II. Geographic Location a Factor but not Controlling at ICTY and ICTR8

A. The Requisite Mens Rea

While not specifically articulated as remoteness , geographic location was a relevant consideration in the jurisprudence of the ICTY and the ICTR. Geographic location came into play when determining whether the commander possessed the requisite mens rea to be held liable for the actions of his subordinates. The ICTY and ICTR statutes assessed liability for a commander if the superior “knew or had reason to know that the subordinate was about to commit such [criminal] acts or had done so…”9

The ICTY first considered the issue of command responsibility in 1998 in what is known as the Čelebići case.10 The Trial Chamber recognized the difficulties of obtaining direct evidence of a superior’s knowledge. It allowed for circumstantial evidence of knowledge and articulated several indicia to be consider when determining whether the superior must in fact have possessed the requisite knowledge.11 Two of the indicia specifically mention location; the superior’s location at the time of the acts, and the geographic location where the act itself was committed.12 The commander’s location in relation to the location of the acts could cut against the commander having the requisite knowledge, but it sometimes served to impute knowledge to the commander.13 The further the commission of the act was from the commander, the more difficult, absent other indicia, to establish that commander had the requisite knowledge.14 If the crime was committed in the immediate proximity of where the superior normally performed his/her duties, it was potentially a sufficient indication of the commander’s knowledge, especially if the crimes were repeatedly committed.15 However, even where the act was committed in the immediate proximity of the commander, a showing of other indicia of knowledge was sometimes required to establish the commander’s mens rea. In Prosecutor v. Bagilishema,16 an ICTR case, the Trial Chamber specifically discussed the ICTY Trial Chamber’s consideration of additional indicia of knowledge even when the location of the commander and the criminal act were the same.17 The two crimes at issue in Bagilishema were committed during daytime in the neighborhood where the commander’s office was located.18 Despite this, the Trial Chamber determined that the indicia of geographical location, time, and modus operandi were not sufficient to establish knowledge on the part of the commander because of the lack of evidence showing that the two crimes were not “isolated or exceptional incidents.”19 Thus, while the accused’s location was no doubt a relevant consideration, location in and of itself was not normally sufficient to establish that the accused possessed the requisite mens rea.20

B. Necessary and Reasonable Measures

A commander is not automatically held responsibility for the crimes of his insubordinates just by possessing the requisite knowledge. To incur liability on a theory of command responsibility under the ICTY and ICTR statutes, the commander must have also “failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”21 The Rome Statute is a bit more detailed as to the commander’s requirement to take all necessary and reasonable measures but is still substantially similar to its predecessors.22

A commander’s remoteness or even geographic location was not given significant consideration in ICTY and ICTR jurisprudence. This is in part because the question of what a necessary and reasonable measure was depended on the specific facts of the case. However, the analytical framework for determination of necessary and reasonable measure left room for the commander’s location to potentially influence the court’s determination. ICTY jurisprudence established four criteria as a normative yardstick for determining the necessary and reasonable measures a superior was expected to take.23 The superior could not be asked to do more than what was in his or her power.24 The superior must have undertaken necessary and reasonable measures to prevent subordinates from “planning, preparing, or executing prospective crime.”25 The more serious or imminent the potential crimes appeared to be, the quicker the superior’s response needed to be.26 The superior was only expected to undertake those actions which appeared appropriate under the given conditions, he or she did not have to do the impossible.27 This framework seems to allow for a commander’s remoteness to have been a sufficient consideration if it inhibited the superior’s ability to take action, but its lack of mention suggests that it might not have been argued by parties in the ICTY or ICTR.28

III. Treatments of Remoteness

So what role does remoteness play in assessing liability under Article 28 of the Rome Statute? It is evident from the opinions of the Trial Chamber, Majority, Dissent, and Concurring Separate Opinion that a commander’s remoteness factors into the analysis, but there is a lack of consensus on how much weight the limitations faced by a remote commander should be given, and what type of evidence sufficient to cut against finding the commander criminally responsible.

A. Trial Chamber29

While the Trial Chamber’s opinion could have addressed Bemba’s arguments in regard to his remoteness with more clarity, it wholly considered Bemba’s status as a remote commander before arriving at its decision.30 The overarching finding that the Trial Chamber made was that Bemba’s remoteness did not prevent him from exercising effective control, gaining knowledge of the crimes, or from taking all necessary and reasonable measures.

