II. Evidentiary Challenges in Investigating and Prosecuting SGBV Crimes in International Criminal Tribunals

International criminal investigations into crimes that occurred during conflict are extremely difficult and complex, especially with regards to command responsibility and SGBV crimes. The ICC must use limited resources to overcome cultural, societal, language, and other barriers to break down culpability and determine responsibility. The ICC is often reliant on state parties and other groups to help provide evidence and documentation.4 Investigators must identify contextual and related criminal issues in order to construct a story of systematic violence for ICC prosecution, including understanding historical and cultural context.5 Often, investigators derive initial evidence from anonymous tips or media and NGO reports, and must use these to help drive their evolving theories of criminality.6 Logistically, evidence gathering necessitates time, multiple trips, language assistance and other operational challenges.7

In the case of SGBV during conflict, prosecutors face significant hurdles in proving the crime, including a lack of forensic evidence. Even if the evidence exists, there are additional practical difficulties in building these into adequate cases that preclude complete investigation, including relating to witness testimony which has been key in most ICC prosecutions to date.8

Facing possible stigma and fear, victims, who are likely to be located far from the ICC, in international criminal investigations may only be reachable through intermediaries or can take time to come forward, sometimes not until the trial is already in process.9 Women, if they survive rape and other associated crimes during conflict, often face reputational issues or stigma in discussing violence. In some cases, women who do choose to testify often face intimidation, despite the ICC’s efforts to protect them through witness protection measures or anonymization.10 In the absence of direct victim testimony, evidence in SGBV prosecutions is often indirect or circumstantial. This has included eyewitnesses, hearsay witnesses, and experts such as NGOs or medical experts testifying about SGBV generally. Institutional hurdles also exist, with negative bias towards rape victims by judges or unwillingness of prosecutors to prosecute SGBV.11 Command responsibility prosecutions have also historically treated rape as a lesser crime compared to other war crimes.12

Showing command responsibility in SGBV crimes adds another layer of evidentiary hurdles, as investigators must determine organizational structures and chains of command, as well as identify specific senior leaders’ responsibility.13 In addition to the aforementioned evidentiary challenges in proving the underlying crime, command responsibility requires proving the requirements of Article 28, including differentiating between rape that “used intentionally to target and destroy certain civilian populations or groups and broader forms of violence experienced by women during conflict” versus more isolated, privately committed rape.14 Ultimately, command responsibility requirements demonstrate that it is easier to prosecute and prove SGBV crimes in cases where crimes were organized and widespread.15

III. The Evolution of Command Responsibility in Post-World War II International Criminal Jurisprudence

Command or superior responsibility, broadly, is a finding that a military or civilian superior was responsible, either through direction or a failure to “prevent, repress or punish” crimes by subordinates.16 The idea of command responsibility has roots that can be traced throughout history, including the writings of Grotius.17 Command responsibility began to be first utilized in international criminal prosecutions in the post-World War II era. In 1946, the US Military Commission convicted Japanese General Yamashita Tomokoyuki of command responsibility for crimes committed by his subordinates, including rape.18 In its opinion the Commission focused on “the duty of […] an army commander to control the operations.”19 The Yamashita case set the stage for using modern command responsibility doctrine to prosecute systematic rape in future international criminal tribunals. The Commission took into account the widespread knowledge of these crimes as evidence Yamashita could not claim a lack of knowledge.20

Command responsibility was also addressed in Nuremberg Trials from 1947–1949, where the US Military Tribunal further clarified the standards by which commanders could be held responsible for subordinates’ crimes.21 While rape and other SGBV charges were not brought as part of the Nuremberg war crimes charges,22 the trials did include evidence related to SGBV in consideration of other charges.23 Even though societal and prosecutorial views on the importance of rape and SGBV have generally changed and prosecuting rape has become a priority in international criminal law, there still are significant challenges in proving and prosecuting the underlying crimes, let alone adding the command responsibility element.

