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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?”

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 standards in the statutes of the ad hoc international tribunals, namely the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as in Article 28 of the ICC’s Rome Statute,2 the doctrine has become foundational to international criminal law.

Most contemporary international tribunals prosecuting perpetrators under a theory of command responsibility, including the ICC Trial Chamber in Bemba, have relied heavily on the ICTY ’s analysis of command responsibility’s mens rea and actus reus elements. But in Bemba, the ICC Appeals Chamber determined by majority that the Trial Chamber’s conviction was erroneous based largely on a what appears to be a reinterpretation of Article 28 ’s command responsibility actus reus element that diverges from earlier ad hoc tribunal caselaw.

This comment will argue that while the majority decision in Bemba is a departure from existing command responsibility caselaw, the judgement’s narrower interpretation of Article 28 ’s actus reus element may prove beneficial to the ICC, both as a more equitable standard for assessing command responsibility liability in general and as a meaningful mechanism to contextualize the unique logistical challenges faced by remote African commanders. To that end, Part I of this comment reviews the evolution of command responsibility in the 20th century, with a focus on the ICTY ’s command responsibility jurisprudence. Part II reviews the evolution of command responsibility at the ICTR. Part III details how the Appeals Chamber has narrowed the scope of Article 28’s “necessary and reasonable measures”actus element in the Bemba decision. Part IV assesses the impact of Bemba and concludes that the judgement’s potential benefits outweigh any chilling effects it may have on the ICC’s ability to pursue offenders.

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

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

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

A. The International Criminal Tribunal for the Former Yugoslavia

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

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

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

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

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

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

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

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

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

1. The ICTY ’s Čelebići Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. The International Criminal Tribunal for Rwanda

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

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

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

A. The ICTR ’s Bagilishema Decision—Čelebići Reaffirmed

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

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

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

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

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

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

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

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

A. Article 28

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

B. The Appeals Chamber’s Decision in Bemba

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

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

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

  1. 1.

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

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 28, available online.

  3. 3.

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

  4. 4.

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

  5. 5.

    Id.

  6. 6.

    De Landri, supra note 4, at 2.

  7. 7.

    Id.

  8. 8.

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

  9. 9.

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

  10. 10.

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

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

  11. 11.

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

  12. 12.

    Id. at 51, 60–62.

  13. 13.

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

  14. 14.

    Id. at Art. 7(3).

  15. 15.

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

  16. 16.

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

  17. 17.

    Scharf, supra note 11, at 124.

  18. 18.

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

  19. 19.

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

  20. 20.

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

  21. 21.

    Id. ¶ 226.

  22. 22.

    Id.

  23. 23.

    Id. ¶ 241.

  24. 24.

    Moloto, supra note 1, at 18.

  25. 25.

    McCarthy, supra note 9, at 564.

  26. 26.

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

  27. 27.

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

  28. 28.

    Id. ¶ 332.

  29. 29.

    Id. ¶ 302.

  30. 30.

    Id. ¶ 734.

  31. 31.

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

  32. 32.

    Id. ¶¶ 62, 64.

  33. 33.

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

  34. 34.

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

  35. 35.

    Id. ¶ 586.

  36. 36.

    Id. ¶ 587.

  37. 37.

    Id. ¶ 588.

  38. 38.

    Id. ¶ 5845.

  39. 39.

    Id. ¶ 5846.

  40. 40.

    Id. ¶ 5847.

  41. 41.

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

  42. 42.

    Id.

  43. 43.

    Id. at Art. 6(3).

  44. 44.

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

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

  45. 45.

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

  46. 46.

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

  47. 47.

    Id. ¶ 949.

  48. 48.

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

  49. 49.

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

  50. 50.

    Id. ¶¶ 840, 857.

  51. 51.

    Id. ¶ 792.

  52. 52.

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

  53. 53.

    Id.

  54. 54.

    Id.

  55. 55.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, ¶ 167 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived.

  56. 56.

    Id. ¶¶ 170–71.

  57. 57.

    Id. ¶ 173.

  58. 58.

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

  59. 59.

    Id. ¶ 168.

  60. 60.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 46 (AC, Jun. 8, 2018), available online, archived.

  61. 61.

    Id. ¶ 93.

  62. 62.

    Id. ¶ 32.

  63. 63.

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

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

    Karadžić Trial Judgment supra note 34, at ¶ 5848.

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

  64. 64.

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

  65. 65.

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

  66. 66.

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

  67. 67.

    O’Reilly, supra note 65, at 28.

  68. 68.

    See Moloto, supra note 1, at 14

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

  69. 69.

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

  70. 70.

    Id. at 327, 330.

  71. 71.

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

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

  72. 72.

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

  73. 73.

    Id. ¶ 5848.

  74. 74.

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

  75. 75.

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

  76. 76.

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

  77. 77.

    Yamashita, supra note 8, at 28–29.

  78. 78.

    Rome Statute, supra note 2, Preamble.

  79. 79.

    Yamashita, supra note 8, at 41.

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 crimes against humanity of murder and rape, the war crimes of murder, rape, and pillaging committed by his forces in the Central African Republic.1 The Bemba trial featured SGBV crimes and illustrated for the first time what a successful prosecution of SGBV crimes could look like at the ICC. In turn, giving hope to all the victims of SGBV crimes who have suffered without justice for far too long.

In June 2018, that conviction was overturned on appeal. The Appeals Chamber’s ruling seemed to shock even the Prosecutor herself as it drew an uncharacteristic statement criticizing the decision.2 This comment will discuss the possible implications of the Appeals Chamber’s Bemba decision on the future prosecution of crimes of sexual and gender-based violence, particularly under Article 28. In short, the Bemba decision will likely make future prosecution more challenging due to the difficulties in gathering evidence for sexual crimes, the obstacles to satisfying the requirements of Article 28(a), and the new role of the pre-trial chamber.3

Instead of being treated as the heinous crimes they are, SGBV crimes are often dismissed as collateral damage of war when they occur in conflict zones.4 Treating these crimes as mere by-products of war, international prosecutors tend to focus instead on what are seen as the primary war crimes. The charges brought against Jean-Pierre Bemba by the Office of the Prosecutor (OTP) can still be viewed as a triumph for SGBV crime victims. The appellate decision does not detract from the fact that this trial gave SGBV crime victims the attention they deserve, which is still a huge step towards justice for victims. However, the Appeals Chamber’s decision flipped the Trial Chamber’s ruling on its head by ruling that the conviction exceeded the properly brought charges, by introducing new procedural requirements for the Pretrial Chamber hearings, and by interpreting the requirements of command responsibility to be deferential to the accused.