The Trial Chamber did not specifically mention Bemba’s remoteness in its findings that Bemba retained effective control over the MLC contingent in the Central African Republic (CAR), but it is clear that the Trial Chamber considered the effect that Bemba’s location in the Democratic Republic of the Congo (DRC) had upon control over the MLC troops in the CAR. The Trial Chamber considered the extensive interactions between MLC forces and CAR authorities as “logical in a situation where a contingent of foreign forces is unfamiliar with the terrain and the enemy.”31 In the Trial Chamber’s view, the fact that MLC forces were able to work with CAR authorities undermined Bemba’s assertions that his remoteness decreased the amount of control he had over MLC troops operating in the CAR.32

When determining whether Bemba knew that crimes were being committed by his soldiers in the CAR), the Trial Chamber acknowledged from the outset that Bemba was predominately based in the DRC making him remote from the operations on the ground.33 The Trial Chamber also considered that Bemba was the MLC ’s leader, had ultimate authority, and maintained extensive communication and contacts with MLC officials in the field before determining that Bemba knew his subordinates were committing or about to commit crimes in the field.34 Bemba’s remoteness was a fact considered but it was not given controlling weight in light of other factors indicating that Bemba possessed the requisite knowledge for liability.

Similarly, the Trial Chamber did not give significant weight to Bemba’s position as a remote commander when assessing whether Bemba took all necessary and reasonable measures. The Trial Chamber’s analysis first focused on the measures that Bemba did take, determining that each of the measures taken by Bemba was limited in mandate, execution and/or results.35 The Trial Chamber next scrutinized Bemba’s motivations for taking the various measures to add to its determination that the measures taken were limited and insufficient. The Trial Chamber offered a litany of measures that it believed Bemba could have taken in addition to or instead of the insufficient measures that were actually taken.36 The little analysis that the Trial Chamber did give to the limitations posed by Bemba’s remoteness was limited to its swift dismissal of the two arguments raised by Bemba as to difficulties he faced when taking measures.37 Bemba first argued that the assertion that he could have conducted investigations had to be weighed against difficulties encountered by CAR authorities in subsequent investigations after General Bozizé took power.38 The Trial Chamber explicitly rejected this argument finding the difficulties faced in conducting a criminal investigation after an armed conflict to be completely irrelevant to any difficulties that Bemba would have faced as a remote commander during a conflict.39 The Trial Chamber also rejected Bemba’s attempt to compare his difficulties in conducting investigations as a remote commander with the difficulties faced by the Office of the Prosecutor in conducting its investigation.40 For the Trial Chamber, Bemba’s ability to create commissions in reactions to allegations of crimes, specifically two within the CAR undermined his assertions that he faced difficulties as a remote commander in establishing commissions or undertaking investigative efforts.41 Thus, remoteness was also a consideration in assessing the measures taken by and available to the commander, but the Trial Chamber limited its application and weight, especially in the context of other measures that the commander was able to take and his motivations for taking them.42

B. Majority Opinion43

The Majority disagreed with the result reached by the Trial Chamber. The disagreement did not stem from whether a commander’s remoteness was a proper consideration in assessing liability under Article 28, but rather from how much weight the limitations created by a commander’s remoteness and the evidence presented should be given.44 On appeal, Bemba raised several arguments, but the Majority limited its analysis to his arguments concerning the Trial Chamber’s assessment of whether Bemba took all necessary and reasonable measures.45

Bemba first argued that it was not proper to judge his conduct against a list of hypothetical actions because as a commander, he was only required to take measures that were “within his material possibility.”46 He argued that this mistake led the Trial Chamber to misappreciate and not give proper credence to the limitations on the MLC ’s jurisdiction and competence to investigate.47 According to Bemba, the Trial Chamber failed to properly address evidence and consider the realities on the ground when determining that he failed to take all necessary and reasonable measures or to refer the matter to a competent authority .48

The Majority found this decision by the Trial Chamber to be unreasonable.49 The Majority agreed that the assessment of necessary and reasonable measures must consider the commander’s material ability to take such measures.50 The Majority further limited the scope of a commander’s duties under Article 28, stating that even when a commander has the material ability to take reasonable measures, the commander is not required to take every single conceivable measure available to him.51 To avoid liability under Article 28, a commander is only required to take measures that are necessary and reasonable under the circumstances.52 The Majority specifically warned against evaluating a commander’s actions with the benefit of hindsight and stated that the Trial Chamber must clearly state what a commander should have done in concreto as opposed to requiring a commander to defend against hypothetical and abstract findings.53

