Holding Members of Transnational Terrorist Groups Accountable under Article 25 of the Rome Statute: Effectiveness, Legitimacy and Impact

Abstract

The International Criminal Court (ICC) has not yet had to consider the application of the Rome Statute to terrorist groups with a network-based organisational structure. This article examines whether members of transnational terrorist groups can be held accountable under Article 25 of the Rome Statute despite their network-based organisational structure. In order for a member of a transnational terrorist group to be held accountable under Article 25 we need to ascertain whether their conduct satisfies the constituent elements of the doctrine of direct and indirect co-perpetration as developed by the Pre-Trial and Trial Chambers in the Lubanga and Katanga cases. Notwithstanding that the doctrine of coperpetration is an attempt to develop an overall theory of accountability at the ICC the concept of control under the doctrine is one-dimensional especially when applied to entities such as transnational terrorist groups which may not have a centralised command in view of their network-based organisational structure. This article will propose that a more inclusive approach to joint perpetration which includes both objective and subjective elements would be more appropriate.