Abstract
Abstract The version of mistake of law adopted by the International Criminal Court (ICC) Statute is the ‘denial of mens rea’ one, due to a precise drafting choice. The concept of mistake of law as an excuse was deliberately excluded from the Statute. The language adopted in the ICC Elements of Crimes restricts resort to mistake of law even further. Thus, the ICC Statute allows punishment of defendants who did not know—and sometimes could not have known—the relevant law. However, the ICC approach towards mistake of law is more lenient than the approach of other international criminal tribunals. Several offences under the ICC jurisdiction, including war crimes and crimes against humanity, contain legal elements about which the defendant must have knowledge: an honest mistake on those elements would exclude responsibility. Moreover, Article 33 expands the range of exonerating mistakes by introducing the possibility of invoking the defence of superior orders.
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