Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges

Abstract

In its Lubanga decision on Confirmation of Charges, the International Criminal Court (ICC) Pre-Trial Chamber (PTC) I addresses a number of important issues regarding the General Part of Criminal Law in the ICC Statute. As a matter of methodology, the PTC affirms (although without specific argument) that the Elements of Crimes can provide for lower standards for conviction than those suggested by the terms of the Statute itself. The PTC then rejects, on factual grounds, the argument made by the Defence that Lubanga was subject to a mistake of law. The focus of the Decision is the concept of co-perpetration (Article 25(3)(a) ICC Statute) and its objective and subjective requirements. At the outset, the PTC rejects the concept of joint criminal enterprise as falling within co-perpetration. The PTC demands, as an objective requirement, that each co-perpetrator has assumed an ‘essential’ part of the common plan and that he or she can consequently cause the plan to fail by withholding participation. The subjective requirement for co-perpetrator liability is defined as an awareness of a substantial risk that the objective offence elements will be brought about. It is however questionable whether the PTC in fact applied its enunciated standards correctly to the case at hand.