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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
In fact, history of criminal law is characterized by dialectic contradiction between objective criminal law
and subjective criminal law. 2 On the other hand, modern criminal law is based on mixed criminal law that
means for a crime, it is not enough to bring about material facts, but it is also necessary that those facts
can be attributed to the perpetrator.
According to Article 32 of the Statute, “mistake of fact shall exclude criminal responsibility if it negates
the mental element”. A question to be addressed is whether this article repeats what is already stated in the
article on mental elements of crimes. It should also be explained why States’ delegations at the
Preparatory Committee and the Rome Diplomatic Conference found necessary to insert this article in the
Statute. Another question is under which conditions mistake of fact may affect the mental element. An
additional problem relates to the impact of mistakes not on the material elements of crime (such as act,
result), but on the grounds for excluding responsibility (e.g., justifications, excuses) or the aggravating
circumstances for penalties.
The interpretation of these articles is extremely important to ensure their applicability. Problems in
question may be better understood if some of historical positions are known.
II. MISTAKES OF FACT AND MISTAKES OF LAW IN INTERNATIONAL CRIMINAL
JURISDICTIONS
Although the Charter of International Military Tribunal of Nuremberg, one of main historical milestone in
the field of international criminal jurisdiction, did not contain any provisions on mistake of fact and law,
the Tribunal accepted defences regarding both mistake of fact and law. 3
Like on the matter of mistake, there was not clear provision in the IMT Charter on mens rea or mental
element. Even though core crimes under international law, which are of concern to the international
community, can hardly be committed without having intention, still it is necessary to have certain
regulations to solve the problems in a proper way.
Neither the ICTY Statute (1993) nor the ICTR Statute (1994) has any general clause on defences and any
other grounds for excluding criminal responsibility. However, by making generally accepted legal rules
applicable, ICTY and ICTR can take consideration of both mistake of fact and mistake of law.
When the Ad Hoc Committee on the establishment of an International Criminal Court was held in 1995,
delegations suggested the clear regulation on mental element. Ad Hoc Committee has made two proposals
about mistake. Namely, one of them as a more general option would recognize both mistake of fact or law
as a defence ‘if not inconsistent with the nature of the alleged crime’ and even if avoidable would be still
possible to take it as a mitigation of punishment. On the other hand, the other option would accept mistake
of fact only ‘if it negates the mental element’ and would reject mistake of law in principle. 4 After
2 Ferrando MANTOVANI, Diritto Penale, Padova 2001, p. 39.
3 Especially in case so- called ‘Arzte-Urteil’. “This term refers to cases of physicians who were acquitted because they believed
that the persons brought to them were sentenced to death and would be pardoned if they survived the medical experiments,
during which they were ‘at the disposal’ of the physicans.” Triffterer, “Article 32 Mistake of fact and mistake of law”,
Commentary on the Rome Statute of the International Criminal Court, Baden-Baden 1999, par. 4.
4 ESER, “Mental Elements- Mistake of Fact and Mistake of Law”, The Rome Statute of The International Criminal Court: A
Commentary, Vol. I, Ed. Cassese, Gaeta, Jones, United States 2002, pp. 897-898.
DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 22