The difficulties or limitations created by Bemba’s position as a remote commander guided the Majority’s analysis of Bemba’s arguments and the Trial Chamber’s opinion. The Majority was not convinced that Bemba failed to take all necessary and reasonable measures. The Majority specifically articulated three errors made by the Trial Chamber concerning Bemba’s remoteness.54 The Majority accepted Bemba’s argument that the Trial Chamber ignored pertinent witness testimony as to the limitations of MLC ’s investigative efforts.55 The Majority also disagreed with the Trial Chamber’s analysis, finding that the Trial Chamber did not conduct a proper assessment of the measures taken by Bemba given the circumstances at the time and the limitations upon his material abilities.56 Specifically, the Trial Chamber erred by acknowledging that cooperation between MLC and CAR authorities was necessary but failing to consider the difficulties that necessitated and were created by such cooperation.57 This resulted in an “unrealistic assessment” of the range of measures available to Bemba.58

Bemba’s status as a remote commander and the limitations it created were entirely relevant considerations for the Majority and its finding that the Trial Chamber erred was primarily based upon the improper analysis conducted by the Trial Chamber.59 The Majority’s opinion gave considerable weight to Bemba’s status as a remote commander even in the context of the Trial Chamber’s findings and the appellate standard of review.60 However, the Majority’s opinion lacked clarity and was devoid of an actual standard. The precise role and appropriate weight of a commander’s remoteness remain unclear.

C. Judge Eboe-Osuji’s Concurring Separate Opinion61

In perhaps the most clearly written opinion, the Judge Eboe-Osuji articulated his grounds for overturning Bemba’s conviction.62 He recognized that Bemba’s position as a remote commander created added difficulty for adjudicating the case.63 Remoteness of location was an important concern, ultimately complicating the question of guilt.64 For the Judge Eboe-Osuji, the remoteness of a commander was not its own individual factor and he expressly disagreed with any interpretation of the Majority’s opinion suggesting that a commander’s remoteness on its own was sufficient to insulate from liability.65 Instead, it was best used to assess the reasonableness of measures taken by or available to the commander.66

D. Dissenting Opinion67

In the Dissenting opinion filed by Judges Monageng and Hofmański, a commander’s remoteness was given similar treatment and weight as it was given by the Trial Chamber. Remoteness influenced the analysis of whether the commander had effective control, possessed the requisite knowledge, and took all necessary and reasonable measures to prevent or repress the crime, or refer the matter to competent authorities. It is unclear just how much weight a commander’s remoteness should have been given, but it is clear that the Dissent expected commanders to provide tangible evidence of specific limitations created by remoteness. Even when evidence was offered, contradicting evidence was given equal if not more weight.

The Dissent argued that for determinations of effective control, the traditional criteria of command responsibility have been applied for cases across borders.68 The remoteness of the commander was a factual consideration to be made when determining whether the accused had the material ability to prevent, repress or report the commission of crimes.69

Remoteness was also a consideration when assessing the mens rea of the commander. The Dissent agreed with the Trial Chamber’s use of the factors used in Čelebići as circumstantial evidence of the accused’s knowledge of the crimes.70 However, the Dissent expressly disagreed with any suggestion that as a matter of law, a geographically remote commander could not have knowledge of his or her subordinates’ crimes.71

The Dissent disagreed with the Majority’s analysis of the Trial Chamber’s opinion as to whether Bemba took all necessary and reasonable measures.72 The Dissent argued that the Trial Chamber properly considered Bemba’s position as a remote commander and critiqued the Majority for accepting Bemba’s arguments regarding his limitations at face value.73 The Dissent and Majority agreed that remoteness influences the availability of necessary and reasonable measures, but the disagreement occurs in determining the proper weight of evidence of limitations and the type of evidence that needed to be offered. The Dissent thought that Bemba’s arguments as to the limitations he faced were contradicted by his actions in taking steps to set up investigative inquiries in the CAR.74 The Dissent believed that the Trial Chamber gave Bemba’s witnesses sufficient consideration. The witness testimony was ultimately disregarded after being found unreliable and hearing contradictory evidence from other witnesses that Bemba possessed the primary authority to sanction or investigate MLC troops in CAR.75 The Dissent also pointed to the fact that Bemba failed to “specify how actual measures he took or attempted to take to investigate MLC crimes on the CAR territory…were affected by the limitations to which he allude[d].”76 The Dissent would potentially have given the limitations asserted by Bemba more credence if Bemba had offered evidence that the Dissent believed to be sufficient.

