In this comment, I argue that the Bemba Appeal Judgment exemplified ambiguities regarding the third component of superior responsibility under Article 28(a) of the Rome Statute. Essentially, I argue that it is far too unclear what a prosecutor for the ICC must prove to reach a conviction under this provision. Furthermore, I argue that this ambiguity is detrimental in four important ways. First, without a clearer understanding of what must be shown to reach a conviction, the command responsibility provision in the Rome Statute loses much of its deterrence effect on commanders in powerful military authority positions. Second, victims are left without vindication due to a law that is so ambiguous that it can arguably be described as unreliable. Third, the rights of the accused are not adequately accounted for as accused individuals are left to act without knowing if they are acting in compliance with the Rome Statute. Fourth, without a more defined standard, the credibility of the ICC is undermined.

After making the argument of why ambiguity in Article 28 is detrimental, I propose a potential solution. Due to the contextual nature of these types of cases, it is virtually impossible to establish a distinct and robust standard that applies to every single scenario in which the command responsibility doctrine might be invoked. However, the ICC and the Rome Statute may still provide guidance and avoid the detriments listed above by adopting a factor-based approach to prove whether a commander took:

[A]ll 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.4

In this approach, each factor would not be determinative in establishing guilt but would hold varying weight, with some factors holding more weight than others. This approach would effectively represent a compromise between recognizing the complexity of command responsibility while still maintaining the deterrence effect of Article 28 of the Rome Statute, vindicating victims, upholding the rights of the accused, and upholding the credibility of the ICC. Furthermore, in this comment I primarily focus on describing the detriments caused by this doctrine’s ambiguity, and then I propose factors to include in a factor-based approached. However, it should be noted that if the ICC would like to implement these proposed factors, the ICC and its state parties would likely need to amend Article 28 of the Rome Statute pursuant to the amendment provisions listed in Article 121 of the Rome Statute.

II. Ambiguity Creates Fatal Detriments for the ICC

The ICC should be careful to further define and provide a more distinct standard regarding what a prosecutor must show to reach a conviction in a command responsibility case under Article 28 of the Rome Statute. From a policy perspective, Article 28 functions to deter commanders from allowing war crimes and crimes against humanity to occur under their watch, to provide vindication for victims of war crimes and crimes against humanity, and, if functioning correctly, is a means by which the credibility of the ICC is upheld. Furthermore, however, a primary concern when trying cases under Article 28 of the Rome Statute is to uphold the rights of the accused. As a result of Bemba’s decision, Article 28’s deterrence, victim-vindication, and credibility functions have been severely hindered. While upholding the rights of the accused was clearly a motivating factor behind the case’s outcome, it came at far too great of a cost to the other concerns. Below, I address each of the important goals and outcomes of Article 28 and illuminate the necessity for a more defined standard.

A. Deterrence Goal of Command Responsibility

Along with the acceptance of a commander position comes a “heavy individual burden” in which a commander is responsible for both his or her own actions and the actions of the troops and subordinates upon which the commander has authority.5 In fact, the authority typically distilled upon commanders gives them the power to control the actions and decisions of subordinates.6 Commanders may yield this power through methods of organization and discipline both instilled and maintained upon a commander’s subordinates and troops.7 Thus, the command responsibility doctrine outlined by Article 28 serves the function of communicating the existence of consequences to a commander who fails to uphold this duty. Diane Marie Amann asserts that a weakening of this doctrine—in which commanders are not held accountable for their failures to uphold this duty—serves:

[T]o condone indiscipline and so to increase the risks of the very harms that the doctrine of command responsibility is intended to dispel […] the result may be that no one can be held to account.8

Amann clarifies that Bemba’s acquittal has weakened the command responsibility doctrine employed by the ICC and a side effect of this is a loss in deterrence value. It would be in the best interest of the ICC and state parties to act now in mitigating this effect to avoid an increased risk of these harms and violations occurring.

