Heller - Comon Law and Art 32 of Rome Statute

ARTICLES
Mistake of Legal Element, the

Common Law, and Article 32
of the Rome Statute
A Critical Analysis
Kevin Jon Heller*
Abstract
Article 32(2) of the Rome Statute provides that ‘[a] mistake of law may . . . be a
ground for excluding criminal responsibility if it negates the mental element
required by such a crime’. Although this provision has been described as ‘cryptic’, I
argue in this essay that it was specifically drafted to recognize what common-law
scholars have variously called ‘mistake of mixed fact and law’,‘mistake of legal fact’,
and ç most usefully ç ‘mistake of legal element’: namely, a mistake regarding the
definition of a legal element in a crime. A perpetrator who commits a mistake of legal
element (MLE) cannot be said to have acted ‘knowingly’ with regard to that element,
and is thus entitled to an acquittal if the element requires knowledge. Although most
scholars accept the idea that at least some MLEs are exculpatory under Article 32,
they uniformly insist that very few MLE defences will be successful. I disagree, for
three reasons. First, nearly every crime in the Rome Statute contains at least one
legal element. Second, the methods that the drafters of the Elements of Crimes used
to limit MLEs ç providing that legal elements only require knowledge of the under-
lying facts and replacing Article 30’s default knowledge requirement with a simple
negligence standard ç are almost certainly inconsistent with the Rome Statute.
Third, all of the mechanisms that scholars have proposed to limit MLEs ç such as
subjecting them to German criminal law’s ‘layman’s parallel evaluation’ test ç are
inconsistent with Article 32’s common-law foundations. Properly understood, there-
fore, Article 32 potentially recognizes a wide variety of exculpatory MLEs. That is a
disturbing prospect, because there is no reason why soldiers should not be expected
to have at least a reasonable understanding of international humanitarian law.
* Senior Lecturer, University of Auckland Faculty of Law. Thanks are due to Roger Clark, Claus
Kress, Mark Drumbl, Bill Schabas, Robert Cryer, and the anonymous referees of the Journal.
[kevinjonheller@gmail.com]
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Journal of International Criminal Justice 6 (2008), 419^445 doi:10.1093/jicj/mqn032
ß Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org
420 JICJ 6 (2008), 419^445
I thus conclude the essay by arguing that MLEs should be eliminated by specifically
amending the Rome Statute to apply a negligence standard to legal elements.
1. Introduction
Consider the following scenarios, minor variations on a hypothetical situation
in which the defendant, a helicopter machine gunner, attacked a civilian
population that included a small number of soldiers:
(i) The perpetrator knew that attacking a civilian population was a war
crime, but incorrectly believed that he was attacking soldiers because
he perceived his targets to be armed and wearing uniforms.
(ii) The perpetrator knew that he was attacking a civilian population, but
incorrectly believed that civilians could be lawfully attacked during
wartime.
(iii) The perpetrator knew that attacking a civilian population was a war
crime and that nearly all of his targets were civilians, but incorrectly
concluded that he was not attacking a ‘civilian population’ because he
believed that a population forfeits its civilian status if soldiers are pres-
ent within it.
If the perpetrator was charged with violating Article 8(2)(b)(i) of the Rome
Statute, the war crime of attacking civilians, it is clear that he would be acquitted
in the first scenario but convicted in the second. Scenario1is a textbook example
of a mistake of fact that negatives the mens rea of Article 8(2)(b)(i) and
thus excludes criminal responsibility: the perpetrator did not ‘knowingly’attack
a civilian population, because he honestly believed that his targets were soldiers.
And Scenario 2 is an equally textbook example of a mistake of law that does not
exclude criminal responsibility: the perpetrator knew full well that he was
attacking a civilian population, he simply believed that it was lawful to do so.
But what about the third scenario? Here the perpetrator is not claiming
mistake of fact, because he admits that he perceived the situation correctly.
Nor is he claiming mistake of law, because he also admits that he knew it was
unlawful to attack civilians. Instead, he is arguing what common-law scholars
have variously called ‘mistake of mixed fact and law’,1 ‘mistake of legal fact’,2
and ç most usefully ç ‘mistake of legal element’:3 the idea that a perpetrator
who misunderstands the definition of a legal element in a crime cannot be
said to have acted ‘knowingly’ with regard to that element. Specifically, the
machine-gunner is claiming that he did not knowingly attack a civilian popu-
lation for purposes of Article 8(2)(b)(i), because he honestly but incorrectly
1 F. Dutile and H. Moore, ‘Mistake and Impossibility: Arranging a Marriage Between Difficult
Partners’, 74 North Western University Law Review (1979) 166, at 176.
2 M. Kelman, ‘Interpretive Construction in the Substantive Criminal Law’, 33 Stanford Law Review
(1981) 591, at 631.
3 K.W. Simons, ‘Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay’, 81
Northwestern Journal of Criminal Law and Criminology (1990) 447, at 458.
Article 32 of the Rome Statute 421
believed that a population does not qualify as civilian under the laws of war if it
includes soldiers. Does he have a legitimate mistake defence under Article 32?
It is difficult to overstate the importance of this question. Nearly every crime
in the Rome Statute of the International Criminal Court contains at least one
legal element; the ‘civilian’element alone appears in 16 different war crimes. As a
result, if Article 32 recognizes mistakes of legal element (MLEs), we can expect
perpetrators to raise such defences in a wide variety of cases, significantly
complicating the Court’s ability to prosecute serious international crimes.4
Most scholars accept the idea that at least some MLEs exclude criminal
responsibility under Article 32. Albin Eser, for example, has pointed out that
‘[a]s one should not assume that the drafters of sentence (2) wanted it to run
idle, this ‘‘cryptic’’ provision was perhaps meant to open the door for mistakes
with regard to normative elements and evaluations’.5 Those same scholars,
however, insist that few MLE defences will be successful. Immediately after
acknowledging the possibility of MLEs, for example, Eser concludes that
‘from the traditional common law perspective, Article 32 may draw applause
. . . for leaving as little room as possible for mistake of law’.6
Although I agree that Article 32 recognizes MLEs, I believe that their potential
impact is far greater ç and far more troubling ç than scholars have recognized.
My argument unfolds in seven parts. The first three provide the necessary back-
ground to the argument. Section 2 discusses the relationship between Article
30’s default knowledge requirement and the different kinds of elements in the
Rome Statute. Section 3 explains the differences between mistake of fact, mis-
take of law, and mistake of legal element. And Section 4 summarizes scholarly
acceptance of MLEs. The next three parts then explicate the argument itself.
Section 5 uses the text, context, and drafting history of Article 32 to defend the
idea that MLEs exclude criminal responsibility. Section 6 explores the implica-
tions of Article 32’s recognition of MLEs by cataloguing the various kinds of legal
elements that appear in the Rome Statute. And Section 7, the theoretical heart of
the essay, demonstrates that the primary mechanisms the Preparatory
Commission and scholars have used to limit MLEs ç such as factual awareness
elements, ‘the ‘layman’s parallel evaluation’ test, and requiring MLEs to be rea-
sonable ç are inconsistent with Article 32. Finally, Section 8 concludes the
essay by suggesting that MLEs could be eliminated, and eliminated justly, by
amending Article 30 to apply a negligence standard to legal elements.
4 To be sure, only one ICTY or ICTR case has involved an MLE defence. See Judgment, Delalic¤ and
others (IT-96-21-A), Appeals Chamber, 20 February 2001, x374. The absence of such defences at
the ad hoc tribunals, however, most likely reflects three statutory factors that do not apply to
the ICC: (1) the absence of a general provision on mens rea; (2) the absence of a comprehensive
list of elements of crimes; (3) the lack of express recognition of mistake as a cognizable defence.
Given the combination of those factors with the complexity of mistake doctrine generally, it is
not surprising that MLE defences have been so rare at the ad hoc tribunals.
5 A. Eser, ‘Mental Elements ^ Mistake of Fact and Mistake of Law’, in A. Cassese et al. (eds), The
Rome Statute of the International Criminal Court: A Commentary, vol. I (Oxford: Oxford University
Press, 2002) 889, at 941.
6 Ibid., at 934.
422 JICJ 6 (2008), 419^445
2. Mens rea
According to Article 30 of the Rome Statute: ‘[u]nless otherwise provided, a
person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court only if the material elements are com-
mitted with intent and knowledge’.7 There are three different kinds of material
elements in the Rome Statute: conduct elements, consequence elements, and
circumstance elements. A conduct element is simply the act or omission prohib-
ited by a crime,8 such as taking hostages.9 A consequence element is the
necessary result of the prohibited conduct,10 such as causing serious injury to
body or health.11 A circumstance element is an additional objective require-
ment that qualifies the crime’s conduct and consequence,12 such as an attacked
building not qualifying as a military objective.13
All three kinds of material elements can, in turn, be categorized as either
descriptive or legal. A descriptive material element is one that is ‘perceivable by
means of the human senses, such as sight, hearing, smell, taste, or touch’14 or
is otherwise objectively verifiable, such as the age of a conscripted soldier.15 A
legal element, by contrast, is an element whose definition depends on a legal
source other than the Rome Statute itself,16 such as imprisonment ‘in violation
of fundamental rules of international law’.17
Regardless of whether they are descriptive or legal, all material elements
must be committed with either intent or knowledge ‘unless otherwise pro-
vided’.18 What this means for each kind of material element is ably summarized
by Kelt and von Hebel:
[C]onduct is carried out with intent if the person ‘means to engage in that conduct.’A conse-
quence may be covered by intent or knowledge; i.e., if the person ‘means to cause the
consequence or is aware that it will occur in the ordinarycourse of events.’ Knowledge in relation
to a circumstance requires that the perpetrator was aware of the existence of the circumstance.19
7 Rome Statute, Art. 30.

