I. The Doctrine of Command Responsibility and its Application by the ICTY

Command responsibility has long been recognized as a theory of liability in international criminal law. One finds roots of modern command responsibility doctrine in the Hague Conventions of 1907, which maintained that armed forces must be “commanded by a person responsible for his subordinates.”3 However, command responsibility was not widely used to prosecute war criminals until tribunals employed it to assess the criminal liability of defeated commanders after World War II, particularly in the Yamashita case.4

In Yamashita, the defendant was a Japanese general who commanded the Japanese army in the Philippines from October 1944 until the war’s conclusion.5 Japanese soldiers in the Philippines committed countless confirmed atrocities, included massacring civilians, pillaging, and starving prisoners of war.6 However, General Yamashita asserted that he had no knowledge of the atrocities and that he was unable to communicate with subordinates given the extent to which conditions had deteriorated.7 Regardless, a military commission convicted and sentenced him to death, with United States Supreme Court upholding his conviction, albeit with vigorous dissents lambasting the failure to afford General Yamashita basic due process rights throughout the proceedings.8 Both the Military Commission and the Supreme Court in Yamashita were silent as to the mens rea used to convict, leading to criticism that a strict liability standard had been erroneously imposed.9 Even with such opaque reasoning, Yamashita became the primary command responsibility authority for much of the twentieth century, until the formation of the International Criminal Tribunal for the Former Yugoslavia.10

A. The International Criminal Tribunal for the Former Yugoslavia

The former Yugoslavia disintegrated into chaos in the early 1990s, culminating in widespread ethnic violence throughout Bosnia, the murder of hundreds of thousands of civilians, mass rape, and the displacement of millions from their homes.11 The U.N. Security Council did not initially deploy peacekeepers to halt the violence—instead they adopted Resolution 827 on May 25, 1993, establishing the ICTY to try persons believed to be responsible for the atrocities—the first such tribunal since World War II.12 Resolution 827 limited the ICTY ’s jurisdiction to a specific set of crimes: grave breaches of the Geneva Conventions, genocide, crimes against humanity, and violations of the laws and customs of war.13

The ICTY Statute explicitly included the doctrine of command responsibility. Article 7(3) provides:

The fact that any of the acts referred to in article 2 to 5 of the present statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.14

Under the ICTY Statute, the Prosecutor must prove three elements to hold an individual responsible through a theory of command responsibility:

1. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;

2. that the superior knew or had reason to know that the crime was about to be or had been committed; and

3. that the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.15

Article 7(3) does not provide explicit guidance regarding as to when its mens rea and actus reus elements are satisfied. First, the ICTY Statute is unclear as to under what circumstances a commander “had reason to know” that his subordinates were committing crimes, short of the commander’s actual knowledge that crimes were being committed. Second, the Statute provides no direction as to what constitutes a “necessary and reasonable measure” to prevent or punish subordinate crimes.

Several ICTY cases have interpreted Article 7(3)’s “had reason to know”mens rea prong and the “necessary and reasonable measure”actus reus prong. These decisions clarifying the parameters under which an accused may be found guilty under Article 7(3) have become international law’s most substantive body of command responsibility precedent. Further, for purposes of this comment, these cases are particularly salient given their significant factual similarities with the circumstances analyzed by the ICC Appeals Chamber in Bemba.

1. The ICTY ’s Čelebići Decision

The ICTY Appeals Chamber’s decision in Čelebići16 may be the tribunal’s most well-known decision. Čelebići establishes the standard under which a commander has satisfied the “had reason to know” prong of Article 7(3)’s mens rea element. The case assessed whether defendant Zejnil Delalić, a “coordinator” of Bosnian Muslim and Bosnian Croat forces and Commander in the Bosnian Army was responsible for the murder, torture, and rape those forces committed against Serbian inmates at the Čelebići Prison Camp central Bosnia in 1992.17

The ICTY Trial Chamber found that Delalić did not have command over the prison camp and that information regarding the wrongdoings was unavailable to him, holding that he could not be held liable under Article 7(3).18 On appeal, the Prosecutor maintained that the Trial Chamber had interpreted the “had reason to know”mens rea element too narrowly, arguing instead that a commander should have a duty to “discover and obtain all information within his powers” as to whether their subordinates are committing crimes.19 The ICTY Appeals Chamber rejected this argument, holding that:

A superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offenses committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offenses were being committed or about to be committed by his subordinates.20

The Appeals Chamber further added that “[a commander’s] knowledge may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so.”21 Importantly, the judgment expressly ejected the Prosecution’s argument that a commander must “remain constantly informed of his subordinates actions” and that failure to be informed necessarily results in criminal liability.22

The Čelebići case demonstrates that a commander can be held criminally responsible under the “had reason to know” prong of Article 7(3) if “information was available to him which would have put him on notice of [offenses] committed by subordinates.”23 Critically, while a commander’s knowledge cannot be presumed from a failure to obtain information about a crime, if the commander had the means to obtain such information but deliberately refrained from doing so, knowledge may be presumed under Čelebići.24 The Čelebići command responsibility mens rea standard thus does not require actual knowledge of subordinate crimes—instead, it permits a finding of command responsibility if prior subordinate crimes were sufficient to put a commander on notice of the risk of future subordinate crimes and the commander then failed to prevent those future crimes.25

2. The ICTY ’s Blaškić Decision—Čelebići Affirmed and “Necessary and Reasonable Measures” Clarified

In Blaškić, the ICTY both affirmed the Čelebići mens rea standard and provided guidance on the appropriate inquiry for whether a commander had taken all “necessary and reasonable measures” to prevent subordinate crimes. The accused in Blaškić was a commander in the Croatian armed forces charged under Article 7(3) for widespread atrocities committed in his region of command.26 Although there was comparatively little evidence pointing to the accused’s knowledge of subordinate crimes, the Blaškić Trial Chamber relied on World War II jurisprudence to hold that command responsibility permits a finding of liability for subordinate crimes if the commander “failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure constitutes criminal dereliction.”27 The Trial Chamber rejected the accused’s arguments that he had no knowledge of subordinate crimes, seemingly finding liability based only on the accused’s “negligence” in monitoring his troops.28

In assessing the “necessary and reasonable measures” prong of Article 7(3), the Trial Chamber briefly notes that while a commander’s “actual ability” is a relevant consideration, the commander:

need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability , which may entail…submitting reports to the competent authorities in order for appropriate measures to be taken.29

On the facts, the Trial Chamber concluded that the accused “did not carry out his duty to investigate” or “send a report on the perpetrators of these crimes to the competent authorities,” essentially holding that the accused’s failure to take hypothetical measures was sufficient to satisfy Article 7(3)’s actus reus prong.30

The Blaškić Appeals Chamber reversed the Trial Chamber for its erroneous mens rea analysis, emphasizing that negligence alone cannot satisfying Article 7(3)’s mens rea prong.31 In reaching this conclusion, the Blaškić Appeals Chamber emphasized that “Čelebići …has settled the issue of the interpretation of the standard of ‘had reason to know,’” and is the “authoritative interpretation.”32 However, the Appeals Chamber held that the Trial Chamber’s “necessary and reasonable measures” analysis was proper, noting that “[w]hat constitutes such measures is not a matter of substantive law, but of evidence…as has been so defined by the Trial Chamber in this case.”33 Thus, Blaškić demonstrates both the durability of Čelebići and the comparative looseness of Article 7(3)’s “necessary and reasonable measures” analysis, with evidence of hypothetical, untaken actions being sufficient to hold that a commander had satisfied Article 7(3)’s actus reus element.

3. The ICTY ’s Karadžić Decision—Čelebići and Blaškić Applied

The ICTY Trial Chamber in Karadžić relied heavily on both Čelebići and Blaškić to find Radovan Karadžić, the Supreme Commander of the Armed forces of the Republika Sprska, guilty of crimes against humanity under Article 7(3).34 As such, the case serves as a useful archetype for a comprehensive Article 7(3) command responsibility liability analysis.

