Journal Article

Co-perpetration in the <i>Lubanga</i> Trial Judgment

Steffen Wirth

in Journal of International Criminal Justice

Volume 10, issue 4, pages 971-995
Published in print September 2012 | ISSN: 1478-1387
Published online September 2012 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqs051
Co-perpetration in the Lubanga Trial Judgment

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The contribution discusses co-perpetration in the Lubanga Trial Judgment. It first compares co-perpetration with joint criminal enterprise (JCE) and analyses Lubanga under JCE. It goes on to consider Judge Fulford’s — arguably, unconvincing — dissent regarding the Statute’s dualist approach. As to the elements of co-perpetration, the article finds that it is difficult to see how the Chamber could find that all criminal conduct attributed to Lubanga was carried out by him or his co-perpetrators. It is argued that indirect co-perpetration might have been the more appropriate mode to hold Lubanga accountable. Further it is maintained that, under co-perpetration, it is not necessary that each co-perpetrator has the power to frustrate the crime. Finally, the author shares the view that customary international law mens rea standards apply under the Statute through the ‘unless otherwise provided’ formula in Article 30(1) ICC Statute. Accordingly the mens rea for co-perpetration (and other forms of committing) is awareness of a probability or substantial likelihood.

Journal Article.  12053 words. 

Subjects: Criminal Law ; International Law

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