A factor-based approach would address this issue. After Bemba’s acquittal, it is unclear what a prosecutor must show to convict a commander under Article 28. Everyone, including commanders, is effectively in the dark about what conduct constitutes this type of Rome Statute violation. Because of this ambiguity, commanders are much more likely to disregard Article 28 outright in their motivations and decision-making. A factor-based approach, while not definitively defining per se actions that are violations under Article 28, would be an effective way to strike a balance between defining what the liability looks like and still recognizing the contextuality of these situations. If commanders knew a list of factors that constitute Article 28 violations, they would be more likely to avoid committing them.

B. Vindicating Victims through Command Responsibility

A primary side effect of the command responsibility doctrine is that it provides an avenue to vindicate victims for war crimes and crimes against humanity committed against them. The doctrine provides hope to victims by communicating that someone will be held accountable for these awful crimes. However, Bemba’s acquittal not only exemplified the complexity involved in convicting a commander whose subordinates were responsible for these crimes, but also left victims with little hope that crimes committed against them would be accounted for.9 Nadia Corine Fornel Poutou even argues:

The ICC Office of the Prosecutor must explain how it will proceed after this decision to restore the confidence of the victims.10

I believe a factor-based solution would address this victim confidence issue.

Victims are essentially asking the same question that this comment poses at the start: What does a prosecutor need to show to reach a conviction for a commander under Article 28 of the Rome Statute? However, in asking this question, victims hold an emotional interest in seeing it answered. A factor-based approach would not specifically define a distinct list of actions that constitute per se Article 28 violations, but it would provide guidance and hope to victims that an avenue exists to convict commanders under this doctrine. As it stands now, after Bemba’s acquittal and with no distinct standard or factors, victims are likely left imagining an impracticably high bar to reach a guilty verdict. Factors would help lower this bar in the minds of victims and provide hope that they will be vindicated for crimes committed against them.

C. Upholding the Rights of the Accused

On the flip side of the goal to vindicate victims, there also remains a special concern to protect the rights of the accused. It is a fundamental core of criminal legal doctrine that a person should not be deemed guilty and punished for something that they did not do. Michael A. Newton, in speaking about the rights of the accused in command responsibility cases, asserts that:

Technical experts and jurists must avoid a victim-centric approach that clouds good faith assessment of the timely response necessitated in the midst of conflict.11

Newton essentially wants to make sure the ICC guards against emotionally imposing an unreasonable responsibility on commanders to act in ways that go beyond the duty they assumed merely for the sake of reaching a conviction. Undoubtedly, Newton’s approach to command responsibility hangs in tension with the idea that it is not unfair to hold commanders responsible for the duties they have assumed, which Amann mentions.12 Once again, I believe the ICC can best address this tension by instituting a factor-based system.

A sufficiently communicated factor-based system would preemptively put commanders on notice for what factors would be considered should they be accused of Article 28 violations. This means that commanders, even before being accused, would be more aware of what types of actions and omissions would be examined and scrutinized in trial should they be accused. Furthermore, a factor-based approach would provide a safeguard against purely emotionally driven arguments that lack sufficient basis. Prosecutors would be bound to make arguments in line with the previously established factors—this would provide little room for the emotional clouding of judgment Newton is concerned about. Yet, while guarding against emotional swaying, there is still an opportunity to fairly hold a commander responsible for their duties should the factors, on a totality of circumstances basis, lean in favor of conviction. Thus, this is how a factor-based approach would plausibly uphold the rights of the accused.

