Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], available online. عربي, 中文, English, Français, Ελληνικά, Русский, Español.

• Article 28: Responsibility of commanders and other superiors

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji (AC, Jun. 14, 2018) [hereinafter Concurring Opinion of Eboe-Osuji]. Available online, archived.

Fatou Bensouda, ICC Prosecutor, Statement on the Recent Judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo (Jun. 13, 2018). Available online.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute ” (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, Summary of Appeal Judgment (AC, Jun. 8, 2018). Available online, archived.

Press Release, ICC, ICC Appeals Chamber Acquits Mr. Bemba from Charges of War Crimes and Crimes Against Humanity (Jun. 8, 2018). Available online.

The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-2275-Red, Judgment on the appeal, (AC, Mar. 8, 2018) [hereinafter Bemba Corollary Appeal Judgment]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Public Redacted Version of Appellant’s document in support of the appeal (AC, Sep. 28, 2016) [hereinafter Bemba’s Appellate Brief. Available online, archived

containing an exhaustive list of Bemba’s appellate arguments.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343-AnxII, Separate Opinion of Judge Kuniko Ozaki (TC III, Mar. 21, 2016) [hereinafter Separate Opinion of Ozaki]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343-AnxI, Separate Opinion of Judge Sylvia Steiner (TC III, Mar. 21, 2016) [hereinafter Separate Opinion of Steiner]. Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, Summary of Trial Chamber III’s Judgment (TC III, Mar. 21, 2016). Available online, archived.

The Prosecutor v. Jean-Pierre Bemba Gombo, Opening Statement by the Prosecutor Luis Moreno-Ocampo (TC III, Nov. 22, 2010) [hereinafter Bemba Prosecutor Opening Statement]. Available online, archived. Unofficial version also includes opening statements by Fatou Bensouda and Petra Kneuer, available online.

The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (PTC II, Jun. 15, 2009) [hereinafter Bemba Pre-Trial Decision]. Available online, archived.

Peter Biar Ajak, Concise Summary of the Implications of Jean-Pierre Bemba’s Acquittal of War Crimes, NTV, Jun. 13, 2018. Available online

In this video, Peter Ajak, the co-founder of the South Sudan Young Leaders Forum, discusses the issues now facing the ICC in the wake of the Bemba decision.

Diane Marie Amann, In Bemba and Beyond, Crimes Adjudged to Commit Themselves, EJIL Talk (Jun. 13, 2018). Available online, archived

arguing that “the decision’s treatment of culpability as part of a global turn away from not-too-distant notions of accountability.”

Kai Ambos, Critical Issues in the Bemba Confirmation Decision, 22 Leiden J. Int’l L. 715 (Dec. 2009), paywall, available online

arguing that the the Pre-Trial Chamber erred in modifying the charges against Mr. Bemba purely by judicial fiat and it should, instead, have applied the iura novit curia principle. This principle should be applied at the Pre-Trial stage allowing the Pre-Trial Chamber to also amend the legal classification as to “the form of participation” of the accused.

Kai Ambos, Superior Responsibility, in The Rome Statute of the International Criminal Court: A Commentary 823, 860 (Antonio Cassese, Paola Gaeta, John R. W. D. Jones eds., 2002). paywall, doi.

Janet H. Anderson, Ocampo’s Shadow Still Hangs Over the ICC, Int’l Just. Tribune, Jun. 18, 2018. Available online, archived

arguing that this acquittal can be attributed more to issues of proof relating to the way cases were started, investigated, and charged under Moreno-Ocampo, seemingly implying that a similar case under Bensouda may have ended with a different result. The author also implies that Mr. Bemba may have not been the right target of this investigation to begin with.

Oumar Ba, What Jean Pierre Bemba’s Acquittal by the ICC Means, Al Jazeera, Jun. 12, 2018. Available online, archived

arguing that the acquittal is a major setback for the ICC and emblematic of the extent to which the ICC “oversell[s] promises of justice to conflict victims.”

Olivia Bueno, Impact of the Bemba Acquittal Already Seen in the Democratic Republic of Congo, Int’l Just. Monitor (Aug. 2, 2018). Available online, archived

addressing the welcome that Mr. Bemba received when he returned to Congo after his acquittal. Contrary to popular Western prediction that may expect that Mr. Bemba was hated for his crimes, many Congolese actually embraced his return. According to the author, the acquittal of Mr. Bemba convinced many Congolese that Western intervention is often wrong and often convicts unjustly. Additionally, the author discusses how Mr. Bemba’s return brought along many political ramifications with it as many Congolese surmised that Mr. Bemba’s acquittal coincided too conveniently with Mr. Kabila’s mandate and therefore they assume there must have been a political explanation to Mr. Bemba’s arrest and subsequent acquittal.

