Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory

The concept of co-perpetration and its proper construction continues to be a topic that causes controversy and fragmentation in the field of international criminal law. The latest proof of this is the Lubanga Trial Judgment in which the three judges disagreed on whether this mode of liability should be based on the theory of joint control over the crime. The present article examines and further develops Judge Fulford’s arguments against the adoption of this theory in cases brought before the International Criminal Court. It analyses the Rome Statute and its drafting history, as well as customary international law and domestic jurisprudence, in order to review the contention that there is no legal basis for applying the joint control paradigm in ICC proceedings. In addition to this, several recent ICC cases are examined to underscore the practical weaknesses of the control over the crime approach to co-perpetration.