8 See G. Werle, Principles of International Criminal Law (The Hague: TMC Asser Press, 2005), 97.
9 Rome Statute, Art. 8(2)(a)(viii).
10 Werle, supra note 8, at 97^98.
11 Rome Statute, Art. 8(2)(a)(iii).
12 D.K. Piragoff, ‘A rticle 30: Mental Element’, in O. Triffterer (ed.), Commentary on the Rome Statute
of the International Criminal Court: Observer’s Notes, Article by Article (Baden Baden: Nomos,
1999), 529.
13 Ibid., Art. 8(2)(b)(v).
14 E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International
Humanitarian Law (The Hague: TMC Asser Press, 2003), 302.
15 Rome Statute, Art. 8(2)(b)(xxvi).
16 O. Triffterer, ‘A rticle 32’, in Triffterer, supra note 12, at 563.
17 See e.g. Rome Statute, Art. 7(1)(e).
18 See e.g. M. Kelt and H. von Hebel, ‘General Principles of Criminal Law and the Elements of
Crimes’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of
Procedure and Evidence (Ardsley, N.Y.: Transnational Publishers, 2001), 29.
19 Ibid., at 16; see also Eser, supra note 5, at 917 (‘As according to Article 30(3), the object of
knowledge must be ‘‘circumstances’’ and ‘‘consequences’’ and as in both cases knowledge is
understood as ‘‘awareness’’.’).
3. Mistake
Article 32 is elusive in its simplicity. Spanning all of three sentences, it reads:
A mistake of fact shall be a ground for excluding criminal responsibility only if it negates
the mental element required by law.
A mistake of law as to whether a particular type of conduct is a crime within the jurisdic-
tion of the Court shall not be a ground for excluding criminal responsibility. A mistake of
law may, however, be a ground for excluding criminal responsibility if it negates the mental
element required by such a crime, or as provided for in article 33.
A. Mistake of Fact
A mistake of fact involves the descriptive elements in the definition of a crime.
Because knowledge is Article 30’s default mens rea, the prosecution must prove
not only that a particular descriptive element existed, but also that the per-
petrator knew (‘was aware’) that the element existed. Any mistaken belief
in the non-existence of the descriptive element is inconsistent with that knowl-
edge ç and thus ‘negates the mental element required by the crime’.20
B. Mistake of Law
A mistake of law involves a perpetrator’s failure to recognize ‘the rule of law
creating a criminal offence’.21 More precisely, if a crime consists of elements X
and Y, a perpetrator commits a mistake of law if he believes that conduct
satisfying X and Y is not criminal.22 Such mistakes ç exemplified by the
machine-gunner’s honest but incorrect belief that it is legal to attack civilians
during wartime ç are irrelevant under Article 32, which specifically provides
that ‘[a] mistake of law as to whether a particular type of conduct is a crime
within the jurisdiction of the Court shall not be a ground for excluding crim-
inal responsibility’.
C. Mistake of Legal Element

The relationship between Article 32 and MLEs is more complicated. When a
perpetrator claims that he made an MLE that excludes criminal responsibility,
he is arguing that he was mistaken concerning the definition of a legal element
in a crime such that he cannot be said to have acted ‘knowingly’ with regard
to that element. Consider, for example, the MLE in Scenario 3, which focuses
on the ‘civilian population’ element of Article 8(2)(b)(i). That circumstance
element is legal, not descriptive: the rules of international humanitarian law
(IHL) determine whether a population qualifies as ‘civilian’. One such rule
20 See Simons, supra note 3, at 465.

21 I.H.E. Patient, ‘Mistake of Law ^ A Mistake?’, 51 Journal of Criminal Law (1987) 326, at 337.
424 JICJ 6 (2008), 419^445
provides that a population does not forfeit its civilian status simply because it
includes a small number of soldiers.23 The perpetrator in Scenario 3 is arguing
that he did not knowingly attack a civilian population, because his misunder-
standing of the relevant rule of IHL led him to honestly believe that he was
attacking combatants.
Does Article 32 recognize the perpetrator’s mistake? That mistake is not a
mistake of fact that excludes criminal responsibility under paragraph 1,
because he correctly perceived that the population contained both civilians
and soldiers. Nor is it an irrelevant mistake of law under the first sentence of
paragraph 2, because its referent ‘is not the law defining the offence; it is some
other legal rule that characterizes the attendant circumstances that are mate-
rial to the offence’24 ç in this case, a rule of international humanitarian law.
The real question, then, is whether the mistake ‘negates the mental element’
required by the crime: if the perpetrator misunderstood the legal definition of
‘civilian population’, does that mean he was not ‘aware of the existence of the
circumstance’? If the answer is yes, the second sentence of paragraph 2
requires the perpetrator to be acquitted.
4. Scholarly Acceptance of MLEs

Scholars generally accept that at least some MLEs exclude criminal responsi-
bility under Article 32. Eser’s argument regarding elements of crimes that
specifically refer to rules of international law is characteristic:
This question of normative awareness is obvious in cases in which the crime definition expli-
citly refers to legal provisions as, for instance, in the case of imprisonment ‘in violation of
fundamental rules of international law’. . . Provided that such‘referential norms’. . .are in the
same way as the other definitional components indeed ‘material elements’of the crime accord-
ing to Article 30(1) of the ICC Statute, the perpetrator would be required not only to recognize the
factual character of the deprivation of a civilian’s physical liberty, but also to thereby be aware of his
violating fundamental rules of international law, thus presupposing a sort of legal judgment.25
Triffterer agrees that an MLE that excludes criminal responsibility is possible

with regard to Article 7(1)(e), the crime against humanity of imprisonment26
ç and adds the additional example of the crime against humanity of per-
secution, which requires the perpetrator to knowingly deprive a group of
23 See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, 8 June 1977, Art. 50(3).
24 Model Penal Code commentaries, x2.02, at 250 (1985).
25 Eser, supra note 5, at 922 (emphasis added).
26 Triffterer, supra note 16, at 563^564 (noting that, because the imprisonment must be ‘in viola-
tion of fundamental rules of international law. . . [t]he existence of such rules is a prerequisite
for the definition of the crime and therefore has to have been known by the perpetrator with
the ‘‘mental element required’’.’).
‘fundamental rights contrary to international law’.27 Similarly, Werle mentions

the war crime of denying a fair trial, which requires the knowing deprivation
of ‘judicial guarantees as defined, in particular, in the third and the fourth
Geneva Conventions of 1949’.28
Scholars have also acknowledged that responsibility-excluding MLEs are
possible regarding legal elements whose ‘referential character, though not
explicitly stated, can easily be gathered from their context’.29 Eser himself
cites crimes that require ‘unlawfulness’, such as the war crime of unlawful
deportation and transfer,30 or require the conduct to be directed toward a
‘protected person’, such as the war crime of compelling service in hostile
forces.31 Van Sliedregt adds the war crime of improper use of the distinctive
emblems of the Geneva Conventions, which requires the perpetrator to know
that a particular emblem falls within the protected category.32 And Weigend
nominates the war crime of destroying or seizing the enemy’s property, which
requires the affected property to legally belong to a hostile party.33
In each of these cases, the argument is the same: because all material
elements require knowledge, and because knowledge requires the perpetrator
to have at least some understanding of the legal definition of an element that
references a non-penal rule of international humanitarian law, the failure to
understand the definition of a legal element negates the mens rea required by
the crime, requiring acquittal.
5. MLEs and Article 32

