The concept of co-perpetration and its proper construction continues to be a topic that causes controversy and fragmentation in the field of international criminal law. The latest proof of this is the Lubanga Trial Judgment in which the three judges disagreed on whether this mode of liability should be based on the theory of joint control over the crime. The present article examines and further develops Judge Fulford’s arguments against the adoption of this theory in cases brought before the International Criminal Court. It analyses the Rome Statute and its drafting history, as well as customary international law and domestic jurisprudence, in order to review the contention that there is no legal basis for applying the joint control paradigm in ICC proceedings. In addition to this, several recent ICC cases are examined to underscore the practical weaknesses of the control over the crime approach to co-perpetration.
Kai Ambos‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’12.2 International Criminal Law Review (2012) pp. 148-9; Wirth Lubanga Trial Judgmentsupra n 38 pp. 990-991.
Mahmoud C. BassiouniThe Legislative History of the International Criminal Court (Vol. 2., NY: Transnational, Ardsley2005) p. 201; Preparatory Committee on the Establishment of an International Criminal Court (25 March – 12 April 1996) Summary of the Proceedings of the Preparatory Committee during the Period 25 March – 12 April 1996 (A/AC.249/1) 7 May 1996 paras. 79 88.
Hoge Raad 22 November 2011 NJB20112269. The facts of the case accepted by the Court are as follows; on the night between 6 July and 7 July 2007 a 21 year old woman (the accused) and her older sister (the co-accused) went to the house of the victim for the purpose of settling a problem between the latter two. Prior to this the co-accused had made it clear that she will beat the victim and had also told her younger sister that they should both dress in black. When they arrived at the victim’s house the co-accused in the presence of the accused forced the victim to write a farewell letter and then drink pills and bleach. After some time the victim told the two sisters that she cannot feel anything following which the co-accused went to the kitchen took a rope and then brought the victim to the bathroom where she strangled the victim to death. The accused was present at all time and on one occasion was also left alone with the victim for around ten minutes because the co-accused left the house to go to the car. After they were convinced that the victim was dead the two sisters left the house. Before doing so the co-accused in an effort to hide their traces took with them the can of Coke and the ashtray which the accused used in the house.
Kai Hamdorf‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’5.1 Journal of International Criminal Justice (2005) pp. 210-211.