Intent, Mistake of Law,
and Co-perpetration in
the Lubanga Decision on
Confirmation of Charges
Thomas Weigend*
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.
1. General Remarks
It may come as a surprise that the first Decision of the International Criminal
Court (ICC) on Confirmation of Charges1 devotes 50 pages to problems of the
General Part of International Criminal Law as enshrined in the ICC Statute.
*
Professor of Criminal Law, University of Cologne (Germany), member of the Board of Editors of
the Journal. [[email protected]]
1 Decision on Confirmation of Charges, Lubanga, PTC I, 29 January 2007 (ICC 01/04-01/06).
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Journal of International Criminal Justice 6 (2008), 471^487
doi:10.1093/jicj/mqn034
ß Oxford University Press, 2008, All rights reserved. For permissions, please email: [email protected]
472
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The largest portion of the Decision focuses on the issues of intent, mistake of
law and co-perpetration. Such issues, one might have thought, are rich material for theoretical debate but would (or should) not give the Court too much
concern when applying the law of the ICC Statute to the facts of the first
situation brought before it. But it turns out that issues of ‘Dogmatik’ are from
the outset being argued before the Court with great intensity, and that they
are having a significant impact on the direction the Court’s decision takes.
A further explanation of the prominence given to the General Part in the
Confirmation of Charges Decision in Lubanga2 may be the fact that Judge
Claude Jorda, then-President of the ICC Pre-Trial Chamber (PTC) I, former
President of the ICTY and well-known international criminal lawyer, wished
to leave his mark before stepping down from the bench for health reasons in
August 2007. The Lubanga decision indeed sets an example for the future work
of the Court through the interpretation of some key elements of Articles 25 and
30 ICC Statute, but perhaps even more through its crystal-clear analysis of the
legal situation and its well-reasoned, systematic argument, thus being representative of the best of the ‘criminal law’ branch of a field of law that will
forever be torn between the differing styles of argument of its unlike parents,
criminal law and international law.
This brief note cannot pursue the rich background of the PTC’s reasoning in
the ‘General Part’ portion of the Lubanga decision, nor will it speculate (except a
little) on possible consequences of this reasoning for other cases or situations.
What it seeks to do is to outline and comment on the PTC’s main arguments.
2. Applicable Law: the Relationship between the
ICC Statute and the Elements of Crimes
In the course of its lengthy discussion of the subjective element of Article
8(2)(b)(xxvi) ICC Statute (i.e. the war crime of conscripting and enlisting children under the age of 15, the crime Lubanga was charged with), the PTC ç
without giving specific reasons ç touches upon a methodological issue that
has long divided interpreters of the ICC Statute. The PTC implicitly confirmed
the status of the Elements of Crimes (EC or Elements) as ‘law’ to be applied
by the Court, with a rank equal to the Statute itself. The ICC Statute,
2 Thomas Lubanga Dyilo, who was transferred to the ICC in March 2006, was a founder and
prominent leader of the Union des Patriotes Congolais (UPC), a group politically active since
2000 in Ituri, a province in the North East of the Democratic Republic of Congo (DRC). UPC
had its base in one local ethnic group, the Hema, and received support from Rwandan officials.
UPC competed for power with various other regional groups, some of them backed by Uganda
and/or the central government of the DRC. The military wing of the UPC was called Forces
Patriotiques pour la Libe¤ ration du Congo (FPLC). Lubanga also played a leading role in that
military organisation, which in 2002 became engaged in armed conflict with rivalling groups
in Ituri ç a conflict which continued through 2003 and which the Court characterizes as
an international conflict, due to the direct intervention of Uganda and Rwanda till the middle
of 2003.
Lubanga Decision on Confirmation of Charges
473
as is well-known, is ambiguous on the legal status of the Elements. Whereas
Article 21(1) ICC Statute states that the Court ‘shall apply: (a) In the first place,
this Statute, Elements of Crimes and its Rules of Procedure and Evidence’,
Article 9(1) ICC Statute seems to limit the role of the Elements to ‘assisting’
the Court in the interpretation and application of crimes as listed in Articles 6,
7 and 8 of the Statute. Article 9(3) further downplays any independence of the
Elements by insisting that they ‘shall be consistent’ with the Statute. Regarding
Article 9 ICC Statute as the more ‘specific’ rule, Ambos concluded that the
Elements are only a ‘subsidiary’ source of law3 that would consequently be
unable to expand a defendant’s liability beyond what is foreseen by the Statute
itself. Even in the process of drafting the Elements, some participants thought
that the Elements could not provide for ‘downward’ departures from offence
requirements listed in the Statute unless there was a clear mandate in the
Statute itself.4
That was exactly the issue that presented itself to the PTC in the present
case: With respect to the age of the soldiers enlisted, does the general requirement of intention and knowledge (Article 30(1) ICC Statute) apply, or has the
subjective threshold been lowered by the Elements, which require only that
‘the perpetrator knew or should have known that such person or persons were
under the age of 15 years’ (Element (3) of Article 8(2)(b)(xxvi) ICC Statute)? The
Elements themselves seem to assume their authority to provide for deviations
from the provisions of Article 30 ICC Statute, which, as will be recalled, apply
only ‘unless otherwise provided’: The ‘General Introduction’ to the Elements,
no. 2, provides, inter alia: ‘Where no reference is made in the Elements of
Crimes to a mental element . . . , it is understood that the relevant mental element, i.e. intent, knowledge or both, set out in Article 30 applies. Exceptions to
the Article 30 standard, based on the Statute, including applicable law under
its relevant provisions, are indicated below.’ On closer reading, however, this
clause itself is anything but clear: The last sentence quoted does refer to ‘exceptions to the Article 30 standard . . . indicated below’ (i.e. in the Elements) but
seems to allow for such exceptions only to the extent that they are ‘based on
the Statute’ ç which in the case of child soldiers clearly does not foresee any
exceptions from Article 30(1) ç or on ‘applicable law under its relevant provisions’, which may (or may not) be understood as a wide-open reference to
customary international law.5 So the question whether the Elements can
make it easier to convict a person than under the terms of the Statute remains
open to doubt, especially because it can hardly be the Elements themselves that
have the final say on the scope of their authority.
