The Prerequisite of Personal Guilt and the Duty to Know the Law in the Light of Article 32 ICC Statute

Abstract

In international criminal law, personal guilt is a basic prerequisite for criminal liability. A guilty verdict requires at least a psychological relation between the actor and the act, i.e., the actor must fulfil the actus reus of the offence with intent and knowledge. It is, however, a contested issue if this also means that the defendant must have been aware of the criminality of his action. At first glance, the ICC Statute seems to answer this question in the negative: it adopts a narrow understanding of the mens rea requirement which does not include, as a rule, consciousness of the legal wrong, and admits mistakes of law as a valid defence only if they – by way of an exception – negate the required mens rea. This restrictive approach does not, however, have a solid basis in comparative law. Moreover, given the complexity of at least some war crime provisions it seems highly questionable to punish persons who honestly but wrongfully believe that their conduct is lawful without taking into account whether they can be blamed for their ignorance of the law. Rather, the principle of personal guilt understood in a broad and comprehensive sense calls for a more flexible approach towards mistakes of law having due regard to the reasonableness or avoidability of the misconception.