Kerstin Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victims, The Conversation (Jul. 15, 2018). Available online, archived

explaining, among other points, the 2018 Bemba majority’s language as signaling possible change in application and interpretation of legal doctrine. She argues that this has positive potential. The author also recognizes the important of making sexual violence a center of the charges and why the 2016 case was seen as a important doctrinal advance.

Mike Corder, ICC Overturns Ex-Congo VP Bemba’s War Crime Convictions, AP, Jun. 8, 2018. Available online, archived.

Adria De Landri, Command Responsibility in the International Tribunals: Is There a Hierarchy?, ExpressO Unpublished Paper (Dec. 14, 2011). Available online

reviewing the ICC ’s first decision in Bemba to determine whether the ICC drew on other international criminal proceedings to analyze command responsibility. The author believes the ICC did and believes this is a positive development for various reasons.

Martyna M. Falkowska-Clarys, The Bemba Trial before the International Criminal Court: Defining an Armed Conflict through the Scope of a Commander’s Responsibility, 54 Mil. L. & L. of War R. 267 (2015), paywall

arguing that argumentation before the Trial Chamber as well as the reasoning employed by it are heavily constrained by the specificity required by the command mode of responsibility. As a result, its analysis of Mr. Bemba’s actions is heavily decontextualized which results in errors in its reasoning.

Fabricio Guariglia, ‘Admission’ v. ‘Submission’ of Evidence at the International Criminal Court: Lost in Translation?, 16 J. Int’l Crim. Just. 315 (May 2, 2018), paywall, doi

examining a number of ICC prosecutions, including Bemba, to discuss the shift in international law from focusing on admissibility of evidence to submission of evidence at trial. Specifically, it discusses the difference in the trial and appeals chamber approaches to mass evidence admission in Bemba.

Alexander Heinze, Some Reflections on the Bemba Appeals Chambers Judgment, Opinio Juris (Jun. 18, 2018). Available online, archived

responding critically to the immediate reactions of scholars, jurists, and even the prosecutor, while re-focusing the discussion on the legal issues and standards.

Kevin Jon Heller, A Fascinating But Meritless OTP Gambit in Bemba, Opinio Juris (Jul. 4, 2018). Available online, archived

arguing that the OTP is making a mistake by arguing that, because the Appeals Chamber reviewed the evidence presented to the Trial Chamber de novo instead of deferring to the Trial Chamber’s factual findings, the Appeals Chamber was influenced by corrupted witness testimony and acquitted Mr. Bemba because of it. As such, the author concludes the Trial Chamber VII will see through this meritless position and reject it.

Miles Jackson, Geographical Remoteness in Bemba, EJIL Talk (Jul. 30, 2018). Available online, archived

discussing the Appeals Chamber’s reasoning that the Trial Chamber failed to consider that Mr. Bemba’s remote location led to a generalizable limitation on his ability to take all necessary and reasonable measures. The Appeals Chamber appears to hold Mr. Bemba to a lower standard due to his location away from the troops located in a foreign country who were under his command. The Appeals Chamber thus introduces a new distinction of remote/non-remote commander in addition to the distinction between military/non-military commander. Author disputes this distinction, as a generalized rule, and that while all facts should be taken into account to determine the ability for a commander to exercise all necessary and reasonable measures, finds that the Appeals Chamber’s reasoning in this case is not convincing.

Miles Jackson, Commanders’ Motivations in Bemba, EJIL Talk (Jun. 15, 2018). Available online, archived

writing about a specific issue of commander motivation, he does not address every issue: “In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue—it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.”

Balingene Kahombo, Bemba’s Acquittal by the Appeals Chamber of the International Criminal Court: Why is it so controversial?, Int’l Crim. Just. in Afr. (Jul. 8, 2018). Available online, archived

seeking to explain why the Appeals decision has been so controversial, focusing on two possible explanations: the technical application of the law and the perception created by the outcome with regard to the protection of the international rule of law.

Michael G. Karnavas, The Reversal of Bemba’s Conviction: What Went Wrong or Right?, Personal Blog (Jun. 19, 2018). Available online, archived

arguing that “the Prosecution and the Trial Chamber got it wrong.” He also finds “the Minority’s Dissenting Opinion, lengthy as it may be, unpersuasive.”

Nora Karsten, Distinguishing Military and Non-Military Superiors: Reflections on the Bemba Case at the ICC, 7 J. Int’l Crim. Just. 983 (Dec. 10, 2009), paywall, doi

analyzing the Trial Chamber’s characterization of Mr. Bemba as a military commander. She argues that the characterization of an individual as a military or non-military commander is contingent on the nature of the entity he heads. A military commander is one that heads an entity whose intended purpose is to engage in armed conflict.