3 K. Ambos, ‘Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the
ICC Statute and the Elements of Crimes’, in L.C. Vohrah et al. (eds), Man’s Inhumanity to Man
(The Hague: Kluwer Law International, 2003) 11^40, at 11^12.
4 For details, see R. Clark, ‘The Mental Element in International Criminal Law’, 12 Criminal Law
Forum (2001) 291 at 320^321.
5 For an argument in favour of that view, see G. Werle and F. Jeberger, ‘Unless Otherwise
Provided’, 3 JICJ (2005) 35, at 43^46.
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JICJ 6 (2008), 471^487
In Lubanga, the PTC dispels these doubts by judicial fiat. The Chamber states
that the crime definition in Article 8(2)(b)(xxvi) ICC Statute does not contain a
special subjective element and Article 30 is therefore applicable. It is, however,
further specified that ‘the Chamber notes that the third element listed in the
Elements of Crimes for these specific crimes requires that, in relation to the age
of the victims, [t]he perpetrator knew or should have known that such person
or persons were under the age of 15 years.’6 ‘As a result,’ the PTC concludes,
‘the ‘should have known’ requirement . . . is an exception to the ‘intent and
knowledge’ requirement embodied in Article 30 of the Statute.’7 The PTC thus
assumes what it should have demonstrated (or at least argued): that the
Elements can, without further ado, provide for exceptions from the standards
laid down in the Statute, and that the Court will treat such exceptions as valid
without even engaging in an examination of their basis in customary international law. This is a far-reaching step that should have been accompanied by at
least a modicum of explanation.
3. Principle of Legality and Mistake of Law
The Defence’s first substantive argument relied on the surprising proposition
that the principle of legality is violated when the alleged offender is not aware
of a criminal prohibition. Lubanga, the Defence argued, could not have known
of the prohibition of enlisting children in 2002 because both the Democratic
Republic of Congo (DRC) and Uganda (which had militarily occupied part of
the Ituri region) had failed to make known to the population that they had
ratified the ICC Statute, thus incorporating Article 8(2)(b)(xxvi) and 2(e)(vii)
ICC Statute into their national laws. The PTC rejects this rather far-fetched
argument on a dual basis: First, the PTC points out that to satisfy the legality
principle it is sufficient for the Court to determine that the ICC Statute was in
force at the time of the alleged offences and that it covered these offences (see
Article 22(1) ICC Statute). Since the conduct that formed the basis of the
charges against Lubanga occurred after 1 July 2002 ç the date of entry into
force of the Statute ç and since enlisting, conscripting and employing soldiers
under 15 years of age is covered by Article 8(2)(b)(xxvi), the principle of legality
as applicable to the ICC was clearly satisfied.8 The PTC reinforces its formal
claim by pointing out that there is good reason to assume that even before
2002 the enlisting of child soldiers was considered a (customary) international
crime, based on the obligation of the States Parties to the First Additional
6 Lubanga, supra note 1, x357. The Chamber then goes on to explain that ‘should have known’
requires mere negligence, i.e., an ability to recognize the correct age with due diligence (ibid.,
x 358).
7 Ibid., x359.
8 Ibid., x302.
Lubanga Decision on Confirmation of Charges
475
Protocol to the Geneva Conventions to refrain from recruiting soldiers under
the age of 15 years.9
On a second approach, the PTC correctly characterizes Lubanga’s Defence
assertion as a claim of ignorance of the prohibition in question, or of a ‘mistake
of law’. The PTC rejects this claim as a matter of fact: it sees no reason why
Lubanga as a regional political and military leader should not have been aware
of the general prohibition against recruiting child soldiers, especially since the
ratification by DRC of the ICC Statute and its entry into force in July 2002 was
a matter discussed and greeted with relief by the population of Ituri province,
and given that the issue of the protection of children in military conflicts was
specifically brought to Lubanga’s attention at the time.10 Even if Lubanga had
been able to convince the court that he was in fact unaware of the prohibition
of Article 8(2)(b)(xxvi) ICC Statute, this might not have relieved him from
criminal responsibility: a ‘mistake of law’ is not normally recognized as a
defence under the ICC Statute.11
Ignorance could have been legally relevant only if it had ‘negated the mental
element required’ for a specific crime (Article 32(2) ICC Statute). To make such a
claim, Lubanga would have had to show, for example, that he was aware of the
general prohibition of conscripting and enlisting soldiers under the age of 15
years12 but that in his mind he equated ‘conscripting or enlisting’ with forcible
recruitment of soldiers, and he therefore did not know he committed this
offence when young soldiers ‘voluntarily’ joined the army. To the extent ‘conscripting or enlisting’ are not everyday words but expressions referring to legal
concepts, a misconception as to their meaning under relevant (e.g. international military) law could indeed qualify as an intent-negating mistake of law
in the sense of Article 32(2) ICC Statute. Lubanga’s Defence in fact made an
argument in this respect, but the PTC rejected it, again on factual grounds,
pointing out that even the generic term ‘recruitment’ as used in Article 77(2)
First Additional Protocol to the Geneva Conventions (1977) was to be understood as covering both voluntary and involuntary recruitment, and that
Lubanga therefore could not have thought that accepting youngsters ‘voluntarily’ joining his army could be lawful.13
Unfortunately, the PTC added a rather confusing ‘definition’ of the relevant
mistake of law under Article 32(2) ICC Statute, when it said per dictum that
Lubanga’s Defence could have succeeded only if he had been ‘unaware of
9 Art. 77(2) First Additional Protocol to the Geneva Conventions of 1977, ratified by the
Democratic Republic of the Congo in 1982. The Chamber further refers to a decision of the
Special Court for Sierra Leone, Prosecutor v. Sam Hinga Norman of 31 May 2004 (xx17^24) in
which that Court held that the prohibition against recruiting child soldiers had crystallized as
a customary law norm prior to November 1996; Lubanga, supra note 1, x311.
