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Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute

其他書名	A Critical Analysis
出版	SSRN, 2010
URL	http://books.google.com.hk/books?id=n3nnzgEACAAJ&hl=&source=gbs_api

註釋Article 32(2) of the Rome Statute provides that lsquo;[a] mistake of law may hellip; 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 lsquo;cryptic', I argue in this essay that it was specifically drafted to recognize what common-law scholars have variously called lsquo;mistake of mixed fact and law', lsquo;mistake of legal fact', and mdash; most usefully mdash; lsquo;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 lsquo;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 mdash; providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard mdash; are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs mdash; such as subjecting them to German criminal law's lsquo;layman's parallel evaluation' test mdash; are inconsistent with Article 32's common-law foundations. Properly understood, therefore, 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. 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.