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Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.32 Mistake of fact or mistake of law/Erreur de fait ou erreur de droit

William A. Schabas

From: The International Criminal Court: A Commentary on the Rome Statute (2nd Edition)

William A Schabas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 January 2021

Subject(s):
Immunity from jurisdiction — Mens rea — International criminal law, conduct of proceedings — Evidence

This chapter comments on Article 32 of the Rome Statute of the International Criminal Court. Article 32 addresses defences of mistake of fact or mistake of law. The drafters of the Statute did not want to leave the determination of defences to the discretion of judges, an approach used in all of the earlier models including the final draft Code of Crimes adopted by the International Law Commission in 1996. In general, the purpose of codifying defences in the Rome Statute is not to authorize them but rather to confine them. Thus, article 32 admits defences of mistake of fact and law but under certain conditions. If article 32 were not in the Statute, the general rule on mens rea set out in article 30 would apply without restriction, possibly subject to limitation by the Elements of Crimes.

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