10 Lubanga, supra note 1, xx306, 312^314.
11 Art. 32(2) ICCSt.: ‘A mistake of law as to whether a particular type of conduct is a crime within
the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.’
12 Since the age limit has specifically been written into the Statute any misconception as to what
might be a ‘child’ soldier would be legally irrelevant.
13 Lubanga, supra note 1, x308.
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JICJ 6 (2008), 471^487
a normative objective element of the crime as a result of not realising its social
significance (its everyday meaning)’.14 Normative terms, such as ‘conscripting
or enlisting’, by definition have no ‘everyday meaning’ that someone could
‘realise’. To have the required intent, all the actor needs to understand is what
the normative term in question signifies. In casu, if Lubanga knew that ‘conscripting or enlisting’, although referring to a body of military law that he may
or may not have been aware of, covers all forms of accepting the military
service of young persons, then he knew enough to commit the offence with
intent. All that Article 32(2) ICC Statute does is to equate the misconception
of a normative element (such as ‘conscripting or enlisting’) of an offence with
the misconception of a factual element (such as ‘under the age of 15 years’).
In either case, the defendant cannot be convicted if he was unaware that his
conduct met the definition of the offence, either because he thought that the
young recruits were 16 years old (factual mistake) or that he did not ‘conscript
or enlist’ anyone because these technical terms, in his mind, only covered
forcible recruitment (normative mistake).
4. Individual Criminal Responsibility and
Co-perpetration
The central portion of the PTC’s analysis deals with the requirements of
co-perpetration under Article 25(3)(a) ICC Statute (‘commits such a crime . . .
jointly with another’). This concept was crucial for the confirmation of the
charges because there was no proof that Lubanga had personally conscripted
child soldiers; he could be guilty of the offence only if he could be shown to be
part of a group of co-perpetrators who engaged in the forbidden practice.15
The Chamber was confronted with the task of cutting the concept of
co-perpetration under Article 25(3)(a) ICC Statute out of whole cloth, and it
decided to face that task relying more on its own theoretical analysis than on
precedent established by the ICTY.
A. Co-perpetration as a Distinct Notion from Joint Criminal Enterprise
In fact, the PTC at the outset consciously departs from the ICTY’s unique
approach to resolving the same problem of shared responsibility. Since its very
first decision in Tadic¤ , the ICTY had employed the concept of joint criminal
enterprise (JCE) as a basis for ascribing criminal responsibility to several individuals engaged in the same illicit project.16 In Tadic¤ , the ICTY maintained that
14 Ibid., x316, citing A. Eser,‘Mental Element ç Mistake of Fact and Mistake of Law’, in A. Cassese,
P. Gaeta, and R.J.W.D. Jones (eds), The Rome Statute of the International Criminal Court. A
Commentary, vol. I (Oxford: Oxford University Press, 2002) 889^948, at 941.
15 The prosecution seems not to have considered charges under the heading of superior responsibility (Art. 28 ICCSt.).
16 Judgment, Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999.
Lubanga Decision on Confirmation of Charges
477
the broad notion of ‘otherwise aided and abetted’ in Article 7(1) ICTY Statute
includes the situation ‘where several persons having a common purpose
embark on criminal activity that is then carried out either jointly or by some
members of this plurality of persons.Whoever contributes to the commission of
crimes by the group of persons or some members of the group, in execution of a
common criminal purpose, may be held to be criminally liable, subject to
certain conditions . . .’.17 The central element of this concept is the participants’
‘common criminal purpose’, and it is from this common purpose that, in the
last resort, their liability derives, regardless of the weight of their individual
objective contribution or of its proximity to the occurrence of the offence. The
Tadic¤ Judgment very carefully based its concept on various strings of postWWII jurisprudence of courts in Italy, Germany and Japan, and developed
from these precedents three specific forms of JCE.18 Until today, the ICTY has
consistently re-affirmed and further refined its JCE jurisprudence. In its most
recent judgment on the subject, the ICTY Appeals Chamber allowed a conviction on the basis of a JCE even where the principal perpetrators were themselves not members of the JCE but were used by the defendants to carry out the
purposes of the JCE.19
It is probably not unfair to say that JCE, as developed by the ICTY, has a
political mission, namely, to put into practice the ‘principle’ that ‘all those who
have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the
perpetration of those violations, must be brought to justice.’20 Another function of JCE doctrine is to permit the court to make the penalty reflect the exact
degree of responsibility of each member, regardless of the weight of his objective contribution.21 The problem, of course, is whether the (understandable)
wish to bring all ‘perpetrators’ to justice is a sufficient basis for determining
who is a ‘perpetrator.’ In other words, JCE, in throwing its net very broadly may
have a difficulty in explaining why each fish caught deserves punishment for
intentional wrongdoing.22
Be that as it may, the PTC in Lubanga rejected an explicit invitation by one of
the victims’ counsel to incorporate the concept of JCE into the ICC Statute’s
17 Ibid., x190.
18 Ibid., xx196 et seq. The most controversial of the three variants of JCE is JCE III, under which
any member of a JCE is responsible as an intentional perpetrator for acts of other members of
the JCE even if he or she did not foresee those acts, as long as they were ‘a natural and foreseeable consequence’ of the effecting of the common purpose: Tadic¤ at x 204. For a recent critique,
see J.D. Ohlin,‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’, 5 JICJ
(2007) 69, at 81 et seq. For defences of the doctrine, see A. Cassese, ‘The Proper Limits of
Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, 5 JICJ (2007) 109,
and E. van Sliedregt, ‘Joint Criminal Enterprise as a Pathway to Convicting Individuals for
Genocide’, 5 JICJ (2007) 184.