II. The Difficulties in Obtaining the Requisite Evidence Needed to Prosecute SGBV Crimes

Another issue that prevents prosecution of SGBV crimes like mass rape is the difficulty in assembling a case against the accused. Even simple rape is extremely difficult to prosecute domestically where there is at least a chance forensic evidence can be used. In instances of mass rape like was present in the Central African Republic, forensic evidence is completely unavailable. Furthermore, the ICC does not try simple rape, but mass rape. SGBV crimes like mass rape are immensely challenging to prosecute. These crimes are so difficult to prosecute because they are usually not directly ordered and require victim testimony. The recent ruling in the Bemba case will exacerbate the already huge obstacles the OTP faces in prosecuting SGBV crimes, which in turn creates new obstacles for SGBV victims.

A. Evidence Needed to Prove SGBV Crimes at the ICC

While producing evidence for simple rape in the domestic context can be complicated, forensic evidence is sometimes available. In contrast, forensic evidence is almost never available for the crimes tried before the ICC. The lack of forensic evidence can be explained through the difficulties of collecting and retaining evidence in active conflict zones where the infrastructure has collapsed or are especially remote areas like where many of the crimes at issue in the Bemba trial took place.5 NGO s and other first responders that treat SGBV victims on the ground do not have the resources to adequately record and store DNA evidence. Further even if they could and did, they likely would not share such information with the ICC because it would jeopardize the safety of the first responder operations. First responders that provide emergency health clinics and other forms of aid operate in war-torn areas must maintain very delicate relationships with all warring parties in order to not endanger themselves or their work. Cooperating with the ICC to such an extent as providing DNA evidence might jeopardize humanitarian workers’ ability to continue their own work. Admittedly, there is a legitimate fear of retaliation by government authorities who are threatened by ICC investigations as evidence by the reaction of the Sudanese government when the ICC issued an arrest warrant for President Omar al-Bashir.6 After the ICC issued the arrest warrant, the Sudanese government removed aid groups, blocked humanitarian aid, and kidnapped aid workers.7 Further, asking these organizations to collect and retain evidence in a useful format for the OTP would refocus resources away from services a part of their own mandate.8

1. Identification Evidence

Since forensic evidence is neither available nor practical, the OTP must look to other forms of evidence such as victim and witness testimony. During the pre-trial hearings and trial, the ICC tends to focus less on what happened since the devastation is often already well known and more on who did it.

In the Bemba case, Mr. Bemba insisted that the identification evidence must support a reasoned opinion for identification of the specific accused person and, in support of this argument, relied on jurisprudence of individual identification.9 However, individualized identification is not the type of identification that is critical at the level of ICC adjudication because the individuals that the ICC are trying are not the individuals committing the crimes that form the basis of the charges. Instead, the type of identification evidence that best supports the OTP ’s case is evidence relating to the military affiliation of the soldiers.10 Examples of identification evidence used in the Bemba trial consisted of the uniforms the perpetrators were wearing, the language they were speaking, and more generally the modus operandi of MLC soldiers. While the majority did not address Mr. Bemba’s fifth ground of appeal concerning identification evidence, the dissent and the separate opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison both did.

The separate opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison took issue with the opacity of the reasoning and the evidence relied on by the trial court.11 However, poor writing and formatting of a court opinion should not be determinative in a criminal trial appeal on the merits even in light of Article 74(5).12 The separate opinion also criticizes the use of hearsay and anonymous hearsay evidence.13 Many of the statements at issue were given before a CAR magistrate and provided the basis for the Trial Chamber’s findings concerning the scale of the crimes. The criticisms of reliance on these statements being out-of-court and authenticated only by the person who took them are unrealistic. All of the witnesses needed to testify to the scale of the attacks cannot be expected to uproot their lives even more and live in the Hague during trial. Hearsay evidence may be regarded by many legal systems as problematic, but that does not indicate lack of value for trials in the ICC.

The ICC is not just any criminal court, it is a specialized criminal court built to deal with the most egregious crimes on the largest scales. In order to comply with this mandate, the court must do things somewhat differently than domestic courts dealing with crimes of a smaller scale. However, the separate opinion’s criticism of the terseness of the statements relied on and the lack of any explanation of how the witnesses identified the attackers as MLC forces is not only credible, but it is a constructive critique.14 More can and should be done by the OTP when statements are taken to ensure that they opine on all necessary elements. Additionally, the Trial Chamber should have explicitly addressed the approximate number of murders, rapes, and acts of pillaging that it found established and that it held Bemba responsible for.15

2. Sources of Identification Evidence
i. Victims

Whether direct victim testimony is essential to convict in cases of mass rape and crimes of SGBV is up for debate. What is clear is that the decision to testify is often wrought with consequences for victims, especially for women and men that come from more traditional societies:

For example, the stakes involved in victim testimony are high for a female victim in Bembe culture. Living in a remote Congolese village, where inhabitants typically spend their entire life, a Bembe woman known to have been raped likely would be divorced by her husband, expelled from the land she had been farming, and possible exiled from her village—the only place she has ever known. After suffering that fate, or living in constant fear of it, serving as a witness in an ICC trial could require her to travel by car (something she might never have experienced) on a dirt track for eight hours, cross an international border, and take a nine hour air flight to The Hague, where she would live for weeks or months in an unfamiliar Western apartment without the traditional community support she enjoyed throughout her life, awaiting her moment to testify—when she would likely relive the trauma by delivering her narrative of what occurred and answering detailed questions about it. After testifying, she might return to her village or a relative’s village, but her life could never be the same.16

A separate but similar obstacle for obtaining direct witness testimony stems from the somewhat strained relationship referenced above between the OTP and first responders. Article 67 of the Rome Statute provides that the Prosecutor must disclose all potentially exculpatory evidence to the defense.17 Additionally, Rule 77 of the ICC Rules of Procedure and Evidence compels the Prosecutor to share any information with the defense that is material to proper preparation.18 These requirements in turn mean that the OTP must provide protection for witnesses whose identity might be disclosed.19 First responders often receive information rapidly for relief purposes and are able to protect the anonymity of victims.20 Therefore, victim information is not received with the ICC commandments of disclosure and witness protection in mind, which makes it somewhat unusable for the OTP.

ii. Non-Victim Witnesses

For some crimes such as mass killing there are no victims that are alive to testify and, yet, these crimes are exactly the type of crimes that international courts like the ICC have been built to try.21 Thus, where there are no willing victims, non-victim eyewitness’s testimony should be sufficient. This is particularly true of mass rape since it is frequently used in a calculated way to demoralize not only the victim, but the victim’s entire community.22 In addition to eyewitness and victim testimony, other types of evidence that can be used in addition to victim and eyewitness testimony are expert witnesses’ accounts, documentary evidence, and hearsay witnesses.23 Expert witnesses might include someone from an NGO, medical background, or psychological background who could be useful in proving the widespread nature of the SGBV violence or the different manifestations of such crimes.24 Some of the judges’ issue with hearsay witnesses were discussed above, but there was no ruling on the reliability and strength of hearsay testimony.