Although no scholar has offered a comprehensive analysis of the relation-
ship between MLEs and Article 32, the Article’s text, context, and drafting
history ç the basic interpretive principles of the Rome Statute, following the
Vienna Convention on the Law of Treaties34 ç indicate that such mistakes do,
in fact, exclude criminal responsibility.
27 Ibid., at 564.
28 Werle, supra note 8, at 152 (‘A relevant mistake of law is present, for example, if a perpetrator
holding a trial of a prisoner of war considers an objectively insufficient hearing of the defendant
to be sufficient. In such a case, the perpetrator is not responsible for a war crime.’).
29 Eser, supra note 5, at 922.
30 Ibid., at 927.
31 Ibid., at 922 (‘This is the case with the war crime of compelling a prisoner of war or other
‘‘protected person’’ to serve in hostile forces. Whereas the ‘‘person’’ is a descriptive element, its
character as ‘‘protected’’ cannot be determined without reference to certain protective norms.’).
32 van Sliedregt, supra note 14, at 303 (‘If the emblem is clearly visible to A but A is ignorant on
the rules of distinctive emblems and shoots B, his ignorance of protective criteria might qualify
as mistake of law.’).
33 T. Weigend, ‘The Harmonization of General Principles of Criminal Law’, 19 Nouvelles Etudes
Penale (2004) 319, at 333 (‘Can the commander use his error as a defence against the charge
. . . even though his mistake pertains to legal issues, namely the existence of property rights?
Art. 32 sec. 2. . . suggests an affirmative answer to this question.’).
34 Werle, supra note 8, at 54^55.
426 JICJ 6 (2008), 419^445
A. Text
The text of Article 32 provides important circumstantial evidence that the
Article recognizes MLEs. Paragraph (2) specifically distinguishes between irrel-
evant mistakes of law that concern ‘whether a particular type of conduct is a
crime within the jurisdiction of the Court’ ç what Simons calls a ‘mistake of
governing law’35 ç and responsibility-excluding mistakes of law that ‘negate
the mental element required’ by a crime. That distinction seems to suggest that
the drafters of Article 32 contemplated the possibility that at least some MLEs
would exclude criminal responsibility.
B. Context
The systematic context of Article 32 also supports the idea that MLEs exclude
criminal responsibility. Article 21 of the Rome Statute requires the Court to
consider, inter alia, the Elements of Crimes.36 One of the most distinctive
aspects of the Elements regarding mistake are their liberal use of what might
be called ‘factual awareness elements’: elements that substitute awareness of
the factual circumstances underlying a legal rule for knowledge of the legal
rule itself. Consider, for example, the Elements’ treatment of the war crime of
torture, Element 3 of which requires the perpetrator to inflict severe physical
or mental pain upon a person or persons ‘protected under one or more of the
Geneva Conventions of 1949’. The Preparatory Commission believed that the
‘literal language’ of Article 30 would have required perpetrators to understand
how the Geneva Conventions define ‘protected person’, providing a perpetrator
who honestly misunderstood that definition with a cognizable MLE defence.37
Unhappy with such an ‘extreme result’, the Commission attempted to avoid the
implications of Article 30’s default knowledge requirement by modifying
Element 3 with a factual awareness element, Element 4. Roger Clark explains
their reasoning:
Element 4’s requirement that the perpetrator be aware of the factual circumstances that
established the protected status [means that] a mistake of fact will work defensively, since it
goes to a denial of the relevant mental element, that is to say knowledge of ‘the facts’. . .
[But] if Element 4 is a fair interpretation of the Statute, it assumes that intent or knowledge
as to the law is not an element, so a mistake about that is no defence. Article 32(2) has been
neatly finessed by defining the mental element so as to avoid any reference to legal
characterization.38
The Elements’ consistent use of factual-awareness elements is important

evidence that the interplay of Articles 30 and 32 creates the possibility of
35 Simons, supra note 3, at 457.

36 See Rome Statute, Art. 21(1).
37 See Eser, supra note 5, at 922.
38 R.S. Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the
International Criminal Court and the Elements of Offences’, 12 Criminal Law Forum (2001) 291,
at 330^331 (emphasis added).
responsibility-excluding MLEs. If misunderstanding the definition of a legal

element did not negate knowledge of that element as knowledge is defined
in Article 30, thus triggering the second paragraph of Article 32, there
would have been no need for the Elements to specifically provide ç again
and again ç that awareness of the factual circumstances underlying a legal
rule is sufficient to prove that the perpetrator acted ‘knowingly’.
C. Drafting History
Finally, the drafting history of Article 32 indicates that MLEs exclude criminal
responsibility. Neil Boister has argued that ‘[t]he apparent reconciliation of
irreconcilable common law and civilian views of culpability at the Rome
Conference fails to disguise the fact that the common law view on ignorance
or mistake of law predominates’39 ç a position with which scholars uniformly
agree. Kai Ambos, for example, says explicitly that ‘A rticle 32 . . . is based on the
traditional common law understanding’.40 Eser is even more specific, asserting
that ‘[a]s to the negation of the mental element by the mistake, the American
Model Penal Code . . . seems to have been the guiding example’.41
Ambos’ and Eser’s position is sound, given that Article 32 only excuses mis-
takes of law that negate mens rea: ‘unlike Anglo-American law on mistake,
which focuses on the type of mistake and the mens rea required for the under-
lying crime, most civil law systems regard mistake as an excuse bearing on
culpability, which does not necessarily imply lack of mens rea’.42 Whether the
perpetrator knew he was acting culpably is irrelevant under Article 32;43
indeed, the Preparatory Committee specifically rejected basing the Article on
lack of culpability instead of on the absence of mens rea.44 That decision may
deserve criticism,45 but it clearly indicates that the drafters of the Rome Statute
rejected interpreting Article 32 through the lens of the civilian tradition.
39 N. Boister, ‘Reflections on the Relationship Between the Duty to Educate in Humanitarian Law
and the Absence of a Defence of Mistake of Law in the Rome Statute of the International
Criminal Court’, in R. Burchill et al. (eds), International Conflict and Security Law (2005), 46.
40 See e.g. K. Ambos, ‘General Principles of Criminal Law in the Rome Statute’, 10 Criminal Law
Forum (1999) 1, at 29.
41 Eser, supra note 5, at 896 n. 33l; see also van Sliedregt, supra note 14, at 309 (‘A nglo-American
law bases the defence of mistake of law on mens rea. This demonstrates the common law
influence on Article 32.’).
42 van Sliedregt, supra note 14, at 312.
43 See e.g. Eser, supra note 5, at 935 (noting that, by ‘requiring legal ignorance to nullify a mental
element,’ Article 32 ‘disregards growing sensitivity to the principle of culpability, particularly
with regard to consciousness of unlawfulness’).
44 The earliest incarnation of the rejected version of Art. 32, Art. 9 of the 1987 Draft Code of
Crimes Against the Peace and Security of Mankind, was specifically based on the German
approach to mistake. See Triffterer, supra note 16, at 558.
45 See e.g. Eser, supra note 5, at 904.
428 JICJ 6 (2008), 419^445
The fact that Article 32 adopts the common-law approach to mistake is

critical to the status of MLEs, because the common law has always accepted
that an honest mistake concerning the definition of a legal element negatives
mens rea if that element of crime requires knowledge.46 Rollin Perkins, for
example, notes that although early common-law cases applied the maxim
ignorantia legis nihil excusat to all mistakes of law, even to MLEs, ‘it came to be
firmly established that defendant is not guilty if the offence charged requires
any special mental element, such as that the prohibited act be committed
knowingly . . . and this element of the crime was lacking because of some
mistake of nonpenal law’.47 Glanville Williams agrees, maintaining that
‘if a statute creates a crime requiring knowledge, the accused is not guilty
if, owing to a misunderstanding of some part of the general civil law, he
thought the facts did not fall within the concepts used in the definition of
the crime’.48
As the quotes indicate, Perkins and Williams believe that MLEs are limited to
mistakes of non-penal law. Most scholars, by contrast, insist that the common law
recognizes that a mistake regarding any legal element that requires knowledge
excludes criminal responsibility, regardless of whether the element in question
refers to a penal lawor to a non-penal law.The drafters of the Model Penal Code, for
example, specifically reject the distinction between penal and non-penal laws,
stating categorically that ‘[t]he general principle that ignorance of mistake of
law is no excuse . . . has no application when the circumstances made material by
the definition of the offence include a legal element’.49 Similarly, after noting that
MLEs exclude criminal responsibility, Kenneth Simons points out that ‘some
speak of this as a mistake of ‘civil’ law, but this characterization is incorrect,
since the mistake can be a matter of criminal law, as well, so long as it is only
a legal mistake as to an element of the crime’.50 Numerous other scholars agree

47 R.M. Perkins, ‘Ignorance or Mistake of Law Revisited’, Utah Law Review (1980) 473, at 476.
Perkins cites numerous cases in defence of this position, ibid., at 476-481, including
Commonwealth v. Bradford, 50 Mass. 268 (1845) (holding MLE possible for element of ‘knowing
himself to be a qualified voter’), and Hargrove v. United States, 67 F.2d 820 (5th Cir. 1933) (holding
MLE possible for element requiring defendant to ‘knowingly’ receive a fee to which he was not
entitled).
48 G.L. Williams, Criminal Law: The General Part (2nd edn, Stevens and Sons, 1961), 321.
Williams cites numerous cases in defence of this position, id. at 320^41, including Ocean
Accident and Guarantee Corp. v. Cole [1932] K.B. 100 (holding MLE possible for element requiring
defendant to ‘knowingly’ issue a false insurance certificate), and Lewis v. People, 99 Colo. 102
(1936) (holding MLE possible for element requiring defendant to ‘knowingly’ take property of
another).
49 Model Penal Code commentaries, x2.02, at 250 (emphasis added).
50 Simons, supra note 3, at 458, citing People v. Bray, 52 Cal. App. 3d 494, 499 (1975) (holding that
because the crime of being a felon in possession of a concealed firearm requires the defendant
to know that he is a felon, a mistake concerning felon status is exculpatory even if it is a
mistake of criminal law).
with Simons and the MPC, including Edwin Keedy,51 Joshua Dressler,52 I.E.H.
Patient,53 Wayne LaFave54 and Dutile and Moore.55
From a theoretical standpoint, the majority position appears to be more
consistent with common-law mistake’s emphasis on mens rea.56 For our pur-
poses, however, it does not matter which of the two positions is correct. Even if
the common law only recognizes mistakes of non-penal law, the fact that the
drafters based Article 32 on the common law indicates that most MLEs will
exclude criminal responsibility under the Article; as explained below, nearly all
of the MLEs that are made possible by the Rome Statute concern non-penal
rules of international humanitarian law.
6. Implications of Recognizing MLEs