19 Judgment, Brd anin (IT-99-36-A), Appeals Chamber, 3 April 2007, xx410 et seq.
20 Tadic¤ , supra note 16, x190.
21 Brd anin, supra note 19, x405.
22 Cf. Ohlin, supra note 18, at 85 et seq.
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JICJ 6 (2008), 471^487
notion of ‘commits such a crime . . . jointly with another’.23 As a formal reason
for keeping the concepts of co-perpetration and JCE separate, the Chamber
emphasizes that the ICC Statute contains a much more differentiated regime
of forms of individual and joint responsibility than the ICTY Statute, and it
refers in particular to Article 25(3)(d) ICC Statute, which specifically establishes responsibility for contributing to the activities of ‘a group of persons
acting with a common purpose’, probably covering at least some forms of
JCE.24 But the Chamber also voices substantive reservations against accepting
JCE as a form of ‘primary’ liability under the ICC Statute: It associates JCE with
a ‘subjective approach’ toward distinguishing between principals and accessories, an approach that moves the focus from the objective level of contribution to the ‘state of mind in which the contribution to the crime was made’.25
This may not really do justice to the concept of JCE, because that concept on
the one hand demands an active contribution for liability, and on the other
hand does not even purport to distinguish between principals and accessories;
but since the PTC, as will be explained below, clearly prefers an ‘objective’
approach JCE can be of little use for its purpose.
What role, if any, JCE may play in the future jurisprudence of the ICC
remains to be seen. Article 25(3)(d) ICC Statute certainly cracks open the
door, but it is far from clear how much of the ICTY’s complex JCE doctrine
will be able to slip through it. What is clear, however, after Lubanga is that JCE
will not play the dominating role in the ICC that it has assumed in the jurisprudence of the ICTY. The Chamber has not left any doubt as to its willingness to explore its own path through the jungle of perpetrators’ and
accessories’ liability and to make full use of the wide range of options offered
by Article 25 ICC Statute.
B. Objective Requirements of Co-perpetration
Analysing the three forms of perpetration listed in Article 25(3)(a) ICC Statute
(committing a crime as an individual, committing it jointly with another
person, and committing it ‘through another person’), the Court defines as the
common denominator the fact that the perpetrator ‘controls’ the commission of
the crime.26 The ‘control’ concept, which the Court regards as comprising an
objective and a subjective element, offers a useful approach to distinguishing
perpetrators (as defined in Article 25(3)(a) ICC Statute) from mere accessories,
and it is broad enough to cover both direct and indirect perpetration. As the
Court rightly points out, ‘control’ can also be exercised by persons absent from
the scene of the crime. They can control or mastermind the commission of the
offence, such as by giving close instructions to agents routinely carrying out
23 Lubanga, supra note 1, x325.
24 Ibid., xx334^337. With respect to Art. 25(3)(d) ICCSt., the Court speaks of a ‘residual form of
accessorial liability’ (Ibid., 337).
25 Ibid., x329.
26 Ibid., x330.
Lubanga Decision on Confirmation of Charges
479
their orders and thus controlling the will of those directly committing the
offence.27 At the same time, the ‘control’ concept is narrow enough to limit
perpetratorship to those who have the factual power to determine whether,
and in what way, the crime is being committed, thus avoiding the ascription of
full criminal responsibility to marginal figures.
Since Lubanga was charged with the co-perpetratorship of enlisting and
conscripting child soldiers, the Court faced the task of applying the broad
‘control’ concept to the specific situation of co-perpetration. In this context,
‘control’ means to have ‘along with others, control over the offense by reason
of the essential tasks assigned to them’.28 Through this definition, the Chamber
narrows co-perpetratorship down to those with ‘essential tasks’, i.e. contributions to the common enterprise that cannot be dispensed with. The PTC thus
fills the rather vague words of the Statute (‘jointly with another’) with very
precise meaning: a person can only be a co-perpetrator when he or she ‘could
frustrate the commission of the crime by not carrying out his or her task’.29
The PTC specifies, however, that the task of a co-perpetrator, while essential,
need not necessarily be performed at the ‘execution stage’ of the crime;30 this
means that a co-perpetrator’s ‘essential’ task can be limited to planning the
offence or to providing an instrument indispensable to its commission.
As support for its ‘essential task’ theory, the Chamber cites various prominent German and Spanish authors.31 It is beyond doubt that the PTC relies on a
‘Continental’ theory of co-perpetration, which may or may not have analogues
in the common law world. It should be noted, however, that the Chamber’s
version of a ‘functional’ co-perpetratorship, that is, of a co-perpetrator whose
contribution before or during the commission of the crime is a necessary piece
in the puzzle, is not without rivals even in German scholarship (where it
originated). German courts, for example, have traditionally distinguished
between perpetrators and accessories on subjective criteria, looking for the
perpetrator’s animus auctoris as the decisive factor.32 For the courts, even a
person who has no control over the outcome can be a co-perpetrator; it is
27 Ibid., x332.
28 The French original is more precise: (Ils de¤tiennent, avec d’autres personnes, le contro“le de
l’infraction en raison des ta“ches essentielles qui leur ont e¤te¤ assigne¤es); Ibid., x332.