B. Evidence Needed to Link Actual Perpetrators of the crimes to Top-Level Leaders

Once the identity of the direct perpetrators is established as the subordinates of the accused, the Prosecutor must first prove in accordance with Article 28(a) that the effective military commander “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.” Secondly, the Prosecutor must prove that the military commander “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 competent authorities for investigation and prosecution.”25

1. Impact of Appellate Decision on Level of Command Responsibility Evidence Required

As a result of the appellate decision, what is needed to satisfy that the defendant either knew or should have known is somewhat unclear. The separate and dissenting opinions disagree on this matter and the majority opinion did not focus their argument on the knowledge component of Article 28. Instead, the Appeals Chamber majority held that the evidence provided did not prove that Mr. Bemba “failed to take all necessary and reasonable measures.”

The Trial Chamber focused on the following measures taken by Mr. Bemba:

  1. the Mondonga Inquiry in October 2002;

  2. Mr. Bemba’s visit to the CAR and meeting with UN representative General Cissé and President Patassé in November 2002;

  3. Mr. Bemba’s speech at PK12 in November 2002;

  4. the trial of Lieutenant Bomengo and others in December 2002;

  5. the Zongo Commission in December 2002;

  6. a letter written by Mr. Bemba to General Cissé in January 2003;

  7. Mr. Bemba’s letter to the President of the FIDH in February 2003; and

  8. the establishment of the Sibut Mission in February 2003.26

The Trial Chamber found these measures to be both tainted and inadequate. In reaching the conclusion that Mr. Bemba failed to take all necessary and reasonable measures, the Trial Chamber provided key measures at Bemba’s disposal that were not taken such as:

  1. ensured that the MLC troops in the CAR were properly trained in the rules of international humanitarian law, and adequately supervised during the 2002–2003 CAR Operation;

  2. initiated genuine and full investigations into the commission of crimes, and properly tried and punished any soldiers alleged of having committed crimes;

  3. issued further and clear orders to the commanders of the troops in the CAR to prevent the commission of crimes;

  4. altered the deployment of troops, for example, to minimise contact with civilian populations;

  5. removed, replaced, or dismissed officers and soldiers found to have committed or condoned any crimes in the CAR; and/or

  6. shared relevant information with the CAR authorities or others and supported them in any efforts to investigate criminal allegations.27

The Appeals Chamber majority decision cautioned against evaluating a commander’s actions with the benefit of hindsight, which it argues the trial court did.28 Instead, the majority decision reads Article 28 as requiring the court to determine what was within the material ability of the commander at that point in time, taking into account the “operational realities on the ground” and the “impact of measures to prevent or repress criminal behavior on ongoing or planned operations.”29 The Appeals Chamber’s interpretation of Article 28 seems to deemphasize the word all and instead reads the entire test as hinging upon the word reasonable .

The majority also focused on Mr. Bemba being a remote commander to support its conclusion that he had taken all necessary and reasonable measures. The majority claimed that Mr. Bemba was owed a certain deference due to the “limitations that Mr. Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.”30 The idea that being a remote commander would significantly hamper your ability to monitor and control your troops seems to make more sense in the wars of previous centuries. Today, it is hard to fathom modern military commanders without immediate and direct lines of communication to their forces at all times regardless of where they are in the world given the advent of cell phones and other readily available technology.31 To adopt the majority’s claim in full would be excessively deferential to the accused by providing a presumption of inability to control troops for all military leaders who are operating from the other side of a border or just an adequate geographical distance.32 Such a presumption has no place in the world of modern warfare and only serves to further increase the burden on the prosecution to prove command responsibility.

2. Obstacles to Establishing Command Responsibility Link for SGBV crimes

Mass rape and other SGBV crimes are used as tools of war but are rarely if ever explicitly commanded from leadership. Instead, SGBV crimes tend to be encouraged, implicitly approved, tolerated, or ignored by commanders.33 Systematic dehumanization of entire villages and ethnic groups often occur without the bureaucratic documentation that has been characteristic of mass atrocities that have taken place in Europe.

The Appeals Chamber’s narrow reading of what constitutes all necessary and reasonable measures described above seems exceedingly deferential to the defendant. As with all ICC decisions, the lack of the stare decisis in the court makes the consequences of the Article 28 interpretation somewhat unpredictable. However, if the court choses to follow the Bemba decision then this more relaxed interpretation will be hard to overcome in cases of SGBV. For example, it may be seen by a commander that cracking down on rape and other acts of SGBV committed by soldiers may seriously hinder ongoing or planned operations. Will the court defer to a leader who deemed it unreasonable to risk the entire operation in order to weed out all insubordinates, particularly if rape is commonly perpetrated? It is unclear, how far the court is willing to go to excuse valuing military objectives over stamping out and punishing the crimes of subordinate soldiers.

What is clear is that this new interpretation advanced by the appellate majority has deemphasized all measures and necessary measures, which cannot bode well for the future prosecution of command responsibility for SGBV crimes. Considering that the Trial Chamber’s conviction of Mr. Bemba has been the only successful conviction of SGBV crimes of the ICC’s tenure and that the Appeals Chamber has reinterpreted fundamental provisions of the Rome Statute to obliterate that ruling, the OTP will have to be more precise in its pleadings and more expansive in the evidence and arguments put before the court.

III. New Interpretation of the Role of Pre-Trial Chamber Hearings

The majority decision asserts a new interpretation of the role of the pre-trial chamber. Traditionally under Article 61, the pre-trial chamber has been understood by the Appeals Chamber to hold a confirmation of charges hearing “to separate those cases and charges which should go to trial from those that should not.”34 The prosecutor has had broad discretion in bringing charges before the pre-trial chamber and:

[W]here specific criminal acts are alleged to support a more broadly described charge, the pre-trial chamber must consider these acts in so far as it may serve its enquiry into whether there is sufficient evidence to establish substantial grounds to believe that the person committed the crimes charged.35

The pre-trial hearings are not supposed to devolve into mini trials and requiring laborious fact findings goes beyond the procedure described in the Rome Statute and would draw out pre-trial detention periods.36

Article 74(2) of the Rome Statute requires that the Trial Chamber’s decision be based on “its evaluation of the evidence and the entire proceedings,” however “the decision should not exceed the facts and circumstances described in the charges.” and any amendments.37 The Appeals Chamber’s new interpretation of this provision exacts a stricter interpretation of what constitutes adequately brought charges under this provision. The new standard demands detailed evidence of each crime committed and to be charged at be brought at before the pre-trial chamber or that the prosecutor properly submit a burdensome amendment to the charges.