Command responsibility was first codified in international law through Articles 86 and 87 of the Additional Protocol I to the 1949 Geneva Convention, which laid out military commander responsibility and duties of omission.24

A. Command Responsibility at the ICTY and ICTR

Since these initial codifications and uses of command responsibility in international criminal law, it has been raised in a number of international tribunals. ICTY codification and case law has been cited extensively in other tribunals, although it is international criminal decisions are not legally binding precedent. Under the Statute of the ICTY, a command responsibility prosecution is predicated on whether a commander “knew or had reason to know” of commission of a crime.25 In the often-cited Čelebići case, the court found the affirmative duty of superior responsibility under international criminal law,26 and asserted the following standard:

A commander or superior is thus the one who possesses the power or authority in either a de jure or de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.

[…]

Although the degree of control wielded by a de jure or de facto superior may take different forms, a defacto superior must be found to wield substantial similar powers of control over subordinates to be held criminally responsible for their acts.27

Despite some deviations from Čelebići’s “effective control” standard in the ICTY, such as in the Tadiff decision, which asserted a case-by-case standard based on ICJ precedent, it has been reaffirmed by subsequent ICTY and other international criminal tribunal decisions, including in cases addressing informal authority and geographic remoteness (which subsequently became critical to the Bemba command responsibility charges).28

The International Criminal Tribunal for Rwanda (ICTR) mimicked the ICTY language and standards for command responsibility, with jurisprudence largely finding the “effective control” standard to be settled. In the Bagilishema case, the Appeals Chamber revisited the Trial Chamber’s application of the law as applied to “negligence” in command responsibility.29, 30 Another notable command responsibility case in the ICTR was Akayesu, which included addition of witness testimony of rape during the trial that requiring an amendment to the charges mid-trial, a common occurrence in investigations and prosecutions of SGBV.31 While the Akayesu case extended command responsibility to civilian relationships, the prosecution was ultimately unsuccessful in proving a superior-subordinate relationship.32 The court specifically cited a required mens rea standard of “conscious wrongdoing” in a commander’s failure to “prevent or punish.”33 Contrary to this prior opinion, the ICTR in Musema, where the defendant was even more distanced from the crimes than in Akayesu despite some political influence and connections, seemed to broadly expand the scope of civilian responsibility.34

B. Command Responsibility in Other International Criminal Tribunals

Other international criminal tribunals have also relied heavily on the ICTY’s language and precedents for command responsibility. The Special Court for Sierra Leone leaned in on the “effective control” standard, resulting in successful command responsibility prosecutions,35 without broadening the theory of command responsibility further.36 Similarly, the Extraordinary Chambers Court of Cambodia (ECCC) relied on Čelebići and Bagilishema standards for command responsibility.37 ECCC jurisprudence has departed from the ICTY and ICTR standards in its standard of evidentiary review:

As a general rule, where the underlying evidence for a factual conclusion appears on its face weak, more reasoning is required than when there is a sound evidentiary basis.38

The Bemba Appeals decision later relied on the ECCC’s standard of appellate review of evidence to expand upon the Appeals Chamber’s right to consider the evidence, rather than just the Trial Chamber’s application of the law.39

IV. Article 28 of the Rome Statute and the Treatment of Command Responsibility in the Bemba Prosecution

The ICC, born out of decades of debate and drafts of an international criminal justice mechanism, resulted from a final agreement on the Rome Statute in July 1998. While ratified by a number of countries, the United States, among others, has refused to ratify the Rome Statute, thus inoculating these countries from the ICC’s jurisdiction. In fact, current U.S. National Security Advisor John Bolton even blasted the ICC’s jurisdiction and mandate in a speech on September 10, 2018, specifically calling out prosecutions for “crimes that have disputed and ambiguous definitions, exacerbating the Court’s unfettered powers.”

