Foreword

Abstract

Extract The study of the grounds for exclusion of criminal responsibility in relation to international crimes is usually neglected by the doctrine. There is discomfort in admitting that an individual who has committed serious criminal acts can be exempted from criminal responsibility by the operation of one of these grounds. The seriousness of the criminal acts, the emphasis of international criminal justice on the retributive function of punishment, and the fight against impunity, as well as the focus on the victims of international crimes are all factors that explain, at least in part, this unease. With this monograph, Antonio Coco intends to overcome this discomfort through an in-depth examination of one of the most problematic defences in criminal law, namely mistake of law. The scope of the work is ambitious. In addition to the systematic study of mistake of law in the field of international crimes the author proposes to go further. In particular, he intends to reveal that the admissibility or not of the defence before international criminal courts and tribunals tells us a lot about the main purpose of international criminal justice and the legitimacy of the work of these courts and tribunals. The author brilliantly accomplishes this dual objective. First, he carries out a lucid analysis of mistake of law in the general theory of criminal law and in some national legal systems. In this part, special attention is devoted to the relationship of mistake of law with the defence of obedience to the order of a superior. The author then goes on to examine mistake of law before international criminal courts and tribunals, focusing in particular on Article 32 of the Statute of the International Criminal Court and demonstrating in which particular cases and under which conditions it allows the admissibility of this defence in the form of the denial of mens rea. On these solid foundations, in the last chapter the author lucidly highlights the ‘expressive’ function of the inadmissibility or partial admissibility of the defence of mistake of law before international criminal courts and tribunals. Moreover, he does not hesitate to address the effect of the restrictive regulation of this defence on the fairness and legitimacy of the project of international criminal justice. The issues addressed by the author in this chapter are uncomfortable, but obviously crucial as they provide a key to understanding the path that international criminal justice and its institutions must take in order to avoid ‘unjust’ and ‘dysfunctional’ punishment.