In finding liability, the Karadžić Trial Chamber again affirmed the Čelebići Appeals Chamber’s holding that a commander does not need “extensive or specific details about the unlawful acts committed or about to be committed” to satisfy the “had reason to know”mens rea standard.35 Further, the Trial Chamber echoed earlier ICTY decisions in emphasizing that determining what measures are necessary and reasonable to punish subordinate crimes is a “question of fact and not of substantive law,” citing Blaškić with approval.36 Lastly, the Trial Chamber lists several measures which can be considered “reasonable and necessary,” including reporting the matter to competent authorities or issuing specific orders to stop the criminal activity.37

Applying the Blaškić “necessary and reasonable measures” standard, the Trial Chamber emphasized that the accused had information about the killings and could have removed the perpetrators from service.38 However, the accused took no action except to issue an order “response to international pressure” over the killings, which the Trial Chamber determined was not a “genuine attempt to shed light” on crimes the accused knew were being committed by subordinates.39 Because the accused “should have taken steps to investigate these crimes and punish the perpetrators immediately upon learning of them or soon thereafter,” but did not, the Trial Chamber held that the accused failed to take all “necessary and reasonable measures” and violated his “duty to do more,” which was sufficient for Article 7(3) liability.40

The Karadžić decision crystallizes several key takeaways from ICTY command responsibility jurisprudence. First, Karadžić demonstrates the predominance and ubiquity of the Čelebići Appeals Chamber’s interpretation of “had reason to know”mens rea standard for command responsibility liability. Second, Karadžić reaffirms the relative flexibility of the Article 7(3)’s “necessary and reasonable measures” analysis, with the Trial Chamber concluding both that political motives can render measures inadequate and that it is acceptable to consider potential measures the commander failed to take when assessing the “necessary and reasonable measures” prong of command responsibility liability.

II. The International Criminal Tribunal for Rwanda

Following a request from the Rwandan government, the U.N. Security Council adopted Resolution 955 on November 8, 1994, creating the ICTR to prosecute the perpetrators responsible for the deaths of over 900,000 Rwandan Tutsis during 1994.41 The ICTR ’s jurisdiction was similarly restricted to three categories of crimes—genocide, crimes against humanity, and violations common to the Geneva Conventions.42 Because the ICTY predated the formation of the ICTR by over a year, it is unsurprising that the ICTR Statute mirrors the ICTY Statute. Article 6(3), which codifies the ICTR ’s command responsibility standard, is a verbatim recitation of ICTY Article 7(3):

The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.43

This commonality has resulted in significant overlap in the two tribunals’ command responsibility jurisprudence, which has been further enhanced because the ICTY and the ICTR share an Appeals Chamber.44 The ICTR ’s decisions in Bagilishema and Nahimana are strong indicia that ICTR command responsibility decisions have afforded ICTY jurisprudence de-facto precedential effect, emphasizing the durability of the ICTY ’s command responsibility caselaw.

A. The ICTR ’s Bagilishema Decision—Čelebići Reaffirmed

The ICTR ’s decision in Bagilishema is relevant not so much for its outcome, but rather the extent to which its analysis relies on ICTY precedent. When assessing whether the accused had satisfied Article 6(3)’s mens rea element, the ICTR Appeals Chamber exclusively applied Čelebići, emphasizing that if “some general information was available to [a commander] which would put him on notice of possible unlawful acts by his subordinates [and he] did not take the necessary and reasonable measures to prevent the acts,” said commander may be criminally liable.45 The Bagilishema Appeals Chamber’s whole-cloth affirmation of the ICTY ’s Čelebići command responsibility mens rea standard therefore reflects the extent to which ICTY command responsibility jurisprudence was beginning to achieve a sort of de-facto precedential effect in international criminal law.

B. The ICTR ’s Nahimana Decision—“Necessary and Reasonable Measures” Assessed

In Nahimana, the ICTR Appeals Chamber assessed whether Ferdinand Nahimana, a civilian radio broadcaster, was properly found criminally liable for his failure to prevent war crimes committed by his listeners.46 The ICTR Trial Chamber determined that broadcasts from Nahimana’s radio station promoted hatred against the Tutsi people, calling for their extermination and imploring listeners to “take up arms against [the Tutsi].”47 Given the explicit causal link between the radio broadcasts and Tutsi deaths, coupled with Nahimana’s purported knowledge of the broadcast’s hateful content, the ICTR Trial Chamber determined that Nahimana was liable for failing to prevent his listeners’ crimes against the Tutsi.48

In affirming the Trial Chamber’s findings, the Appeals Chamber emphasized that Nahimana had received letters from the government and attended meetings at the Ministry of Information where he was informed of:

concerns raised by the promotion of ethnic division by [his radio station], leaving no doubt that…[he] had the mental element required pursuant to Article 6(3) of the ICTR Statute.49

Because of this “minimum reason to know that there was a significant risk that [the radio station’s] journalists would incite the commission of serious crimes against the Tutsi,” Nahimana’s failure to prevent future misconduct properly led to criminal liability under the command responsibility doctrine.50 Further, the Appeals Chamber held that the “Trial Chamber did not need to specify the necessary and reasonable measures [Nahimana] could have taken,”51 such that the finding that Nahimana had taken no measures was sufficient to satisfy Article 6(3)’s “necessary and reasonable measures” prong.

