Perpetration and Participation in Article 25(3) of the Statute of the International Criminal Court

Abstract

Article 25 of the ICC Statute and its interpretation has generated much debate amongst practitioners and commentators, on blogs, in scholarly writing and in dissenting opinions appended to ICC-judgments. The text of Article 25(3) brings together different modes of liability, which explains why it contains a number of partially overlapping liability theories. The question before the ICC is how to interpret such a provision. Should a (Pre)-Trial Chamber adopt a dogmatic approach structuring the whole of the provision, rationalizing overlapping modes of liability or should it adopt a case-by-case approach, focusing on the wording of the Statute and limiting itself to interpreting the subparagraph in the case before it? This chapter aims to answer that question.

Keywords: modes of liability, control-theory, JCE, Dogmatik