Mistakes of Law Excluding Criminal Responsibility in Domestic Criminal Law

Coco, Antonio

doi:10.1093/oso/9780192895745.003.0003

The Defence of Mistake of Law in International Criminal Law: A Study on Ignorance and Blame

Antonio Coco

https://doi.org/10.1093/oso/9780192895745.001.0001

Published online:

22 September 2022

Published in print:

04 August 2022

Online ISBN:

9780191916298

Print ISBN:

9780192895745

- Copyright Page
  - Notes
  - Notes
- Dedication
  - Notes
  - Notes
- Acknowledgements
  - Notes
  - Notes
- Foreword
  - Notes
  - Notes
- Series Editors’ Preface
  - Notes
  - Notes
- Table of Cases
  - Notes
  - Notes
- Table of Legislation
  - Notes
  - Notes
- Abbreviations
  - Notes
  - Notes
- Endorsements
  - Notes
  - Notes
Introduction
- Notes
- Notes
1 A General Definition of the Defence of Mistake of Law
- Notes
- Notes
- 1. Exonerating Value Attached to the Mistake’s Character 1. Exonerating Value Attached to the Mistake’s Character
  - 1.1. Mistaken beliefs exclude criminal responsibility exclusively if honestly held 1.1. Mistaken beliefs exclude criminal responsibility exclusively if honestly held
  - 1.2. The requirement of a mistake’s reasonableness 1.2. The requirement of a mistake’s reasonableness
  - 1.3. The requirement for mistakes of law to have been unavoidable 1.3. The requirement for mistakes of law to have been unavoidable
  - 1.4. The standard for assessing reasonableness or unavoidability of a mistake 1.4. The standard for assessing reasonableness or unavoidability of a mistake
- 2. Exclusion of Responsibility Based on a Special Mental Element Requirement 2. Exclusion of Responsibility Based on a Special Mental Element Requirement
  - 2.1. Knowledge that one is acting unlawfully as a crime element 2.1. Knowledge that one is acting unlawfully as a crime element
  - 2.2. The special defence of ‘claim of right’ 2.2. The special defence of ‘claim of right’
- 3. Mistake of Law on the Existence of a Justification 3. Mistake of Law on the Existence of a Justification
- 4. Mistakes of Law Based on the ‘Estoppel’ or ‘Reliance’ Rationale 4. Mistakes of Law Based on the ‘Estoppel’ or ‘Reliance’ Rationale
  - 4.1. Mistakes due to the unavailability of the relevant legal provision 4.1. Mistakes due to the unavailability of the relevant legal provision
  - 4.2. Reliance on an official misstatement of the law 4.2. Reliance on an official misstatement of the law
  - 4.3. Honest reliance on the lawfulness of superior orders which are not manifestly unlawful 4.3. Honest reliance on the lawfulness of superior orders which are not manifestly unlawful
- 5. Lessons from National Cases on International Crimes from the Inter-War and Post-Second World War Era 5. Lessons from National Cases on International Crimes from the Inter-War and Post-Second World War Era
  - 5.1. The importance of the mistake’s honesty and reasonableness 5.1. The importance of the mistake’s honesty and reasonableness
  - 5.2. Standards for assessing a mistake’s character 5.2. Standards for assessing a mistake’s character
  - 5.3. Defensive arguments based on the ‘estoppel’ or ‘reliance’ rationale 5.3. Defensive arguments based on the ‘estoppel’ or ‘reliance’ rationale
  - 5.4. Mistake of law as part of the ‘superior orders’ plea 5.4. Mistake of law as part of the ‘superior orders’ plea
    - 5.4.1. The Leipzig war crimes trials 5.4.1. The Leipzig war crimes trials
    - 5.4.2. Cases before British military courts 5.4.2. Cases before British military courts
    - 5.4.3. Cases before US military courts and commissions 5.4.3. Cases before US military courts and commissions
    - 5.4.4. Cases before Italian military courts 5.4.4. Cases before Italian military courts
    - 5.4.5. Cases before Dutch and Belgian criminal courts 5.4.5. Cases before Dutch and Belgian criminal courts
- 6. A Bridge towards International Criminal Law 6. A Bridge towards International Criminal Law
- Notes
- Notes
3 Mistake of Law at the International Criminal Court and Other International Criminal Tribunals
- Notes
- Notes
4 The Message of Rules on Mistake of Law
- Notes
- Notes
Conclusion
- Notes
- Notes
- Bibliography
  - Notes
  - Notes
- Index
  - Notes
  - Notes

Chapter

2 Mistakes of Law Excluding Criminal Responsibility in Domestic Criminal Law

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https://doi.org/10.1093/oso/9780192895745.003.0003

Pages

59–115

Published:

August 2022

Abstract

Several alternatives exist to regulate and/or limit resort to the defence of mistake of law. National systems of criminal law show how these alternatives work in practice—establishing valuable lessons for international criminal tribunals. National law makes clear that the fact itself of having incurred a mistake of law is never sufficient, alone, to exonerate a defendant from criminal responsibility. The chapter establishes the situations in which a mistake of law may, instead, be invoked to exclude that responsibility, focusing on the notions of honesty, reasonableness, and unavoidability of the mistake, and highlighting that—at times—crime definitions contain elements requiring knowledge of the law. Special attention is devoted to mistakes relating to the lawfulness of superior orders, often drawing from national proceedings for international crimes conducted between the two World Wars and after the Second World War.

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Contents

2 Mistakes of Law Excluding Criminal Responsibility in Domestic Criminal Law

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