Table of contents:
Element:
In Lubanga, the Pre-Trial Chamber argued that:
"The Chamber considers that the third and last subjective element of co-perpetration based on joint control of the crime is the awareness by the suspect of the factual circumstances enabling him or her to jointly control the crime. [ ] [T]his requires the suspect to be aware (i) that his or her role is essential to the implementation of the common plan, and hence in the commission of the crime, and (ii) that he or she can by reason of the essential nature of his or her task frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to perform the task assigned to him or her."[1]
In Bemba Gombo, the Pre-Trial Chamber held that:
"The final subjective element that must be met under the theory of coperpetration based on control over the crime is the suspects awareness of the factual circumstances enabling him or her to control the crime with the other co-perpetrator. This criterion requires be aware of his essential role in the implementation of the crime; and (2) due to such essential role, to be capable of frustrating its implementation and accordingly the commission of the crime."[2]
The Pre-Trial Chamber in Abakaer Nourain and Jerbo Jamus reasoned that:
"Finally, the Chamber considers that the concept of co-perpetration based on joint control of the crimes requires the awareness by the suspects of the factual circumstances enabling them to jointly control the crime. In particular, it is required that each of the suspects be aware that: (a) his or her role is essential to the implementation of the common plan; and (b) he or she can -by reason of the essential nature of his or her task(s)- frustrate the implementation of the common plan in the way the crime is committed, by refusing to perform the task(s) assigned to him or her."[3]
Footnotes:
[1] ICC, Lubanga Confirmation Decision 29 January 2007, para. 366, 367.
[2] ICC, Prosecutor v. Jean-Pierre Bemba Gombo, "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo", ICC-01/05-01/08-424, 15 June 2009, para. 371.
[3] ICC, Prosecutor v. Banda, A.N., "Corrigendum of the "Decision on the Confirmation of Charges", ICC-02/05-03/09, 7 March 2011, para. 160.
