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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) responsibility if it negates the mental element required by such a crime.” The mistake has to have been capable of negating the mental element and this can be ensured by the perpetrator’s lack of knowledge of a material element of the crime. Since mental element can only be negated by mistake to the extent that the perpetrator must be aware of material elements, accordingly normative misjudgements are capable of ensuing from a mistake of law only to the extent that the mental element is open to misjudgements. Consequently, normative ignorance or evaluative misperceptions would constitute a mistake of law negating the mental element only if the perpetrator did not even realize the everyday meaning of the material element of the crime. This, for instance, might be the case if he had no idea that certain letters on a car were to indicate the protected status pf this personnel, but not, however, if he related these letters to another organization which would have had a protected status as well. 25 Even if the mental element is negated by a mistake of law in the way described before, this does not necessarily lead to the exclusion of criminal responsibility though; for, as according to sentence this “may” merely be the case, it seems as if the ICC Statute wants to leave some discretion to the Court to either accept or ignore the mistake. The use of “may”, could perhaps simply mean that not every mistake of law is a defence, but on a case-by-case basis it could exclude the “mens rea”, if the Judges come to this conclusion in a concrete case. In completing the general rules on mistake of law dealt with above, a special regulation is provided for mistakes with regard to superior orders according to Article 33 (1) (b) and (c) of the ICC Statute. In recognizing the at times delicate situation in which a subordinate was ordered to carry out a command without having had the chance of examining the lawfulness of what he is going to do, the perpetrator, when committing the crime in obedience to superior orders or prescriptions of law, can be relieved of criminal responsibility if he did not know that the order was unlawful provided, however, that the order was not manifestly unlawful. This reasoning applies only to alleged culpability for war crimes, since orders to commit genocide or crimes against humanity are always presumed manifestly illegal. CONCLUSION Anybody being mistaken about a material element of crime, on which the International Criminal Court has jurisdiction, do not have “the mental element” required. According to the article 30 para 1, Crimes within the jurisdiction of the Court should be committed with intent and knowledge. This is a general rule of mental elements of the crimes. For this reason, with few exceptions, recklessness and negligence cannot render a perpetrator responsible for prohibited acts according to the Rome Statute of International Criminal Court. If there exists such a regulation independent of intent and knowledge, the mental element required for the crime in question is not lacking and it depends on whether the mistake of fact was unavoidable or not. If it was avoidable, negligence may be punishable. If it was unavoidable, it is not possible to punish the commission of crime. A mistake is unavoidable when a reasonable person under the same conditions would have made the mistake and in this situation a perpetrator cannot be held responsible for his/her act even though the crime committed is punishable for negligence. 25 ESER, p. 941. DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 29
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) Mistake of law as to “whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be ground for excluding criminal responsibility. Whether it can be ground for excluding criminal responsibility depends on if it negates the mental element required by such a crime according to the Rome Statute of International Criminal Court. This can be ensured by the perpetrator’s lack of knowledge of a material element of the crime. Even if the mental element is negated by a mistake of law, this does not necessarily lead to the exclusion of criminal responsibility. Even in this case Court would have a right either accept or ignore the mistake. DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 30
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