29 Ibid., xx342, 347. The Court refers to a very similar definition of co-perpetration used by the
ICTY: Judgment, Stakic¤ (IT-97-24-T), Trial Chamber, 31 July 2003, x440 (‘... they can only realise
their plan insofar as they act together, but each individually can ruin the whole plan if he does
not carry out his part. To this extent he is in control of the act’, quoting C. Roxin, Ta«terschaft und
Tatherrschaft (6th ed, Berlin, 1994), 278).
30 Lubanga, supra note 1, x348.
31 See the list of authorities cited in Lubanga, ibid., x348, footnote 425.
32 For a ‘classic’ decision along those lines, see Reichsgericht (Imperial Court), Judgment of
19 February 1940, 74 Entscheidungen des Reichsgerichts in Strafsachen, 84. In that decision, the
Court convicted a woman who drowned her sister’s baby in a bathtub on her sister’s request of
being an accessory (aider and abetter) to homicide because she lacked animus auctoris. More
recent jurisprudence still adheres to a subjective starting point but uses objective factors (such
as the amount of ‘domination’ of the criminal act) to determine the actor’s animus. See, for
example, Bundesgerichtshof (Federal Court of Appeals), Judgment of 7 May 1996, [1996] Neue
Zeitschrift fu«r Strafrecht, 434. For further jurisprudence, see W. Joecks, in K. Miebach and
480
JICJ 6 (2008), 471^487
sufficient that he make a contribution that ‘promotes’ the commission of the
offence and has a personal interest in the success of the common enterprise.33
Some German writers support that ‘open’, evaluative approach toward
co-perpetration,34 whereas others are even more restrictive than the Lubanga
PTC, recognizing co-perpetration only when the person in question makes a
necessary contribution at the ‘execution’ stage of the offence.35
It seems that the Lubanga PTC has found a plausible intermediate position.36
It is linked convincingly to the Chamber’s overarching ‘control’ criterion, it
draws a bright line between co-perpetration and other, lesser forms of criminal
responsibility, and it leaves less room for manipulation than any subjective test.
Of course, whether or not a person’s contribution to an offence is ‘essential’
requires an hypothetical judgment about how things would have turned out
without the actor’s contribution, and in that respect necessarily contains a
speculative element. If, for example, a participant establishes contacts between
a military leadership group and a firm that produces prohibited poisonous gas
to be used in battle (cf. Article 8(b)(xvii) ICC Statute), one could argue that his
contribution is not ‘essential’ because the necessary contacts could also have
been established in some other way. But necessity of a contribution will have to
be evaluated from the viewpoint of the concrete criminal plan; the fact that the
crime could also have been committed in a way different from that planned by
the participants cannot make a contribution ‘inessential’ as long as the participants relied on each other to act according to the agreed-upon plan, and the
participant’s contribution was an essential part of that plan.
C. Subjective Requirements of Co-participation
Under Article 30(1) ICC Statute, a co-perpetrator’s activities must be done ‘with
intent and knowledge’. The PTC derives from this general condition three subjective requirements that must be fulfilled if someone is to be held liable as
a co-perpetrator:
(i) the co-perpetrators must have formed a common plan to commit the
offence;37
33
34
35
36
37
W. Joecks (eds), 1 Mu«nchener Kommentar zum Strafgesetzbuch (Munich: C.H. Beck, 2003), x25
notes 21 et seq.
See cases cited and evaluated by B. Schu«nemann, in H.W. Laufhu«tte, R. Rissing-van Saan and
K. Tiedemann (eds), 1 Strafgesetzbuch. Leipziger Kommentar (12th edn, Berlin: de Gruyter Recht,
2007), x25 notes 28^30, at 181.
See, e.g. T. Fischer, Strafgesetzbuch und Nebengesetze (55th edn, Munich: C.H. Beck, 2008), x25
notes 12, 12a; J. Wessels and W. Beulke, Strafrecht Allgemeiner Teil (37th edn, Heidelberg: Mu«ller,
2007), note 518.
See, e.g. B. Schu«nemann, ibid., x25 notes 182^184, at 188.
For a similar position in German literature, see G. Stratenwerth and L. Kuhlen, I Strafrecht
Allgemeiner Teil (5th edn, Cologne: Heymanns, 2004), 290.
The Chamber understands this requirement to be an objective one; Lubanga, supra note 1, x343.
But it recognizes that the agreement need not be explicit and can be inferred from concerted
Lubanga Decision on Confirmation of Charges
481
(ii) each co-perpetrator must be aware of the offence to be committed and
must voluntarily accept it; and
(iii) each co-participant must be aware of his essential role in the common
plan.
At the outset, the Chamber emphasizes that mere knowledge is not sufficient
but that the ‘intent’ prong of Article 30(1) ICC Statute requires an additional
volitional element.38 However, the PTC subsequently reduces that volitional
element to a minimum, quite in accordance with Continental legal thinking
that tends to recognize dolus eventualis ç where the actor’s volition as to
completing the objective elements of the offence is approximating zero ç as a
legitimate form of ‘intention’.39 The Chamber begins by substantially reducing
the volitional requirement with respect to the ‘common plan’ ((i), supra). That
common plan need not have as its goal a criminal offence; it is sufficient,
according to the Chamber, that the co-perpetrators recognize that it may be
necessary to commit an offence in order to reach their ultimate goal, or that
they accept the risk that implementing their plan may lead to the commission
of an offence.40 In other words, a common plan (as a basis of co-perpetration)
can exist even when the participants pursue an entirely innocent goal but
consciously accept the risk that an offence may occur en route to the desired
result.