The resulting conclusion of the Bemba Appeals majority dramatically reduced the scale of the crimes being charged. Such a reduction in the scale was an injustice to the victims. Procedural reform should be executed this way. If the ICC wises to reform in such drastic ways, then there should be new rules issued or amendments made to existing procedural guidelines. Or at the very least, the case should have been remanded. To refuse to remand the case, while drastically change the role of the confirmation hearing, makes no sense. Instead of clearly articulating this change, the Appeals chamber reads the conviction decision devastatingly narrowly. Furthermore, the Appeals Chamber rejects all relevancy of the defendant’s right to adequate notice of the charges brought against him without any explanation as to why the defendant’s rights are not relevant to the scope of the charges properly brought. Beyond notice, the Appeals Chamber brings forth no argument suggesting that Bemba in any way hindered in preparing for his defense because of the timeline of when the details of the specific crimes emerged.38

A. Why the New Role of the Pre-Trial Chamber is an Issue for Future Prosecution of SGBV crimes

Historically, a conviction hearing lasts about a week, containing little oral argument, and very few or no witnesses.39 However, if the Appeals Chamber’s pre-trial prescription for conviction hearings become reality then these hearings will likely grow drastically in length and require more argument and witness testimony. Assuming this new role of the Pre-trial Chamber is adopted, it will quite simply increase the burden on the OTP by requiring the OTP to be much further along in its investigation when they issue a warrant or summons than it is when it currently issues warrants or summons. If the prosecutor is not prepared for more of a mini-trial by the Pre-Trial Chamber hearings, then they will likely find their principal case will be diminished in scope.

Reinterpreting the role of the Pre-Trial Chamber and its hearings especially impacts cases featuring SGBV crimes. This is partially because of the length of time required to gather evidence is when it comes to SGBV crimes.40 Underreporting of SGBV crimes is a tremendous hurdle to gathering evidence and greatly contributes to the length of time needed to discover evidence as SGBV crimes are often discovered when investigating other crimes. In addition to underreporting, psychological trauma or the fear of being ostracized may prevent victims from coming forward as witnesses.41

Furthermore, the burden imposed is not only on the prosecutor, but also the victims. Victims have everything to lose in certain communities, they are at risk of being shut out from their home, their family, and everything they know in addition to the lasting trauma from the crime itself. Evidence of sexual violence often comes out during investigation of other crimes both due to lack of prioritization and hesitance of victims to come forward.42 Requiring more witness testimony would be particularly detrimental to the OTP’s ability to prosecute SGBV crimes because victims would be uprooted earlier and required to spend more time in the Hague or, alternatively, victims would be required to make multiple trips to the Hague.

IV. The Future of SGBV Crimes Prosecution

The majority of this comment illustrates different aspects of the Appeals Chamber decision that will make conviction on SGBV crimes less likely and, consequently, generally disincentivizes the Prosecutor to go after these crimes. The OTP has limited resources. In the Bemba trial, the OTP got burned diverting a tremendous amount of time and resources on investigating and prosecuting crimes of SGBV only to get an overturned conviction that rejected much of the evidence and arguments presented on procedural grounds. After the Bemba acquittal, the standards that should be followed moving forward are somewhat unclear, which further incentivizes the OTP to focus on other, easier to prove crimes where they have had success prosecuting in the past. Regardless, the OTP must persevere and strive to bring justice to the countless victims of SGBV around the world.

A. Recommendation to the Prosecutor

The relevant standards announced by the Appeals Chamber in the Bemba judgment are more stringent than previous interpretations by the court. If the Prosecutor follows and meets the standards as introduced in the judgment, then the cases she brings would be stronger. Therefore, despite the uncertainty of the impact of the decision on the court procedures moving forward, the Prosecutor should strive to meet these standards in her arguments. In striving to meet these standards, there are a few things the Prosecutor can focus on in order to overcome the challenges discussed in this comment.

First, the Prosecutor can increase witness participation by engaging with witnesses earlier on and by working with the court to make it less burdensome on witnesses to testify. This can be done through video-link testimony, judicial site visits, prosecutor site visits, or even in situ trials. Second, the prosecutor can look for conflicts with vast numbers of crimes or conflicts that have gained international, regional, or domestic attention from reporters. Attention from reporters can help establish the knowledge of the commander being charged. Alternatively, the prosecutor can look to prosecute SGBV crimes in conflicts where the perpetrators are from more bureaucratic states. In bureaucratic sates, there is more likely to be a paper trail establishing control or direction by the commander in those states. Third, the prosecutor must focus on adequately charging a comprehensive set of crimes early on. This will likely require more intensive work earlier on in the investigation and pre-trial process for the Prosecutor, but it seems to be necessary to overcome the Appeals Chamber’s interpretation of which crimes were properly charged.

1. Ways to Increase Witness Participation

The Prosecutor should also explore these other tools at her disposal to increase witness participation: the use of video-link testimony and in situ proceedings. Video-link testimony has been approved and used in ICC trials before, therefore this is not a novel idea.43 Particularly for victims who are hesitant to travel to the Hague because their community does not know they were a victim of rape, video-link testimony enables these victims to participate fully while minimizing the risks involved with travelling to the Hague to testify. Furthermore, video-link testimony can be a useful tool for allowing victim anonymity before the accused. Video-link testimony can also be a helpful tool to enable more victims or other witnesses to participate while reducing the costs for the ICC and enabling the court to allocate resources to empowering more witnesses to testify instead of having to transport and host them at the Hague.

i. In Situ Proceedings

In Situ proceedings, while less common, also can be a helpful tool to gain victim trust and, thereby, encourage participation. Many victims often feel, and objectively are, far removed from the proceedings at the Hague. Unfortunately, the court has often found in situ proceedings to be inappropriate in cases due to safety concerns. Indeed, victims themselves can be wary of in situ proceedings because they fear that violence against the victims might erupt if the accused is brought back.44

ii. Site Visits

If in situ proceedings are not appropriate, the OTP should engage in site visits. Ideally, the Prosecutor would be able to convince the Trial Chamber to make a judicial site visit in order to fully understand the evidences the victims suffered from and increase the feeling of judicial efficacy among the affected communities.45 However, the Prosecutor can make a site visit on her own to produce similar support from the victims.46 By gaining the support and trust of the victims, there will be more victim participation that will strengthen the prosecution’s case.

2. Paper Trails and Bureaucratic States

Command Responsibility is easier to establish when there is some sort of paper trail to follow. Unfortunately, paper trails become increasingly necessary the greater the scale of crimes. For example, the Holocaust required mass amounts of planning and calculations in order to coordinate the genocide. As evidence by the trial of Adolf Eichmann, something as seemingly simple as coordinating the trains going to the concentration camps produces massive amounts of incriminating documentation and calculations.47 Command responsibility for the Holocaust was relatively easy to prove because the orders came from the top down in true bureaucratic fashion.48 Consequently, the defense of many lower level German soldiers was that they were following orders and the laws of the time.49

Paper trails are definitely helpful to the prosecution, but incriminating paper trails are most often found in cases of commission by commanders, not omission. SGBV crimes, particularly mass rape, tend to rarely be commanded explicitly from the highest commander. Thus, command responsibility in SGBV cases needs to be proved on the basis of the commander’s omissions. However, any documentation of communication between commanders and their subordinates can still be very helpful for establishing the knowledge requirements of Article 28.50

Furthermore, paper trails and other incriminating documentation are characteristic of bureaucratic countries. The preliminary investigation in Afghanistan includes “war crimes, including torture, cruel treatment, outrages upon personal dignity, rape and other forms of sexual violence by US armed forces and members of the CIA.”51 The torture papers in United States are an example of a current day paper trail that might be useful to the Prosecutor in establishing that the commander knew or should have known about the crimes being committed.5 Whether or not the Prosecutor will and should advance the investigation of the United States to a full-scale investigation is beyond the scope of this comment. If she were to hypothetically bring charges it is unclear who she would be bringing them against, and, consequently, it is unclear whether or not proving command responsibility would be an issue.