The text, context, and drafting history of Article 32, in short, indicate that
MLEs exclude criminal responsibility. That fact has profound implications,
51 E.R. Keedy,‘Ignorance and Mistake in the Criminal Law’, 22 Harvard Law Review (1908) 75, at 89
(‘When a specific criminal intent, as distinguished from the criminal mind, is a requisite
element of the offence, and such intent is negatived by ignorance or mistake, it is held that
the defendant shall not be convicted, notwithstanding the maxim.’). Keedy notes that courts
have allowed MLEs for many different crimes, including, inter alia, larceny, malicious trespass,
malicious arson, malicious damage, assault with intent to rob, embezzlement, wilfully remov-
ing official seal, perjury, extortion, fraudulent voting, and falsely acting as public officer. See
ibid., at 89 n. 1 (collecting cases).
52 J. Dressler, Understanding Criminal Law (Lexis Publishers, 2006), 173 (‘For short-hand purposes, a
mistake-of-law claim of this sort may be termed a different-law mistake, because the claimed
mistake relates to a law other than the criminal offence for which the defendant has been charged
. . .. A different-law mistake, whether reasonable or unreasonable, is a defence in the prosecution
of a specific-intent offence.’), citing, inter alia, Cheek v. United States, 498 U.S. 192 (1991) (holding
MLE possible for element requiring defendant to‘wilfully’ fail to file federal income tax).
53 Patient, supra note 21, at 337 (‘In conclusion, it is submitted that the term ‘‘mistake of law’’
should be strictly limited . . . to ‘‘ignorance of the law’’, in the sense of a misapprehension about
a rule of law creating a criminal offence. It has no room elsewhere. Apart from . . . ignorance of
the law, a misapprehension may take the form of . . . a mistake as to the definitional elements of
an actus reus.’), citing, inter alia, Albert v. Lavin [1981] 1 All E.R. 628 (holding mistake of law
possible for ‘definitional elements’ of a crime, but not for ‘defence elements’).
54 W. LaFave, Hornbook on Criminal Law (4th edn, 2003), 282 (noting that an MLE excludes
criminal responsibility ‘where the defendant has a mistaken impression concerning the legal
effect of some collateral matter and that mistake results in his misunderstanding the full
significance of his conduct’).
55 Dutile and Moore, supra note 1, at 179 (‘The third category in the area of mistake is what could
be called the ‘mixed fact and law’ situation. In this grouping are cases in which the defendant
has made a mistake as to a matter having legal implications but . . . the mistake does not relate
to the statute whose violation is being considered, but rather to some other aspect. Yet the
matter is not purely factual either.... The mistake is more like a mistake of fact than like the
mistake of law envisioned by the maxim.’).
56 J. Kaplan, ‘Mistake of Law’, in A. Eser and G.P. Fletcher (eds), Justification and Excuse:
Comparative Perspectives, vol. 2 (Freiburg: Juris Publishing Co., Inc., 1987) 1125, at 1129 (noting
that although a distinction is sometimes made ‘between errors of civil law, which are exculpat-
ing, and errors of criminal law, which are not,’ in fact ‘even an error of criminal law can
exculpate if it negates the mens rea required by the criminal statute’).
430 JICJ 6 (2008), 419^445
because nearly every war crime and crime against humanity in the Rome
Statute contains at least one legal element.
A. Legal Elements
1. Categories
In general, legal elements in the Rome Statute fall into four categories.
(a) References to international law

A number of crimes contain elements that refer directly to international law,
reflecting the fact that Article 7 requires ‘conduct which is impermissible
under generally applicable international law’57 and Article 8 specifically pro-
vides that the elements of war crimes ‘shall be interpreted within the estab-
lished framework of the international law of armed conflict’.58 Some crimes
refer generically to international law, such as Article 8(2)(b)(xxii)-4, the war
crime of forced pregnancy, or to the international law of armed conflict, such
as Article 8(2)(b)(xiii), the war crime of destroying or seizing the enemy’s
property. Others refer specifically to the Geneva Conventions, such as Article
8(2)(a)(vi), the war crime of denying a fair trial. And still others refer to the U.N.
Charter, such as Article 8(2)(b)(iii), the war crime of attacking personnel or
objects that are involved in a humanitarian assistance or peacekeeping
mission.
(b) References to non-combatant status

Numerous crimes contain legal elements that refer implicitly to rules of inter-
national humanitarian law that determine whether a person is a non-comba-
tant. Some crimes refer to ‘civilians’ or to a ‘civilian population’, such as Article
8(2)(b)(xxv), the war crime of starvation as a method of warfare. These ele-
ments are defined by reference to Article 50 of the First Additional Protocol.59
One crime ç Article 8(2)(b)(ii), the war crime of attacking civilian objects ç
refers to ‘civilian objects’. This element is defined by reference to Article 52 of
the First Additional Protocol.60 And other crimes refer to individuals ‘hors de
combat’, such as Article 8(2)(b)(vi), the war crime of killing or wounding a
person with that status. This element is derived from Common Article 3 of the
Geneva Conventions.61
57 Elements, Art. 7, Introduction.

58 Ibid., Art. 8, Introduction.
59 See K. Do«rmann, Elements of War Crimes Under the Rome Statute of the International Criminal
Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003), 134.
60 Ibid., at 151.
61 Ibid., at 383.
(c) References to military concepts

A number of crimes contain elements that refer to military concepts.
Particularly common are references to ‘military necessity’, such as Article
8(2)(e)(viii), the war crime of displacing civilians. Military necessity ‘covers
only measures that are lawful in accordance with the laws and customs of
war’.62 Also common are references to ‘military objectives’, as in Article
8(2)(e)(iv), the war crime of attacking protected objects. Military objectives are
defined by reference to Article 52 of the First Additional Protocol.63
(d) References to property law

Some crimes contain legal elements that refer to rules governing the owner-
ship of property. Those elements refer either to ‘property of a hostile party’, such
as Article 8(2)(b)(xiii), the war crime of destroying or seizing the enemy’s
property, or to ‘certain property’, such as Article 8(2)(b)(xvi), the war crime of
pillaging. In both cases, reference is made to Article 53 of the Fourth Geneva
Convention and to various provisions of the Hague Regulations.64
2. ‘Contextual’ Elements
The potential impact of Article 32’s recognition of MLEs is even greater if such
mistakes are possible regarding the so-called ‘contextual elements’ of crimes
against humanity and war crimes: ‘widespread or systematic attack on a civi-
lian population’ for crimes against humanity65; the existence of ‘an interna-
tional armed conflict’66 or ‘an armed conflict not of an international character’
for war crimes.67 Whether the default mental element in Article 30 applied to
contextual elements caused a great deal of controversy at PrepCom. ‘Some
players had no problem with applying the default rule. Others . . . started from
the position that that this was merely a jurisdictional issue as to which there
was no need for any further mental element’.68 Ultimately, the Preparatory
Committee decided to split the difference, defining the contextual elements as
material but not requiring full knowledge of them. For crimes against human-
ity, ‘[t]he compromise reached . . . was to refer in the contextual element to
knowledge of the widespread or systematic attack, but then to provide in the
Introduction that this ‘‘should not be interpreted as requiring proof that the
62 Ibid., at 81.
63 Ibid., at 183.
64 See Do«rmann, supra note 59, at 252.
65 See e.g. Elements, Art. 7(1)(a).
66 See e.g. ibid., Art. 8(2)(a)(i).
67 See e.g. ibid.
68 Clark, supra note 38, at 326. Scholars generally agree with the former position. See e.g. Werle,
supra note 8, at 111; Eser, supra note 5, at 928^929.
432 JICJ 6 (2008), 419^445
perpetrator had knowledge of all characteristics of the attack’’’.69 For war

crimes, compromise was reached by providing that although ‘there is no
requirement for a legal evaluation by the perpetrator as to the existence of an
armed conflict or its character as international or non-international’, the per-
petrator must be ‘aware of factual circumstances that established the existence
of armed conflict’.70
I address below whether those limitations are consistent with the Rome
Statute. For now, it is sufficient to note that if a perpetrator has to understand
the legal definition of those elements, a responsibility-excluding MLE is possi-
ble for every crime against humanity or war crime contained in the Rome
Statute, because they all contain contextual elements.
7. Potential Restrictions on MLEs

As noted earlier, most scholars accept the idea that at least some MLEs exclude
criminal responsibility under Article 32. Those same scholars, however, reject
the possibility ç discussed above ç that many MLE defences will succeed.
Eser, for example, opines that ‘from the traditional common law perspective,
Article 32 may draw applause . . . for leaving as little room as possible for mis-
take of law’.71 Similarly, Triffterer insists that ‘[t]here are not many legal ele-
ments in the statute about which a mistake of law may arise falling under
paragraph 2 sentence 2’.72 Those claims are obviously difficult to reconcile
with the Rome Statute’s liberal use of legal elements. So why do scholars like
Eser and Triffterer make them?
The answer turns on three factors. First, most scholars believe that the
Elements impose two legitimate restrictions on Article 32’s recognition of
MLEs: (1) factual awareness elements; and (2) otherwise-provided ‘should have
known’ elements. Second, most scholars also believe that two significant
restrictions on MLEs are implicit in the Rome Statute: (3) the requirement that
MLEs satisfy German criminal law’s ‘layman’s parallel evaluation’ test; and (4)
the requirement that MLEs be reasonable. Finally, some scholars believe that
Article 32(2)’s use of the word ‘may’ gives the Court the discretion to reject
otherwise valid MLEs.
Article 9 provides that, ‘[t]he Elements of Crimes and amendments thereto
shall be consistent with this Statute’.73 This section assesses whether any of
these five restrictions are, in fact, consistent with Article 32.
69 See e.g. Kelt and von Hebel, supra note 18, at 72.
70 See e.g. Elements, Art. 8(2)(a)(i).
72 Triffterer, supra note 16, at 569.
73 Rome Statute, Art. 9(3).
A. Factual Awareness Elements

