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Comment on the Responsibility Question: “What does the Bemba Appeal Judgment say about superior responsibility under Article 28 of the Rome Statute?”

daley2019
31938
May 25, 2019
9:18 pm

The Blueprint for Immunity: The Appeals Chamber’s Interpretation of Article 28(a)(ii) of the Rome Statute

I. Introduction

In 2016, the Trial Chamber of the International Criminal Court convicted Jean-Pierre Bemba Gombo, a politician-warlord from the Democratic of Congo. Two years after that conviction and ten years after the beginning of proceedings, the Appeals Chamber of the International Criminal Court overturned Jean-Pierre Bemba Gombo’s conviction.1 The decision by the Appeals Chamber was a split decision with two judges dissenting. The Majority’s decision to overturn Jean-Pierre Bemba Gombo’s conviction was largely based on their interpretation of Article 28(a)(ii) of the Rome Statute.2 Article 28(a)(ii) states:

That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.3

The Majority’s interpretation of Article 28(a)(ii) is very deferential to the defendant. Their interpretation of Article 28(a)(ii) primarily focuses on the word reasonable and disregards the word all in the Statute. The Majority believed that the Trial Chamber did not adequately consider the limitations that Jean-Pierre Bemba Gombo faced given the circumstances and that they allowed their belief of his motivations to taint their entire analysis.

The Dissent felt that the Majority focused too much on what measures Jean-Pierre Bemba Gombo took and not the “limitation in those measures.”4 The Dissent believed that the question of whether Jean-Pierre Bemba Gombo took all reasonable and necessary measures:

[C]ould only be properly answered with due regard to the scale and duration of the crimes committed, Mr. Bemba’s knowledge thereof and the full range of measures available to him in the circumstances, based on the extent of his control over the troops.5

In this comment, I argue that the Appeals Chamber’s Majority interpretation of Article 28(a)(ii), if deemed persuasive, will have significant negative effects on the International Criminal Court’s ability to hold military commanders liable under the doctrine of command responsibility. I also argue that the Dissent’s interpretation of Article 28(a)(ii) is a more faithful reading of Article 28(a)(ii) and that will not negatively affect the International Criminal Court’s ability to hold military commanders, while still offering defendants an ability to raise a defense. In Part II, I analyze the Appeals Chamber Majority’s interpretation of Article 28(a)(ii). In Part III, I turn to the Dissent’s interpretation of Article 28(a)(ii) and their critique of the Majority. In Part IV, I analyze the effect that each interpretation of Article 28(a)(ii) could have on the International Criminal Court’s ability to hold military commanders liable under the doctrine of command responsibility. Lastly, I conclude with where everything is left after the Jean-Pierre Bemba Gombo decision.

II. Appeals Chamber’s Interpretation of Article 28(a)(ii)

The Appeals Chamber’s Majority decision to acquit was largely based on a defense friendly reading of Article 28(a)(ii) of the Rome Statute.6 The Majority’s analysis eliminates the requirement that military commanders take all reasonable measures under Article 28(a)(ii). They do this by focusing their analysis in Bemba on the word reasonable and by disregarding the word necessary . The majority finds that when determining what is reasonable the court must consider the “operational realities on the ground” and the “remoteness” of the military commander.7 The way the Majority utilizes both factors seems very deferential to the defendant. The Majority also admonished the trial chamber for inappropriately considering the motives of Jean-Pierre Bemba Gombo. Even though they state that they reject Jean-Pierre Bemba Gombo’s assertion that motives “are always irrelevant to the assessment of ‘necessary and reasonable measures,’” their analysis seems to seriously limit the consideration of a military commander’s motivation in determining the reasonableness of the measures taken.8

A. Majority’s Elimination of All from Article 28(a)(ii)

The Majority starts their Determination with a recitation of international law that is well supported by multiple international decisions.9 In particular, when determining whether a military commander took “all necessary and reasonable” measures there must be consideration of what measures were at the person’s disposal given the circumstances at the time.10 If the court had stopped there with their analysis, their interpretation likely would have mirrored the Dissent’s interpretation of Article 28(a)(ii).

