30 Oct Neutral Is Not Infinitesimal: The ICC Prosecution’s Response in Yekatom and the Missing Content of a ‘Normative’ Threshold
[Adrián Agenjo Aguado is a PhD candidate and Teaching Fellow at the Universitat de Barcelona and the Humboldt-Universität zu Berlin. This post draws on a work-in-progress paper on neutral and professional contributions and complicity in international criminal law presented at the University of Bologna and the European University Institute in October 2026.]
When I read the Prosecution’s responses to the questions of the Appeals Chamber in Yekatom and Ngaïssona, filed on 30 September 2026, my first reaction was one of relief. My second was a certain unease. Relief, because the Office of the Prosecutor finally says aloud what the case law on Article 25(3)(d) of the Rome Statute has been circling around for more than a decade. That is, the question of how much an accused must contribute to a crime is not a question of quantity. Unease, because in the same paragraph it places ‘neutral’ contributions next to ‘infinitesimal’ ones, as if they belonged to the same family. They do not, and I think the difference matters more than it seems. This post tries to explain why.
The Question and the Answer
In its order of 25 August 2026, the Appeals Chamber put eleven questions (A to K) to the parties. Question E asks whether, ‘in light of the existing conflicting opinions in the Court’s jurisprudence’, there is a threshold applicable to a contribution under Article 25(3)(d), and whether the special mens rea of sub-paragraph (i) ‘justif[ies] liability for any contribution that is intentionally directed at furthering the group’s criminal activity or purpose’. Pre-Trial Chamber I in Mbarushimana and the Trial Chamber in Katanga required the contribution to be ‘significant’. Other Chambers avoided the word or expressly rejected it (Ruto et al., Ongwen, Al Mahdi, Al Hassan), and the Bemba et al. judgments did the same for Article 25(3)(c).
The Prosecution’s answer (paras 11–16) comes down to four propositions. First, the formulations ‘are not substantively conflicting and can be reconciled’. Secondly, what is required is that the accused’s conduct ‘influenced, or otherwise had a bearing on, the occurrence of the crime or the manner in which it was committed’. Thirdly, ‘[i]nstead of applying any particular threshold, this requires a case-by-case normative assessment’. Fourthly, once that bearing is established, ‘the level or degree of the contribution need not be further qualified’, so that only contributions that are ‘inconsequential’, ‘immaterial’, ‘neutral’ or ‘infinitesimal’ are excluded. It adds, rightly to my mind, that Article 25(3)(c) and (d) ‘refer to the same threshold and form of contribution’ (para 15).
What the Prosecution Gets Right
The ‘significant versus no threshold’ controversy has always been, in part, a false dichotomy. There is no metric of causal quantity for a contribution to the free act of another person. When the ad hoc tribunals spoke of a ‘substantial effect’, and when Mbarushimana and Katanga spoke of a ‘significant’ contribution, they were not measuring anything. They were simply deciding whether a contribution was relevant enough to be attributed to the accused. In my view, this was a quite natural and logical line of inquiry, since modes of liability are, after all, rules of attribution.
‘Substantial effect’ is, in this sense, normative attribution under another name. And when Ongwen or Bemba et al.rejected a threshold, what they rejected was, on my reading, a quantitative one. The Bemba et al. Trial Chamber, for example, dispensed with ‘any specific threshold’ while still requiring that the assistance have ‘furthered, advanced or facilitated’ the offence (paras 93–94). None of them held (or, under Article 22(2), could hold) that every causal contribution made with the requisite mental state is criminal irrespective of its meaning.
So, the Prosecution is right to call the assessment ‘normative’, right to abandon the illusion of a minimum quantum, and right to refuse any hierarchy between sub-paragraphs (c) and (d). Whatever filter we adopt must work under both.
Where the Prosecution Goes Wrong
The problem is the list. ‘Inconsequential’, ‘immaterial’ and ‘infinitesimal’ describe contributions that are too small to matter. ‘Neutral’ does not. The Prosecution borrows the word from Judge Fernández de Gurmendi’s separate opinion in Mbarushimana (para 12), but that opinion made exactly the opposite point. The Judge was ‘not persuaded’ that neutral contributions could be handled by a significance requirement, precisely because ‘providing food or utilities to an armed group might be a significant, a substantial or even an essential contribution to the commission of crimes by this group’. Neutral contributions, she wrote, are ‘better addressed by analysing the normative and causal links between the contribution and the crime rather than requiring a minimum level of contribution’.
Neutrality, in other words, has nothing to do with causal weight. The fuel supplier to an army may make an enormous contribution which is, nonetheless, a standard commercial performance. Conversely, the informant who tells a militia where a family is hiding makes a (quantitatively) tiny contribution which is unmistakably criminal. A ‘bearing’ test cannot tell them apart: the fuel obviously had a bearing on the operations it powered. Taken literally, then, the Prosecution’s formula either over-criminalises (fuel, finance, logistics, even humanitarian relief: all have some bearing) or leaves the word ‘neutral’ with no work to do. The ‘normative assessment’ becomes, I fear, a promissory note.
Why This Is Not a Quibble
It matters because of where the mental element is thin. Under Article 25(3)(d)(ii), the accused need only know of the group’s intention to commit the crime. Under customary aiding and abetting, mainly developed by the ad hoc tribunals, knowledge that one’s acts assist the commission of the crime suffices (Šainović, para 1649). Domestic and universal-jurisdiction cases against commercial actors (van Anraat, Kouwenhoven, Lafarge, the Swedish Lundin trial) apply no stricter standards. The same filing, moreover, argues (in its answer to Question H, paras 33–38) that under sub-paragraph (i) awareness of a ‘substantial risk’ that the crime will be committed is enough.