A compelling argument can be made that factual awareness elements are
inconsistent with the second sentence of Article 32, which provides that a
mistake of law excludes criminal responsibility if it ‘negates the mental element
required’ by a crime. Although Article 32’s common-law origins indicate that
an honest MLE negatives Article 30’s knowledge requirement, factual aware-
ness elements prevent MLEs from ever negating knowledge by providing that a
perpetrator acts ‘knowingly’ with regard to a legal element as long as he ‘was
aware of the factual circumstances that established the character of the act’;74
no ‘legal evaluation’ is required.75
The drafting history of the Elements, it is worth noting, demonstrates that
the Preparatory Commission was fully aware that factual awareness elements
were inconsistent with Article 32 ç which is why they decided to include them.
Consider Clark’s explanation of the Commission’s approach to the ‘protected
person’ element, quoted in part above:
One [solution] was to say that no mental attitude whatever is required. This circumstance
. . . element is merely jurisdictional . . . At the other extreme was a solution consistent with the
literal language of [Article 30]. . . let the default rule apply. Then . . . the perpetrator who makes
an inaccurate legal evaluation of the situation may have a mistake of law defence . . . Many
of the participants, again, were not comfortable with either of these ‘extreme’ solutions and the
collective diplomatic mind sought compromise. Hence that third way, Element 4’s requirement
that the perpetrator be aware of the factual circumstances that established the protective
status . . . Article 32(2) has been neatly finessed by defining the mental element so as to avoid any
reference to legal characterization.76
Factual awareness elements ‘neatly finesse’ Article 32, of course, because a

perpetrator only acts ‘knowingly’ for purposes of Article 30 if he is aware of
both the legal and factual aspects of a material element. Kelt and von Hebel
argue otherwise, claiming that factual awareness elements simply ‘clarify’ or
provide ‘further guidance’ for Article 30’s knowledge requirement, because
‘awareness that a circumstance exists’ does not require a perpetrator to under-
stand an element’s legal aspects.77 That argument, however, is difficult to
defend. First, as the Preparatory Commission itself points out, the ‘literal lan-
guage’ of Article 30 supports the broader interpretation of knowledge, given
that the Article defines knowledge of a circumstance element as ‘awareness
that a circumstance exists’, not as ‘awareness of the factual circumstances that
establish’ that a circumstance exists. Had the drafters of the Rome Statute
intended the latter definition, it is reasonable to assume that they would have
said so. After all, that is precisely what the Preparatory Commission did.
Second, if the Preparatory Commission believed that factual awareness
elements simply ‘clarified’ Article 30, it is reasonable to assume that they
74 See, e.g., Elements, Art. 7(1)(k) (Element 3).

75 Ibid., Introduction to Art. 8.
76 Ibid., at 330^331 (emphasis added).
77 See Do«rmann et al., ‘The Context of War Crimes’, in Lee, supra note 18, at 118.
434 JICJ 6 (2008), 419^445
would have either included a statement concerning the sufficiency of factual

awareness in the Introduction to the Elements (similar to their statement that
perpetrators do not have to complete value judgments) or used factual aware-
ness elements to modify every legal element in the Rome Statute. But instead
the Introduction is silent concerning factual awareness elements, and the
Preparatory Commission only used them to modify legal elements that they
were particularly concerned would give rise to successful MLE defences ç the
‘protected person’ element being the best example.78
Third, and perhaps most important, if Article 30’s definition of knowledge
requires awareness only of an element’s factual elements, no mistake could ever
exclude criminal responsibility under Article 32(2), rendering that provision a
mere nullity ç a violation of one of the most basic canons of statutory con-
struction.79 Not even the German criminal law scholars who defend the ‘lay-
man’s parallel evaluation test’, discussed below, are willing to go that far; as
noted earlier, for example, Albin Eser has argued that ‘one should not assume
that the drafters of sentence (2) wanted it to run idle’.80
Factual awareness elements, in short, do not ‘clarify’Article 30’s knowledge
requirement ç they redefine it. Those elements are thus also inconsistent with
the drafters’ insistence that deviations from Article 30’s knowledge require-
ment should be the exception, not the rule. As Clark notes,‘the drafting history
of the Statute . . . demonstrated a widespread disposition to avoid responsibility
based on either negligence or recklessness’.81 Factual awareness elements not
only deviate from knowledge, they deviate from recklessness and negligence as
well, because they essentially hold perpetrators strictly liable for all of the rules
of international humanitarian law.
Consider, for example, the legal concept ‘protected person’. The rules of IHL
that determine whether a person is protected under the Geneva Conventions
are extremely complicated ç so complicated, in fact, that the Preparatory
Commission decided not to define the concept in the Elements, preferring to
leave that task to the Court itself.82 Nevertheless, the Commission did not
hesitate to qualify all of the ‘protected person’ elements with factual awareness
elements, thereby preventing a perpetrator from arguing that he did not ‘know-
ingly’ commit a war crime or crime against humanity involving a protected
person because he misunderstood one of the rules of IHL that determine
protected status. The perpetrator is simply presumed to understand that rule,
even if he honestly misunderstood it, and even if ç more troubling, given the
drafters’ aversion to strict liability83 ç a reasonable soldier would also have
misunderstood it.
78 See Clark, supra note 38, at 331 n. 131 (‘Not all potential mistake of law situations have been
finessed in this way in the Elements.’).
79 See e.g. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995).
81 Clark, supra note 38, at 321; see also Eser, supra note 5, at 903.
82 See Do«rmann, supra note 59, at 29.
83 See Eser, supra note 5, at 902; Clark, supra note 38, at 322 n. 106.
B. ‘Should Have Known’ Elements

The Preparatory Commission has also tried to restrict MLEs by replacing the
default knowledge requirement in three ‘improper use’ war crimes with a
simple negligence requirement: that the perpetrator ‘knew or should have
known’of the prohibited use.84 An honest MLE excludes criminal responsibility
only if the legal element in question requires knowledge; if the element
requires negligence, an MLE must be both honest and reasonable.85 The replace-
ments thus make it considerably more difficult for a perpetrator to argue that
he made a responsibility-excluding MLE.
There is no question that the negligence standard imposed by the three
‘should have known’ elements is facially inconsistent with Article 30’s require-
ment that all of the material elements of a crime be committed ‘with intent and
knowledge’.86 The critical issue is whether ‘should have known’ elements fall
within the ‘unless otherwise provided’ exception to Article 30’s default mens rea
requirement. A number of scholars believe that they do, emphasizing that
Article 21(1) says that the Court ‘shall apply’ not only the Statute itself, but
also the Elements of Crimes.87 Other scholars, by contrast, believe that the
principle of legality requires deviations from Article 30’s knowledge require-
ment to be based solely on the language of the Rome Statute.88
In general, the evidence supports the latter position. First, the Rome Statute
‘otherwise provides’ a number of mental elements that either raise or lower the
default knowledge requirement, such as the special intent required by geno-
cide89 or the negligence standard imposed on military commanders for crimes
committed by their subordinates.90 There is no reason, therefore, that the ‘unless
otherwise provided’exception has to refer to sources outside of the Rome Statute.
Second, the drafters of the Rome Statute considered and rejected a version of
Article 9 that said the Elements ‘shall be applied’ by the Court,91 preferring the
current version, which provides that the Elements ‘shall assist’ the Court92 and
‘shall be consistent with’ the Rome Statute.93 That decision was specifically
motivated by the fear that mandatory language would allow the Court to
deviate from the text of the Rome Statute.94
84 Elements, Art. 8(2)(b)(vii)-1; Art. 8(2)(b)(vii)-2; Art. 8(2)(b)(vii)-4.