VI. The Majority’s Decision is Vulnerable and Deserves to be Critiqued

A. Missed Opportunity to Clarify Standard

Command Responsibility is a theory overdue for articulation and guidance. This is especially true when determining necessary and reasonable measures.77 Determinations of necessary and reasonable measures will always be an inquiry based upon the specific facts and circumstances of the case, but the Majority should have articulated necessary facts or factual situations in which a certain measure becomes a necessary and reasonable one. The lack of stare decisis in international jurisprudence undoubtedly limits the influence of prior decisions on subsequent courts, but articulating a workable standard would provide more clarity.78 Specifically, it would give guidance to prosecutors seeking to hold remote commanders accountable on theories of command responsibility, the accused in offering rebuttal arguments and evidence, and the Trial Chamber in deciding whether criminal liability is proper.79 The Majority had an opportunity to get it right and provide direction in their first command responsibility case.

Of course, articulating a standard would be useless without providing guidance on the weight and sufficiency of evidence to be offered. The Majority’s opinion heavily critiqued the Trial Chamber’s misappreciation of the limitations that Bemba faced but failed to provide any guidance on what an appreciation of the limitations would have or should have looked like.80 Readers of the opinion are left with several questions.81 The Majority’s opinion is unclear as to whether tangible evidence of limitations actually needs to be offered by the accused. If tangible evidence is required, the Majority’s opinion is unclear as to exactly what type of evidence needs to be offered. As the Dissent points out, Bemba didn’t argue that he tried to take measures that were later found to be impossible due to the limitations.82 Instead, Bemba argued, and the Majority agreed that the Trial Chamber paid insufficient attention to the limitation that he would have faced in undertaking investigations in the CAR.83 Of course, Bemba offered witness testimony of the limitations that he would have faced, but this testimony was considered and rejected by the Trial Chamber.84 Thus, the Majority’s opinion reads as though the accused can offer speculative evidence of the limitations they would have faced but it does not give guidance as to the proper weight of evidence offered by the accused and the competing evidence offered by the prosecutor. The Majority’s opinion is also limited because it does not address whether any factors exist that might mitigate limitations arising because of the commander’s remoteness. For example, in the Trial Chamber and Dissenting opinions, the diplomatic relations between MLC and CAR officials undermined Bemba’s claims that he did not exercise effective control and faced limitations in investigating crimes by MLC soldiers.85 The Majority does not provide guidance on how to deal with limitations faced by a remote commander when the commander has had success in taking investigative steps in the past. Many questions remain after reading the Majority’s opinion. Questions that could and should have been answered by the Majority. It is clear that the Trial Chamber paid “insufficient attention,” but after several readings of the Majority’s opinion, it remains unclear what sufficient attention would and should be.

B. Split Decision

The Majority’s decision is also vulnerable because it is in some ways a split decision on the weight of limitations posed by remoteness. The Majority’s decision does not clearly articulate the precise role that remoteness plays in assessing liability under Article 28. Instead, they criticize the Trial Chamber for failing to sufficiently consider the limitations caused by Bemba’s position as a remote commander. The main theme throughout the Majority’s opinion is more . How much attention?— more attention. The ambiguity in the Majority’s opinion lends credence to the interpretation that a showing of the limitations from a commander’s remoteness can absolve the commander of liability. It can also be interpreted as treating a commander’ remoteness as a controlling factor in determining the commander’s material ability or reasonableness of measures taken or available to the commander. The Majority’s opinion makes it clear that the limitations resulting from a commander’s remoteness are at least important considerations in assessing necessary and reasonable measures under Article 28.86

However, Judge Eboe-Osuji’s Concurring Separate Opinion expressly disagreed with any interpretation of the Majority’s decision that remoteness is a sufficient factor on its own to absolve liability. He argued that remoteness is just another factor to be considered in determining whether the commander failed to take all necessary and reasonable measures, most valuable for determining what is reasonable as a measure to prevent or repress violations. Judge Eboe-Osuji probably be unwilling to subscribe to any interpretation of the Majority’s opinion treating the commander’s remoteness as a controlling factor as well. The only interpretation that Judge Eboe-Osuji would be willing to ascribe to is the vaguest interpretation of remoteness at least playing some part in assessing liability under Article 28. If this is the case, concerns still remain as to the proper weight of remoteness and sufficiency of evidence offered.87

