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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
specialis), which a part of doctrine qualifies as an additional intent related to an objective goal 21 . This
combination of a general intent (with regard to the basic act and its regular consequences and
circumstances) and a specific intent (with regard to an additional aim) is clearly exemplified in the case of
complicity in group crimes in which the relevant contribution must be made intentionally and in addition
with the aim of furthering the criminal activity of the group. 22
VII. RECOGNIZED MISTAKES WITH REGARD TO FACTS
With regard to the ICC Statute, mistake of fact does not exclude criminal responsibility per se but only if
it negates the mental element, it refers to the preconditions of the mental element in terms of intent and
knowledge (Article 30/1) without which the perpetrator cannot be held responsible. 23 Article 32/1 of the
ICC Statute, combines recognizable mistakes of fact to the material elements of the crime and requires a
mistake capable of nullifying intent or knowledge. This means that possible reference points of a mistake
of fact can only include the nature of the conduct and its circumstances and consequences in terms of
Article 30/3. The only clear category of recognizable mistakes of facts is that about factual elements of the
definition in terms of descriptive elements of the crime, perceivable by means of the human senses.
It should be stressed that not every case of mistake on descriptive elements of crime entails the negation
of the mental element. Mistaken identity can be given as an example. If the perpetrator intended to kill
“A” but for some reasons he fails and instead he hits “B” and if he does not have legally recognised right
to do it, this is only error of person and irrelevant because the material element of killing a human being,
regardless of its personal identity, would in any case be fulfilled. Therefore, as long as in case of mistaken
identity both the envisaged and the actual victim fall within the same definitional category of crime, the
perpetrator’s intent and knowledge is not affected by his mistaken the identity.
Persons assuming the existence of a situation in which, if it were as they believed, they were justified, for
instance by self-defence, have on the contrary the necessary mental element. They are in the same way
mistaken about one or more facts, even though these are not material elements of the crime but material
prerequisites for a justification of the crime. In a situation which he reasonably believed to exist, the
psychological pressure on the perpetrator is as strong as if the situation existed in reality. 24
VIII. RECOGNIZED MISTAKES WITH REGARD TO THE LAW
How the general principle that culpability is necessary for criminal liability grew up with the rule that a
mistake of law is not a general defence is a matter of history. The increasing complexity of law, the
multiplication of crimes and a more exact definition of fundamental principles of criminal liability, have
shared the responsibility for this development. But the process has been slow and uncertain, and in its
early stages not well understood.
According to the Article 32/2 of Rome Statute, “mistake of law may be a ground for excluding criminal
21 See the writings of authors like Triffterer (international criminal law and comparative criminal law and procedure) and
Picotti (Italian penal law and comparative criminal law).
22 ESER, p. 900.
23 ESER, p. 937.
24 Triffterer, par. 14.
DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 28