85 See e.g. Model Penal Code commentaries, x2.04, at 271 (noting that an unreasonable mistake
does not exclude criminal responsibility ‘in the case of mistake regarding an element of the
offence as to which negligence is the culpability level’).
86 See e.g. Eser, supra note 5, at 933.
87 See e.g. Werle, supra note 8, at 108; Kelt and von Hebel, supra note 18, at 29-30; cf. A. Cassese,
International Criminal Law (Oxford: Oxford University Press, 2003), 176.
88 See e.g.Weigend, supra note 33, at 327; see also K. Ambos, Der Allgemeine Teil desVolkerstrafrechts
(Berlin: Duncker and Humblot, 2002), 789.
89 See Rome Statute, Art. 6.
90 See ibid., Art. 28(a)(i).
91 See E. Gadirov, ‘A rticle 9’, in Triffterer, supra note 12, at 309.
93 Ibid., Art. 9(3).
94 See H. von Hebel, ‘The Making of Element of Crimes’, in Lee, supra note 18, at 7.
436 JICJ 6 (2008), 419^445
Third, the initial paragraph of the General Introduction to the Elements

provides that ‘[p]ursuant to article 9, the following Elements of Crimes shall
assist the Court in the interpretation and application of articles 6, 7, and 8’.95
That paragraph was specifically added to ‘re-emphasise’ that the Elements had
to be consistent with the Statute.96
Fourth, and finally, the similar language in Article 31, on grounds for
excluding criminal responsibility, supports the more restrictive interpretation
of the ‘unless otherwise provided’ exception. Some scholars take the opposite
position, citing the first paragraph of Article 31 ç ‘[i]n addition to other
grounds for excluding criminal responsibility provided for in this Statute, a
person shall not be criminally responsible if, at the time of that person’s con-
duct . . .’97 ç as evidence that the drafters of the Rome Statute knew how to
limit the Court’s consideration to the Statute when they wanted to.98 Sentence
1, however, simply acknowledges that there are other Articles in the Statute
that contain defences (such as Article 32 itself); it does not address whether the
Court can recognize defences that are not based on the Statute’s text. That
question is answered by the third paragraph of Article 31: ‘[a]t trial, the Court
may consider a ground for excluding criminal responsibility other than those
referred to in paragraph 1where such a ground is derived from applicable law as set
forth in article 21’.99 Paragraph 3 indicates that when the drafters wanted to
permit the Court to go beyond the four corners of the Rome Statute, they
included a clause that specifically references Article 21. The fact that no such
clause modifies Article 30 is thus strong ç and perhaps even definitive ç
evidence that the ‘unless otherwise provided’ language was intended to refer
only to exceptions contained in the Statute itself.
The better view, in short, seems to be that the ‘should have known’ elements
in the Elements of Crimes are inconsistent with Article 30, because the
Article’s ‘unless otherwise provided’ exception refers only to deviations from
the default knowledge requirement that are part of the Rome Statute itself.
C. The Layman’s Parallel Evaluation Test

Although scholars generally accept the idea that certain kinds of MLEs can
exclude criminal responsibility under Article 32, a number of those same
scholars believe that MLE claims are limited by what’s known in German
criminal law as the ‘layman’s parallel evaluation test’. According to that test,
a perpetrator does not have to understand the precise definition of a legal
95 Elements, General Introduction, x1.

96 See Kelt and von Hebel, supra note 18, at 24.
98 See e.g. Werle, supra note 8, at 108.
element in a crime in order to act ‘knowingly’100 with regard to that element.

On the contrary:
In regard to the normative criteria . . . it is sufficient in principle if the perpetrator knows of
the fundamental factual circumstances and comprehends the significance of the incriminating
conduct that is described by those criteria. It is immaterial, in principle, whether the perpe-
trator’s legal assessment is correct.101
In practice, the layman’s test is less restrictive of MLEs than factual aware-
ness elements, because it assumes that Article 30’s definition of knowledge
requires the perpetrator to have at least some degree of awareness that his
intended actions might be illegal. Responsibility-excluding MLEs are thus at
least possible under the layman’s test.102 Nevertheless, because the test applies
to all legal elements, it would limit the availability of MLE defences: a perpe-
trator would obviously find it more difficult to argue that he did not ‘compre-
hend[] the significance of the incriminating conduct’described by a set of facts
than that he did not understand the precise definition of the legal element in
question.
There is no question that the German criminal law definition of knowledge is
facially consistent with Article 30 ç ‘awareness that a circumstance exists’
could refer to a layperson’s understanding of the legal implications of a parti-
cular set of facts. Moreover, nothing in the preparatory work rules out the
possibility that the drafters of the Rome Statute intended to incorporate the
layman’s parallel evaluation test into Article 30. Nevertheless, the incorpora-
tion position is difficult to defend, for two interrelated reasons.
First, the layman’s test is clearly inconsistent with the common law, one of
the primary sources of Article 30.103 Common-law scholars would uniformly
reject the idea that a perpetrator acts ‘knowingly’ with regard to a legal ele-
ment as long as he understands the significance of the incriminating conduct
that is described by the set of facts underlying it. In the common-law tradition,
‘knowledge’ requires more: it also requires understanding the precise definition of a
legal element. That is why Glanville Williams says simply that ‘if a statute
creates a crime requiring knowledge, the accused is not guilty if, owing to a
misunderstanding of some part of the general civil law, he thought the facts did
not fall within the concepts used in the definition of the crime’.104 And that is why
the drafters of the Model Penal Code state categorically that ‘[t]he general
principle that ignorance of mistake of law is no excuse . . . has no application
100 German criminal law speaks of ‘intent’ (Vorsatz) instead of ‘knowledge’, but the terms are
functionally equivalent. See M.E. Badar, ‘Mens Rea ç Mistake of Law and Mistake of Fact in
German Criminal Law: A Survey for International Criminal Tribunals’, 5 International
Criminal Law Review (2005) 203, 214, n. 56.
101 Werle, supra note 8, at 105^106 (emphasis added).
102 As indicated by the fact that all of the scholars who support the layman’s parallel evaluation
test believe that at least some MLEs exclude criminal responsibility under Art. 32. See supra
notes 24^32.
103 See Clark, supra note 38, at 299^303.
104 Williams, supra note 48, at 321.
438 JICJ 6 (2008), 419^445
when the circumstances made material by the definition of the offence include a legal
element’.105 Both quotes reflect the idea that, in terms of the perpetrator’s
awareness of a circumstance, there is no relevant practical difference between
a mistake of fact and an MLE ç which is why common-law scholars routinely
insist that an MLE ‘is more like a mistake of fact than like the mistake of law
envisioned by the maxim’ ignorantia juris.106
The second reason to question whether Article 30 incorporates the layman’s
parallel evaluation test is that the test is also foreign to most civilian criminal-
law systems. Eser notes that the layman’s test is ‘in particular employed in
German theory and practice,107and van Sliedregt agrees, adding that ‘[t]he
‘layman’s test’ is of German origin and is specifically applied in the context of
German theory on intent and mistake of law’.108 Indeed, none of the authors
who support the layman’s test cite a single non-German source that indicates
the test is part of the general civil law.
That absence is not surprising. As noted earlier, ‘most civil law systems
regard mistake as an excuse bearing on culpability, which does not necessarily
imply lack of mens rea’.109 Those systems, therefore, do not have to concern
themselves with what knowledge of a legal element requires, because the
absence of knowledge ç however defined ç will not result in a mistake that
excludes criminal responsibility. In that respect, the German approach to mis-
take is actually closer to the common law than to the civil law, because it does
contain a type of mistake that excludes criminal responsibility by negativing
the perpetrator’s mens rea, what is known as a ‘standard mistake’
(Tatbestandsirrtum): ‘German criminal law’s first principle in treating mistake is
the explicit distinction between standard mistake, which excludes intent, and
mistake of law, which does not exclude intent’.110 The prototypical standard
mistake is a mistake of fact,111 but some MLEs ç what German criminal law
calls ‘normative mistakes’112 ç also qualify as standard mistakes.113 As Arzt
says,‘the line is not drawn between factual mistake and normative mistake, but
between standard mistake which may be factual as well as normative and
105 Model Penal Code commentaries, x2.02, at 250 (emphasis added).

106 Dutile and Moore, supra note 1, at 179; see also Model Penal Code commentaries, x2.04, at 270
n. 2 (‘There is no sensible basis for a distinction between mistakes of fact and law in this
context, and, indeed, the point is often recognized in the cases by assimilating legal errors on
collateral matters to a mistake of fact, or by treating such errors as exceptions to the ignoran-
tia juris concept.’).
107 Eser, supra note 5, at 925 n. 166.
109 Ibid., at 312.
110 G. Arzt, ‘The Problem of Mistake of Law’, Brigham Young University Law Review (1986) 711, at
714^715 (noting that ‘standard mistake’ in German criminal law ‘operates as a defence by
excluding intent’).
111 Ibid., at 716 (‘Under German criminal law, factual mistakes, insofar as they are relevant under
the crime charged, always fall into the category of standard mistakes.’).
112 See ibid., at 716^717 (‘For the most part, normative meaning is to be identified with legal
meaning. If the law refers to facts . . . these facts gain a normative quality.’).
113 Ibid., at 717 (‘Full factual knowledge without proper understanding of the normative context
can be so empty that it negates mens rea.’).
mistake of law which is always normative’.114 The distinction is whether the