C. Gives Remote Commanders Additional Protection

Regardless of how the Majority’s opinion is interpreted, it undoubtedly makes it more difficult to hold remote commanders liable on a theory of command responsibility.88 Remote commanders are provided with an additional criterion for the courts to weigh in assessing their liability under Article 28. A non-remote commander cannot argue that he faced limitations in undertaking investigations or referring matters to competent authority because there will be a greater presumption of control if operating within one state.89 The limitations resulting from a commander’s remoteness impact his material ability to take measures, thus decreasing the amount of necessary and reasonable measures available to the commander. A crafty remote commander knows that under the Majority’s opinion, he doesn’t even have to give specific evidence of the actual limitations he faced after efforts made. He just needs to argue that he would have faced limitations and provide at least some witness testimony corroborating these claims. There is also the potential of commanders trying to take advantage of this by being intentionally remote. It is unlikely that the court will look favorably upon this because it would allow commanders to skirt responsibility undermining both the purpose of the command responsibility doctrine, and the purpose of remoteness as an inquiry.90 Even if no clear legal distinction is created between remote and non-remote commanders, the prosecutor will be required to present additional evidence to rebut remoteness evidence offered by the accused. This certainly increases the burden on prosecutors and offers the accused an additional avenue to avoid liability.

D. Decision Creates Confusion

Besides the ambiguity of and in the Majority’s opinion, the Majority’s opinion also creates confusion or leads to a potentially unjust result on alternate sets of facts.

For example, it is unclear what the result would be if a remote commander with weak diplomatic relations with the foreign nation argues that he would have faced limitations in initiating investigations in the foreign nation and thereby takes no action at all. The evidentiary burden upon the accused is minimal. The Trial Chamber is required to give “sufficient” weight to the accused’s evidence and make findings on the record. But how much evidence must the prosecution present to rebut the commander’s purported limitations? What measures are necessary and reasonable when the commander argues that no measures were available to him? The lack of clarity in conducting proper analysis leaves room for a commander to take no action.

Alternatively, the Majority’s opinion incentivizes a remote commander to establish an independent commission or inquiry and keep it at arm’s length.91 The Majority determined that the Trial Chamber failed to appreciate that as a remote commander, Bemba was not part of the investigations and was not responsible for the results generated.92 The Majority’s generalized statement leaves room for remote commanders to initiate investigations without maintaining oversight. The Majority does set out a four-part test for determining whether the results were limited by the Commander.93 Commanders can incur liability under Article 28 for failing to “submit the matter to competent authorities for investigation and prosecution.”94 Investigations that repeatedly arrive at shortcomings are not competent authorities and an argument exists that a commander should still incur liability. However, the Majority’s reasoning can serve to insulate remote commanders from the results of the investigations they initiate.95 A commander can argue that he was not aware of the shortcomings, or that due to the limitations he faced as a remote commander, it was not materially possible to correct the shortcomings. The lack of a clear understanding of “sufficient shortcomings”, how much weight to weight to give limitations from remoteness, and the Majority’s clear statement recognizing the separation of remote commanders from the investigative inquiries they establish have the potential to lead to an unjust result.

Of course, the Majority’s opinion also creates confusion if applied to facts similar to the present case. The assessment of necessary and reasonable measures is a purely factual inquiry, but subsequent parties do not know which facts are important or whether any mitigating circumstances exist. It remains unclear whether a commander’s previous successes in taking investigatory steps cuts in favor of or against liability under Article 28. The outstanding questions will lead to confusion for future command responsibility cases heard by the ICC.

V. Concluding Thoughts

If one thing is clear, it is that the remoteness of a commander and its resulting limitations are important considerations when seeking to hold a remote commander criminally responsible for the actions of his insubordinates under Article 28.96 Unfortunately that is about all we are sure of as the precise weight, sufficiency, and types of evidence to be offered are left unclear in the Majority’s opinion. The lack of clarity is sure produce confusion in subsequent ICC cases seeking to hold remote commanders liable on theories of command responsibility.

When considering future command responsibility cases, the ICC should confirm whether there is a purely legal distinction between remote and non-remote commanders. They should also clarify the legal standard and articulate precisely whether limitations resulting from remoteness insulate from liability or are mitigating factors of the Article 28 elements. If indeed, the limitations are mitigating factors, the court should articulate how much weight the limitations should be given, the type of evidence the parties should offer, how to treat conflicting evidence, and make concrete findings based upon the specifics of the case. The ultimate goal is to provide guidance for future parties to the ICC. Even without controlling authority, future parties will benefit from knowing what is expected of them before arriving in court.

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

1. 1.

   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. ↩

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.

   Id. ↩

4. 4.

   Id. ↩

5. 5.

