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.
Highlights
The search for general principles for transnational criminal justice is, in the end, a search for universally accepted or at least acceptable rules which allow for a fair and efficient handling of transnational criminal cases.[1]
It seems only natural to look for inspiration from international criminal law stricto sensu (ICL) which ‘encompasses all norms that establish, exclude or otherwise regulate responsibility for crimes under international law.’[2]. Since ICL assumes universal validity it cannot be based on one legal tradition alone[3] but must rather be consistent with the fundamental legal principles shared by the majority of nations
The need to enhance coherence between international and national criminal justice systems is reflected in Article 21(1) of the Statute of the International Criminal Court (ICC Statute) which establishes a three-tiered system of legal sources: The Court applies, in the first place, its own written law, in the second place, applicable treaties and the principles and rules of international law, and in the third place, general principles of law derived from national laws of legal systems of the world
Summary
The search for general principles for transnational criminal justice is, in the end, a search for universally accepted or at least acceptable rules which allow for a fair and efficient handling of transnational criminal cases.[1] For achieving this aim, it is necessary to overcome the limits of the respective national perspectives and to concentrate on common values which may serve as guidance in all transnational cases regardless of where and in which jurisdiction they are tried. After some preliminary considerations of the principle of guilt (Section 2) I will give an overview on the ICC’s rules on mens rea and mistakes (Section 3) and subsequently discuss whether these rules have to be modified in the light of a comparative analysis (Section 4.1) or the maxims of fairness and justice (Section 4.2)
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