Instead, the Majority goes further and, without any support of law, the Majority states:

[I]t is not the case that a commander must take each and every possible measure at his or her disposal […] Article 28 only requires commanders to do what is necessary and reasonable under the circumstances.11

Here, the Majority literally removes the word all from Article 28(a)(ii). It is accurate that Article 28(a)(ii) only requires military commanders to take necessary and reasonable measures, however it clearly states that they must take all measures that are necessary and reasonable measures to prevent or repress the commission of crimes.

Maybe the literal removal of the word all in this paragraph of the Majority’s decision was not meant to say that a military commander did not have to take all necessary and reasonable measures , but was emphasizing that the measures need to be necessary and reasonable . But, they build on this literal removal of the word all when they state that a military commander “may choose the least disruptive measure as long as it can reasonably be expected that this measure will prevent or repress the crimes.”12 This means that a military commander does not have to take all necessary and reasonable measures , but can take just one necessary and reasonable measure as long as it can reasonably be expected to repress criminal conduct by their troops.

The elimination of the word all is important to the rest of the Majority’s overall decision to acquit Jean-Pierre Bemba Gombo, because it allows them to shift their focus solely to the reasonableness of measures Jean-Pierre Bemba Gombo took and not all the necessary and reasonable measures that were at his disposal. Additionally, the word all is important to ensuring that Article 28 of the Rome Statute remains effective at holding military commanders to a higher duty of care. If military commanders can choose just one measure, they are not likely to extend beyond that one measure even if it is ineffective. Instead, a military commander should be forced to take every necessary and reasonable measure to ensure that people will not be victims of heinous crimes.

B. Reasonableness

The Majority’s analysis on how to determine what measures are necessary and reasonable given the circumstances is limited, because they did not do an analysis of what measures were at Jean-Pierre Bemba Gombo’s disposal and then determine whether those would have been necessary and reasonable . Instead, the Majority only focuses their reasonableness analysis on the limited measures taken by Jean-Pierre Bemba Gombo. The two factors the Majority found determinative in their analysis of whether the measures taken by Jean-Pierre Bemba Gombo were reasonable are the operational realities on the ground and the remoteness of Jean-Pierre Bemba Gombo from his troops. The Majority found that when determining reasonableness a court must consider the “operational realities on the ground” as military commanders are allowed to consider the costs and benefits of measures on ongoing operations.13 Another consideration the Majority found important when determining reasonableness was the “remoteness” of the military commander to their troops and how this would limit the availability of measures.14 The Majority also believes that the Trial Chamber placed too much weight on what they thought Jean-Pierre Bemba Gombo’s motivations were for the measures taken and that their consideration of his motivations tainted their analysis.

The Majority’s use of these factors is highly deferential to any measure taken by a military commander, almost to the point where any measure could be deemed reasonable under the Majority’s analysis. The Majority does not believe it is appropriate to judge a military commander’s decisions with the benefit of hindsight.15 Instead of pointing to hypothetical measures the military commander could have taken, the only time measures other than the ones taken by a military commander should be considered is when the Trial Chamber specifically identifies what a military commander should have done in concreto.16 Unfortunately, the Majority does not clarify why the measures determined by the Trial Chamber were not in concreto or demonstrate what the Trial Chamber could have identified in concreto.

1. Operational Realities on the Ground

The Majority states that when assessing the reasonableness of a military commander’s actions “the Court is required to consider […] the operational realities on the ground at the time faced by the commander.”17 Military commanders are allowed to take into consideration the costs and benefits when determining what measures to take given the circumstances, while keeping in mind their “overall responsibility to prevent and repress crimes committed by their subordinates.”18 Once again, the Majority makes this significant declaration without any support or authority. In many ways the Majority’s contention that a military commander can perform a cost/benefit analysis when determining what measures to take is disturbing. This seems to infer a quasi-military necessity defense to a military commander’s omissions.19 This makes it nearly impossible for the Trial Chamber to identify a measure that a commander should have done in concreto, because what should have been done is based on subjective determinations that are in the military commander’s head.

