Mens Rea in Co-perpetration and Indirect Perpetration According to Article 30 of the Rome Statute. Arguments against Punishment for Excesses Committed by the Agent or the Co-perpetrator

Abstract

This article analyses the recent interpretations of Articles 25 and 30 of the ICC Statute by the Pre-Trial Chambers of the International Criminal Court. The Court adopts a broad interpretation of the common plan or agreement element; in addition, it appears to distort the mental element which is provided for by Art. 30 of the Statute. Such interpretative trends permit a person to be charged as a co-perpetrator or indirect co-perpetrator in relation to crimes committed by others and which have not been agreed or ordered by the person charged. This implies a violation of the principles of responsibility for one’s own actions and of culpability. Therefore, the paper proposes a strict definition of Article 30 that highlights the requirement of the intent to engage in the conduct. This element, understood as the will to act, belongs to every kind of dolus. The paper analyses the interpretation of this requirement in cases of co-perpetration, where the joint will to act is expressed in the common plan or agreement.