The PTC further points out that a co-perpetrator needs to be aware of his
essential role in the common plot (cf. (iii), supra).41 He must know the facts that
give him shared control over carrying out of the common plan, without having
to draw any legal consequences from this knowledge.
The most problematic of the subjective requirements is the co-perpetrator’s
intent with respect to the objective consequences ((ii), supra). Although the
Chamber starts from the ‘regular’ case of perpetrators ‘wishing’ the consequence to come about, it eventually severely restricts the volitional requirement, effectively reducing it to almost nil. In a first step, the Chamber
postulates ç without explaining ç that the volitional element is fulfilled
when the perpetrator ‘without having the concrete intent to bring about the
objective elements of the crime’ is aware that these elements will be ‘the necessary outcome of his or her actions or omissions’.42 In a second step, the
Chamber assumes the existence of a volitional element even when the offender
is merely ‘aware of the risk that the objective elements of the crime may result
38
39
40
41
42
action (Ibid., x345). The gist of the ‘agreement’ then is the subjective meeting of minds, not any
overt common action. I would therefore characterize this as a subjective element.
Ibid., x351: ‘The cumulative reference to ‘‘intent’’ and ‘‘knowledge’’ requires the existence of a
volitional element on the part of the suspect.’
For a discussion of the status of dolus eventualis in international criminal law see A. Cassese,
International Criminal Law (Oxford: Oxford University Press, 2003), 168 et seq.
Lubanga, supra note 1, x344.
Ibid., xx366, 367.
Ibid., x352 (i).
482
JICJ 6 (2008), 471^487
from his or her actions or omissions and accepts such an outcome by reconciling himself or herself with it or consenting to it’.43
The PTC’s broad interpretation of ‘intent’coincides with the extension, in the
Continental tradition, of the concept of dolus to the instances of dolus directus of
the second degree (i.e. mere awareness of result) and dolus eventualis (i.e. mere
awareness of the risk that the result may occur). That by itself would, however,
not suffice to justify the Chamber’s extensive understanding of ‘intent’ ç the
fact that some Latin concept (dolus) has over the centuries been given different
meanings by different writers does not present a solid basis for the interpretation of a statute that does not even mention these Latin words. Throwing Latin
expressions into the debate may demonstrate the author’s erudition but beyond
that may create more confusion than light. Words such as dolus eventualis have,
at different times and in different legal systems, acquired different connotations, and it is thus far from clear that speakers from different backgrounds
mean the same thing when they use the same Latin expression.
But the interesting aspect of the Lubanga PTC’s interpretation is not so much
its link to concepts of dolus but the fact that it is designed to dovetail with the
definition of intent ‘in relation to a consequence’ in Article 30(2)(b) ICC Statute.
According to that statutory definition, a person has intent when ‘that person
means to cause that consequence or is aware that it will occur in the ordinary
course of events’. The Chamber draws a clever connection between this formula
and a situation in which ‘intent and knowledge’can simply be inferred from the
perpetrator’s taking the offensive action: When the (objective) risk of bringing
about the objective elements of the offence is ‘substantial’ ç which the
Chamber equates with an expectation that the result will occur ‘in the ordinary course of events’ ç and the offender knows this, his ‘intent’ can be
inferred from the fact that he nevertheless carried out the action as planned.44
This is, by itself, a very reasonable proposition. For example, a fighter pilot who
knows that his dropping a bomb carries the substantial risk that many civilians
will be killed should not be able to claim in defence that he did not ‘intend’ to
kill civilians (cf. Article 8(e)(i) ICC Statute). Whether or not the ‘ordinary course
of events’ formula was meant to cover all cases of ‘substantial risk’ or was
intended to refer to a narrower category of cases (i.e. those where only a
43 Ibid., x352 (ii). In the original French version, this passage reads: ‘ . . .des situations dans
lesquelles le suspect a) est conscient du risque que les e¤le¤ments objectifs du crime re¤sultent de
ses actions ou omissions et b) accepte ce re¤sultat en s’y re¤signant ou en l’admettant . . . ’ ‘En s’y
re¤sigant’ is a psychological attitude quite far removed from ‘intending’or ‘willing’a consequence
of one’s actions to occur. For support of this far-reaching extension of ‘intent’, the Chamber
refers to the ICTY Trial Chamber decision in Stakic¤ , supra note 29, x587. But the Stakic¤ Chamber
in that passage only interpreted the concept of dolus eventualis, a concept which it felt free to
apply because of course it was not bound by the ‘intent and knowledge’ language of Art. 30(1)
ICCSt. For an evaluation of the ICTY’s mens rea jurisprudence see W.A. Schabas, ‘Mens Rea and
the International Criminal Tribunal for the Former Yugoslavia, 37 New England Law Review
(2003) 1015; for an overview of various mens rea problems in international law see J.D. Van der
Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International
Criminal Law’, 12 University of Miami International and Comparative Law Review (2004) 57.
44 Ibid., x353.
Lubanga Decision on Confirmation of Charges
483
miracle could have prevented the consequence from happening), is an open
question;45 but the Court’s more expansive interpretation of that clause certainly makes theoretical and political sense.46 It in effect limits the potential
relevance of any volitional element of intent to marginal cases in which the
risk perceived by the actor is low; if he knows there is a high risk and he
nevertheless goes ahead and acts, he can fairly be said to have ‘willed’ the
consequence. The formulation of Article 30(2)(b) ICC Statute is at least a
useful prop to support that result.