3. Vast Number of Crimes

When the sheer number of crimes is overwhelming, there will be more people touched by the crimes. The more people touched by the crimes, the more possible sources of testimony. Conflicts often attract reporters armed with cameras, microphones, and pens. Quite simply, larger conflicts attract more attention from around the world. Conflicts that are well-publicized can be useful for the OTP for two reasons: as a source of evidence or evidentiary leads to victims and as establishing command responsibility.

4. Publicized Conflicts

Furthermore, the more publicized the details of a particular conflict are the easier it should be to prove knowledge or that the commander should have known about what his troops were doing. Reliable reporting can create a sort of paper trail where there none existed before. This reporter driven paper trail can assist in command responsibility cases of omission because if the world is aware of what is going on due to reporting in devastated areas then it will be very difficult for the defense to counterargue that the accused did not in fact have knowledge and should not have known the atrocities that were being committed by his subordinates.

5. Shift of Prosecutor’s Timeline

Use of the work done by journalists in the field, can ease the burden on the Prosecutor of the new front-loading of work that must be completed before the pre-trial hearings in order to correctly charge the suspect under the Appeals Chamber’s interpretation. The entire timeline of research, investigation, and briefing that the Prosecutor must do has been seemingly shifted by the Appeals Chamber’s ruling in Bemba. Therefore, the Prosecutor must make site visits as early on in the process as possible in order to maximize their effects in addition to looking for other factors mentioned above in order to ease the new pre-trial burden that the Prosecutor faces.

Unfortunately, it is difficult to be certain the impact that the Bemba acquittal will have on the actual Pre-Trial Chamber’s process. However, until it is known for certain, the Prosecutor must to everything in her power to fulfill the new stringent standards introduced by the Appeals Chamber in the Bemba ruling in order to have a chance at successfully prosecuting crimes of command responsibility and other SGBV related crimes.

V. Conclusion

In summary, the Appeals Chamber’s judgment in the Bemba case will likely increase the difficulty for the OTP in future prosecution of SGBV crimes. Due to the lack of a recognized stare decisis doctrine at the ICC, it is hard to predict how much of an impact the Appeals Chamber’s judgment will have on the role of the Pre-Trial Chamber or on the interpretation of Article 28. However, the reality that SGBV crimes are extremely difficult to prosecute does not require speculation. Yet, the Prosecutor must continue to bring charges for these atrocious crimes. The Bemba trial brought SGBV crimes out of the shadows and into the court room. Now that it has, SGBV crimes should never again be excused as by-products of war. Victim who endured these awful crimes deserve justice.

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, ¶ 742 (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online, archived.

  2. 2.

    Fatou Bensouda, ICC Prosecutor, Statement on the Recent Judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo (Jun. 13, 2018), available online.

  3. 3.

    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 [hereinafter Rome Statute], Art. 28, available online.

  4. 4.

    See, e.g., Margot Wallström, Keynote Address at the Women and War UNSCR 1325 Tenth Anniversary Conference (Nov. 3, 2010), available online.

  5. 5.

    See, e.g., Kim Thuy Seelinger, Response to Question: “How can the ICC OTP Secure Better Cooperation from First Responders and Those Working on the Ground with Victims and Survivors to Assist in the Investigation and Prosecution of Sexual and Gender-Based Crimes?,” ICC Forum (Apr. 12, 2016), available online.

  6. 6.

    See, e.g., Susana SáCouto, Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information so that it may be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes, ICC Forum (Apr. 12, 2016), available online.

  7. 7.

    Id.

  8. 8.

    Id.

  9. 9.

    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, ¶ 571 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived.

  10. 10.

    Id.

  11. 11.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, ¶ 6 (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived.

  12. 12.

    Rome Statute, supra note 3, at Art. 74(5).

  13. 13.

    Separate Opinion of Wyngaert & Morrison, supra note 11, ¶ 8.

  14. 14.

    Id. ¶ 9.

  15. 15.

    Id. ¶ 23.

  16. 16.

    Richard H. Steinberg, Introduction to Part 6, in Contemporary Issues Facing the International Criminal Court 272–73 (Richard H. Steinberg ed., Apr. 8, 2016), doi.

  17. 17.

    Rome Statute, supra note 3, at Art. 67.

  18. 18.

    See, e.g., Alex Whiting, The ICC OTP Cannot Do It Alone: New Institutions are Required to Support the Work of First Responders, ICC Forum (Apr. 12, 2016), available online.

  19. 19.

    Id.

  20. 20.

    Id.

  21. 21.

    See, e.g., 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.

  22. 22.

    See, e.g., Kelly Dawn Askin, When Rape is a Tool of War, CNN, May 17, 2011, available online.

  23. 23.

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

  24. 24.

    Id.

  25. 25.

    Rome Statute, supra note 3, at Art. 28(a)(ii).

  26. 26.

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

  27. 27.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 729.

  28. 28.

    Bemba Appeals Chamber Judgment, supra note 26, ¶¶ 167–70.

  29. 29.

    Id. ¶ 170.

  30. 30.

    Id. ¶ 191.

  31. 31.

    See 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.

  32. 32.

    Id.

  33. 33.

    de Brouwer, supra note 23.

  34. 34.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10 OA 4, Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the confirmation of charges,” ¶ 39 (AC, May 30, 2012), available online.

  35. 35.

    Bemba Appeals Chamber Dissent, supra note 9, ¶ 34.

  36. 36.

    Id.

  37. 37.

    Rome Statute, supra note 3, Art. 74(2).

  38. 38.

    See, e.g., Alex Whiting, Appeals Judges Turn the ICC on Its Head With Bemba Decision, Just Security (Jun. 14, 2018), available online, archived.

  39. 39.

    Id.

  40. 40.

    See, e.g., Nicole Cvercko, Analysis: The ICC’s Treatment of Sexual and Gender-Based Violence Crimes, Philippe Kirsch Inst. (Jul. 18, 2018), available online.

  41. 41.

    Id.

  42. 42.

    See, e.g., 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.

  43. 43.

    See, e.g., Aggrey Mutambo, ICC Judges Order Witness in William Ruto Case to Appear via Video Link, Daily Nation, Feb. 17, 2015, available online.

  44. 44.

    The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15, Consolidated Response to Mr Gbagbo’s Requests for In Situ Proceedings and for Site Visits and to the Prosecution’s Submissions on Site Visits, ¶ 15 (TC I, Oct. 6, 2015), available online.