   Remoteness refers to the geographic location of the commander in relation to his troops, and their actions. ↩

6. 6.

   See Establishment of the International Criminal Tribunal for the Former Yugoslavia, Security Council Resolution 827 (May 25, 1993) [hereinafter ICTY Statute], available online

   (describing the creation of The ICTY operated from 1993 to 2017 to deal with war crimes that took place during conflicts in the Balkans in the 1990s). ↩

7. 7.

   See Establishment of the International Criminal Tribunal for Rwanda, Security Council Resolution 955 at Art. 1 (Nov. 8, 1994) [hereinafter ICTR Statute], available online

   (describing the creation of The ICTR by the UN Security Council in 1995 to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring States”). ↩

8. 8.

   The author is aware of the Nuremberg Tribunals and other sources of international command responsibility doctrine but chose to focus on the ICTY and ICTR because of the number of indictees. ↩

9. 9.

   Compare ICTY Statute, supra note 6, at Art. 7 and ICTR Statute, supra note 7, at Art. 6, [Signal] with the Rome Statute, supra note 2, at Art. 28(a)(i)

   (The Rome Statute requires that the “military commander or person either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such a crime”). ↩

10. 10.

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

11. 11.

    Id. at ¶ 386.

    1. The number of illegal acts,
    2. The type of illegal acts,
    3. The scope of the illegal acts,
    4. The time during which the illegal acts occurred,
    5. The number and type of troops involved,
    6. The logistics involved if any,
    7. The geographical location of the acts,
    8. The widespread occurrence of the acts,
    9. the tactical tempo of operations,
    10. The modus operandi of similar illegal acts,
    11. The officers and staff involved,
    12. The location of the commander at the time.

    ↩

12. 12.

    Id. ↩

13. 13.

    Čelebići, supra note 10, at ¶ 1250

    (discussing the accused Musić’s repeated absence from camp as a deliberate neglect of his duty and arguing that it would be a travesty of justice and an abuse of concept of command authority to “allow the calculated dereliction of an essential duty to operate as a factor in mitigation of criminal responsibility”). ↩

14. 14.

    The Prosecutor v. Zlatko Aleksovski, IT-95-14/1-T, Judgment, ¶ 80 (TC I bis, Jun. 25, 1999), available online. ↩

15. 15.

    Id. ↩

16. 16.

    The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgement (TC I, Jun. 7, 2001), available online. ↩

17. 17.

    Id. at ¶ 971. ↩

18. 18.

    Id. at ¶ 979. ↩

19. 19.

    Id. at ¶¶ 980–88.

    (The Trial Chamber was also concerned with the lack of evidence of the dates of the killings and the accused’s exact location at the time of the killings). ↩

20. 20.

    But see Aloys Ntabakuze v. The Prosecutor, ICTR-98-41A-A, Judgement (AC, May 8, 2012) [hereinafter Ntabakuze], available online. ↩

21. 21.

    See ICTY Statute, supra note 6, at Art. 7; ICTR Statute, supra note 7, at Art. 6. ↩

22. 22.

    See Rome Statute, supra note 2. ↩

23. 23.

    Prosecutor v. Naser Orić, IT-03-68-T, Judgement, ¶ 339 (TC II, Jun. 30, 2006) [hereinafter Orić Judgment], available online. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    This is potentially because ICTY and ICTR cases involved actors operating within the same country. It is unlikely that a commander in the same country as his troops would be treated as a remote commander. If so, the commander would have to present very compelling evidence as to limitations faced. ↩

29. 29.

    Bemba Trial Chamber Judgment, supra note 1. ↩

30. 30.

    The Trial Chamber specifically referred to Bemba’s remoteness in ¶ 706. ↩

31. 31.

    Id. at ¶ 699. ↩

32. 32.

    Id. at ¶¶ 700–05. ↩

33. 33.

    Id. at ¶ 706. ↩

34. 34.

    Id. at ¶ 717. ↩

35. 35.

    Id. at ¶¶ 719–26

    (laying out the various measures that Bemba took in reaction to allegations of crimes including: the Mondonga Inquiry, a November 2002 visit to the CAR to meet with officials, a speech given in November 2002, trials held at Gbadolite court-martial, the Zongo Commission, correspondence with General Cissé, correspondence in response to the FIDH Report, and the Sibut Mission). ↩

36. 36.

    Id. at ¶ 729

    (articulating a variety of measures including but not limited to: proper training of troops, genuine and full investigations into commission of crimes along with the proper punishment, orders to commanders in the CAR to prevent commission of crimes, altered deployment of troops, proper punishment of officers committing or condoning commission of crimes, and shared information with proper authorities to support efforts to investigate). ↩

37. 37.