These ICTR decisions reflect significant consistency with ICTY jurisprudence. Of particular importance, Nahimana which largely adheres to the analysis of both Blaškić and Karadžić, demonstrates the relative ease with which a Prosecutor might secure a command responsibility conviction. Specifically, if the accused satisfies the command responsibility mens rea element (which does not require actual knowledge) and has taken no measures to prevent future subordinate crimes, they may be found guilty. This potentially unjust result—where a commander who has no feasible means by which to controls his subordinates might still fulfill the actus reus necessary for conviction—is possible under the command responsibility jurisprudence of both ad hoc tribunals. Thus, given the uniformity of the foregoing caselaw, it is unsurprising that the Bemba acquittal is seen as a meaningful divergence—albeit one that may be necessitated by what appears to be a prosecution-friendly command responsibility doctrine.

III. Command Responsibility Under the Rome Statute and its Application in Bemba

A. Article 28

The ICC codified its legal standard for command responsibility liability in Article 28 of the Rome Statute.52 The text of Article 28 largely mirrors the “knew or should have known know”mens rea element and “necessary and reasonable measures”actus reus element used by the ICTY and ICTR.53 While Article 28 bifurcates command responsibility into separate standards for military officials and civilian “superiors,” that distinction is not relevant to the instant case because Bemba was charged as a military commander.54

B. The Appeals Chamber’s Decision in Bemba

As seen in the foregoing cases, the ad hoc tribunals primarily focused their command responsibility inquiries on whether the accused satisfied the mens rea necessary to trigger their duty to prevent future subordinate atrocities, while relying on a flexible factual inquiry to assess whether the accused took “necessary and reasonable measures.” In marked contrast, the Appeals Chamber’s command responsibility analysis in Bemba focuses almost exclusively on how a commander’s individualized circumstances may color what constitutes a “necessary and reasonable” measure under Article 28(a)(ii).

The majority in Bemba determined that Trial Chamber failed to properly weigh individualized facts going to a commander’s remoteness and limited ability to investigate subordinate crimes when assessing the accused’s available “necessary and reasonable measures.” Further, the majority noted that the scope of a commander’s duty to prevent subordinate crimes by taking all necessary and reasonable measures is “intrinsically connected to the extent of a commander’s material ability to prevent or repress the commission of crimes, or to submit the matter to the competent authorities for investigation and prosecution.“55 Absent any reference to other caselaw, the judgment states that “[c]ommanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent…subordinate[] [crimes]” and that:

[the] Trial Chamber paid insufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr. Bemba’s ability, as a remote commander, to take measures.56

While the majority acknowledges that the “limitations alluded to by Mr. Bemba did not completely curtail his ability to investigate crimes committed by MLC troops in the CAR,” they nevertheless insist that the Trial Chamber did not conduct a proper assessment as to whether the potential measures available to Bemba “could be regarded as the extent of the necessary and reasonable measures that [Bemba] could have taken, given the limitations upon his material abilities.”57 For the majority then, the Trial Chamber’s repeated inability to appreciate the individualized limitations Bemba faced in investigating and prosecuting crimes as a remote commander compromised the lower chamber’s ability to accurately assess whether he took “necessary and reasonable measures” to satisfy his duty to prevent subordinate crimes.

Lastly, the majority highlighted that “considering Mr. Bemba’s motivation [of rehabilitating the MLC ’s image] had a material impact on the entirety of [the Trial Chamber’s] findings on necessary and reasonable measures” and was improper.58 Because the Trial Chamber did not properly assess the accused’s individual ability to take “necessary and reasonable measures” and improperly considered the accused’s motives, the Appeals Chamber concluded the conviction was erroneous.