MLE in question satisfies the layman’s parallel evaluation test:
A lay concept which does sufficiently parallel the legal definition leads to a standard mis-
take, since the layperson misunderstood a definitional element of the crime. A lay concept
which does sufficiently parallel the legal definition leads to an irrelevant mistake under the
doctrine of Subsumptionsirrtum.115
German criminal law’s layman’s parallel evaluation test, in short, is both

inconsistent with the common law and very different than ‘ordinary’ civil law.
It is thus difficult to argue that Article 30’s definition of knowledge incorpo-
rates the layman’s test, because that argument requires assuming that the
drafters of Article 30 intended to adopt German criminal law’s idiosyncratic
definition of knowledge, but never felt compelled to reveal that intention
during the drafting process. Both assumptions may, of course, be correct ç
but the burden of proof is clearly on those who argue that they are.
Moreover, even if Article 30 does incorporate the layman’s test, it is still
questionable whether the test will significantly limit the availability of MLEs.
Denying an MLE to a perpetrator who understood ‘the significance of the
incriminating conduct’ described by a set of facts might make sense in the
domestic context, where the illegality of a contemplated action will often be
apparent even in the absence of a technical understanding of the law. A perpe-
trator will normally know that it is wrong to physically attack an innocent
person, for example, even if he is unaware of the legal definition of assault. But
the situation is very different at the international level, where the illegality of
an act normally depends on the transgression of a technical rule of interna-
tional humanitarian law. In so far as war crimes and crimes against humanity
are concerned, it seems very unlikely that a perpetrator who correctly per-
ceived his factual situation but did not understand the precise legal definition
of the applicable rule of IHL would nevertheless have ‘comprehend[ed] the
significance of the incriminating conduct’ associated with his situation. On
the contrary: if the perpetrator honestly misunderstood the applicable legal
rule, it is far more likely that he was completely unaware that his action
might still be illegal. Would the judge who honestly believed that the right to
call witnesses is not guaranteed by the Fourth Geneva Convention116 still have
had a lay understanding that he was denying the defendant a fair trial? And if
our machine gunner only attacked the civilians because he honestly believed
that a population forfeits its civilian status if soldiers are present within it, is it
plausible to suggest that he might still have contemplated the possibility that
the attack would be illegal?
114 Ibid.
115 Ibid., at 720; see also Badar, supra note 100, at 237 (‘[M]istakes about normative elements of
the offence which require a legal evaluation (at least as a layman) are treated as mistakes of
fact.’).
116 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August
1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, Art. 72.
440 JICJ 6 (2008), 419^445
In both of these situations, of course, it is possible to argue that the average

layperson would have understood that the perceived facts rendered the perpe-
trator’s action illegal ç and thus that the perpetrator should have reached the
same understanding. But that is not the layman’s test: the question is what the
perpetrator actually knew, not what he should have known ç ‘it is sufficient in
principle if the perpetrator . . . comprehends the significance of the incriminating
conduct’.117 The layman’s test, in other words, is still a subjective standard, just
one that is less demanding than the common-law in terms of what the mens
rea of knowledge requires. And that is the fatal flaw of the test: unless it applies
an objective standard ç a standard I advocate below ç it has little application
to the highly-technical body of law that constitutes the special part of the
Rome Statute.
D. Reasonableness
Some scholars also attempt to limit the possibility of MLEs by claiming that
only ‘reasonable’or ‘unavoidable’ mistakes ç i.e. non-negligent ones ç exclude
criminal responsibility under Article 32(2). Cassese’s argument is illustrative:
It is submitted that mistake of law may be pleaded as a valid excuse not when the offender
was unaware of the unlawfulness of his conduct, but when: (i) he had no knowledge of an
essential element of law referred to in the international prohibition of a certain conduct; (ii)
this lack of knowledge did not result from negligence; (iii) consequently the person, when he
took a certain action, did not possess the requisite mens rea.118
That argument, however, is irreconcilable with the drafting history of Article

32. A version of the Article that required unavoidability was considered at
every stage of the negotiations119 and was included in the Committee’s Draft
Statute for an International Criminal Court:
Unavoidable mistake of fact or of law shall be a ground for excluding criminal responsibility
provided that the mistake is not inconsistent with the nature of the alleged crime. Avoidable
mistake of fact or of law may be considered in mitigation of punishment.120
Despite those proposals, the Preparatory Committee ultimately rejected the

unavoidability requirement in favor of the current mens rea-based approach to
mistake.121
117 Werle, supra note 8, at 105^106; see also Triffterer, supra note 16, at 563 (‘[I]t is enough if he or
she is aware of the social meaning of the facts perceived.’); Eser, supra note 5, at 924^925 (‘[I]t
will suffice that the perpetrator is aware of protective norms in the area concerned and the
violative impact of his acts.’).
118 Cassese, supra note 87, at 256; see also Triffterer, supra note 16, at 570.
119 See e.g. Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21
February 1997, Art. K, Alternative Text A, UN Doc. A/AC.249/1997/L.5 (1997); Report of the
Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, Art. 24[K],
Option 1, UN Doc. A/AC.249/1998/L.13 (1998).
120 Draft Statute for the International Criminal Court and Draft Final Act, Art. 30, Option 1, UN
Doc. A/CONF.183/2/Add.1 (1998).
121 Clark, supra note 38, at 309.
To be fair, scholars who believe that Article 32 exculpates only reasonable

MLEs acknowledge this drafting history.122 Nevertheless, they insist that a
reasonableness requirement is a ‘general principle of law’ that the Court can
read into Article 32 via Article 21.Van Sliedregt, for example, says that ‘as most
national legal systems provide for such a bar in allowing the defence of mis-
take, it can be applied through Article 21(1)(c) as well’.123
There are two major problems with that argument. First, the reasonableness
requirement cannot be considered a ‘general principle of law’, because the
common-law tradition specifically rejects requiring MLEs to be reasonable. As
Perkins notes:
An offence has not been committed if any essential element of guilt is missing, whether
what is lacking is a mental element or the actus reus itself. The distinction is significant
because if mistake as claimed as an excuse it will be necessary to show that the mistake
was reasonable, whereas if mistake resulted in an element of the crime being absent, it is
immaterial whether the mistake was reasonable or unreasonable.124
The Model Penal Code agrees, stating categorically that ‘[t]here is no justifi-
cation . . . for requiring that ignorance or mistake be reasonable if . . . the
element of the crime involved requires acting purposely or knowingly for its
commission’.125
Second, the reasonableness requirement fails Article 21’s requirement that a
general principle of law not be ‘inconsistent with’ the Rome Statute. Article 32
is based on the common law, and in the common-law tradition MLEs are not
excuses but failure-of-proof defences: ‘if the defendant has been acquitted
because his mistake of some nonpenal law negated a special mental element
of the crime charged, this is not in any sense based on the theory that what
has been done is excused. The acquittal is due to the fact that the offence has
not been committed’.126 Refusing to acquit a perpetrator on the ground that his
honest MLE was unreasonable would thus be tantamount to convicting him
despite the fact that he did not act with ‘the mental element required’ by the
crime ç a blatant violation not only of Article 32, but also of the fundamental
principle of international criminal law actus non facit reum nisi mens sit rea.127
E. The Word ‘May’

The final strategy some scholars use to limit MLEs focuses on the second
sentence of Article 32(2): ‘[a] mistake of law may . . . be a ground for excluding
criminal responsibility if it negates the mental element required by such
122 See e.g. van Sliedregt, supra note 14, at 305.

123 Ibid.; see also Triffterer, supra note 16, at 570.
124 R. Perkins and R. Boyce, Cases and Materials on Criminal Law and Procedure (3rd edn,
Foundation Press, 1982), 1036.
125 Model Penal Code commentaries, x2.02, at 271.
126 Perkins and Boyce, supra note 124, at 1035.
127 See, e.g., Werle, supra note 8, at 100.
442 JICJ 6 (2008), 419^445
a crime’.128 According to these scholars, the use of the word ‘may’ gives the
Court the discretion to reject an MLE that would otherwise exclude criminal
responsibility under the Article:
Even if the mental element is negated by a mistake of law in the way described before, this
does not necessarily lead to the exclusion of criminal responsibility though; for, as accord-
ing to sentence (2) this ‘may’ merely be the case, it seems as if the ICC Statute wants to leave
some discretion to the Court to either accept or ignore the mistake.129
Other scholars disagree, concluding that the ‘may’ in sentence 2 simply

‘makes reference to the absolute irrelevance of certain types of mistake of law
provided for in sentence 1’.130 That interpretation is clearly the better one,
because giving the Court discretion to reject honest MLEs is no less inconsis-
tent with Article 32’s common-law principles than requiring MLEs to be rea-
sonable. If an honest MLE negates the default knowledge requirement, the
claim that the Court still has the ‘discretion’ to ignore that mistake is equivalent
to the claim that the Court has the discretion to convict a perpetrator despite
the fact he did not commit the crime ç an obvious impossibility.
8. Possible Solutions
Four of the five strategies the Preparatory Commission and scholars have relied
on to limit MLEs, in short, are clearly inconsistent with the Rome Statute. And
the fifth ç the Commission’s use of ‘should have known’ elements ç is most
likely inconsistent. We are thus back where we started: faced with the recogni-
tion that nearly every crime in the Rome Statute is capable of giving rise to a
valid MLE defence.
That is a disturbing prospect, to say the least. It is easy to sympathize with
the Preparatory Commission’s belief that perpetrators should not be rewarded
for their ignorance of the rules of international humanitarian law. The answer,
however, is not to ‘neatly finesse’ the ‘literal language’ of Article 32, nor to
pretend that Article 32 is not based on the common-law approach to mistake.
What, then, is the solution to the threat that MLEs pose to the Court’s ability
to punish serious international crimes? Three possibilities, not all equally com-
pelling, suggest themselves.
A. Trust the Court

The first possibility is less a solution than an acknowledgment: the fact that
nearly every crime in the Rome Statute can give rise to an responsibility-
excluding MLE does not mean that nearly every MLE defence will succeed.
MLEs may not have to be reasonable, but they do have to be honest.