But what about the ‘low-risk’ cases? In such cases, the Chamber says, ‘the
suspect must have clearly or expressly accepted the idea that such objective
elements may result from his or her actions or omissions’.47 By way of explaining its concept, the Chamber considers two separate situations: Clear or
express acceptance is present when a ‘killing is committed with manifest indifference to the value of human life’;48 on the other hand, there is no intent
when the actor perceives a non-substantial risk but believes that his expertise
will permit him to prevent the realization of the offence.49 These two disparate
examples fail to clarify what the Chamber had in mind when it demanded
‘clear or express’ acceptance of the possible criminal consequences of one’s
action. The ‘manifest indifference’ test implies a moral evaluation of the offender’s character and certainly has nothing to do with any ‘acceptance’ of the
victim’s death on his part beyond acceptance of the perceived risk of death
(which, according to the Chamber, is insufficient to establish intent when
there is a non-substantial risk). The trust in one’s expertise, on the other hand,
can mean that the actor does not consider there to be any risk at all (‘for a less
experienced driver, speeding might be risky, but not for me’), or that he does
perceive the risk but irrationally assumes that he will be lucky (‘I’ve been in
that sort of risky situation so often, and nothing has ever happened, so why
should it be different this time?’). In the latter case, one may well argue that the
actor does ‘accept the risk’ so that, if his optimism turns out to be unfounded,
he should be punished for an intentional offence. In any event, the PTC’s
examples shed very little light on the criteria the Court wishes to apply in
deciding low-risk cases.
The problem with the PTC’s formula is that it seems to make punishment
depend on a (non-provable) subjective attitude rather than on the amount of
risk the actor took. ‘Express’ acceptance of a criminal risk is an artefact that
45 K. Ambos, Internationales Strafrecht (Munich: C.H. Beck, 2006), 157^158 (knowledge on the
basis of general life experience; ‘relative certainty’ as to bringing about the consequence);
A. Eser, supra note 14, at 917^918 (‘if nothing surprising intervenes’); G. Werle, Vo«lkerstrafrecht
(2nd edn, Tu«bingen: Mohr Siebeck, 2007), note 367 (excluding only ‘extraordinary
circumstances’).
46 Werle, ibid., note 368, likewise supports the decision, claiming that it corrects the misguided
formulation of Art. 30 ICCSt.
47 Lubanga, supra note 1, x354.
48 Ibid., x354 footnote 436 (citing Stakic¤ , supra note 29, x587).
49 Lubanga, supra note 1, x355 footnote 437. The Chamber gives the example of a speeding taxi
driver who ‘trusts’ that nothing can happen due to his driving experience.
484
JICJ 6 (2008), 471^487
does not exist in real life ç what perpetrator will ‘expressly’declare something
like ‘I realize that there is a moderate risk that my military action will kill
innocent civilians, but I nevertheless wish to take that risk.’ This leaves ‘clear’
or ‘manifest’ acceptance.50 Since in that case the actor, by definition, foresees
the risk but makes no declaration, we can only infer his ‘acceptance’ of the risk
from his actions or omissions. We know that he acted in spite of his knowledge
of the risk; the clarity or ‘manifestness’ of his acceptance can thus be inferred
only from the amount and gravity of the risk known to him, in combination
with his (perceived) ability to control the risk. If these are the parameters of
‘acceptance,’ we may as well make the issue of intent depend directly on the
quality and quantity of the risk perceived by the actor. If it is a substantial risk
beyond his control, and he takes it, then he can be said to ‘intend’ the outcome;
if it is a low risk and the actor thinks he can control it to a certain extent due
to his personal skill and experience, he can be said not to ‘intend’ the criminal
outcome but only to take a small risk. Cases between these extremes are generally subject to criminal policy assessment in each legal system ç some
systems may wish to err on the side of leniency, thus limiting responsibility
for intent to high, uncontrollable risks; some systems may wish to extend the
realm of intentional crime even to taking moderate or small risks, and others
may introduce an intermediate level of subjective responsibility for risk-taking,
sometimes named ‘recklessness’51 or luxuria. This is not a ‘dogmatic’ but a policy
question.
With respect to the ICC Statute, however, Article 30(2) clearly indicates a
restrictive approach as to the extent of liability for intent: The lowest threshold
of responsibility is for the actor to be aware that the consequence ‘will occur in
the ordinary course of events’. The wording of Article 30(2)(b) ICC Statute, in
my opinion, precludes any extension of intent liability beyond consciously
taking a ‘substantial risk’, as indicated by the Lubanga Chamber in the first
prong of its definition.52 If the actor is aware only of a non-substantial risk,
and does not ‘intend’ the consequence to come about (Article 30(2)(b), first
alternative) he thus cannot be held responsible for an intentional offence. The
same applies, of course, to co-perpetrators.
D. Combination of Intent and Negligence?
As we have seen (supra Part 2), the PTC regards Element (3) of Article
8(2)(b)(xxvi) ICC Statute as creating a valid exception to Article 30 ‘intent
requirement’ with respect to the age of the soldiers enlisted or conscripted:
It is sufficient that the perpetrator should have known that the persons
50 In the French original: ‘le suspect doit avoir manifestement . . . accepte¤ l’ide¤e que ces e¤le¤ments
objectifs puissent re¤sulter de ses actes ou omissions.’ (Ibid., x354).
51 The Lubanga Chamber emphasizes that ‘recklessness’ is not a recognized mode of responsibility
under Art. 30 ICCSt., characterizing ‘recklessness’ as lacking the offender’s ‘reconciling himself’
with the result of his action: Lubanga, supra note 1, x355 footnote 438.
