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Manifest Illegality and the ICC Superior Orders Defense: Schuldtheorie Mistake of Law Doctrine as an Article 33(1)(c) Panacea

Posted by on Saturday, December 20, 2014 in Notes, Vol. 47 No. 5, Volume 47, Volumes.

While the Anglo-American and international legal systems adhere to the rule that “a mistake of the law excuses no one,” German Schuldtheorie mistake of law doctrine provides for a mistake of law excuse if a defendant’s mistaken belief in the lawfulness of his conduct was unavoidable. In a distinct but increasingly overlapping area of law, domestic and international legal systems provide defenses for subordinates acting in obedience to superior orders. At the international level, the Rome Statute of the International Criminal Court allows defendants charged with war crimes to invoke the defense of superior orders if the command obeyed was not “manifestly unlawful,” a standard that has garnered substantial criticism. This Note argues that infusing the Rome Statute’s superior orders defense with the Schuldtheorie mistake of law doctrine as codified by Section 17 of the German Criminal Code would address criticisms of Article 33 by reconciling Article 33 with previously established customary international law and produce desirable results by encouraging reasonable, context-specific investigation into the legality of commands.

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