Included in the Rome Statute was a codification of command responsibility under Article 28. Article 28(a) was utilized as a mode of liability for the first time in the Bemba case, and states in relevant part:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

   1. That 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 crimes; and

   2. 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.40

Diverging from ICTY and ICTR statutory language, the Rome Statute added the element “should have known” to a commander’s responsibility, seemingly increasingly a commander’s burden for knowledge. Article 28(b) also codified the ICTR’s Musema ruling, explicitly noting that the statute could be applied outside the military command structure.41 However, it also increased the standards for a successful command responsibility prosecution by injecting a causality requirement of “as a result of…failure to exercise control properly over such subordinates,” diverging from the Čelebići causality standard.42

Prior to the Bemba ruling in the ICC’s Appeals Chamber, there was a general deference and reasonableness view to the Trial Chamber’s proper assessments of the law at the ICC. A general principle of review was stated in the Lubanga decision:

[W]hether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question.43

Regarding evidence, Lubanga found Appeals Chamber should only interfere where the Trial Chamber “misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts,” and that the Appeals Chamber “cannot discern how the [Trial] Chamber’s conclusion could have reasonably been reached.”44 However, as the evolution of the Bemba case through the various chambers demonstrates, the evidentiary standard has now shifted, which will likely lead to unfortunate implications in prosecutions at the ICC.

Jean-Pierre Bemba Gombo was Vice President of the DRC from July 2003 to December 2006, and later served as the country’s leader of the opposition, leading the Movement for Liberation of Congo (MLC). During a tumultuous time in the neighboring Central African Republic, MLC forces, under the direction of Bemba, were involved in violent acts, although they were only one group of actors in a complex political and military situation.45 Bemba was finally arrested in 2008 and brought to The Hague, where he faced prosecution in the ICC, eventual conviction, and ultimately acquittal earlier this year.

A. Confirmation of Charges by the ICC’s Pre-Trial Chamber

The ICC’s pre-trial chamber, tasked with the confirmation of charges against Bemba, found justified grounds for OTP to proceed with charging Bemba under Article 28(a) of the Rome Statute for command responsibility for crimes against humanity and war crimes including rape. While charging Bemba under command responsibility as a mode of liability, the Chamber reiterated that the Rome Statue does not support strict liability.46 The Pre-Trial Chamber heard testimony from rape victims that included testimony of SGBV, including being physically intimidated, held at gunpoint, and forced into sexual acts in public settings, by soldiers that could be reasonably traced to the MLC.47

Based the evidence heard and provided until that point, the Pre-Trial Chamber analyzed each of the elements of Article 28(a) as applied to the prosecution of Bemba in depth. The Pre-Trial Chamber found that “the suspect must have had effective control at least when the crimes were about to be committed.”48 With regards to causality, the Chamber found:

[T]he failure of a superior to fulfill his duties during and after the crimes can have a causal impact on the commission of further crimes […] [so] as punishment is an inherent part of prevention of future crimes, a commander’s past failure to punish crimes is likely to increase the risk that further crimes will be committed in the future.49

On whether “knew or should have known,” the Pre-Trial Chamber concluded that geographic distance alone would not be enough to show a lack of knowledge, requiring:

[M]ore of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime.50

The Pre-Trial Chamber also noted the widespread media and intelligence reports of the crimes being committed during conflict, and Bemba’s active consumption of these, as relayed by witnesses.51

Most relevant to this comment, based on the Appeals Chamber’s eventual grounds for ruling, is with regards to the standard for “necessary and reasonable.” The Pre-Trial Chamber cited examples from witness testimony of the MLC’s justice system being used to discipline soldiers in other cases and receiving only limited training on conduct and on IHL,52 declaring that some action on behalf of a commander did not mean enough action to satisfy the element of “necessary and reasonable.”53 This final point proved to be critical in the Appeals Chamber’s review of Bemba’s conviction.

