Two Controversies in the Lubanga Trial Judgment of the ICC: The Nature of Co-perpetration's Common Plan and the Classification of the Armed Conflict

Abstract

This chapter focuses on two aspects of the International Criminal Court (ICC)’s Lubanga Trial Judgment. First, it investigates the common plan element of (direct) co-perpetration as a mode of liability, particularly the Trial Chamber’s holding that it need not be inherently criminal nor necessarily involve the commission of crimes. It demonstrates that this is inconsistent with other elaborations of the common plan element in prior ICC decisions, jurisprudence that was neither engaged nor addressed. It also questions the reliance by the Trial Chamber on Article 30 of the ICC Statute to arrive at this interpretation and contrasts its approach to that of the ad hoc tribunals in the context of joint criminal enterprise, which similarly contains a common plan element. Second, the chapter addresses the Trial Chamber’s assessment of the classification of the armed conflict, in particular its reliance on Tadić’s test of overall control to determine the existence of an international armed conflict (or not) when non-state armed groups function with the support of states. The author opines that contrary to increasingly popular belief, the fact that the Trial Chamber was classifying the conflict does not in of itself harmonise Tadić with the International Court of Justice’s competing test in Nicaragua of effective control, an ongoing source of debate that was neither flagged nor engaged. The author concludes that rather than letting such conflicting jurisprudence fester in the background unaddressed, it should be confronted, lest they return to unexpected and/or unwelcome results in the future.

Keywords: Lubanga, International Criminal Court, common plan, co-perpetration, joint criminal enterprise, Tadić, overall control, Nicaragua, effective control, classification of armed conflict

JEL Classification: K14, K33, K41, K42