D. Upholding Credibility of the ICC

It is necessary for the ICC and member states of the Rome Statute to address the ambiguity problem exemplified by Bemba’s acquittal to maintain credibility for the ICC and its command responsibility doctrine. For example, one criticism of Bemba’s acquittal was that, in the Appeals Chamber’s opinion, there was no cited authority establishing “remoteness” as a relevant legal standard applicable to commanders accused under the command responsibility doctrine.13 Furthermore, Sadat argues that:

[E]ven though the Bemba judgment may not be decisive to future cases on the meaning of Article 28, the fact that two judges [ discovered ] this suddenly dispositive factor on appeal may have a chilling effect on future cases.14

She further states, “[i]t incentivizes defense lawyers to raise every conceivable argument, hoping to convince the judges to accept them even if they represent novel or unprecedented theories,” and that this is far too close to “judicial-speculation-made-law.”15 The basis of these criticisms largely arises due to the ambiguity on what has to be shown to reach a conviction under Article 28 of the Rome Statute. The ICC can combat such criticisms by implementing a factor-based approach. With explicit factors, defense lawyers would have less of an ability to employ a “throw-it-at-the-wall-and-see-what-sticks” strategy toward representing the defendant. The defense lawyer would have to make arguments formulated with the factors as their basis. Furthermore, once a decision is finally reached, critics of the Court would hopefully have a better grasp on how the Court reached their decision by tracing the discussion back to the factors. Therefore, for these reasons, a factor-based approach is also necessary to maintain the ICC’s credibility when it comes to Article 28.

III. Proposed Factors for Command Responsibility in the Rome Statute

Now that I have established why the ambiguities in this legal doctrine must be addressed, I propose what a potential factor-based system might look like. Below I describe three broad factor prongs which are then narrowed into subfactors for determining whether a commander’s actions, or rather lack thereof, constitute a violation of the third requirement of Article 28 of the Rome Statute. If the ICC were to implement these proposed factors, or similar components, the ICC and its state parties would likely need to amend Article 28 of the Rome Statute pursuant to the amendment provisions listed in Article 121 of the Rome Statute.

A. Affirmative Action Taken by the Commander After the Crime has Occurred

The first broad factor prong I propose involves affirmative actions taken by the commander. Essentially, the Court should ask the following: upon receiving initial information of wrongdoing and potential violations of the Rome Statute, did the commander respond with some avenue of deliberate action that was in his or her capability? Within this overarching factor, there are multiple subfactors a prosecutor or defense attorney may look toward to prove that a commander did not respond with any deliberate action or vice versa.

Among the subfactors would be whether the commander, after initial report or suspicion that subordinates committed a violation of the Rome Statute, sought out more information to confirm that such action occurred. Should the commander have sought out more information, this would indicate that the commander chose to take the initial steps necessary to prevent or repress a furthering of such violations.

Another subfactor could be whether the commander was preoccupied with, and prioritizing, other objectives over stopping or punishing potential Rome Statute violations committed by subordinates. In Bemba’s trial, the Trial Chamber discredited actions taken by Bemba in response to alleged crimes because they viewed Bemba as having alternative motivations, specifically “to counter public allegations and rehabilitate the image of the MLC.”16 The Appeals Chamber criticized the Trial Chamber for treating Bemba’s alternative motivations as determinative.17 They further stated:

It is conceivable that a commander may discharge his duty to take ‘necessary and reasonable measures’ and in doing so accomplish multiple, additional or extraneous purposes, such as protecting the public image of his forces.18

I agree with the Appeals Chamber’s analysis here. However, I still believe motivation can be a considered factor in some circumstances. Essentially, if a commander has placed other objectives above their command responsibility duty, it is less likely that the commander will satisfy their duty. However, as the Appeals Chamber has pointed out, this is not determinative; it is possible to accomplish multiple objectives at once. Thus, that is why this is a subfactor and not a determinative element.

The next subfactor asks if, after the commander verified that war crimes or crimes against humanity occurred, did these crimes continue? Darryl Robinson points out that in the decision in the Prosecutor v. Delalić (Čelebići) case tried in the ICTY, the text:

[C]ites legislation of the former Yugoslavia which states that ‘a military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts.’19

The continuing of crimes would constitute a weighty indication that a commander has not enacted his duty and thus is liable under Article 28 of the Rome Statute.