The Majority also does not say what costs or benefits the military commander is allowed to consider. It would seem that if the goal is to ensure that military commanders prevent and repress crimes then the only costs that should be considered are the costs to the victims of these heinous crimes and the only benefits should be the military commander’s knowledge that his troops are not committing mass atrocities. While the Majority does not list what cost and benefits a military commander should or should not be using they do state one consideration:

This means that a commander may take into consideration the impact of measures to prevent or repress criminal behaviour on ongoing or planned operations and may choose the least disruptive measure as long as it can reasonably be expected that this measure will prevent or repress the crimes.20

This seems to cut at the ethical roots of the doctrine of command responsibility.21 Why should a military commander be able to consider the ongoing or planned operations? And why can they choose the least disruptive measure? If a military commander’s troops are committing atrocities then ongoing operations should be halted all together. Command responsibility is supposed to place a higher duty of care on military commanders.22 It should deter military commanders from engaging in operations if they believe that their troops will commit crimes, or to ensure that once operations begin, if their subordinates are engaged in crimes, they take effective immediate action. Allowing military commanders to take the least disruptive measure and only requiring that it be reasonably expected to prevent crime is a far cry from all necessary and reasonable measures .

This basically lays a blueprint for military commanders to avoid liability under Article 28 of the Rome Statute and the doctrine of command responsibility. A military commander only needs to take one step that appears on the surface to be a measure that could be reasonably expected to prevent or repress crimes. This is exactly what Jean-Pierre Bemba Gombo did and why the Trial Chamber found him guilty. Article 28 of the Rome Statute may not be strict liability, but it surely was adopted to be more than a defense to liability for military commanders.23

2. Remoteness

A key issue in the Majority’s decision to acquit Jean-Pierre Bemba Gombo was his status as a “remote” commander.24 Their focus was largely on Jean-Pierre Bemba Gombo’s ability to take measures given he was a remote commander . In the Majority’s view they felt that the Trial Chamber “paid insufficient attention” to the “difficulties” Jean-Pierre Bemba Gombo faced given his remoteness from his troops.25 The Majority’s emphasis on “remoteness” appears to create a legal distinction between remote and non-remote commanders.26 This would be unsettling if true, because it would seriously weaken the use of the command reasonability doctrine in future prosecutions, as it would place a lower duty of care on military commanders considered remote.27

The Majority’s decision also raises the question of what makes a military commander remote. Is geographical distance the determining factor or will other extenuating factors be considered? Fortunately, when the Separate Concurring Opinion and Joint Dissenting Opinion are read together they suggest that remoteness is only a relevant fact when determining the reasonableness of measures and not a legal distinction.28 That makes it three votes against remoteness as a legal distinction and will hopefully limit the use of remoteness in Article 28 of the Rome Statute to merely a factor used to determine the reasonableness of measures available and taken.

Furthermore, remoteness of a military commander should not only be used as a limiting factor when determining reasonableness, but can also go the other way, making it easier to take certain measures. While remoteness may make it more difficult to investigate crimes, it will make it easier to secure funding and political support.29 Remoteness should only play a small part in the analysis of whether the measures taken were necessary and reasonable , because too great a focus on remoteness will cut against the purpose behind the doctrine of command responsibility. If the purpose is to hold military commanders to a higher duty of care and to deter bad behavior then too great of focus on remoteness, as seen with the Majority, will lead to an inability to hold military commanders responsible, because it will also help to lay out a blueprint for military commanders to skirt responsibility. Military commanders will take steps to ensure they are considered remote by making sure that troops travel across borders or to make sure to keep themselves distant during ongoing or planned operations.

