II International Criminal Court
| Author | Elinor Fry |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| DOI | http://doi.org/10.1177/016934411203000206 |
| Subject Matter | Part B: Human Rights News |
230 Intersentia
II INTERNATIONAL CRIMINAL COURT
E F*
e International Criminal Court (ICC) experienced a historical moment this year.
On 14 Ma rch 2 012 , ne arl y a d eca de a er the Rome Statute entered into force, the C ourt
delivered its rst verdict. Trial Chamber (TC) I found omas Luba nga Dyilo guilty,
as a co-perpetrator, of the war cri mes of conscripting and en listing chi ldren under
the age of 15 and using them to par ticipate actively in hosti lities in the Democratic
Republic of the Congo (DRC) from 1September 2002 to 13August 2003.1
With this long-awaited Judgment, which r uns to almost 600 pages, the C ourt also
concluded its very rst trial. Lubanga , the Court’s rst suspect, was tran sferred to e
Hague in March 20 06. He was already facing murder and tortu re charges in the DRC
at the time, for which he had been in de tention in the DRC since March 2005. But the
ICC Prosecutor made the much-disputed decision to only prosecute Lubanga for the
use of child soldiers, a wa r crime that gai ned in global popula r attention earlier this
year with the Kony2012 vira l video. Before closing submissions were held in August
2011, stays of proceedings and fair trial is sues had plagued the trial. In t he summer of
2008, the Trial Cha mber even ordered Lubanga’s release, because the Prosecutor had
withheld potential ly exculpatory evidence f rom the defence. e Appeals Chamber
later reversed this order, and Lubanga remained in detention.
Regardless of these controversies , the Lubanga verdict is a mi lestone for the ICC
and its Chief Prosecutor, not in the least because of t he important issues surrounding
the co-perpetr ation mode of liability it deals with . In its Judgment, the TC essentially
followed the Pre-Trial Chamber’s (PTC) Con rmation of Charges decision with
respect to how co-perpetrat ion in Article 25(3)(a) of the Rome Statute is to be
interpreted: liabilit y for committing a cri me “jointly w ith another” attaches only
to individuals who can be said to have control over the crime. Wit h respect to the
objective requirements of this mode of liability, the Majority rst noted that proving
the commission of such a crime includes showing the existence of an a greement or
common plan between two or more persons. e plan need not be “intrinsical ly
criminal,” but as a minimum, it must be proven that the plan included a “critica l
element of criminalit y” in the sense t hat “its implementation embodied a su cient
* PhD Candidate , VU University Amsterd am, the Netherland s.
1 Prosecutor v. omas Lu banga Dyilo, Judg ment, Trial Chamb er I, Case No. ICC-01/04 –01/06,
14March 2012, para. 1358.
To continue reading
Request your trial