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I can’t claim to have done genuinely comprehensive research on this topic, but it marketing activities come first to me that there is a significant gap here in the international legal literature. How exactly do we handle mistakes of fact in the various different sub-fields of international law, especially when the mistake involves uses of lethal force?
And are we content that whatever solutions we have come up with are the right ones?
This three-part series of posts is not even an attempt at filling this gap – think of it more as a conversation starter. I would be most grateful to readers for additional examples in the comments or for any other thoughts they might have. In this first post, I will briefly examine how mistakes of 12 tips to increase the movement of your physical store in using lethal force are addressed in international criminal law, international humanitarian law, and international human rights law. My second post will look at mistakes of fact in self-defence under the law on the use of force (jus ad bellum), examining as a case study the 1988 downing of Iran Air Flight 655 by the USS Vincennes. The third and final post will then offer some conclusions and some tentative thoughts on the downing of Ukraine International Airlines Flight 752 over Tehran.
International criminal law
Under Article 32(1) of the Rome Statute of the ICC, ‘A mistake of fact shall be a ground for agb directory criminal responsibility only if it negates the mental element required by the crime.’ (Other international criminal tribunals have applied substantially similar rules on mistake of fact, and so I will confine the discussion solely to this provision). Note that not every mistake of fact is legally relevant; it can only be exculpatory if it negates the crime’s mens rea requirements. Thus, if the definition of a particular crime requires specific mental elements with regard to certain conduct or circumstances, an honestly held mistake of fact would negate the mental element even if it was unreasonable.