.
37. See Rome Statute, Art. 21(1).
38. See Eser, supra note 5, at 922.
39. R.S. Clark, 'The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences', 12 Criminal Law Forum (2001) 291, at 330-331 (emphasis added).
40. N. Boister, 'Reflections on the Relationship Between the Duty to Educate in Humanitarian Law and the Absence of a Defence of Mistake of Law in the Rome Statute of the International Criminal Court', in R. Burchill et al. (eds), International Conflict and Security Law (2005), 46.
41. See e.g. K. Ambos, 'General Principles of Criminal Law in the Rome Statute', 10 Criminal Law Forum (1999) 1, at 29.
42. Eser, supra note 5, at 896 n. 331
43. see also van Sliedregt, supra note 14, at 309 ('Anglo-American law bases the defence of mistake of law on mens rea. This demonstrates the common law influence on Article 32.').
44. van Sliedregt, supra note 14, at 312.
45. See e.g. Eser, supra note 5, at 935 (noting that, by 'requiring legal ignorance to nullify a mental element,' Article 32 'disregards growing sensitivity to the principle of culpability, particularly with regard to consciousness of unlawfulness').
46. The earliest incarnation of the rejected version of Art. 32, Art. 9 of the 1987 Draft Code of Crimes Against the Peace and Security of Mankind, was specifically based on the German approach to mistake. See Triffterer, supra note 16, at 558.
47. See e.g. Eser, supra note 5, at 904.
48. See Simons, supra note 3, at 466.
49. R.M. Perkins, 'Ignorance or Mistake of Law Revisited', Utah Law Review (1980) 473, at 476.
50. Perkins cites numerous cases in defence of this position, ibid., at 476-481, including Commonwealth v. Bradford, 50 Mass. 268 (1845) (holding MLE possible for element of 'knowing himself to be a qualified voter'), and
51. Hargrove v. United States, 67 F.2d 820 (5th Cir. 1933) (holding MLE possible for element requiring defendant to knowingly' receive a fee to which he was not entitled).
52. G.L. Williams, Criminal Law: The General Part (2nd edn, Stevens and Sons, 1961), 321. Williams cites numerous cases in defence of this position, id. at 320-41, including Ocean Accident and Guarantee Corp. v. Cole [1932] KB. 100 (holding MLE possible for element requiring defendant to knowingly' issue a false insurance certificate), and
53. Lewis v. People, 99 Colo. 102 (1936) (holding MLE possible for element requiring defendant to 'knowingly' take property of another).
54. Model Penal Code commentaries, 2§.02, at 250 (emphasis added).
55. Simons, supra note 3, at 458, citing People v. Bray, 52 Cal. App. 3d 494, 499 (1975) (holding that because the crime of being a felon in possession of a concealed firearm requires the defendant to know that he is a felon, a mistake concerning felon status is exculpatory even if it is a mistake of criminal law).
56. E.R. Keedy, 'Ignorance and Mistake in the Criminal Law', 22 Harvard Law Review (1908) 75, at 89 ('When a specific criminal intent, as distinguished from the criminal mind, is a requisite element of the offence, and such intent is negatived by ignorance or mistake, it is held that the defendant shall not be convicted, notwithstanding the maxim.'). Keedy notes that courts have allowed MLEs for many different crimes, including, inter alia, larceny, malicious trespass, malicious arson, malicious damage, assault with intent to rob, embezzlement, wilfully removing official seal, perjury, extortion, fraudulent voting, and falsely acting as public officer. See ibid. at 89 n. 1 (collecting cases).
57. J. Dressler, Understanding Criminal Law (Lexis Publishers, 2006), 173 (For short-hand purposes, a mistake-of-law claim of this sort may be termed a different-law mistake, because the claimed mistake relates to a law other than the criminal offence for which the defendant has been charged .... A different-law mistake, whether reasonable or unreasonable, is a defence in the prosecution of a specific-intent offence.'), citing, inter alia, Cheek v. United States, 498 U.S. 192 (1991) (holding MLE possible for element requiring defendant to 'wilfully' fail to file federal income tax).
58. Patient, supra note 21, at 337 ('In conclusion, it is submitted that the term mistake of law" should be strictly limited ... to "ignorance of the law", in the sense of a misapprehension about a rule of law creating a criminal offence. It has no room elsewhere. Apart from ... ignorance of the law, a misapprehension may take the form of ... a mistake as to the definitional elements of an actus reus.'), citing, inter alia, Albert v. Lavin [1981] 1 All E.R. 628 (holding mistake of law possible for 'definitional elements' of a crime, but not for 'defence elements').