3. Motivation

The Majority concludes that the Trial Chamber “inappropriately took Mr. Bemba’s motives into consideration when determining whether the measures he had taken were necessary and reasonable.”30 The Majority believed that the Trial Chamber’s finding that the measures taken by Jean-Pierre Bemba Gombo were primarily motivated by his desire to fix the public image of the Movement for the Liberation of Congo tainted their entire assessment on whether the measures were “necessary and reasonable.”31 The Majority did not necessarily see Jean-Pierre Bemba Gombo’s motivation to maintain the image of the Movement for the Liberation of Congo as a negative motive and that a military commander may have multiple motives behind choosing particular measures.32 They believed that it is “conceivable” a military commander can accomplish multiple goals, while discharging their duty to take “necessary and reasonable measures.”33 Based on their analysis the Majority reaches the conclusion that because a military commander may have multiple motivations, the Trial Chamber’s consideration of Jean-Pierre Bemba Gombo’s motivation was an irrelevant factor.34

The Majority’s reasoning appears accurate on its face, because motivations do not make a measure any more or less adequate. But motivations can expose how genuine and adequate a measure is, given the circumstances.35 This is the problem with the Majority’s analysis of the Trial Chamber’s use of Jean-Pierre Bemba Gombo’s motivation, because it paints an inaccurate picture. Motivation was not a determinative factor in the Trial Chamber’s assessment of the reasonableness of the measures taken by Jean-Pierre Bemba Gombo.36 The Trial Chamber used Jean-Pierre Bemba Gombo’s motivations to assess the adequacy of the measures taken by him.37 An example of this is seen in the Trial Chamber’s assessment of the Zongo Commission.38 Jean-Pierre Bemba Gombo’s motivation helped to highlight the reasons for the investigations scope, width of mandate, and failure to follow up.39 If Jean-Pierre Bemba Gombo’s motivation was to only resurrect the image of the Movement for the Liberation of Congo troops then this explains why measures were inadequate, because the goals of the investigation were not to actually stop crime but to look like he wanted to stop crime. His motivation exposes the sham investigation.40

The Majority’s dismissal of a military commander’s motivation when determining the reasonableness of measures taken to prevent or repress crime also seems to contradict their determination that military commanders can consider the costs and benefits when determining the least disruptive measure that can reasonably be expected to prevent or repress crime. When a military commander is measuring the costs and benefits of which measures to take in preventing and repressing crime, their motivation will play a significant factor in how they weigh and choose the costs and benefits. If the motivation of a military commander’s cost/benefit analysis is reputational restoration then the costs will only be assessed to a level that reaches this benefit of fixing the image of his troops. This means the only costs a military commander will be willing to expend are those that achieve reputational restoration and not to prevent or repress crimes by his subordinates.

III. Dissent’s Interpretation of Article 28(a)(ii) and Issues with the Majority Judgement

It is the dissenting judges’ belief that the Majority’s “erroneous conclusion” was due to the fact that “the Majority limited its analysis to the measures that Mr. Bemba took and disregarded the limitations in those measures identified by the Trial Chamber.”41 The question that the Dissent would have asked in this case is “whether the measures that Mr Bemba took were commensurate with all the necessary and reasonable measures that were within his power.”42 The Dissent finds that this question can be properly answered:

with due regard to the scale and duration of the crimes committed, Mr Bemba’s knowledge thereof and the full range of measures available to him in the circumstances, based on the extent of his control over the troops.43

This is a more faithful interpretation of Article 28(a)(ii). It considers the totality of options before the military commander, while still acknowledging that the circumstances may limit the ability to administer those options.

The Dissent’s opinion discusses how the Trial Chamber properly did their assessment of what measures were necessary and reasonable based off the “circumstances in which the commander found him or herself at the relevant time.”44 The Dissent found that the list of measures established by the Trial Chamber were not hypothetical, but instead were based off the relevant evidence before them and their determination of Jean-Pierre Bemba Gombo’s effective control.45 Jean-Pierre Bemba Gombo had multiple chances throughout the trial and appeals process to challenge the evidence and findings of the Trial Chamber, which he did unsuccessfully.46 Instead, the Trial Chamber found that Jean-Pierre Bemba Gombo was “obligated to take these measures” and that the measures he did choose were insufficient.47 This demonstrates the tension between the Majority’s declaration that measures be identified in concreto and what measures the Trial Chamber actually identified. How is the Trial Chamber’s list of measures not in concreto and what more could they have done to make them not hypothetical? The Majority never really explains this in their decision, but the Dissent points out the contradiction of how any list of measures that the Trial Chamber made would have been hypothetical and not in concreto, at least in the eyes of the Majority.48