  45. 45.

    Id. ¶ 23.

  46. 46.

    See Lino Owor Ogora, Why the ICC Should Reconsider its Decision on In Situ Proceedings in Uganda, Int’l Just. Monitor (Oct. 7, 2016), available online.

  47. 47.

    See, e.g., Yael Weinstock Mashbaum, The Eichmann Trial: Introduction and Suggestions for Classroom Use, Yad Vashem, available online (last visited Apr. 26, 2019).

  48. 48.

    See, e.g., Laurence Rees, The Life of an Auschwitz Guard, Politico, Jul. 15, 2015, available online.

  49. 49.

    See, e.g., Deborah E. Lippstadt, Excerpt: “The Eichmann Trial” (Mar. 27, 2011), available online.

  50. 50.

    Rome Statute, supra note 3, at Art. 28.

  51. 51.

    See Preliminary Investigation Afghanistan, ICC, available online (last visited Dec. 4, 2018).

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). Bemba did not personally commit above mentioned crimes, but was instead convicted as a perpetrator on the theory of command responsibility under Article 28 of the Rome Statute.2 A theory similar to respondeat superior in civil settings, command responsibility holds military commanders criminally liable for the criminal actions of their soldiers.3 Criminal responsibility attaches if the commander knew or had reason to know of his/her soldiers’ criminal actions and failed to take all necessary and reasonable measures to prevent or repress the crimes, or submit them to competent authorities. 4 In what was the first command responsibility case brought before the ICC, Bemba was sentenced to serve eighteen years in prison.

Bemba appealed, and the Appeals Chamber (Majority) returned a decision that shocked many, deciding in a 3–2 vote to overturn his conviction. While there are many aspects of the Majority’s decision worthy of discussion, this paper focuses on the Majority’s treatment of Bemba’s position as a remote commander. The significant part of the Majority’s decision was based upon its view that the Trial Chamber erred in its evaluation of the investigative, prosecutorial, and referral measures that Bemba could have taken in light of the limitations he faced as a remote commander sending troops into a foreign country.5 However, in what seems like a cliff hanger decision, the Majority made outright statements and missed a valuable opportunity to explore and expand upon the precise role that a commander’s remoteness plays when assessing criminal liability under Article 28.

Part II of this comment examines command responsibility jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY),6 and International Criminal Tribunal for Rwanda (ICTR).7 Jurisprudence from the ICTY and ICTR are particularly helpful because they helped formulate modern standards of command responsibility, and the command responsibility statutes of the ICTY and ICTR are nearly identical to Article 28 of the Rome Statute. Part II specifically looks for mentions of remoteness in ICTY and ICTR command responsibility caselaw.

Part III of this comment analyzes and discusses the various treatments of Bemba’s remoteness by the Trial Chamber, the Majority, the Dissent, and Judge Eboe-Osuji’s Concurring Separate Opinion. It is clear that remoteness plays some role in assessing liability under Article 28, but there is a lack of consensus as to how much of a role remoteness plays and the type of evidence required.

Part IV of this comment explores the vulnerabilities of the Majority’s opinion by highlighting: the potential split decision, the failure to clearly articulate the standard and its future application, sample situations in which the Majority’s decision leads to confusing or unjust results, and the notion that remote commander will be held to a different standard from a remote commander.

Part V offers concluding thoughts and suggestions for the Appeals Chamber.

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

A. The Requisite Mens Rea

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

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

B. Necessary and Reasonable Measures

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

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

III. Treatments of Remoteness

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

A. Trial Chamber29

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

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

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

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

B. Majority Opinion43

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

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

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

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

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

C. Judge Eboe-Osuji’s Concurring Separate Opinion61

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

D. Dissenting Opinion67

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

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

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

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

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

A. Missed Opportunity to Clarify Standard

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

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

B. Split Decision

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

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

C. Gives Remote Commanders Additional Protection

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

D. Decision Creates Confusion

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

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

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

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

V. Concluding Thoughts

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

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

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

  1. 1.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online, archived.

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 28, available online.

  3. 3.

    Id.

  4. 4.

    Id.

  5. 5.

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

  6. 6.

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

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

  7. 7.

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

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

  8. 8.

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

  9. 9.

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

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

  10. 10.

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

  11. 11.

    Id. at ¶ 386.

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

  12. 12.

    Id.

  13. 13.

    Čelebići, supra note 10, at ¶ 1250

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

  14. 14.

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

  15. 15.

    Id.

  16. 16.

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

  17. 17.

    Id. at ¶ 971.

  18. 18.

    Id. at ¶ 979.

  19. 19.

    Id. at ¶¶ 980–88.

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

  20. 20.

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

  21. 21.

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

  22. 22.

    See Rome Statute, supra note 2.

  23. 23.

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

  24. 24.

    Id.

  25. 25.

    Id.

  26. 26.

    Id.

  27. 27.

    Id.

  28. 28.

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

  29. 29.

    Bemba Trial Chamber Judgment, supra note 1.

  30. 30.

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

  31. 31.

    Id. at ¶ 699.

  32. 32.

    Id. at ¶¶ 700–05.

  33. 33.

    Id. at ¶ 706.

  34. 34.

    Id. at ¶ 717.

  35. 35.

    Id. at ¶¶ 719–26

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

  36. 36.

    Id. at ¶ 729

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

  37. 37.

    Id. at ¶ 732.

  38. 38.

    Id.

  39. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    Id.

  42. 42.

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

  43. 43.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute(AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived.

  44. 44.

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

  45. 45.

    Id. at ¶ 32;see also The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Public Redacted Version of Appellant’s document in support of the appeal (AC, Sep. 28, 2016) [hereinafter Bemba’s Appellate Brief, online, archived

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

  46. 46.

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

  47. 47.

    Id. at ¶¶ 145–46

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

  48. 48.

    Id. at ¶ 146.

  49. 49.

    Id. at ¶ 166.

  50. 50.

    Id. at ¶ 167.

  51. 51.

    Id. at ¶¶ 169–70

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

  52. 52.

    Id.

  53. 53.

    Id. at ¶ 170

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

  54. 54.

    Id. at ¶¶ 171, 189, 192.

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

  55. 55.

    Id. at ¶ 172

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

  56. 56.

    Id. at ¶ 173.

  57. 57.

    Id.

  58. 58.

    Id.

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

  59. 59.

    Id. at ¶¶ 191–93

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

  60. 60.

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

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

  61. 61.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji (AC, Jun. 14, 2018) [hereinafter Concurring Opinion of Eboe-Osuji], available online, archived.

  62. 62.

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

  63. 63.

    Id. at ¶ 3.

  64. 64.

    Id.

  65. 65.

    Id. at ¶ 258

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

  66. 66.

    Id.

  67. 67.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived.

  68. 68.

    Id. at ¶ 127.

  69. 69.

    Id.

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

  70. 70.

    Čelebići, supra note 10.

