The continuous quest for proper modes of criminal responsibility

The author discusses the recent decision of the ICC Pre-Trial Chamber to issue an arrest warrant against President Al Bashir from the viewpoint of the choice of the alleged mode of responsibility. In emphasizing the need and the difficulty of choosing the most proper concept of criminal responsibility, he explains how international criminal law has oscillated from the notion of joint criminal enterprise to the concept of co-perpetration and other forms of participation. In particular, he illustrates how in the first decisions in the ICC system (Lubanga, Katanga and Chui) the notions of co-perpetration and perpetration-by-means have been at the core of the case law. In this regard, he analyses both the majority opinion and the dissent of Judge Ušacka in Al Bashir, highlighting the strong influence of German legal thought on the ICC Statute and on recent ICC case law.