100
“common criminal purpose” as distinct from that of aiding and abetting (couched in the
terms of “participating as an accomplice [in] an offence”). Although the Convention is not
yet in force, one should not underestimate the fact that it was adopted by consensus by all
the members of the General Assembly. It may therefore be taken to constitute significant
evidence of the legal views of a large number of States.
222.
A substantially similar notion was subsequently laid down in Article 25 of the
Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome
on 17 July 1998 (“Rome Statute”). 280 At paragraph 3(d), this provision upholds the doctrine
under discussion as follows:
[In accordance with this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person …]
(d) In any other way [other than aiding and abetting or otherwise assisting in the
commission or attempted commission of a crime ] contributes to the commission or
attempted commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either:
i.
Be made with the aim of furthering the criminal activity or criminal purpose of
the group, where such activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or
ii.
223.
Be made in the knowledge of the intention of the group to commit the crime.
The legal weight to be currently attributed to the provisions of the Rome Statute has
been correctly set out by Trial Chamber II in Furund`ija.281 There the Trial Chamber
pointed out that the Statute is still a non-binding international treaty, for it has not yet
entered into force. Nevertheless, it already possesses significant legal value. The Statute
was adopted by an overwhelming majority of the States attending the Rome Diplomatic
Conference and was substantially endorsed by the Sixth Committee of the United Nations
General Assembly. This shows that that text is supported by a great number of States and
may be taken to express the legal position i.e. opinio iuris of those States. This is consistent
See also Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December
th
1996, UNGAOR, 52 nd sess., 37 supp., A/52/37.
280
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998.
281
“Judgement”, Prosecutor v. Anto Furundžija, Case No.: IT-95-17/1-T, Trial Chamber II, 10 December
1998, para. 227.
Case No.: -94-1-A
15 July 1999