  71. 71.

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

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

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

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

  72. 72.

    Id. at ¶ 44.

  73. 73.

    Id. at ¶ 45

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

  74. 74.

    Id. at ¶ 56.

  75. 75.

    Id.

  76. 76.

    Id. at ¶ 59.

  77. 77.

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

  78. 78.

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

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

  79. 79.

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

  80. 80.

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

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

  81. 81.

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

  82. 82.

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

  83. 83.

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

  84. 84.

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

  85. 85.

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

  86. 86.

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

  87. 87.

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

  88. 88.

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

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

  89. 89.

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

  90. 90.

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

  91. 91.

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

  92. 92.

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

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

  93. 93.

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

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

  94. 94.

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

  95. 95.

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

  96. 96.

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

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 new questions and challenges for the Court.1 As the first case before the ICC on the issue of command responsibility the Bemba trial was sure to be riddled with controversy.

One area that has received little attention in the Bemba aftermath is the question surrounding the requirement, or lack thereof, that a military commander must be said to have causally contributed to the crimes committed by their subordinates. The legal justification for this requirement comes from Article 28(a) of the Rome Statute which states that a military commander may only be held liable for crimes that were committed “as a result of” that commander’s failure to exercise control over her subordinates.2

The theory that a criminal defendant must have causally contributed to the crime for which they are accused is foundational to the very notion of criminal liability.3 Where the defendant is being tried as a principal actor in a crime the notion of causal contribution is often taken for granted. If person A shoots person B and person B subsequently dies, there is no question that person A’s action was the direct cause of person B’s untimely death. The problem becomes far more attenuated in the case of command responsibility where the superior commander may have neither participated in nor even had direct knowledge of any crime committed by her subordinates. This problem has vexed legal philosophers for millennia and interpretations of just how proximate the actions or omissions of the superior need to be to the underlying crimes have varied greatly.4

Although this notion was discussed at some length in the decisions of the Pre-Trial Chamber,5 the Trial Chamber,6 the separate opinions of the Appeals Chamber7 and the dissenting opinion of the Appeals Chamber,8 it was conspicuously absent from the majority decision of the Appeals Chamber.9 That absence is disappointing as it leaves a major issue in command responsibility jurisprudence unanswered and open to significant future controversy. This comment seeks to establish where the issue of causation stands after Bemba.

Part II of this comment will give an overview of how the causation element of command responsibility has been applied in prior international criminal tribunals, including the Bemba case. Part III will offer prescriptions for how the ICC and future tribunals should deal with the causation problem moving forward.

This comment seeks to answer two distinct questions: Is causation a requirement of command responsibility pursuant to Article 28? If so, due to the lack of consensus on the issue, what degree of causation should be required in order to prove this element?

To the first question, I argue that due to the failure of the Appeals Chamber to reach a consensus on the causation element of Article 28, the issue remains very much unresolved. While nine of the eleven judges who reviewed the case concluded that causation is an distinct element under Article 28, the two judges who do not happen to be in the majority of the Appeals Chamber.10 Even so, the third judge in the majority, Judge Eboe-Osuji, argued unambiguously that causation is an element.11 Thus, it appears likely that future Judges in future command responsibility cases before the ICC will follow this conclusion.

To the second question, I argue that the standard adopted by the Pre-Trial and Trial Chambers is manifestly unfair to the accused as it places a severely low burden of proof on the Prosecution. The Court must require the Prosecution to prove beyond a reasonable doubt that the criminal acts of the subordinates were in some way influenced by the failure of the superior to effectively control their troops or their failure to submit prior offenses to a competent authority. Inherent in such a standard would be limitations on sort of remoteness considerations, both geographically and temporally. For example, it would be difficult to show that a commander’s omissions five years prior influenced a subordinate’s actions in the present. Likewise, it will be equally difficult to demonstrate that a commander’s failure to punish a subordinate in Kenya influenced the actions of a soldier in the Congo, without more.

II. Causation in International Law Jurisprudence

A. Causation in Command Responsibility Before Bemba

The theory of that a commander could be held legally responsible for the crimes of their subordinates has been around since the mid 19th century, though there was no mechanism of international enforcement of this concept until much later as that was generally the primary responsibility of domestic legal systems.12 Indeed, the first codified international treaty agreement recognizing the existence of a causal connection between a commander’s failure to exercise her duty to control her subordinates and the commission of war crimes by those subordinates was in 1977 adoption of Article 86(2) of Additional Protocol I to the Geneva Conventions.13 This stated in relevant part:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.14

Article 86(2), while unmistakably establishing that the omissions of a superior could result in the commission of crimes by subordinates, does not go so far as to require causation as an entirely separate element of proof in the prosecution of such crimes. Further, as will be discussed below with regard to the opinion of Judge Eboe-Osuji, it does not state, as Article 28 of the Rome State does, that a superior will be held responsible for the crimes of their subordinates.15 Rather, it implies that failure to prevent or repress a breach of the Protocol by a subordinate is an entirely separate offense.

The language of Additional Protocol I was adopted largely verbatim by the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY)16 and the International Criminal Tribunal for Rwanda (ICTR).17 For example, Article 7(3) of the ICTY Statute reads:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.18

This language again accepts that a commander’s failure to take necessary and reasonable preventative measures can have a causal effect on a subordinate’s ability or willingness to commit a crime. Yet, unlike the wording of Additional Protocol I, the ICTY statute distinctly separates the commander’s failure to punish and the commander’s failure to prevent. Article 86(2) speaks only of a commander’s knowledge as it related to crimes being committed or about to be committed. Article 7(3), on the other hand, relates to crimes the subordinate “was about to commit… or had done so.”19 This is an important distinction and lends credence to the idea that command responsibility, at least as it relates to failure to punish, under the ICTY and ICTR statutes was intended to criminalize superiors under a separate offense and not for the actual criminal acts of the subordinates.

The leading ICTY case on command responsibility is Prosecutor v. Delalić (Čelebići ).20 The Trial Chamber in Čelebići, while recognizing “the central place assumed by the principle of causation in criminal law,” argued that it found:

[N]o support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject.21

The Court further argued that because a causal link cannot possibly exist between an offense committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offense, no requirement of causality could ever exist as part of the doctrine of command responsibility.22 Essentially, the Čelebići Court was stating that if causation cannot exist in the failure to punish branch of command responsibility, then it cannot also exist in the failure to prevent branch because Article 7(3) does not distinguish between the two with regard to elements of proof.23

Logically speaking, the Court is correct in that a commander’s failure to punish a subordinate for a crime that has already been committed could not be said to have caused that crime. Accordingly, it would be both unnatural and unjust to punish the commander as a principal or accomplice for a crime that they neither participated in nor could have prevented. To be sure, the argument has been advanced that punishment as principal under such circumstances would be permissible under the theory that the commander’s failure to punish the crime is evidence of her tacit approval of such crimes and, therefore, she shared the mens rea of the underlying actor.24 This approach has some limited acceptance in international criminal jurisprudence. In Prosecutor v. Sawada before the Tokyo Tribunal, Lieutenant-General Sawada was held to have “ratified” crimes that were committed by his subordinates while he was away and that he failed to punish upon his return.25 Additionally, the Trial Chamber in the Halilović case reasoned that the tacit acceptance argument as “not without merit,” because a failure to punish is “so grave that international law imposes upon him responsibility for those crimes.”26 Yet, this is a rather strained reading of the statute as it seeks to infer and attach a mental state to an individual without any additional proof. Regardless, it is not the position adopted by the ICTY.