The next subfactor I suggest is whether, after verification that the crimes occurred, the commander reported these crimes for further investigation. In fact, submitting the matter to the proper authorities is an explicitly stated countermeasure available to the commander.20 Because this subfactor is explicitly stated in Article 28(a), it carries significant weight. However, it is true that this subfactor would still carry its own ambiguity about the extent that’s necessary in empowering necessary officials to adequately investigate.

One of the final subfactors I suggest under this prong is if plausible solutions exist that would have likely prevented or repressed further commission of the crimes in question. Darryl Robinson highlights that in the Prosecutor v. Orić case the decision held that:

[I]t is enough to make the performance of the crime possible or at least easier and that the contribution can be any assistance or support, whether present or removed in place and time, furthering or facilitating the performance of the crime, provided that it is given prior to the full completion of the crime.21

Robinson further stated that “the decision confirmed that the contribution may be in the form of an omission, if the accused was under an obligation to prevent the crime.”22 This supports the idea that if the prosecutor is able to present plausible actions that the commander could have taken but did not, and subsequently, after not taking such action, the crimes continued, then this subfactor would weigh in favor of convicting the commander. Furthermore, within this subfactor, the threshold would not be that the commander’s omission would have to directly cause the continuation of crimes. As Robinson states, the omission merely needs to make the performance, or continuation, of the crimes possible or easier. Surely, ambiguity still exists in this subfactor, but it is still a step toward defining what must be shown to reach a conviction.

B. Preventative Measures Before the Crimes have Occurred

The second broad factor prong I propose involves an analysis of preventative measures in place before the commission of the crimes. Chief among the subfactors that fall within this prong is whether there was a system in place to educate subordinates about war crimes and crimes against humanity—including the potential risks and punishments that would be imposed should these violations occur. Robinson touches upon a commander’s preventative duty and he states that a commander satisfies his or her preventative duty by “arranging appropriate training, appropriate orders, and a system of supervision.”23 Proper education falls into the “training” component that Robinson listed. Furthermore, an analysis of international humanitarian law (IHL) over the last two centuries illuminates that there is an obligation to educate troops and subordinates on IHL. Looking at IHL dating back to 1869, Elizabeth Stubbin Bates states that:

IHL’s earliest documents refer to dissemination of a then-novel set of norms, and to the assumption that spreading awareness of IHL among all citizens would prevent unlawful conduct by citizen soldiers.24

Among other examples, Bates goes on to mention that the Fourth Geneva Convention of 1949 included a requirement to “integrate IHL study” into military instruction.25 Bates further states that many treaties and laws concerning IHL encourage wide dissemination of IHL war and peace policies.26 Bates provides further context stating, “Amended Protocol II of [Convention on Certain Conventional Weapons] (1996) requires training commensurate with soldiers duties and responsibilities,” and that “ Article 30 of the 1999 Second Protocol to the Hague Convention of 1954 provides for cooperation between military and civilian authorities, UNESCO, and non-governmental authorities in dissemination and military instruction in peace and war.”27

Bates analysis shows that this education responsibility, which includes education on war crimes and crimes against humanity, is not novel to a commander’s duty. Because it has been shown that this obligation exists, the presence, or lack thereof, of this type of education would be an appropriate subfactor under this preventative prong. Just as in other subfactors, some ambiguity still exists. For example, what constitutes sufficient education? I suggest sufficient education would be a good faith showing of requirements and policies in place to ensure troops and subordinates are aware of international law and consequences concerning war crimes and crimes against humanity. Still, some ambiguities persist, but this at the very least provides a more distinctive idea of what a prosecutor must show to reach a conviction for these crimes.