IV. The Benefits of the Appeals Chamber’s Decision in Bemba Likely Outweigh Potential Drawbacks

Although the Appeals Chamber adamantly insisted that that its decision in Bemba decision merely rectifies the Trial Chamber’s erroneous analysis of Article 28’s “necessary and reasonable” measures prong, this does not appear to be the case. In requiring that the Trial Chamber allow commanders to make a cost/benefit analysis, afford due weight to the commander’s remoteness, and disregard the commander’s motivations when assessing “necessary and reasonable measures,”Bemba deliberately narrows the circumstances under which Article 28’s actus reus element is satisfied. While the Majority does initially attempt to tie their analysis of the “necessary and reasonable”actus reus element to earlier case law,59 they have in actuality diverged from earlier authority and created a more equitable standard for assessing Article 28’s actus reus element.

In contrast, the dissent’s analysis largely adheres to earlier jurisprudence. In particular, the dissent notes that the Majority makes no meaningful assessment of Bemba’s knowledge of the crimes, as a necessary predicate to assessing whether the accused took all necessary and reasonable measures to prevent said crimes.60 It goes on to emphasize that the standard established by the majority fails to consider that “the Trial Chamber assessed the measures taken by Mr. Bemba in light of the consistent information of widespread crimes committed by MLC soldiers in the CAR of which Bemba had knowledge,” and that in light of Bemba’s knowledge, it was proper to determine that his failure to take significant measures were “a grossly inadequate response.”61 Thus, the dissent maintains that the Trial Chamber correctly “assessed the adequacy of the measures Mr. Bemba took in light of the consistent information he received of the crimes committed throughout the relevant timeframe,”62 perfectly mirroring ICTY and ICTR command responsibility analysis in cases where commanders were found liable.63

In light of the foregoing inconsistencies, we are left to speculate as to why the Majority in Bemba chose to modify the “necessary and reasonable measures” element in a way that demonstrates greater deference to the accused.64 I suggest two reasons for this modification—first, the Appeals Chamber may be attempting to rectify the perception of command responsibility as a prosecution-friendly doctrine65 and using their reinterpretation of the “necessary and reasonable measures” element to create a more equitable legal test that safeguards the rights of the accused. Second, the Appeals Chamber may be responding to ICC critics who assail the court for its alleged “Africa bias” and interpreting the “necessary and reasonable measures” element to properly reflect the unique challenges that commanders in remote African conflict zones face in managing subordinates, which earlier ICTY jurisprudence in particular may inadequately reflect.

As shown in the foregoing cases, once a Prosecutor is able to demonstrate that the accused should have known that subordinates had committed crimes, proving that subsequent omissions demonstrated a failure to take necessary and reasonable measures to prevent future crimes and securing a command responsibility conviction are relatively straightforward.66 The fairly consistent application of ICTY and ICTR command responsibility jurisprudence has thus arguably become a “tool of victor’s justice favoring the deterrence of crimes and the punishment of superiors over individualized fault.”67 Moreover, the Čelebići mens rea standard, which does not require proof of actual knowledge, appears to have achieved a de-facto status of stare decisis, further bolstering the conclusion that existing state of the doctrine is decidedly pro-prosecution.68

Seen it this light, the Majority’s departure from the existing caselaw may represent a desire to create a more equitable command responsibility jurisprudence, by requiring that proper weight be afforded to a commander’s individualized circumstances (e.g., remoteness) when considering if all “necessary and reasonable measures” have been taken. Notably, earlier command responsibility standards may result in convictions of commanders who possessed little to no ability to prevent subordinate crimes, such as in Nahimana, where the accused was essentially convicted under an actus reus of omission with no analysis of whether feasible measures to prevent subordinate crimes were available to him. Further, the Majority’s focus on the actus reus prong minimizes potential inconsistencies with earlier caselaw as the majority leaves the seminal Čelebići mens rea standard untouched. Thus, Bemba may have managed to modify Article 28 to ensure it is fairer to the defense with minimal disruption to the primacy of ICTY jurisprudence.

The Majority’s creation of a more accused-friendly command responsibility standard may also reflect an implicit response to criticisms of the ICC’s “Africa bias.” Specifically, it may evince a desire to rehabilitate the court’s legitimacy in Africa by attempting to codify the meaningful logistical differences between European and African theaters of war as considered under the Article 28 “necessary and reasonable measures” analysis.