59. W. LaFave, Hornbook on Criminal Law (4th edn, 2003), 282 (noting that an MLE excludes criminal responsibility 'where the defendant has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct').
60. Dutile and Moore, supra note 1, at 179 ('The third category in the area of mistake is what could be called the 'mixed fact and law' situation. In this grouping are cases in which the defendant has made a mistake as to a matter having legal implications but ... the mistake does not relate to the statute whose violation is being considered, but rather to some other aspect. Yet the matter is not purely factual either.... The mistake is more like a mistake of fact than like the mistake of law envisioned by the maxim.').
61. J. Kaplan, 'Mistake of Law', in A. Eser and G.P. Fletcher (eds), Justification and Excuse: Comparative Perspectives, vol. 2 (Freiburg: Juris Publishing Co., Inc., 1987) 1125, at 1129 (noting that although a distinction is sometimes made 'between errors of civil law, which are exculpating, and errors of criminal law, which are not,' in fact even an error of criminal law can exculpate if it negates the mens rea required by the criminal statute').
62. Elements, Art. 7, Introduction.
63. Ibid., Art. 8, Introduction. 64 See K. Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003), 134.
64. Ibid., at 151.
65. Ibid., at 383.
66. Ibid., at 81.
67. Ibid., at 183.
68. See Dörmann, supra note 59, at 252.
69. See e.g. Elements, Art. 7(1)(a).
70. See e.g. ibid., Art. 8(2)(a)(i).
71. See e.g. ibid.
72. Clark, supra note 38, at 326. Scholars generally agree with the former position.
73. See e.g. Werle, supra note 8, at 111
74. Eser, supra note 5, at 928-929.
75. See e.g. Kelt and von Hebel, supra note 18, at 72.
76. See e.g. Elements, Art. 8(2)(a)(i).
77. Eser, supra note 5, at 934.
78. Triffterer, supra note 16, at 569.
79. Rome Statute, Art. 9(3).
80. See, e.g. Elements, Art. 7(1)(k) (Element 3).
81. Ibid., Introduction to Art. 8.
82. Ibid., at 330-331 (emphasis added).
83. See Dörmann et al., 'The Context of War Crimes', in Lee, supra note 18, at 118.
84. See Clark, supra note 38, at 331 n. 131 ('Not all potential mistake of law situations have been finessed in this way in the Elements.').
85. See e.g. Babbitt v. Sweet Home Chapter Communities for Great Ore., 515 U.S. 687, 698 (1995).
86. Eser, supra note 5, at 941.
87. Clark, supra note 38, at 321
88. see also Eser, supra note 5, at 903.
89. See Dörmann, supra note 59, at 29.
90. See Eser, supra note 5, at 902
91. Clark, supra note 38, at 322 n. 106.
92. Elements, Art. 8(2)(b)(vii)-1; Art. 8(2)(b)(vii)-2; Art. 8(2)(b)(vii)-4.
93. See e.g. Model Penal Code commentaries, 2§.04, at 271 (noting that an unreasonable mistake does not exclude criminal responsibility 'in the case of mistake regarding an element of the offence as to which negligence is the culpability level').
94. See e.g. Eser, supra note 5, at 933.
95. See e.g. Werle, supra note 8, at 108
96. Kelt and von Hebel, supra note 18, at 29-30
97. cf. A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 176.
98. See e.g. Weigend, supra note 33, at 327
99. see also K. Ambos, Der Allgemeine Teil des Volkerstrafrechts (Berlin: Duncker and Humblot, 2002), 789.
100. See Rome Statute, Art. 6.
101. See ibid., Art. 28(a)(i).
102. See E. Gadirov, 'Article 9', in Triffterer, supra note 12, at 309.
103. Rome Statute, Art. 9(1).
104. Ibid. Art. 9(3).
105. See H. von Hebel, 'The Making of Element of Crimes', in Lee, supra note 18, at 7.
106. Elements, General Introduction, 1§.
107. See Kelt and von Hebel, supra note 18, at 24.
108. Rome Statute, Art. 31(1).
109. See e.g. Werle, supra note 8, at 108.
110. Rome Statute, Art. 31(3).
111. German criminal law speaks of 'intent' (Vorsatz) instead of 'knowledge', but the terms are functionally equivalent. See M.E. Badar, 'Mens Rea - Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals', 5 International Criminal Law Review (2005) 203, 214, n. 56.