The Dissent states that the Majority’s declaration that military commanders are able to make a “cost/benefit analysis” when deciding what measures to take is not incorrect, but they consider that the “qualifiers of ‘necessary’ and ‘reasonable’ in Article 28(a)(ii) of the Statute are sufficient to understand the extent of a commander’s duty.”49 They believe that necessary and reasonable measures should be determined on a case-by-case basis, because they are primarily a matter of evidence and not substantive law.50 Additionally, the Dissent would not place as heavy an emphasis on the remoteness of a military commander as the Majority. The Dissent considers the remoteness of a military commander as a factual consideration to assess whether the military commander had the “material ability” to prevent or repress crimes.51

The Dissent believes that the Majority’s reading of the Conviction Decision regarding the Trial Chamber’s use of Jean-Pierre Bemba Gombo’s motivation is inaccurate and speculative.52 The Dissent found that the Trial Chamber first determined that the measures taken by Jean-Pierre Bemba Gombo were “grossly inadequate” and that the inadequacy of the measures taken by him were “aggravated by indications […] that they were not genuine.”53 The Trial Chamber determined that it was only public allegations of crimes by Movement for the Liberation of Congo Soldiers that prompted Jean-Pierre Bemba Gombo to react to these crimes and that his reaction was only to limit the extent of public disapproval.54 This is why a military commander’s motivation is so important when determining whether they took all necessary and reasonable measures to prevent or repress crimes, because it helps in the determination of the adequacy of measures and the appropriateness of the cost/benefit analysis taken by a military commander. If the motivation was to limit the public outrage, then the measures taken will be obviously designed to only achieve this goal. Motivation can also help a defendant, because evidence of an altruistic motive will make measures that appear inadequate on their face seem reasonable and adequate. The Dissent, therefore, clearly feels that the Trial Chamber’s “evaluation of the adequacy of the measures taken by Bemba was [not] tainted by what it considered to Mr Bemba’s motivations to be,” but instead helped to explain the reasons for the inadequacy of the measures taken by him.55

IV. Possible Effects of the Majority and Dissenting Interpretations of Article 28 of the Rome Statute

A. Effect of the Majority Interpretation

The Majority’s interpretation of Article 28(a)(ii) takes the teeth out of the doctrine of command responsibility. The rule that can be taken away from the Majority’s interpretation of Article 28(a)(ii) is that a military commander only needs to take the least disruptive measure that can be reasonably expected to prevent or repress crimes committed by a subordinate. When deciding which measure to take, a military commander can consider the costs and benefits of taking a measure on their ongoing operations. If the Trial Chamber wants to challenge the adequacy of the measure chosen by the military commander then the Trial Chamber must “specifically identify what the commander should have done in concreto.”56

With the Majority’s interpretation of Article 28(a)(ii) it is hard to imagine an instance where a military commander could be held responsible under Article 28 of the Rome Statute, unless there was definitive evidence that a military commander gave the order to commit the crimes. The Majority never explains what measures could be shown to be in concreto or what costs or benefits are appropriate for a military commander to consider when choosing the least disruptive measure. This creates a strong defense for military commanders, because they only have to show that they took one measure to prevent or repress crimes. Considering the Trial Chamber’s findings in Bemba were only hypothetical and not in concreto it will likely be impossible to prove there were other measures that were necessary and reasonable that the military commander should have taken. And even if the Trial Chamber was able to specifically identify the elusive in concreto measure, the military commander can counter by saying that based off their cost/benefit analysis that measure would have disrupted ongoing operations.