B. The ICC Trial Chamber’s Determination in the Bemba Trial

After four and a half years of trial and after hearing from 77 witnesses and considering 773 pieces of evidence, on March 21, 2016, the ICC Trial Chamber found Bemba guilty under Article 28(a) because he was effectively acting as a military commander who knew that MLC forces were committing crimes of rape, murder, and pillaging and failed to take adequate measures to prevent, repress or punish the crimes his subordinates.54 The Trial Chamber largely adhered to prior standards for review, considering evidence throughout the extensive trial. With respect to SGBV specifically, the trial chamber heard third-party testimony about the rape of an eight-year-old girl by MLC forces in front of her mother and more broadly about the widespread nature and types of sexual violence in the Central African Republic.55 Additional evidence that contributed to the Trial Chamber’s command responsibility finding was Bemba’s use of telephones and connectivity to subordinate commanders.56

In finding Bemba guilty, the Trials Chamber set the command responsibility standard as:

[C]rimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes.57

The Trial Chamber concurred with the Pre-Trial Chamber that Article 28 “does not require the establishment of “but for” causation between the commander’s omission and the crimes committed.”58 The Chamber found the standard of effective control as:

[A] manifestation of a superior-subordinate relationship between the [commander] and the forces or subordinates in a de jure or de facto hierarchical relationship (chain of command).59

Finally, the Trial Chamber but found that there was adequate notice provided and the Defense had ample opportunity to challenge the Pre-Trial Chamber’s amendment on the charges against Bemba under Article 28(a).60

In a separate, concurring opinion, Judge Steiner elaborated on the application of Article 28(a), asserting that “duty to exercise control” should be viewed as “beyond the temporal and substantial scope of the duties outlined in Article 28(a)(ii).”61 The standards applied by the Trial Chamber adhered more closely precedent and more responsive to the complexity and nuance of the crimes and command responsibility, compared to the Appeals Chamber’s later ruling.

C. The ICC Appeals Chamber’s Ruling in Bemba and Divergent Standards of Review

On June 8, 2018, the ICC’s Appeals Chamber overturned the Trial Chamber’s conviction of Bemba, diverging from previous standards of review. Three notable aspects of the Appeals Chamber’s decision were appellate review of evidence, specificity in the confirmation of charges, and the “necessary and reasonable” standard under Article 28(a) of the Rome Statute.

First, with regards to evidentiary review, the Appeals Chamber adopted a somewhat hybrid standard, stating it could:

[I]nterfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice.62

Despite contradicting the Lubanga standard, the Appeals Chamber in that case had expressed hesitation and ultimately ruled on the nature of the evidence considered.63 Instead of de novo review of the Trial Chamber’s decision, the Appeals Chamber asserted its ability to selectively assess evidence.64 This ultimately was critical to the acquittal of Bemba.65

Next, regarding the charges against Bemba, the Appeals Chamber found the Trials Chamber’s finding exceeded the scope of the Pre-Trial Chamber’s Confirmation of Charges, even as amended, and lacked the specificity to add additional charges. While careful to note that not all post-confirmation charges would require amendments, the Appeals Chamber concluded in this case that should have been the case, “given the way in which the Prosecutor has pleaded the charges in the case at hand.”66 The decision specifically characterized some of the Trial Chamber’s finding as summaries rather than specific crimes.67 On specificity, there was some dissent, which was likely the correct approach, on the grounds that additional information to fill out the charges were in fact “subsidiary facts” or “evidence,” “used in this case to establish the material fact.”68

Third, with regards to the Article 28(a) command responsibility charge, the Appeals Chamber found on a number of grounds that the Trial Chamber took a prejudicial and overly stringent approach to what constitutes “necessary and reasonable,” thus failing to satisfy one of the required elements of command responsibility.69 Relying on ideas of “proportionality and feasibility,” the Appeals Chamber found that “Article 28 only requires commanders to do what is necessary and reasonable under the circumstances.”70 Furthermore, the Appeals Chamber stated that the Trials Chamber incorrectly imputed reputational motivation on to Bemba in a negative manner, and that:

[T]he fact that a commander was motivated by a desire to preserve the reputation of his or her troops does not intrinsically render the measures he or she adopted any less necessary or reasonable.71

There is certainly a need to reform and clarify evidentiary and review standards within the ICC. Much of it is based on past international criminal law precedent and the nature of conflicts and multilateral systems are changing. However, the Appeals Chamber in Bemba directly diverged from its own past statements of the law and its role in review, and created a situation that is likely to result in increased confusion and difficulty of prosecution.