52 Ibid., x353.
Lubanga Decision on Confirmation of Charges
485
recruited were younger than 15 years. This leads the Chamber to the question
whether co-perpetration is possible when the confederates are unaware even of
the (substantial) risk that the persons recruited are below the legal age
(but still ‘should have known’ about their being younger than 15 years). The
PTC answers this question in the negative, claiming that the ‘theory of
co-perpetration based on joint control over the crime requires that all the
co-perpetrators . . . be mutually aware of, and mutually accept, the likelihood
that implementing the common plan would result in the realisation of the
objective elements of the crime’.53
I consider that to be an over-extension of the ‘control’ requirement of
co-perpetration. The Chamber correctly states that each co-perpetrator must
have an indispensable role in the common plan, and that they must all be
mutually aware of their roles. But when the law requires only negligence
with respect to an accompanying circumstance, e.g. the age of the victims,
not more than negligence in that respect can be demanded of co-perpetrators.
The common control of their actions remains unaffected by the fact that one or
all of them were unaware of the age of the boys they conscripted or enlisted:
they recruited, in intentional co-operation, the boys they had before them, and
the law says that it is immaterial whether they knew their true age or not.
Their offence in fact remains an intentional one even when negligence is
sufficient as to an accompanying circumstance.
The Chamber promptly runs into problems as it turns to applying its high
legal standard to the facts of the case. To the Defence claim that Lubanga was
not aware of the fact that some of the persons recruited were younger than
15 years, the PTC replies that Lubanga ‘was, at the very least, aware that, in the
ordinary course of events the implementation of the common plan would
involve’ the voluntary and forcible recruitment of children under the age of
15 years.54 The problem with the Chamber’s reasoning is that the age of the
recruits in Article 8(2)(b)(xxvi) ICC Statute clearly is not a ‘consequence’ in the
sense of Article 30(2)(b) ICC Statute, so that the ‘ordinary course of events’
formula is not applicable. Instead, the age of the recruits is a ‘circumstance’
in the sense of Article 30(3) ICC Statute, so that ‘awareness that the circumstance exists’ would be the proper standard ç unless negligence were sufficient under Element (3) of Article 8(2)(b)(xxvi). The Chamber, by needlessly
ruling out negligence for co-perpetrators, thus creates a problem it fails to
correctly resolve.
5. The (Perplexing?) Application of the Law to the Facts
The question of knowledge about the age of recruits is not the only issue that
haunts the PTC when it applies the legal standards to the facts of the case. As
will be recalled, the Chamber requires for co-perpetration a common plan in
53 Ibid., x365.
54 Ibid., x404.
486
JICJ 6 (2008), 471^487
which the defendant plays an essential, indispensable role. The PTC explains
that Lubanga and some other leaders of the Forces Patriotiques pour la
Libe¤ ration du Congo (FPLC) in 2002 made a plan to broaden the base of their
army.55 In keeping with the premise that the plan itself need not be criminal
but must only imply the commission of crimes as a necessary or foreseeable
consequence,56 the Chamber further shows that ‘although the agreement or
common plan did not specifically target children under the age of fifteen years
ç it did target young recruits in general ç in the normal course of events, its
implementation entailed the objective risk that it would involve children under
the age of fifteen years’.57 But then the Chamber had to show that Lubanga not
only was part of the common plan but played an essential role in it ç a role
without the proper performance of which the plan would have failed.
There was in fact little evidence of Lubanga’s direct involvement in the
recruiting of young soldiers. The PTC found that he visited their training
camps and also used some child soldiers as personal bodyguards.58 But that
alone certainly was not enough to show that Lubanga played an ‘essential’ role
in the recruitment or deployment of child soldiers. All that the PTC could point
to was a ‘key overall co-ordinating role’of Lubanga within the FPLC.59 That ‘key
co-ordinating role’ consisted in having direct and ongoing contacts with other
participants of the common plan, inspecting FPLC military training camps,
providing necessary financial resources for feeding the soldiers, ‘encouraging
the making of contributions to the war efforts’, and using children under
15 years of age as his personal bodyguards.60 Moreover, the movement (UPC)
was said to have ‘recognized him as its leader’.61 Based on this evidence, the
Chamber declares that Lubanga ‘had joint control over the implementation of
the plan in so far as the essential overall co-ordinating role which he played
gave him the power to frustrate the implementation of the plan if he refused to
play his part.’62
That may or may not be true. In view of the little evidence presented before
it, the Chamber’s conclusion is a courageous one, to put it mildly. Upon closer
examination, none of Lubanga’s single contributions as listed above could fairly
be regarded as ‘essential’ to the operation of enlisting child soldiers ç even
without his visits to military camps, without his employing youngsters as
personal bodyguards, without his general encouragement of local ethnicities
to provide soldiers to the FPLC, the common plan ç essentially carried out by
others ç would most likely not have failed. His ‘key overall co-ordinating role’
55
56
57
58
59
60
61
62
Ibid., x377.
Ibid., x344.
Ibid., x377 (ii).
Ibid., x379 (vii), (ix).
Ibid., x383 (ii).
Ibid., x383 (ii), (iii).
Ibid., x403.
Ibid., x398.
Lubanga Decision on Confirmation of Charges
487
was related to his general leadership of the FPLC at the time, and Lubanga may
well have been indispensable as an overall commander of that military group.
But does that make him a ‘necessary’ co-perpetrator of the specific crime of
enlisting child soldiers? His ‘essential’ role may simply have consisted in not
intervening when he learned about the recruitment of child soldiers ç as a
high-ranking military leader, Lubanga may well have had the actual power to
stop the practice even though he played no essential active role in it. The PTC
seems to imply that its relatively narrow concept of co-perpetration covers this
sort of ‘control through potential prevention’. Yet such a concept is not easy to
reconcile with the essentially active image one associates with a (necessary)
co-perpetrator. In the final analysis, Lubanga’s role in the recruitment of child
soldiers might be better captured by the concept of superior responsibility
(Article 28 ICC Statute) than by the notion of co-perpetration. But these
are matters which the Trial Chamber will have to resolve ç if this case ever
reaches it.