The ICC’s critics maintain that the Rome Statute, as constructed, reflects meaningful bias against African nations and defendants.69 These critics maintain that the doctrine of command responsibility ignores operational realities specific to Africa. In particular, they argue that African combat is characterized by disparate rebel groups vying for control of extractive resources, often in remote areas. Further, remote rebel groups cannot be monitored by “dismally underfunded” civic institutions, such that “the responsibility of contemporary violence goes well beyond that of an individual commander.”70 In contrast, accused commanders in the ICTY largely operated in very traditional military command-and-control structures71 or partook in the establishment of robust civic and military institutions that were highly receptive to control.72 Unlike in Africa, remoteness may not have caused meaningful difficulties to a commander effectuating control over subordinates in the Balkans.

Thus, by requiring an individualized assessment of a commander’s remoteness and acknowledging that commanders may undertake a cost/benefit analysis when assessing which measures to take to control their subordinates, the Majority is likely acknowledging that operational realities on the ground in Africa are meaningfully distinct from those in a European conflict zone. Such an acknowledgment would render existing ICTY standards of command responsibility inapplicable to cases like Bemba, arguably further justifying the majority’s reinterpretation of Article 28’s “necessary and reasonable measures” prong to require an individualized factual analysis more robust than ICTY ’s minimal assessment of hypothetical measures that a commander could have taken to prevent subordinate crimes.73

While the two suggested rationales for the Majority’s decision to reframe Article 28 command responsibility liability appear meritorious, the Majority’s new standard must also be assessed in light of the ICC’s goal of ending impunity. To date, the ICC has managed to secure only a handful of convictions.74 Those convictions have proven impactful—for example, observers noted that the ICC’s verdict in Lubanga served as a meaningful deterrent to the recruitment of child soldiers in armed conflict.75 The continued development of a successful record of investigations and convictions is crucial if the ICC wants to advance its goal of ending impunity. However, the ICC faces challenges in obtaining these convictions—from a refusal of states to cooperate, to difficulties securing suspects pursuant to arrest warrants, to problems obtaining both testimonial and real evidence.76 In light of these structural challenges, if the Majority’s “necessary and reasonable measures” framing creates a significant procedural hurdle to pursuing perpetrators, the ICC’s job may become more arduous.

That being said, there is little evidence to suggest that the Majority’s reinterpretation of Article 28’s actus reus prong will have a chilling effect on the Prosecutor’s ability to secure future Article 28 convictions. Moreover, the ICC’s desire to forge a record of successful convictions must not be allowed to take precedence over affording sufficient due process safeguards to the accused and ensuring that justice remains fair to the defense. The ICC would be misguided were it to compensate for the foregoing structural challenges limiting its ability to convict perpetrators through the use of prosecution-friendly legal standards. As Justice Murphy said in dissent in Yamashita:

To subject an enemy belligerent to an unfair trial…only antagonizes…and hinders the reconciliation necessary to a peaceful world.77

In adopting a more equitable Article 28 “necessary and reasonable measures”actus reus analysis, the Majority in Bemba recognizes that unfair proceedings inevitably result in convictions that cannot be divorced from accusations of bias, an outcome far more harmful to the ICC’s goals of ending impunity than any drawbacks the Bemba judgement may pose.

V. Conclusion

The Bemba majority’s decision to modify Article 28’s “necessary and reasonable measures” element to require a more individualized, fact-specific assessment of the accused’s circumstances is a meaningful and warranted departure from earlier command responsibility jurisprudence. The new standard in Bemba may provide benefits such as promoting justice through a more equitable command responsibility legal standard, while also assuaging the ICC’s “Africa bias” critics through an incorporation of material African operational realities into the “necessary and reasonable measures” inquiry.

The ICC undoubtedly faces structural challenges that frustrate its goal of putting “an end to impunity for the perpetrators of the most serious crimes,”78 but using a more equitable Article 28 actus reus standard to prove a commander failed to take all necessary and reasonable measures should ultimately help, rather than hinder, this goal. As the Majority properly recognizes, there can be no meaningful end to impunity without convictions based on fair proceedings and robust evidence. Thus, Bemba is best read as a necessary acknowledgment that international justice can only be achieved when the “fairness and objectiveness of the law” is maintained.79

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Bakone Justice Moloto, Command Responsibility in International Criminal Tribunals, 3 Publicist 12, 13 (2009), available online. ↩

2. 2.