V. The Decision of the ICC Appeals Chamber Will Increase Challenges in Prosecutions for Command Responsibility for SGBV Crimes

Given the evidentiary difficulties faced by the ICC, particularly in cases of SGBV, what does the Bemba Appeals Chambers decision mean for future Article 28 prosecutions? The higher standards created presented by the Bemba Appeal are likely to exacerbate existing evidentiary hurdles, particularly with SGBV crimes. As previously mentioned, there are three notable areas of the Bemba Appeals decisions that will contribute to increased difficulties in securing Article 28 convictions, especially for SGBV: declining de novo evidentiary review, specificity requirements for the confirmation of charges, and what qualifies as “reasonable and necessary.” Each is discussed in turn below.

First, the standard of review is likely to be problematic, as the Appeals Chamber declined to review the totality of the evidentiary record, only looking at pieces. SGBV crimes in the context of conflict require piecing together a difficult web of evidence, including hearsay and third-party witnesses. By only examining and calling into doubt some but not all evidence, the Appeals Chamber presents a process by which certain evidence can be decontextualized. For command responsibility, there will be a higher burden to prove in the underlying Article VII crime, thus weakening one link in the chain of prosecution. Adding the command responsibility element is even more difficult, as prosecutors must be able to draw on a holistic and detailed evidentiary approach of command structure and how decision-making and oversight might have played out. By selectively evaluating evidence, the Appeals Chamber’s decision in Bemba is likely to increase the difficulties of putting together a complete image that satisfies statutory requirements for crimes.

Second, the Appeals Chamber’s specificity requirements for the confirmation of charges at the pre-trial phase will likely also increase the likelihood more evidence of SGBV will be excluded. Evidence gathering in SGBV crimes has often continued past the initial indictment and through the trial.72 In addition to the difficulties with securing any witness testimony and evidentiary collection in SGBV cases, reporting of these crimes by victims can require time and increased comfort with sharing their stories.73 The ICC already suffers from significant delays and inefficiency issues. Trials are already lengthy, as seen in Bemba and other recent prosecutions.

Thus, a requirement that of increased specificity at the pre-trial stage, as opposed to allowing for broader scope and additional amendments to charges, is likely to delay already inefficient and lengthy prosecutions and prevent additional, relevant evidence from possibly being added after the Pre-trial Chamber’s confirmation of charges. As an alternative, confirmation of charges could simply include the smaller list of charges that prosecutors might be able to prove at a pre-trial stage. This would hinder justice from being discharged, as witness testimony, particularly in SGBV crimes, takes time to cultivate. By making it increasingly difficult to include victim testimony and later evidence, the Appeals Chamber’s decision is likely to create a larger hurdle of proving underlying SGBV crimes, before even reaching the command responsibility charge. Instead, it might make sense to allow for narrower initial confirmation of charges to continue to be expanded through amendments and regular updates, but to clarify standards of what constitutes adequate notice to defendants.

Third, the Appeals Chamber’s findings on “necessary and reasonable” will likely prove overly burdensome in subsequent prosecutions of command responsibility, including for SGBV. Instead of prosecuting for direct orders, command responsibility in SGBV crimes often must prove the element of failure by commanders to prevent or punish.74 Prosecuting SGBV crimes specifically requires a deep understanding of the method and structure of commission, because they often are not planned or dictated from the outset by leaders, but instead are a byproduct of ongoing conflict.75 Part of the Appeals Chamber’s reasoning included a judgment on the Trial’s Chamber’s consideration of Bemba’s motivations as a commander.76 Essentially, it appears that the Appeals Chamber viewed the Trials Chamber as imputing too high of a standard for what could be considered as “all necessary and reasonable,” including failing to directly link the measures evaluated to the charges against Bemba.