129 Eser, supra note 5, at 941; see also Triffterer, supra note 16, at 570.
130 Werle, supra note 8, at 151 n. 347; see also Clark, supra note 38, at 312.
So although the Court does not have the discretion to ignore an honest MLE, it
remains free to conclude that the perpetrator did not actually misunderstand
the legal rule in question ç that, in fact, his MLE claim is nothing more than
an ex post rationalization for conduct he knew full well was criminal.131
In practice, the honesty requirement will likely prove fatal to a significant
number of MLEs. ‘[N]o soldier can carry with him a library of international
law’,132 but she can certainly be assumed to know and understand interna-
tional humanitarian law’s basic rules, such as the definition of a civilian under
the Geneva Conventions.133 MLE claims that involve a basic rule, therefore,
should be met by the Court with justifiable scepticism.134
That said, emphasizing mistake’s honesty requirement will still permit a
wide variety of successful MLE defences. As noted earlier, although many
rules of IHL are straightforward, even a well-trained soldier ‘may not be
aware of the variety and reach of all the relevant prohibitions’.135 The rule
that says a group of unarmed persons not wearing uniforms qualifies as a
‘civilian population’ may be obvious, for example, but the rule that says such a
group can maintain its civilian status even if it contains a number of soldiers is
much less so. In the absence of additional evidence, therefore, it would be
unfair (and a blatant violation of the presumption of innocence) to automati-
cally conclude that an MLE claim involving the more esoteric rule must be
dishonest. After all, the Preparatory Commission itself refused to define ‘civi-
lian population’ in the Elements because it concluded that civilian status ‘was
too complex a subject and evolving area in the law’.136
Indeed, the honesty requirement is not an invitation to surreptitiously read a
negligence standard into Article 32. In each case, the question must be what
the perpetrator actually knew, not what he should have known.137 So if the Court
applies the requirement fairly, MLE defences involving the many technical
rules of international humanitarian law ç and even the rare MLE claim that
involves an obvious rule ç will still succeed more often than we may like.
B. Adopt ‘Should Have Known’ Elements

The problem, of course, is that Article 30’s default knowledge requirement
applies to all material elements, whether descriptive or legal. MLEs are pos-
sible ç and their recognition by the Court mandatory ç because a perpetra-
tor only acts ‘knowingly’ with regard to a legal element if he understands how
that element is defined. That is why the Preparatory Commission decided to
131 See e.g. Perkins and Boyce, supra note 124, at 1035.
132 Peleus Case, UN War Crimes Commission, Law Reports of Trials of War Criminals (1945) I, 249.
134 See e.g. Delalic¤ , supra note 4, xx373^386 (rejecting MLE claim on the ground that defendant
did not honestly believe civilians were being lawfully confined).
135 Ibid., at 945.
136 D. Robinson, ‘The Context of Crimes Against Humanity’, in Lee, supra note 18, at 78.
137 See e.g. Williams, supra note 48, 124.
444 JICJ 6 (2008), 419^445
otherwise provide ‘should have known’ elements in three of the four ‘improper
use’ war crimes: although an honest MLE negates knowledge, only an honest
and reasonable MLE negates negligence. Such elements thus effectively require
perpetrators to possess the knowledge and understanding of the ‘reasonable
soldier’.
If ‘should have known’ elements do not conflict with Article 30, the potential
impact of MLEs could be significantly limited by amending the Elements to
make more liberal use of them. The extent of their use would be determined by
how much the ‘reasonable soldier’ can be expected to know about the sources
of law directly or indirectly referenced by the Rome Statute. If the reasonable
soldier would know and understand all of those sources, ‘should have known’
elements could be added to every legal element in the Elements of Crimes.
Or ç more likely ç they could be added only to those legal elements that
reflect the basic principles of international humanitarian law.
There is, however, a fundamental problem with this strategy: the better
position seems to be that ‘should have known’ elements are inconsistent with
Article 30, because deviations from the Article’s default knowledge require-
ment must come from the Rome Statute itself. If so, systematically lowering
that requirement via amending the Elements would violate Article 9.
Furthermore, even if ‘should have known’ elements are consistent with the
Rome Statute, more pragmatic considerations militate against using the
Elements to make wholesale changes to the Rome Statute’s system of culpabil-
ity. As Clark notes, the drafting history of Article 30 ‘at the very least demon-
strate[s] a widespread disposition to avoid responsibility based on either
negligence or recklessness’.138 In addition, the Rome Conference rejected pro-
posals that would have required the Court to apply the Elements, indicating
that ‘the binding force of the statutory definitions of crimes and annexed ele-
ments is hardly the same’.139
C. Amend the Rome Statute

A more legitimate solution, therefore, would be to amend the Rome Statute
itself to not require knowledge of legal elements. That change could be accom-
plished in two different ways. First, a fourth paragraph could be added to
Article 30: ‘Notwithstanding paragraphs 1 to 3, material elements that contain
one or more legal rules need only be committed with negligence. A person acts
negligently with regard to a legal rule where that person knew or should have
known the definition of the rule.’ That change would, as noted above, have the
effect of requiring MLEs to be reasonable.
Second, Article 32 could be amended directly. Specifically, sentence 2 in
paragraph 2 could be altered to read either: (1) ‘A mistake of law may, however,
be a ground for excluding criminal responsibility if the person neither knew
138 Clark, supra note 38, at 321.

139 Piragoff, supra note 12, at 309.
nor had reason to know of the legal rule’; or (2) ‘A mistake of law may, however,
be a ground for excluding criminal responsibility if it negates the mental ele-
ment required by such a crime, provided that the mistake is reasonable.’ Each
modification would replace Article 30’s default knowledge requirement with a
negligence standard, but the lower mens rea would be justified by the Article’s
‘unless otherwise provided’ exception.
9. Conclusion
Kenneth Simons has noted that ‘since the presumed minimum culpability
under the [Model Penal] Code is recklessness, a legal mistake is potentially
relevant with respect to every element of every offence unless strict liability is
the specified culpability’140 As this essay has demonstrated, the same problem
affects the Rome Statute ç a fact that is not surprising, given that the Model
Penal Code’s approach to mistake was the ‘guiding example’ of Article 32.141
To their credit, the Preparatory Commission and scholars have recognized
and tried to limit the potential impact of MLEs. Unfortunately, four of the five
mechanisms on which they have relied ç factual-awareness elements, the
layman’s parallel evaluation test, unavoidability, and judicial discretion ç
simply cannot be reconciled with Article 32’s common-law origins. And
although the fifth mechanism quite rightly insists that perpetrators should
not be rewarded for negligently failing to know or understand the basic rules
of international humanitarian law, ‘should have known’ elements are likely
inconsistent with Article 9.
The Article 9 problem could be solved by amending the Rome Statute to not
require knowledge of legal elements. To be sure, applying the ‘should have
known’ standard to all legal elements is at least facially at odds with the
drafters’ aversion to basing criminal responsibility under the Rome Statute on
negligence, which would seem to doom the possibility of convincing 3/4 of
States Parties to amend the Statute.142 That aversion, however, appears to be
based on States’ mistaken belief that Article 30’s default knowledge require-
ment does not open the door to MLEs. Once they recognize that it does, they
should be far more willing to consider a negligence standard. After all, no less
than the Court’s ability to effectively prosecute serious international crimes
may hang in the balance.
140 Simons, supra note 3, at 496.

141 Eser, supra note 5, at 896 n. 33.
142 Rome Statute, Art. 121.

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ARTICLES

Mistake of Legal Element, the

Kevin Jon Heller*

7 Rome Statute, Art. 30.

C. Mistake of Legal Element

20 See Simons, supra note 3, at 465.

4. Scholarly Acceptance of MLEs

Triffterer agrees that an MLE that excludes criminal responsibility is possible

‘fundamental rights contrary to international law’.27 Similarly, Werle mentions

5. MLEs and Article 32

The Elements’ consistent use of factual-awareness elements is important

35 Simons, supra note 3, at 457.

responsibility-excluding MLEs. If misunderstanding the definition of a legal

The fact that Article 32 adopts the common-law approach to mistake is

46 See Simons, supra note 3, at 466.

6. Implications of Recognizing MLEs

(a) References to international law

(b) References to non-combatant status

57 Elements, Art. 7, Introduction.

(c) References to military concepts

(d) References to property law

perpetrator had knowledge of all characteristics of the attack’’’.69 For war

7. Potential Restrictions on MLEs

A. Factual Awareness Elements

Factual awareness elements ‘neatly finesse’ Article 32, of course, because a

74 See, e.g., Elements, Art. 7(1)(k) (Element 3).

would have either included a statement concerning the sufficiency of factual

B. ‘Should Have Known’ Elements

84 Elements, Art. 8(2)(b)(vii)-1; Art. 8(2)(b)(vii)-2; Art. 8(2)(b)(vii)-4.

Third, the initial paragraph of the General Introduction to the Elements

C. The Layman’s Parallel Evaluation Test

95 Elements, General Introduction, x1.

element in a crime in order to act ‘knowingly’100 with regard to that element.

105 Model Penal Code commentaries, x2.02, at 250 (emphasis added).

mistake of law which is always normative’.114 The distinction is whether the

German criminal law’s layman’s parallel evaluation test, in short, is both

In both of these situations, of course, it is possible to argue that the average

That argument, however, is irreconcilable with the drafting history of Article

Despite those proposals, the Preparatory Committee ultimately rejected the

To be fair, scholars who believe that Article 32 exculpates only reasonable

E. The Word ‘May’

122 See e.g. van Sliedregt, supra note 14, at 305.

Other scholars disagree, concluding that the ‘may’ in sentence 2 simply

A. Trust the Court

128 Rome Statute, Art. 32(2).

B. Adopt ‘Should Have Known’ Elements

C. Amend the Rome Statute

138 Clark, supra note 38, at 321.

140 Simons, supra note 3, at 496.

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