Aman Kumar, Rapes Without Rapists: The Curious Case of Bemba Trial at ICC, Indian Blog of Int’l L. (Jun. 29, 2018). Available online, archived

arguing that Mr. Bemba’s acquittal has moved the Court away from the settled principle of superior responsibility developed at the Nuremberg and Tokyo trials and upheld by ad hoc tribunals. The author further argues that the far reaching repercussions of this move will be evident in upcoming hearings and trials not only at ICC but also at the various ad hoc and domestic tribunals.

Rita Manchanda, Congo Warlord Bemba’s Acquittal is a Major Setback in Prosecution of Rape as War Crime, The Wire (Jun. 20, 2018). Available online, archived

discussing the Appeals Chamber decision to reverse Mr. Bemba’s conviction under a theory of command responsibility because the Trial Chamber failed to account for his limitations in investigating and prosecuting crimes due to his remote location from the troops. She goes on to argue that this ruling’s stance on the limitations of command responsibility will negatively impact efforts to prosecute for the deportation of the Rohingyas and crimes of rape.

Jacques B. Mbokani, The Bemba Appeals Judgment: The ICC Facing the Tower of Babel?, Int’l Just. Monitor (Jun. 26, 2018). Available online, archived

arguing that Mr. Bemba’s acquittal increased ambiguity and uncertainty regarding ICC jurisprudence, jurisdiction and general command responsibility. The author contends that both the majority, dissent, and appeals opinions have such diametrically opposed answers to three questions on command responsibility. The first question concerns whether Mr. Bemba’s knowledge of criminal behavior of his soldiers should be limited to individual criminal acts established beyond a reasonable doubt or whether they should be expanded to include the high number of crimes reported by indirect sources. The second question concerns the rule of proportionality and whether Mr. Bemba’s actions should be assessed under the proportionality concept in regards to individual acts or larger crimes reported by indirect sources. Finally, the third question concerns the concept of a widespread attack in crimes against humanity and whether they should be based on a handful of criminal acts established beyond a reasonable doubt or if they should take into account the high number of crimes that were more controversially calculated. Overall, the author argues that the minority, dissent and majority opinions together all contribute confusion on these questions because they each take such diametrically opposed viewpoints.

Jonas Nilsson, Prosecutor v. Bemba et al., 112 Am. J. Int’l L. 473 (Jul. 2018). Paywall, doi

providing an overview of the ICC cases against Mr. Bemba and other associates, from their inception through the appeals court process. The author focuses on evidentiary and procedural issues, including immunity and documentary evidence.

Brian Obara, After Bemba Release, the ICC is a Court with a Heart and Not Much Else, Medium (Jun. 22, 2018). Available online, archived

suggesting that Mr. Bemba’s acquittal gutted much of the ICC ’s credibility as an institution, in various ways. The decision alienated victims of rape and sexual violence, by eliminating many gains made in the effort to create accountability for sexual crimes. By framing the ICC ’s proceedings as “victim-centric justice”, the court seems to ignore the fact that the status of their victims is inevitably tied to the status of the perpetrator. The author suggests this means that the court must engage with renewed fervor in pursuing sexual violence prosecutions. It must also continue its support of victims even in the aftermath of such an acquittal, if it hopes to maintain any credibility as a justice institution. With regards to Africa specifically, the author suggests the acquittal may be particularly troubling vis-à-vis the ICC ’s credibility in Africa as a whole. For some time, there have been groups in Africa advocating against the ICC, claiming that it has malignant intent toward Africa, and that prosecutions, often baseless, are aimed largely at the African continent. Although many of the spokespeople for this movement lack credibility because of their infamy (Kagame, Museveni, al-Bashir), Bemba possesses more credibility. Now that he has survived prosecution and imprisonment in the Hague and been acquitted, he may serve as a powerful spokesperson for a renewed movement within Africa to extricate the continent from the ICC altogether, claiming that his is an example of the anti-Africa sentiment of the ICC. When this is coupled with the fact that this acquittal may serve as a harbinger of future acquittals of Gbago and Ongwen, it seems as though there may be new impetus for en-masse withdrawal of the African Union from the ICC. This leaves the ICC, the author argues, as an institution with the will, but not the means, to effect meaningful justice.

Nadia Carine Fornel Poutou & Lucie Boalo Hayali, A Belief Shattered: The International Criminal Court’s Bemba Acquittal, Just Security (Jun. 25, 2018). Available online, archived.