    Id. at ¶ 732. ↩

38. 38.

    Id. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ↩

41. 41.

    Id. ↩

42. 42.

    This is perhaps why the Trial Chamber was unwilling to accept any argument from Bemba as to the difficulties he faced. One potential issue with the Trial Chamber’s approach is that their opinion can be read to disincentivize commanders from taking any measure at all. For a future commander considering acting in response to allegations of crimes, he will have to do so knowing that his actions will be scrutinized on the back end by judges in the Hague operating with 20/20 hindsight. ↩

43. 43.

    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. ↩

44. 44.

    Although this was a clear point of disagreement, the Majority did not articulate or frame the proper weighing of difficulties stemming from a commander’s remoteness. ↩

45. 45.

    Id. at ¶ 32;see also 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, online, archived

    (containing an exhaustive list of Bemba’s appellate arguments). ↩

46. 46.

    See Bemba Appeals Chamber Judgment, supra note 43, at ¶ 138. ↩

47. 47.

    Id. at ¶¶ 145–46

    (maintaining that submissions on the obstacles faced by MLC investigations at the time, arising from territorial—i.e. state sovereignty—and jurisdictional limitations, and the difficulties in conducting investigations in a foreign warzone, were unreasonably dismissed or ignored by the Trial Chamber). ↩

48. 48.

    Id. at ¶ 146. ↩

49. 49.

    Id. at ¶ 166. ↩

50. 50.

    Id. at ¶ 167. ↩

51. 51.

    Id. at ¶¶ 169–70

    (explaining that commanders may consider proportionality and feasibility when determining which measures to take). ↩

52. 52.

    Id. ↩

53. 53.

    Id. at ¶ 170

    (directing the Trial Chamber’s analysis to show that the commander did not take specific and concrete measures that were available that a reasonably diligent commander in comparable circumstances would have taken). ↩

54. 54.

    Id. at ¶¶ 171, 189, 192.

    1. Trial Chamber paid insufficient attention to the fact that MLC troops were operating in a foreign country with the attendant difficulties on Bemba’s ability, as a remote commander, to take such measures;
    2. Trial Chamber failed to fully appreciate the limitations that Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops into a foreign country;
    3. Trial Chamber failed to appreciate that as a remote commander, Bemba was not part of the investigations and was not responsible for the results generated).

    ↩

55. 55.

    Id. at ¶ 172

    (agreeing that P36’s witness testimony that the MLC ’s investigative efforts were dependent on CAR authorities for access, movement, and contact resulting in the Mondonga Inquiry being composed of both CAR and Congo nationals demonstrated the logistical difficulties the MLC faced in conducting investigations). ↩

56. 56.

    Id. at ¶ 173. ↩

57. 57.

    Id. ↩

58. 58.

    Id.

    (stating also that the fact that Bemba maintained ultimate disciplinary authority over MLC troops in CAR, does not mean his authority was not subject to limitations or impeded by Bemba’s position as a remote commander). ↩

59. 59.

    Id. at ¶¶ 191–93

    (summarizing that the Trial Chamber’s failure to fully appreciate the limitations Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country had a material impact on the Trial Court’s assessment of the measures available to Bemba, the measures taken by Bemba, and their results). ↩

60. 60.

    See The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 A 5, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ¶ 27 (AC, Dec. 1, 2014), available online

    (disallowing appellate de novo review of the evidence with a view to determining whether it would have reached the same factual finding). ↩

61. 61.

    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. ↩

62. 62.

    Judge Eboe Osuji would have liked to order a retrial but the unique circumstances of the case compelled him to join the Majority. ↩

63. 63.

    Id. at ¶ 3. ↩

64. 64.

    Id. ↩

65. 65.

    Id. at ¶ 258

    (arguing that remoteness is just one of many factors to consider when determining liability under Article 28 ). ↩

66. 66.

    Id. ↩

67. 67.

    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. ↩

68. 68.

    Id. at ¶ 127. ↩

69. 69.

    Id.

    (Traditional criteria include the structure and functioning of the military group, as well as the remoteness of the commander). ↩

70. 70.

    Čelebići, supra note 10. ↩

71. 71.

    Bemba Appeals Chamber Dissent, supra note 67, at ¶ 270

    (disagreeing with Bemba’s potential argument that a commander’s lack of geographical proximity to the location of the crime prevented him from acquiring the requisite mens rea).

