GENERAL PART

CHAPTER TWO
THE OFFENCE

FIRST TITLE
FOUNDATIONS OF CRIMINAL LIABILITY

Section 17
Mistake of law

If at the time of the commission of the offence the offender lacks the awareness that he is acting unlawfully, he shall be deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the sentence may be mitigated pursuant to section 49(1).

This provision is wider than the ICC Statute.

Under German criminal law (StGB Section 17), a mistake of law excludes guilt if the mistake was unavoidable, while it mitigates guilt if it was avoidable. The Rome Statute requires that the mistake of law must negate the mental element in order to exclude criminal responsibility, whcih arguably provides a narrower ground for excluding criminal responsibility. (Matthias Neuner, General principles of International Criminal Law in Germany, pp. 105-136 in Matthias Neuner (ed.), National legislation implementing international crimes, Berlin: Berliner Wissenschafts-Verlag, 2003 - pp. 120-122).