Joseph Powderly & Niamh Hayes, The Bemba Appeal: A Fragmented Appeals Chamber Destablises the Law and Practice of the ICC, PhD Stud. in Hum. Rts. (Jun. 26, 2018). Available online, archived

arguing that the Bemba appeal decision delegitimized the ICC because it abruptly reformulated the standard of appellate review of the court and re-conceptualized ideas that will have implications beyond Bemba. Overall, the authors conclude that Bemba was flawed, not because Mr. Bemba was acquitted, but because of the overall legal and procedural analysis that the Majority employed. The authors state that Bemba has the potential to paralyze the work of the ICC and regress the development of international criminal law generally.

Darryl Robinson, How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution, 13 Melb. J. Int’l L. 1 (Oct. 28, 2011). Available online, archived, doi

arguing that international tribunal jurisprudence wrongly concluded that the “failure to punish” branch of command responsibility is irreconcilable with a contribution requirement. As such, international criminal tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime. The author argues that because command responsibility is a mode of accessory liability, a causal contribution is required. Bemba is used as a primary example.

Susana SáCouto, The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-Based Crimes?, Int’l Just. Monitor (Jun. 22, 2018). Available online, archived

arguing that the increased standard of review that the Appeals Chamber applied in its consideration of the Trial Chamber’s decision, the Pre-trial Chambers role in confirming charges to be processed, and the evaluation of Article 28 of the Rome Statute increases the difficulty of charging individuals with sexual violence crimes. The author questions if, under these standards, a conviction for sexually violent crimes will ever be possible.

Leila Nadya Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, EJIL Talk (Jun. 12, 2018). Available online, archived.

The author does a very thorough analysis of the different issues in the case and concludes that the result is alarming. “The result in this case is deeply unsatisfying. The inability of the Appeals Chamber to achieve consensus means that the judgment actually decided very little, and the two points it did decide remain hotly contested. Perhaps recognizing this, the Separate Opinion pleads that dissent is a common practice in international tribunals, but that is not always the case. Scholars have long noted that the European Court of Justice (ECJ) may have been successful in establishing its independence precisely because it does not permit dissents and judges must find consensus, as an excellent post on this blog has already noted. It is often thought that the ECJ follows the model of the French Court of Cassation which also does not permit dissenting opinions, on the theory that it weakens the authoritativeness of the law to do so.”

Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, and Why?, 38 N. Ill. U. L. Rev. 298 (Apr. 2008). Available online, archived

surveying the concept of command responsibility broadly, starting with the Nuremberg Trials and continuing through to contemporary ICC cases. This article would be useful to anyone looking to compare the Appeals Chamber’s analysis of command responsibility in Bemba with how earlier tribunals have treated command responsibility.

Fritz Streiff, The Bemba Acquittal: Checks and Balances at the International Criminal Court, Int’l Just. Monitor (Jul. 18, 2018). Available online, archived

arguing that the Bemba case sent shock waves throughout the world but that the case had a shadow over it from the beginning and that the appeals chamber had concerns around the lower courts reasoning.

Mark A. Summers, The Problem of Risk in International Criminal Law, 13 Wash. U. Global Stud. L. Rev. 667 (2014). Available online

arguing that knowledge of risk is an ongoing issue in international criminal law. With regards to Bemba, the author argues that the ICC ’s literal interpretation of Article 30, requiring “near certainty” that the harm will result in order to find command responsibility, is an unworkable standard. Because war crimes and crimes against humanity often involve large operations involving many people, the author argues Bemba is a prime example of just how difficult it will be to hold commanders responsible, even when they almost certainly knew of the atrocities their troops were committing. Where there are fact-finding challenges as complex as those involved in international criminal law, a more flexible standard, or at least a more flexible interpretation of liability, under the Rome Statute will be necessary if the court hopes to fulfill its promises to victims and the international community.

Jennifer Trahan, Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard, Opinio Juris (Jun. 25, 2018). Available online, archived

arguing that “the Majority applied an unworkable and arguably erroneous standard of appellate review.”

Stephanie van den Berg & Amedee Mwarabu, Congolese Ex-Vice President Bemba Acquitted of War Crimes on Appeal, Reuters, Jun. 8, 2018. Available online, archived.

Wairagala Wakabi, Bemba’s Acquittal Raises Concerns on Reparations to Victims in the Central African Republic, Int’l Just. Monitor (Jul. 18, 2018). Available online, archived.

Alex Whiting, Appeals Judges Turn the ICC on Its Head With Bemba Decision, Just Security (Jun. 14, 2018). Available online, archived

providing a survey of the majority’s opinion and concludes that the opinion makes the Pre-Trial Chamber’s role more cumbersome and gives the Appeals Chamber far more authority to deviate from findings of fact by the Trial Chamber, compromising the court’s ability to achieve justice for victims and effectively prosecute wrongdoers.