The second factor I suggest under this prong, as also specified by Robinson, would be whether the commander had an adequate system of supervision in place. This may be achieved in various ways. For example, has the commander established communication channels that simplify reporting from the bottom to the top? Is the commander active in seeking regular updates of the whereabouts and actions of his or her subordinates? Has the commander appointed reliable personnel throughout the chain of commandment? Has the commander specified obligations upon such personnel to communicate updates along the chain of commandment? These, and other components, indicate whether a commander has systems in place to ensure proper supervision over his or her subordinates. If a wholesome analysis reveals that a commander has not properly met this supervision burden, then this factor would weigh in favor of the prosecution and conviction of the commander under Article 28. Of course, ambiguity persists, but that should not stop the ICC and state parties from further defining this standard.

C. Exceptions to Take into Account

The final prong that I suggest the ICC include among the command responsibility factors is what I label as the exceptions prong. Essentially this is a short list of subfactors that if sufficiently shown, lean in favor of acquitting a commander in a command responsibility case. These subfactors are

1. remoteness of the commander in relation to the crimes committed,

2. the effective control of the commander, and in some instances,

3. the credibility of the information that first indicated to the commander that violations had occurred or were imminently about to occur.

Each of these subfactors relate to the feasibility of the commander to act in alternative ways. Also, this prong serves to maintain the ICC’s interest in upholding the rights of the accused.

I suggest a subfactor within this prong would be the remoteness of the commander in relation to the crimes. In Bemba’s appeal, he argued that his geographic remoteness in relation to the crimes increased difficulties and hindered his ability to address the crimes.28 The Appeals Chamber agreed with this argument and stated the following:

The Trial Chamber paid insufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr. Bemba’s ability, as a remote commander, to take measures.29

The ICC should consider whether a commander is precluded from a set of actions due to geographical remoteness, and if so, count this as a component in favor of acquitting the commander in question. However, I do not believe this subfactor should carry as much weight as it appears the Appeals Chamber placed on it in Bemba’s case. By assuming a position of authority, a commander inherently obtains significant obligations that should not be allowed to be easily written off in every circumstance by a geographical remoteness argument. The ICC should be careful to ensure that this subfactor is only accepted in good-faith instances.

A second subfactor I suggest in this prong would be to examine whether the accused commander had effective control. Essentially, effective control looks at how much power a person has in making decisions. A commander with sufficient effective control would have the authority to make important decisions, especially in war. Examining the ICTY Prosecutor v. Hadžihasanović case, Elies van Sliedregt states:

It follows from the decision by the ICTY Appeals Chamber in Hadžihasanović that the post-crime scenario only generates superior responsibility when it can be established that there was a superior-subordinate relationship governed by effective control at the time of the offense. The Appeals Chamber found that since there was no effective control at the time of the offense, there was no criminal liability for these crimes under Article 7(3) of the ICTY Statute.30

Sliedregt’s analysis of the Hadžihasanović case exemplifies the idea that without the authority to make important wartime decisions, a commander cannot be fairly liable for crimes against humanity or wartime crimes. Like some of the other subfactors mentioned in other prongs, this subfactor would be analyzed upon a spectrum. The more effective authority a commander is shown to have, the more heavily this subfactor would weigh in favor of the prosecution. The less effective authority a commander is shown to have, then the converse would apply.

The final subfactor within this prong applies to situations where a commander receives initial reports of war crimes or crimes against humanity committed by his or her subordinates and proceeds to act insufficiently to satisfy his or her duty under Article 28 of the Rome Statute. As part of this subfactor, the accused commander would have an opportunity to show that he or she should not be liable under Article 28(a) due to a perceived lack of credibility of reports received. Within this subfactor, the Court may analyze where the information regarding the crimes came from and whether that source has a history of credibility. The Court may look to see whether that source has ever produced false information, or if there are stances or positions taken by the source which are disagreeable to the Court. Once again, this subfactor carries significant ambiguity, especially compared to the other subfactors suggested. However, the point of this comment is to illuminate that it is possible to establish a more defined standard—one that eliminates the current detriments of the ICC’s command responsibility doctrine described above.

