Equal Liability for All Members of a Joint Criminal Enterprise? Lubanga Continues the Deficiencies of the Ad Hoc Tribunals

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This paper argues that PTC I’s interpretation of Article 25(3)(a) in the decision on the confirmation of charges in Lubanga for joint control over a crime perpetuates the ICTY’s overbroad interpretation of liability within a joint criminal enterprise. This misinterpretation places mistaken equal liability for all JCE members irrespective of their role. Specifically, the Court does not define ‘essential contribution’ in the objective elements of joint control and leaves open the possibility for subsequent judges to place a low bar for determining a principal to the crime thereby placing liability on marginalized members of a joint enterprise, even if those members had a perfunctory role that could frustrate the crime’s realization. Also, in the subjective elements — specifically the second element in which the accused and co-perpetrators must be mutually aware and mutually accept that implementing their common plan may result in the crime — the Court fails to account for hierarchical power structures in which subordinate alleged criminals, despite being aware and accepting the possibility of the crime’s realisation, do not have the ability to reject the common plan or remove themselves from the joint enterprise. In the final analysis, this paper cautions the Court that Lubanga set the threshold for liability in a joint enterprise too low and given the political difficulties in amending the Rome Statute, a more nuanced interpretation of co-perpetration in Article 25(3)(a) would avoid placing unfound liability for crimes under the Statute onto individuals marginally, or at all, guilty.
Original languageEnglish
JournalIssues in International Criminal Justice
Issue number1
Publication statusPublished - 2012

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