Conflict situations are complex and command responsibility already requires drawing significant linkages across a number of crimes that may take place concurrently under command, even in situations of remoteness by a commander. SGBV crimes often are committed in coordination with murders and pillaging of villages, the other crimes Bemba was charged with. Failing to adequately consider all the evidence, including the quality of Bemba’s own investigations into sexual violence committed by troops, the Appeals Chamber created a possible opening for less consideration of the “reasonable and necessary” element of Article 28(a). By requiring each possible preventative or judicial measure that a commander may have taken to be linked to specific charges, the Appeals Chamber could be creating a standard which will lead prosecutors to consistently fall short because of the web that must be unraveled in making these cases. Historically, sexual violence crimes have been inadequately investigated. In order to make these crimes easier to prosecute, the Appeals Chamber should have stood by the Trial Chamber’s evaluation on Bemba’s motivation. Cursory mechanisms of justice or lessons on international humanitarian law should not be adequate to meet the “reasonable and necessary” threshold. If the Appeals Chamber’s standard holds, it will be to the detriment of victims of SGBV in conflict situations, who already struggle to have their stories heard and adequately represented in courts of international justice.

VI. Conclusion

Deviating from generally established precedent on command responsibility in international criminal jurisprudence, including in the ICC itself, the Appeals Chamber’s decision in Bemba has made it increasingly difficult to secure command responsibility prosecutions for SGBV crimes. Evidentiary collection is already challenging and time-consuming for the ICC. By selectively evaluating evidence, increasing the specificity threshold for the pre-trial stage confirmation of charges, and holding a broader view of what constitutes “necessary and reasonable,” the standards set by the Appeals Chamber will contribute additional challenges to already difficult and inefficient ICC investigations and prosecutions.

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.

   See Eric Witte, Command Responsibility and the Trial of Jean-Pierre Bemba, Int’l Just. Monitor (Nov. 16, 2010), available online, archived. ↩

3. 3.

   See Toby Cadman, The International Criminal Court’s Many Flaws Can’t Simply Be Glossed Over, The Guardian, Jun. 28, 2012, available online. ↩

4. 4.

   See Valerie Oosterveld, Mike Perry & John McManus, The Cooperation of States With the International Criminal Court, 25 Fordham Int’l L.J. 767, 792 (2001), available online. ↩

5. 5.

   See Dermot Groome, No Witness, No Case: An Assessment of the Conduct and Quality of ICC Investigations, 3 Penn St. J. L. Int’l Aff. 1, 8 (Apr. 2014), available online. ↩

6. 6.

   Id. at 18. ↩

7. 7.

   Id. at 8. ↩

8. 8.

   See International Bar Association, Evidence Matters in ICC Trials, IBA ICC Programme (Aug. 2016), available online, archived. ↩

9. 9.

   See Anika Bratzel, The Use of Command Responsibility in the Prosecution of Sexual and Gender-Based Crimes in Non-International Armed Conflict 38 (Unpublished Master of Laws Dissertation, Apr. 3, 2018), available online. ↩

10. 10.

    See Anne-Marie de Brouwer, Cases of Mass Sexual Violence Can Be Proven Without Direct Victim Testimony, ICC Forum (Jun. 26, 2012), available online. ↩

11. 11.

    Id. ↩

12. 12.

    See Bratzel, supra note 9, at 10–11. ↩

13. 13.

    See Groome, supra note 5, at 7. ↩

14. 14.

    Bratzel, supra note 9, at 37. ↩

15. 15.

    Id. at 38. ↩

16. 16.

    Id. at 7. ↩

17. 17.

    See Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, And Why?, 38 N. Ill. U. L. Rev. 298, 299 (2017), available online. ↩

18. 18.

    Bratzel, supra note 9, at 12. ↩

19. 19.

    Geert-Jan Alexander Knoops, The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals, 7 Int’l Crim. L. Rev. 505, 512 (2007), paywall. ↩

20. 20.