In sub-paragraph (i), that low cognitive threshold is at least offset by a demanding volitional one: the aim of furthering the group’s criminal activity or purpose, which a supplier in it for the money will rarely have. Sub-paragraph (ii) has no such counterweight. Knowledge of the group’s intention suffices, and that is precisely what anyone trading in a notorious conflict usually has. If the objective element is then reduced to ‘bearing’, nothing stands between the knowing supplier of ordinary goods and liability for the group’s crimes. The Prosecution itself insists that the special mens rea ‘does not affect the interpretation or application of the objective element of contribution’ (para 14). Precisely: if the mental element cannot narrow the contribution, the contribution must carry its own filter. The objective element cannot be left empty.
Humanitarian action shows what is at stake. A relief convoy in a besieged town, or food distributed in camps controlled by génocidaires, foreseeably benefits those who commit crimes, and the more effective the aid, the more readily it has a ‘bearing’. If the material element offers no filter, the only refuge left is a necessity-based defence, as Miles Jackson has proposed in his work on ‘virtuous accomplices’. Principled relief would then be prima facie complicity, excused case by case. To my mind, that concedes too much and protects too late.
Giving the Normative Assessment’ Content
Continental criminal law has spent almost half a century on this very question, under the heading of neutral conduct (neutrale Handlungen, conductas neutrales), from Jakobs’s reformulation of the prohibition of regress to the decisions of the German Federal Court of Justice of 1999 and 2000. I am not suggesting that the Court transplant that apparatus. International criminal law knows no autonomous category of objective imputation (objektive Zurechnung), and the debate on control over the crime (German Dogmatik or German invasion?) should make us cautious. But the problem and the principle can be translated into the Statute’s own terms. That is, after all, how control over the crime survived: in Lubanga, the Appeals Chamber stressed that it was ‘not proposing to apply a particular legal doctrine or theory as a source of law’ but interpreting Article 25(3)(a), and that domestic approaches served only as ‘guidance’ (para 470; critically, Ohlin, van Sliedregt and Weigend). The principle is this: conduct that stays within a socially or legally tolerated role does not become complicity merely because it causally facilitates, and is known to facilitate, another’s crime. Something more is needed.
That ‘something more’ can be spelled out. The starting point is the allowed risk of the sphere in which the contribution is made, its regulatory framework (think of Article 6(3) of the Arms Trade Treaty for arms transfers), and the role of the contributor, which protects only as long as the setting is not manifestly criminal, the logic that Article 33(2) applies to orders. What gives a contribution criminal meaning is a departure from that baseline: (i) adaptation to the crime (a performance tailored, timed or packaged to serve it); (ii) specificity rather than fungibility, that is, goods or services whose value to the recipient lies chiefly in their criminal use (a list of targets, a chemical precursor in quantities no civilian use explains), not generic goods, from fuel to flour; (iii) selective supply to the very unit that commits the crimes; (iv) continuation after credible notice of the criminal use; and (v) integration into the operational sequence of the crime, as with the excavators that Jokić sent to the execution sites around Srebrenica.
One argument should be discarded on the way: that a contribution is neutral because someone else would have supplied it anyway. International criminal law has met that argument before, from the other side. In Roxin’s perpetration by means of an organised apparatus of power (Organisationsherrschaft), the interchangeability of the direct perpetrators is what lets those at the top count on the crime being committed (if one subordinate refuses, another takes their place), and that is why they are perpetrators rather than instigators. Pre-Trial Chamber I received the idea in the Katanga and Ngudjoloconfirmation decision (paras 515–518), and Thomas Weigend has traced its unexpected career since. Fungibility grounds the responsibility of those who direct the fungible, and that has never exculpated the fungible themselves. Suppliers cannot claim a privilege that soldiers are denied.
Knowledge enters this assessment as a datum or indicator, not as a separate hurdle. It is necessary, but never sufficient, and its object is not only the notorious criminal context in which almost every trader, official or aid worker operates, but also this principal’s concrete readiness to use this contribution in the commission of crimes. These are indicators to be weighed together, not cumulative conditions, and that is exactly what a ‘case-by-case normative assessment’ should mean.
Why Not a Justification?
One might accept all this and still place it in a ground excluding responsibility, as Nikola Hajdin has suggested for neutral business assistance. I disagree. The claim of neutral conduct is prior to any justification, as it denies that the conduct ever crossed the threshold of contribution. To call the grocer’s sale prima facie complicity in crimes against humanity, later justified, misdescribes and stigmatises it. It also makes liability turn on a balancing exercise that sits uneasily with Article 22(2), and it shifts to the Defence a burden that belongs to the Prosecution. As part of the material element, the non-neutral character of a contribution must be proved beyond reasonable doubt (Articles 66 and 67).
What the Appeals Chamber Could Say
The Appeals Chamber now has the chance to close a confusion that has lasted since Mbarushimana. It could agree with the Prosecution that no quantitative threshold applies under Article 25(3)(c) or (d) and, at the same time, clarify that neutral contributions are excluded not because they are small but because they lack criminal meaning. Something like this would do: (i) a contribution qualifies only if it can be attributed to the accused as a criminally meaningful furtherance of the crime; and (ii) contributions that remain within the allowed risk of a lawful social, professional, commercial or humanitarian role do not qualify, whatever their causal weight, unless they are adapted to, integrated into or selectively directed at the commission of the crime, with knowledge of the principal’s concrete criminal readiness.
Significance is not a quantum, and neutral is not infinitesimal. If the ‘normative assessment’ is to be more than a label, it must be able to tell the fuel supplier from the informant, and the relief convoy from an instrument of the crime it seeks to mitigate.