ICC Prosecution Abandons 'Significant' Threshold in Yekatom Appeal

The ICC Office of the Prosecutor formally abandoned any quantitative threshold for contributions under Article 25(3)(d) of the Rome Statute on 30 September 2026. In its response to the Appeals Chamber in Yekatom and Ngaïssona, filed on 25 August questions, the Prosecution held that what matters is whether conduct "influenced, or otherwise had a bearing on" the crime — not how much it did so. Commentator Adrián Agenjo Aguado, a PhD candidate at the Universitat de Barcelona and the Humboldt-Universität zu Berlin, calls the move half right and half wrong.

What does the filing say?

The Appeals Chamber's order of 25 August 2026 put eleven questions (A to K) to the parties. Question E asked whether a threshold applies to contributions under Article 25(3)(d), given "existing conflicting opinions in the Court's jurisprudence". Pre-Trial Chamber I in Mbarushimana and the Trial Chamber in Katanga required a "significant" contribution. Chambers in Ruto et al., Ongwen, Al Mahdi and Al Hassan avoided or rejected that word, as did the Bemba et al. judgments for Article 25(3)(c).

The Prosecution's answer, at paragraphs 11–16, rests on four propositions:

• The prior formulations "are not substantively conflicting and can be reconciled".
• The contribution must have "influenced, or otherwise had a bearing on" the crime's occurrence or manner of commission.
• "[i]nstead of applying any particular threshold, this requires a case-by-case normative assessment".
• Once that bearing exists, "the level or degree of the contribution need not be further qualified" — only "inconsequential", "immaterial", "neutral" or "infinitesimal" contributions fall outside liability.

The filing also states that Articles 25(3)(c) and (d) "refer to the same threshold and form of contribution" (para 15), and that a "substantial risk" standard suffices for mens rea under sub-paragraph (i) (paras 33–38, answering Question H).

Why does the list of exclusions matter?

Agenjo Aguado argues the Prosecution is right that the "significant versus no threshold" fight was a false dichotomy — courts were performing normative attribution, not measuring causation. The Bemba et al. Trial Chamber, for instance, dispensed with "any specific threshold" yet still required assistance that "furthered, advanced or facilitated" the offence (paras 93–94).

The problem, he writes, is that "neutral" sits wrongly beside "infinitesimal". The word comes from Judge Fernández de Gurmendi's separate opinion in Mbarushimana (para 12), which made the opposite point: she was "not persuaded" that significance requirements catch neutral acts, because "providing food or utilities to an armed group might be a significant, a substantial or even an essential contribution". She said neutrality calls for analysis of "the normative and causal links", not a minimum contribution level.

A "bearing" test cannot distinguish the fuel supplier whose standard commercial performance aids an army from the informant who pinpoints a hiding family. Taken literally, the formula over-criminalises finance, logistics and even humanitarian relief — or strips "neutral" of any work to do.

What is at stake for practitioners?

The stakes rise where mens rea is thin. Under Article 25(3)(d)(ii), knowledge of the group's intention suffices — exactly what anyone trading in a notorious conflict possesses. Customary aiding and abetting demands only knowledge of assistance (Šainović, para 1649), and domestic cases against commercial actors — van Anraat, Kouwenhoven, Lafarge, the Swedish Lundin trial — apply no stricter standard. The Prosecution itself insists the special mens rea "does not affect the interpretation or application of the objective element of contribution" (para 14). If the mental element cannot narrow liability, the contribution must carry its own filter.

Drawing on continental doctrine of neutrale Handlungen — Jakobs, and German Federal Court of Justice decisions of 1999 and 2000 — the author proposes factors giving a contribution criminal meaning: adaptation to the crime; specificity rather than fungibility (a target list or chemical precursor, not fuel or flour); selective supply to criminal units; continuation after credible notice; and integration into the crime's execution, like the excavators Jokić sent to Srebrenica execution sites. He rejects the "someone else would have supplied it" defence via Organisationsherrschaft logic, and rejects a justification-based approach: non-neutral character belongs in the material element, proved beyond reasonable doubt under Articles 66 and 67.

The Appeals Chamber could close a confusion dating to Mbarushimana by holding that neutral contributions are excluded not for smallness but for lack of criminal meaning.