112. Werle, supra note 8, at 105-106 (emphasis added).
113. As indicated by the fact that all of the scholars who support the layman's parallel evaluation test believe that at least some MLEs exclude criminal responsibility under Art. 32. See supra notes 24-32.
114. See Clark, supra note 38, at 299-303.
115. Williams, supra note 48, at 321.
116. Model Penal Code commentaries, 2§.02, at 250 (emphasis added).
117. Dutile and Moore, supra note 1, at 179
118. see also Model Penal Code commentaries, 2§.04, at 270 n. 2 (There is no sensible basis for a distinction between mistakes of fact and law in this context, and, indeed, the point is often recognized in the cases by assimilating legal errors on collateral matters to a mistake of fact, or by treating such errors as exceptions to the ignorantia juris concept.').
119. Eser, supra note 5, at 925 n. 166.
120. van Sliedregt, supra note 14, at 303.
121. Ibid. at 312.
122. G. Arzt, 'The Problem of Mistake of Law', Brigham Young University Law Review (1986) 711, at 714-715 (noting that 'standard mistake' in German criminal law 'operates as a defence by excluding intent').
123. Ibid., at 716 ('Under German criminal law, factual mistakes, insofar as they are relevant under the crime charged, always fall into the category of standard mistakes.').
124. See ibid., at 716-717 ('For the most part, normative meaning is to be identified with legal meaning. If the law refers to facts ... these facts gain a normative quality.').
125. Ibid., at 717 ('Full factual knowledge without proper understanding of the normative context can be so empty that it negates mens res.').
126. Ibid.
127. Ibid., at 720
128. see also Badar, supra note 100, at 237 ('[M]istakes about normative elements of the offence which require a legal evaluation (at least as a layman) are treated as mistakes of fact.').
129. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, Art. 72.
130. Werle, supra note 8, at 105-106
131. see also Triffterer, supra note 16, at 563 ('[I]t is enough if he or she is aware of the social meaning of the facts perceived.')
132. Eser, supra note 5, at 924-925 ('[I]t will suffice that the perpetrator is aware of protective norms in the area concerned and the violative impact of his acts.').
133. Cassese, supra note 87, at 256
134. see also Triffterer, supra note 16, at 570.
135. See e.g. Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 February 1997, Art. K, Alternative Text A, UN Doc. A/ AC.249/1997/L.5 (1997)
136. Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, Art. 24[K], Option 1, UN Doc. A/AC.249/1998/ L.13 (1998).
137. Draft Statute for the International Criminal Court and Draft Final Act, Art. 30, Option 1, UN Doc. A/CONF.183/2/Add.1 (1998).
138. Clark, supra note 38, at 309.
139. See e.g. van Sliedregt, supra note 14, at 305.
140. Ibid.
141. see also Triffterer, supra note 16, at 570.
142. R. Perkins and R. Boyce, Cases and Materials on Criminal Law and Procedure (3rd edn, Foundation Press, 1982), 1036.
143. Model Penal Code commentaries, 2§.02, at 271.
144. Perkins and Boyce, supra note 124, at 1035.
145. See, e.g. Werle, supra note 8, at 100.
146. Rome Statute, Art. 32(2).
147. Eser, supra note 5, at 941
148. see also Triffterer, supra note 16, at 570.
149. Werle, supra note 8, at 151 n. 347
150. see also Clark, supra note 38, at 312.
151. See e.g. Perkins and Boyce, supra note 124, at 1035.
152. Peleus Case, UN War Crimes Commission, Law Reports of Trials of War Criminals (1945) I, 249.
153. van Sliedregt, supra note 14, at 305.
154. See e.g. Delalić, supra note 4, §§373-386 (rejecting MLE claim on the ground that defendant did not honestly believe civilians were being lawfully confined).
155. Ibid., at 945.
156. D. Robinson, 'The Context of Crimes Against Humanity', in Lee, supra note 18, at 78.
157. See e.g. Williams, supra note 48, 124.
158. Clark, supra note 38, at 321.
159. Piragoff, supra note 12, at 309.
160. Simons, supra note 3, at 496.
161. Eser, supra note 5, at 896 n. 33.
162. Rome Statute, Art. 121.