IV. Conclusion

The command responsibility doctrine in Article 28(a) of the Rome Statute importantly seeks to hold commanders responsible for crimes committed by subordinates under the effective control of such commanders. When operating as intended, this doctrine serves valuable functions such as deterring international crimes under the Rome Statute, vindicating victims, and upholding the credibility of the ICC. Additionally, these functions must be balanced with the necessity to uphold the rights of the accused. Bemba’s acquittal of war crimes and crimes against humanity created significant ambiguity which ultimately hindered these fundamental functions of the command responsibility doctrine.

To ensure that the effects of this doctrine operate to the highest extent, it would serve the ICC’s best interest to implement a factor-based approach in prosecuting command responsibility cases. As such, this comment proposes three factor prongs with varying subfactors, including affirmative actions taken by the commander in response to crimes committed, preventative measures in place before the crimes occur, and exceptions that weigh in favor of acquitting accused commanders. To implement such factors, the ICC and its state parties would need to go through an amendment process pursuant to the listed provisions in Article 121 of the Rome Statute. While these factors would not be definitive by itself, they would effectively curb much of the ambiguity regarding the command responsibility doctrine created by the Bemba judgment.

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 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (ICC AC, Jun. 8, 2018) [hereinafter Bemba 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, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 28, available online. ↩

3. 3.

   Bemba Judgment, supra note 1. ↩

4. 4.

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

5. 5.

   Diane Marie Amann, In Bemba, Command Responsibility Doctrine Ordered to Stand Down, ICC Forum (May 27, 2019), available online. ↩

6. 6.

   Id. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Nadia Corine Fornel Poutou, What Does the Bemba Appeal Judgment Say about High Responsibility Under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available online. ↩

10. 10.

    Id. ↩

11. 11.

    Michael A. Newton, The Bemba Appeal Judgment prevented misalignment between the ICC implementation of Article 28 and best practices governing military operations around the world. Criminal culpability of commanders cannot be predicated on a judicially mandated duty to withdraw forces from ongoing operations, ICC Forum (May 27, 2019), available online. ↩

12. 12.

    Amann, supra note 5. ↩

13. 13.

    Leila Nadya Sadat, “Judicial-Speculation-Made-Law:” More Thoughts about the Acquittal of Jean-Pierre Bemba Gomba by the ICC Appeals Chamber and the Question of Superior Responsibility under the Rome Statute, ICC Forum (May 27, 2019), available online. ↩

14. 14.

    Id. ↩

15. 15.

    Id. ↩

16. 16.

    Bemba Judgment, supra note 1, at 47. ↩

17. 17.

    Id. at 73. ↩

18. 18.

    Id. ↩

19. 19.

    Darryl Robinson, How Command Responsibility Got So Complicated: A Culpability Contradiction, its Obfuscation, and a Simple Solution, 13 Melb. J. Int’l L. 1 (2012), available online. ↩

20. 20.

    Elies van Sliedregt, Command Responsibility at the ICTY—Three Generations of Case-law and Still Ambiguity, in The Legacy of the International Criminal Tribunal for the Former Yugoslavia 377, 396 (Bert Swart, Alexander Zahar & Göran Sluiter eds., May 2011), paywall, earlier version available online, doi. ↩

21. 21.

    Robinson, supra note 19, at 15. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Elizabeth Stubbins Bates, Towards Effective Military Training in International Humanitarian Law, 96 Int’l Rev. Red Cross 795, 798 (2014), available online. ↩

25. 25.

    Id. at 799. ↩

26. 26.

    Id. ↩

27. 27.

    Id. at 802. ↩

28. 28.

    Bemba Judgment, supra note 1, at 27. ↩

29. 29.

    Id. at 68. ↩

30. 30.

    van Sliedregt, supra note 20, at 381. ↩