    Bratzel, supra note 9, at 37. ↩

21. 21.

    Id. at 9. ↩

22. 22.

    Id. at 10. ↩

23. 23.

    Kelly Dawn Askin, Response to Question: “Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape Without Testimony from Victims?”, ICC Forum (Jun. 26, 2012), available online. ↩

24. 24.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Arts. 86–87, 1125 UNTS 3, Jun. 8, 1977, [hereinafter Additional Protocol I], available online. ↩

25. 25.

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 7, U.N. Doc. S/RES/827 (May 25, 1993), available online. ↩

26. 26.

    Bratzel, supra note 9, at 7. ↩

27. 27.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić & Esad Landžo, IT-96-21-A, Judgement, ¶¶ 192, 197 (ICTY AC, Feb. 20, 2001) [hereinafter Čelebići], available online. ↩

28. 28.

    See Knoops, supra note 19, at 521. ↩

29. 29.

    Id. at 524. ↩

30. 30.

    Sherman, supra note 17, at 310. ↩

31. 31.

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

32. 32.

    See Sherman, supra note 17, at 310. ↩

33. 33.

    Knoops, supra note 19, at 525. ↩

34. 34.

    See Sherman, supra note 17, at 311. ↩

35. 35.

    Id. at 314. ↩

36. 36.

    See Adria De Landri, Command Responsibility in the International Tribunals: Is There a Hierarchy?, ExpressO Unpublished Paper, 16 (Dec. 14, 2011), available online. ↩

37. 37.

    Id. at 17. ↩

38. 38.

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

39. 39.

    Id. ↩

40. 40.

    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. ↩

41. 41.

    See Sherman, supra note 17, at 313. ↩

42. 42.

    Id. ↩

43. 43.

    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) [hereinafter Lubanga Appeal Judgment], available online. ↩

44. 44.

    Id. ¶ 21. ↩

45. 45.

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

46. 46.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 351 (PTC II, Jun. 15, 2009) [hereinafter Bemba Pre-Trial Decision], available online, archived. ↩

47. 47.

    Id. ¶¶ 155–56. ↩

48. 48.

    Id. ¶ 419. ↩

49. 49.

    Id. ¶ 424. ↩

50. 50.

    Id. ¶ 433. ↩

51. 51.

    Bemba Pre-Trial Decision, supra note 46, ¶ 489. ↩

52. 52.

    Id. ¶¶ 462–64. ↩

53. 53.

    Id. ¶ 490. ↩

54. 54.

    See Bemba Trial Chamber Judgment, supra note 1. ↩

55. 55.

    See de Brouwer, supra note 10. ↩

56. 56.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 397. ↩

57. 57.

    Id. ¶ 213. ↩

58. 58.

    Id. ¶ 211. ↩

59. 59.

    Id. ¶ 184. ↩

60. 60.

    Id. ¶ 37. ↩

61. 61.

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

62. 62.

    Bemba Appeals Chamber Judgment, supra note 38, ¶ 40. ↩

63. 63.

    See Lubanga Appeal Judgment, supra note 34. ↩

64. 64.

    See SáCouto, supra note 31. ↩

65. 65.

    Id. ↩

66. 66.

    Bemba Appeals Chamber Judgment, supra note 38, ¶ 115. ↩

67. 67.

    Id. ¶ 162–63. ↩

68. 68.

    Id. ¶ 164. ↩

69. 69.

    Id. ¶ 194. ↩

70. 70.

    Id. ¶ 8. ↩

71. 71.

    Id. ¶ 9. ↩

72. 72.

    See SáCouto, supra note 31. ↩

73. 73.

    See Kerstin Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victims, The Conversation, Jul. 15, 2018, available online. ↩

74. 74.

    See SáCouto, supra note 31. ↩

75. 75.

    Id. ↩

76. 76.

    Bemba Appeals Chamber Judgment, supra note 38, ¶ 375. ↩