   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, as amended [hereinafter Rome Statute], Art. 28, available online. ↩

3. 3.

   Hague Convention No. IV, Respecting the Laws and Customs of War on Land, 36 Stat. 2277, Treaty Series 539 (Oct. 18, 1907), available online. ↩

4. 4.

   Adria De Landri, Command Responsibility in the International Tribunals: Is There a Hierarchy?, ExpressO Unpublished Paper, 2 (Dec. 14, 2011), available online. ↩

5. 5.

   Id. ↩

6. 6.

   De Landri, supra note 4, at 2. ↩

7. 7.

   Id. ↩

8. 8.

   In re Yamashita, 327 U.S. 1, 27–28 (Feb. 4, 1946) [hereinafter Yamashita], available online. ↩

9. 9.

   Amy H. McCarthy, Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law, 18 Chi. J. Int’l L. 553, 558 (Jan. 1, 2018), available online. ↩

10. 10.

    See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 86, 1125 UNTS 3, Jun. 8, 1977, [hereinafter Additional Protocol I], available online.

    (Additional Protocol I, which amended the Geneva Conventions through the addition of a command responsibility definition, was another significant source of command responsibility jurisprudence during this time). ↩

11. 11.

    Michael P. Scharf, Balkan Justice xiv-xv (1997). ↩

12. 12.

    Id. at 51, 60–62. ↩

13. 13.

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], available online. ↩

14. 14.

    Id. at Art. 7(3). ↩

15. 15.

    The Prosecutor v. Tihomir Blaškić, IT-95-14-A, Judgement, ¶ 484 (ICTY AC, Jul. 29, 2004) [hereinafter Blaškić Appeals Chamber Judgment], available online. ↩

16. 16.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić & Esad Landžo, IT-96-21-A, Judgement (ICTY AC, Feb. 20, 2001) [hereinafter Čelebići Appeals Chamber Judgment], available online. ↩

17. 17.

    Scharf, supra note 11, at 124. ↩

18. 18.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement, ¶¶ 340, 377 (ICTY TC, Nov. 16, 1998) [hereinafter Čelebići Trial Chamber Judgment], available online. ↩

19. 19.

    Čelebići Trial Chamber Judgment, supra note 18, at ¶ 382. ↩

20. 20.

    Čelebići Appeals Chamber Judgment, supra note 16, at ¶ 236, quoting the Trial Chamber (emphasis added). ↩

21. 21.

    Id. ¶ 226. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ¶ 241. ↩

24. 24.

    Moloto, supra note 1, at 18. ↩

25. 25.

    McCarthy, supra note 9, at 564. ↩

26. 26.

    Jenny S. Martinez, Understanding Mens Rea in Command Responsibility: From Yamashita to Blaškić and Beyond, 5 J. Int’l Crim. Just. 638, 657 (2007), paywall, doi. ↩

27. 27.

    The Prosecutor v. Tihomir Blaškić, IT-95-14-T, Judgment, ¶ 322 (ICTY TC, Mar. 3, 2000) [hereinafter Blaškić Trial Chamber Judgment], available online. ↩

28. 28.

    Id. ¶ 332. ↩

29. 29.

    Id. ¶ 302. ↩

30. 30.

    Id. ¶ 734. ↩

31. 31.

    Blaškić Appeals Chamber Judgment, supra note 15, at ¶ 63. ↩

32. 32.

    Id. ¶¶ 62, 64. ↩

33. 33.

    Blaškić Appeals Chamber Judgment, supra note 15, at ¶ 72. ↩

34. 34.

    See The Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Public Redacted Version of Judgement (ICTY TC, Mar. 24, 2016) [hereinafter Karadžić Trial Chamber Judgment], available online. ↩

35. 35.

    Id. ¶ 586. ↩

36. 36.

    Id. ¶ 587. ↩

37. 37.

    Id. ¶ 588. ↩

38. 38.

    Id. ¶ 5845. ↩

39. 39.

    Id. ¶ 5846. ↩

40. 40.

    Id. ¶ 5847. ↩

41. 41.

    See Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, Art. 6(3), U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

42. 42.

    Id. ↩

43. 43.

    Id. at Art. 6(3). ↩

44. 44.