The Majority’s focus on the remoteness of military commanders will also prove to be a significant impediment to future prosecutions under Article 28 of the Rome Statute. Many conflicts that a military commander will send their troops to will be across borders. Or if the military commander is making plans for operations within their borders, they can make plans to leave the country so they appear to be remote. The Majority’s disregard for a military commander’s motivations ties together the roadblocks for prosecution of military commanders. The motivation of military commanders can go a long way to illuminate the reasons behind the inadequacy of measures chosen, what lens the military commander was viewing the cost/benefit analysis through, and why a military commander is remote?

The Majority’s interpretation of Article 28(a)(ii) basically becomes a blueprint for future military commanders on how to avoid responsibility. All a military commander has to do is take some minimum measure that can later be argued that it could have been reasonably expected to prevent or repress crimes by subordinates. They can also take comfort in knowing that their motivations will not weigh heavily on the analysis of their reasonableness. And if they want to further ensure that they will not be held responsible they merely need to make sure that actions are taken outside of their area, so they will be considered a remote commander. The Majority’s decision will also likely have a chilling effect on Prosecutors. Prosecutors may determine that it will be impossible to hold military commanders responsible given the lack of clarity by the Majority and the strong defenses presented in their interpretation of Article 28(a)(ii).

B. Effect of the Dissent’s Interpretation

The rule that can be taken away from the Dissent’s interpretation of Article 28(a)(ii) is that the measures taken by a military commander must be equal with all the necessary and reasonable measures at their disposal. This is primarily a factual question that must be assessed on a case-by-case basis. Things that may be considered in the totality is the scale and duration of crimes committed, the military commander’s knowledge of the crime, and the full range of measures available to a military commander given the circumstances. The extent of control of their troops will help determine what measures were available, which may include the remoteness of the military commander and the cost/benefit analysis by the military commander.

The Dissent also believes that a military commander’s motivations are not determinative in deciding if measures are reasonable, but may help to explain the inadequacy of the measures taken. The Dissent’s interpretation is a more faithful reading of Article 28(a)(ii) as it allows the Trial Chamber to determine all the reasonable and necessary measures that were available to a military commander, instead of only focusing on only what measures were taken by the military commander. Under the Dissent’s interpretation, the prosecution would still have to prove that these measures are reasonable and necessary based off the circumstances, which would be established through the evidence at trial. The military commander could still argue that the measures they took were all of the necessary and reasonable measures at their disposal and challenge the measures presented by the prosecution through evidence presented at Trial. The Dissent’s interpretation would hold true to the ethical roots of Article 28 of the Rome Statute by holding military commanders to a higher duty and would serve as a deterrent for military commanders turning their back on crimes committed by their subordinates.

V. Conclusion

There is no telling exactly what effect the Appeals Chamber’s Decision in Bemba will have on future prosecutions of military commanders under Article 28 of the Rome Statute. Fortunately, under international law the Appeals Chamber’s judgment does not hold stare decisis effect, however, the Appeals Chamber’s decision can be considered persuasive in future prosecutions.57 If the Appeal Chamber’s decision in Bemba is deemed persuasive it will be a major setback in holding military commanders responsible. Article 28 will serve as nothing more than a break between Articles 27 and 29. Even if the decision is not deemed persuasive, as it strays so far away from the strict language of the Statute, the chilling effect caused by the decision may force the Office of the Prosecutor to never challenge it. Recent international law has shown a turn away from accountability and the Bemba decision may be the icing on the cake.58