    See also Ntabakuze, supra note 20, at ¶¶ 199–200

    (finding that extensive radio communication between the remote commander and his troops was sufficient to establish the commander’s knowledge). ↩

72. 72.

    Id. at ¶ 44. ↩

73. 73.

    Id. at ¶ 45

    (stating that the Majority’s decision is based upon an erroneous assessment of a limited part of the evidentiary record and the uncritical acceptance of Bemba’s arguments). ↩

74. 74.

    Id. at ¶ 56. ↩

75. 75.

    Id. ↩

76. 76.

    Id. at ¶ 59. ↩

77. 77.

    See Orić Judgment, supra note 23, at fn 947. ↩

78. 78.

    Prosecutor v. Momčilo Perišić, ICTY Case No. 1T-04-81-A, Judgement, ¶ 40 (AC, Feb. 28, 2013), available online

    (describing prior ICTY jurisprudence giving guidance on how to treat significant temporal distance between the actions of an accused individual and the crime he or she allegedly assisted when discussing aiding and abetting liability). ↩

79. 79.

    Prosecutors need to know how to properly frame the charges and the type of evidence to be offered, in taking actions, commanders need to know what is at stake and what is not, judges need to know the proper weight to give evidence and the types of specific findings to make on the record. ↩

80. 80.

    See Bemba Appeals Chamber Dissent, supra note 67, at ¶ 46;see also Amnesty International, Remoteness in Itself Cannot Serve as a Defense to Command Responsibility (Oct. 10, 2018), available online

    (arguing that at a minimum, the Majority should have explained why the Trial Chamber failed to fully appreciate the limitations that Bemba faced due to his remote location, in light of its findings that Bemba exercised control over MLC forces operating in CAR). ↩

81. 81.

    Notably, what type of evidence of limitations must be offered? How much evidence must be offered? How is conflicting evidence of limitations treated? Are there any factors that mitigate a commander’s remoteness? ↩

82. 82.

    See Bemba Appeals Chamber Dissent, supra note 67, at ¶ 59. ↩

83. 83.

    Bemba’s Appellate Brief, supra note 45; Bemba Appeals Chamber Judgment, supra note 43, at ¶¶ 191–93. ↩

84. 84.

    Bemba Trial Chamber Judgment, supra note 1, at ¶¶ 307, 448. ↩

85. 85.

    Id. at ¶¶ 700–05, 732;see also Bemba Appeals Chamber Dissent, supra note 67, at ¶ 56. ↩

86. 86.

    The Majority would also probably consider remoteness under the other elements of Article 28. However, they limited their analysis to the Necessary and Reasonable Measures prong. ↩

87. 87.

    Also unclear as to what exactly a commander has to show or what the prosecution has to prove. ↩

88. 88.

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

    (arguing that there is no basis for a legal distinction based on the geographical position between remote and non-remote commanders). ↩

89. 89.

    There is a small argument that a commander can be remote even when operating within the same country if there is a lack of a chain of command, effective communications, or vast geographic distance. Given the technological capabilities of a Majority of nations, communications remoteness is unlikely especially because radio communication has been sufficient to overcome remoteness in prior jurisprudence. A commander operating within the same country would likely have to produce substantial evidence. However, when the Majority discusses remoteness, they use the phrase “foreign commander” which might cut against the possibility of a remote commander operating within the same country. ↩

90. 90.

    See also Čelebići, supra note 10, at ¶¶ 426–28. ↩

91. 91.

    Purposely limiting an investigation with a bad intent would not be allowed even for the Majority but the Majority would require direct evidence of a commander’s negative intent. ↩

92. 92.

    See Bemba Appeals Chamber Judgment, supra note 43, at ¶ 192;but see Bemba Trial Chamber Judgment, supra note 1, at ¶¶ 719–26;see also Bemba Appeals Chamber Dissent, supra note 67, at ¶ 56

    (assessing liability because Bemba was responsible for the limited results of the commissions). ↩

93. 93.

    Bemba Appeals Chamber Judgment, supra note 43, at ¶ 280.

    1. The shortcomings of the inquiry must be sufficiently serious,
    2. The commander was aware of the shortcomings,
    3. it was materially possible to correct the shortcomings, and
    4. The shortcomings fell within the commander’s authority to remedy.

    ↩

94. 94.

    See Rome Statute, supra note 2, at Art. 28(a)(ii). ↩

95. 95.

    See Bemba Appeals Chamber Judgment, supra note 43, at ¶ 192. ↩

96. 96.

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