This article explores the history of the Benedictines in south-eastern Congo. The Benedictine leader, Jean-Félix De Hemptinne, eschewed an adaptationist approach to his mission work in favour of an assimilationist one. This article explains why he was able to follow such an approach for so long. Two factors were paramount. First, what Chris Bayly described as ‘lateral connections’ enabled De Hemptinne to side-step the need to engage meaningfully with local agricultural knowledge. Secondly, De Hemptinne's close if turbulent relationship with the colonial state facilitated a supply of funds and African labour despite the difficulties the Benedictines had in converting local people.

African regimes commonly use strategies of balanced ethnic representation to build support. Decentralisation reforms, often promoted in order to improve political representation and state access, can undermine such strategies. In this article we use the example of the DR Congo to show the extent to which the multiplication of decentralised provinces is upending a political system largely based until now upon collective ethnic representation in the state. Not only are Congo's new provinces more ethnically homogeneous than their predecessors, but many of them have also witnessed political takeover and monopolisation by the province's dominant ethnic group. In addition, the increased number of Congolese who now find themselves non-autochthonous to their province of residence heightens their vulnerability and the potential for local conflict. Decentralisation, whose intent was proximity to governance, might well end up excluding more Congolese from the benefits of political representation. The article uses original empirical evidence on provincial ethnic distributions to support its claims.

The jurisprudence of the International Criminal Court (ICC) up to the Lubanga judgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.

This perspective has been overturned by the Katanga judgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

The admissibility challenge of the defence in Katanga has raised complex issues of litigation in the light of the practice of self-referrals and existing ICC jurisprudence. This article examines the Katanga Trial Chamber decision and its consequences from this perspective. It focuses on three themes that are of particular relevance, since they have a direct impact on the functioning of the Court and its different organs: (i) the timing for a challenge of the admissibility of the case; (2) access to information related to admissibility; and (iii) the role of the defence.

On 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the case Prosecutor v. Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.