International Criminal Court Issues Important Ruling on Substantive Criminal Law

Almost all of the decisions of the International Criminal Court issued to date have concerned procedural matters. On 30 September, a Pre-Trial Chamber of the Court released its decision confirming charges against Germain Katanga and Mathieu Ngudjulo Chui. The decision contains extensive discussion about the scope of specific war crimes and crimes against humanity, although there is nothing terribly earthshaking here. Perhaps more significant is the endorsement of the theory of ‘co-perpetration’ and, at least implicitly, the rejection of the ‘joint criminal enterprise’ theory of liability so cherished by judges at the International Criminal Tribunal for the former Yugoslavia. See: http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-717-ENG.pdf. The decision is peppered with references to (mainly) German writers on substantive criminal law. And there is an interesting dissent, by Judge Usacka.