    See Chambers, ICTY, available online (last visited Apr. 29, 2019).

    (“The Appeals Chamber consists of seven permanent Judges, five of whom are permanent judges of the ICTY and two of whom are permanent judges of the International Criminal Tribunal for Rwanda (ICTR). These seven judges also constitute the Appeals Chamber of the ICTR. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber.”). ↩

45. 45.

    The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-A, Judgement, ¶ 33 (ICTR AC, Jul. 3, 2002) [hereinafter Bagilishema Appeals Chamber Judgment], available online. ↩

46. 46.

    The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-A, Judgement (ICTR AC, Nov. 28, 2007) [hereinafter Nahimana Appeals Chamber Judgment], available online. ↩

47. 47.

    Id. ¶ 949. ↩

48. 48.

    The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T, Judgement and Sentence, ¶ 624 (ICTR TC I, Dec. 3, 2003) [hereinafter Nahimana Trial Chamber Judgment], available online. ↩

49. 49.

    Nahimana Appeals Chamber Judgment, supra note 46, at ¶ 840. ↩

50. 50.

    Id. ¶¶ 840, 857. ↩

51. 51.

    Id. ¶ 792. ↩

52. 52.

    Rome Statute, supra note 2, at Art. 28. ↩

53. 53.

    Id. ↩

54. 54.

    Id. ↩

55. 55.

    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”, ¶ 167 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

56. 56.

    Id. ¶¶ 170–71. ↩

57. 57.

    Id. ¶ 173. ↩

58. 58.

    Bemba Appeals Chamber Judgment, supra note 55, at ¶ 191. ↩

59. 59.

    Id. ¶ 168. ↩

60. 60.

    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, ¶ 46 (AC, Jun. 8, 2018), available online, archived. ↩

61. 61.

    Id. ¶ 93. ↩

62. 62.

    Id. ¶ 32. ↩

63. 63.

    See, e.g., Nahimana Appeals Chamber Judgment, supra note 46

    (holding that because the accused satisfied “should have known”mens rea element of command responsibility, his subsequent failure to take any measures to prevent future subordinate crimes meant he was properly convicted under a theory of command responsibility);

    Karadžić Trial Judgment supra note 34, at ¶ 5848.

    (Factual findings nearly identical to the ICC Trial Chamber’s in Bemba, particularly concerning the commander’s suspect motivations, were sufficient to find that the accused had not undertaken all necessary and reasonable measures). ↩

64. 64.

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

65. 65.

    See Arthur T. O’Reilly, Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice, 40 Gonz. L. Rev. 127 (2004), available online. ↩

66. 66.

    See, e.g., Nahimana Appeals Chamber Judgment, supra note 46. ↩

67. 67.

    O’Reilly, supra note 65, at 28. ↩

68. 68.

    See Moloto, supra note 1, at 14

    (referring to the “landmark Čelebići case” as reflective of “a rich jurisprudence on command responsibility” which has been largely adhered to by subsequent international courts). ↩

69. 69.

    See, e.g., Kamari Maxine Clarke, Why Africa?, in Contemporary Issues Facing the International Criminal Court 326 (Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Mar. 17, 2013) available online. ↩

70. 70.

    Id. at 327, 330. ↩

71. 71.

    See, e.g., Blaškić Appeals Chamber Judgment, supra note 15.

    (Accused was career military officer who at the time of the alleged offenses was the general in command of the armed forces at issue). ↩

72. 72.

    See, e.g., Karadžić Trial Chamber Judgment, supra note 34, at ¶¶ 2, 160–64. ↩

73. 73.

    Id. ¶ 5848. ↩

74. 74.

    Ewelina U. Ochab, A Second Look at the International Criminal Court, Forbes, Jul. 16, 2017, available online. ↩

75. 75.

    See Report of the Special Representative of the Secretary-General for Children and Armed Conflict, U.N. Doc. A/67/256 (Aug. 6, 2012), available online, archived. ↩

76. 76.

    Jane Stromseth, Is the ICC Making a Difference?, Just Security (Dec. 6, 2017), available online. ↩

77. 77.

    Yamashita, supra note 8, at 28–29. ↩

78. 78.

    Rome Statute, supra note 2, Preamble. ↩

79. 79.

    Yamashita, supra note 8, at 41. ↩