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

1.
Michael G. Karnavas, The Reversal of Bemba’s Conviction: What Went Wrong or Right?, Personal Blog (Jun. 19, 2018), available online, archived. ↩
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.
Id. ↩
4.
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, ¶ 48 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived. ↩
5.
Id. ↩
6.
See Diane Marie Amann, In Bemba and Beyond, Crimes Adjudged to Commit Themselves, EJIL Talk (Jun. 13, 2018), available online, archived. ↩
7.
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”, ¶¶ 170–71 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩
8.
Id. ¶ 176. ↩
9.
Id. ¶¶ 166–68. ↩
10.
Id. ¶ 168. ↩
11.
Id. ¶ 169. ↩
12.
Id. ¶ 170. ↩
13.
Id. ↩
14.
Id. ↩
15.
Id. ↩
16.
Id. ↩
17.
Id. ↩
18.
Id. ↩
19.
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. ↩
20.
Bemba Appeals Chamber Judgment, supra note 7, ¶ 170. ↩
21.
Amann, supra note 6. ↩
22.
Id. ↩
23.
Bemba Appeals Chamber Judgment, supra note 7, ¶ 170. ↩
24.
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. ↩
25.
Bemba Appeals Chamber Judgment, supra note 7, ¶ 171. ↩
26.
Miles Jackson, Geographical Remoteness in Bemba, EJIL Talk (Jul. 30, 2018), available online, archived. ↩
27.
Id. ↩
28.
Id. ↩
29.
Id. ↩
30.
Bemba Appeals Chamber Judgment, supra note 7, ¶ 176. ↩
31.
Id. ¶¶ 177–78. ↩
32.
Id. ¶ 179. ↩
33.
Id. ↩
34.
Id. ↩
35.
See Miles Jackson, Commanders’ Motivations in Bemba, EJIL Talk (Jun. 15, 2018), available online, archived. ↩
36.
Id. ↩
37.
Id. ↩
38.
Id. ↩
39.
Id. ↩
40.
Id. ↩
41.
Bemba Appeals Chamber Dissent, supra note 4. ↩
42.
Id. ↩
43.
Id. ↩
44.
Id. ¶ 51. ↩
45.
Id. ¶ 52. ↩
46.
Id. ↩
47.
Id. ↩
48.
Id. ↩
49.
Id. ↩
50.
Id. ¶ 50. ↩
51.
Id. ¶ 127. ↩
52.
Id. ¶ 70. ↩
53.
Id. ¶ 71. ↩
54.
Id. ↩
55.
Id. ¶ 72. ↩
56.
Bemba Appeals Chamber Judgment, supra note 7, ¶ 170. ↩
57.
See Aldo Zammit Borda, Precedent in International Criminal Courts and Tribunals, 2 CJICL 287, 302–03 (May 1, 2013), available online, doi. ↩
58.
See Amann, supra note 6. ↩

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daley2019: The Blueprint for Immunity: The Appeals Chamber’s Interpretation of Article 28(a)(ii) of the Rome Statute I. Introduction In 2016, the Trial Chamber of the International Criminal Court convicted Jean-Pierre Bemba Gombo, a politician-warlord from the Democratic of Congo. Two years after that conviction and ten years after the beginning of proceedings, the Appeals Chamber of the International Criminal Court overturned... (more)
ahoskins: After Bemba: Article 28 of the Rome Statute and the Requirement of Causation I. Introduction On June 6, 2018, the Appeals Chamber of the International Criminal Court (ICC) overturned the conviction of Jean-Pierre Bemba Gombo on the charges of crimes against humanity and war crimes in a split decision. This sent shock waves through the international criminal justice community and has raised a whole host of... (more)
DCG: Seeking Clarity: Assessing Questions of Remoteness Post Bemba I. Introduction In what seemed like a landmark victory, the Trial Chamber of the International Criminal Court (ICC) convicted Jean-Pierre Bemba Gombo (Bemba) of murder, rape, and pillaging as war crimes and murder and rape as crimes against humanity in 2016.1 Bemba was the Congolese vice president and commander of the Mouvement pour la Libération du Congo (MLC).... (more)
Belinda Hyland: The Impact of the Bemba Appellate Judgment on Future Prosecution of Crimes of Sexual and Gender-Based Violence at the ICC I. Summary March 2016 marked a monumental triumph for victims of sexual and gender-based violence (SGBV). On March 21, 2016, the Trial Chamber of the ICC issued a decision convicting Jean-Pierre Bemba Gombo under Article 28(a) of the Rome Statute for the... (more)
f.petkovich: The ICC Appeals Chamber’s Bemba Judgment—A Necessary Contextualization of Article 28’s Actus Reus Element Introduction Designed to ensure compliance with international law, the legal doctrine of command responsibility holds military commanders responsible for any war crimes committed by their subordinates in combat zones.1 With the codification of command responsibility... (more)