The flaw in this reasoning is evident and, interestingly, the Čelebići Court even seems to acknowledge this. Indeed, the Court reasons that a causal connection between a commander’s failure to punish past crimes and the commission of future crimes is “not only possible but likely.” But the Court seems to view this causal connection not as a failure to punish but as a failure to prevent. The commander’s lack of punishment, in this sense, should be viewed as a preventative measure that could have been taken to avoid the commission of future crimes. This conflation of the two branches of command responsibility misses the point. As Professor Robinson notes:

‘[F]ailure to prevent’ and ‘failure to punish’ are not redundant; they offer two distinct ways to prove the failure of the commander. A prosecutor may prove either inadequate preventative measures or inadequate efforts to investigate and prosecute crimes. Either provides the dereliction that, if accompanied by a blameworthy state of mind and a contribution to crimes, can ground accomplice liability for resulting crimes. Thus, respecting the contribution requirement does not render the ‘failure to punish’ branch superfluous.27

The Čelebići Court could have easily deduced a causality requirement in Article 7(3) while still recognizing that it cannot possibly exist with regard to past crimes, but only to future crimes. Nevertheless, the approach adopted in Čelebići became the dominant position for future ICTY and ICTR Courts.28

B. Competing Interpretations of the Bemba Court

1. Pre-Trial and Trial Chambers
i. Majority Opinions

The Pre-Trial and Trial Chamber opinions take a strong anti-accused position by essentially adopting the approach pushed for by the Prosecution and the amicus curiae brief of Amnesty International.29 The opinion states that:

[T]o find a military commander or person acting as a military commander responsible for the crimes committed by his forces, the Prosecutor must demonstrate that his failure to exercise his duty to prevent crimes increased the risk that the forces would commit these crimes.30

The opinion does not elaborate further on how much the risk would need to be increased; however, the decision argues that because:

[P]unishment is an inherent part of the 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.31

Thus, the standard adopted by the Pre-trial chamber would allow the Prosecutor to obtain a conviction under Article 28 simply by demonstrating that:

  1. a subordinate committed a crime;

  2. the commander did not punish that crime; and

  3. a future crime was committed by either the same or another subordinate.

Although the opinions of the Pre-Trial and Trial Chambers explicitly contradict ICTY case law on command responsibility by affirming that causality must exist between the superior’s failure to control her troops and the subordinate’s underlying crimes, that is about as far as they are willing to go. Indeed, the “risk aggravation” theory, according to the Pre-Trial Chamber, states that “there is no direct causal link that needs to be established”32 between the failure to punish or prevent and the underlying criminal acts. On its face, the internal contradiction in the reasoning that causality is a necessary element of command responsibility but no direct causal link between the omission and the crime needs to be established appears hard to reconcile. Yet, what the Pre-Trial and Trial Chambers appear to be saying is that causality can be inferred from the increased risk because that increased risk must have been at least one of the causes of the underlying crime.

ii. Separate Opinion of Judge Steiner

Clearly unpersuaded by the extraordinarily weak standard of causation proposed by the Pre-trial Chamber and the majority opinion above, Judge Steiner attempts to find a middle ground by arguing that:

[T]he causality requirement would be satisfied where, at least, there is a high probability that, had the commander discharged his duties, the crime would have been prevented or it would have not been committed by the forces in the manner it was committed.33

Recognizing that the position adopted by the majority would essentially turn command responsibility into a strict liability crime, Judge Steiner seeks to raise the threshold to force the Prosecution to produce evidence of an actual connection between the commander’s failure to control and the underlying crime rather than simply showing the former.

This is a notable step in favor of the accused, but it still does not provide a clear, enforceable standard. Primarily, Judge Steiner does nothing to clarify what the difference between the “increased risk” and “high probability” standards are. The opinion states that the “high probability” standard is something below the position argued for by the defense: that that crimes be “(i) the ‘certain’ consequence of the omission [of the commander]; or (ii) ‘a direct and reasonably foreseeable’ consequence of the omission.”;34 however, Judge Steiner does not define what, exactly, that difference is.

2. Appeals Chamber

The majority opinion of the Appeals Chamber does not discuss nor make any conclusive determination on the issue of causation. The opinion only states that Article 28 is not a form of strict liability,35 implying that the majority believes there is a causation requirement but fails to clarify further. Nonetheless, because the majority opinion does not elaborate on the causality problem, this section will focus only on the varying interpretations of the two separate opinions and the dissenting opinion.

i. Separate Opinion of Judges Van den Wyngaert and Morrison

This opinion is by far the most deferential to the accused. Judges Van den Wyngaert and Morrison suggest that proximity of command is paramount in determining whether the acts of a superior could have a causal effect on the crimes committed by subordinates.36 They reason the because superior commanders—those at the highest level of military command—cannot possibly be expected to monitor the day to day activities of the troops on the ground, they cannot be said to have “effective control” of those troops.37 Thus, since this essential element of Article 28 cannot be established, it will be nearly impossible for a prosecutor to prove that a superior commander is liable for the crimes of those at the bottom or the military hierarchy.

With regard to punishing subordinates for crimes they have committed or referring their criminal behavior to competent authorities, Judges Van den Wyngaert and Morrison state that failure to do this “can only be said to have a causal effect on subsequent crimes in very exceptional circumstances.”38 In order for the Prosecutor to convict on these grounds, she would have to show beyond a reasonable doubt:

[T]hat the perpetrators of the subsequent crimes knew about the initial crimes, knew that the commander was aware of this crime and that he or she deliberately failed to take any measures to have the perpetrator held to account, and that this played a significant role in their decision to commit crimes themselves.39

This is a nearly impossible standard to meet.

The opinion of Judges Van den Wyngaert and Morrison, if applied in future cases, would create a situation whereby the highest level of military commanders could essentially never be held liable for the crimes committed by ground level troops and, even in situations where a military commander has direct control, the prosecutor would have to gather evidence about the actual knowledge and mental state of both the superior and the subordinate. This is clearly unworkable and would essentially mean the end of the doctrine of command responsibility in international criminal law.

ii. Separate Opinion of Eboe-Osuji

Judge Eboe-Osuji argues that the “result of” element of Article 28 needs to be analyzed through careful observation of the purpose, language and scope of the Rome Statute itself.40 Judge Eboe-Osuji notes that causation is indeed and essential element of command responsibility under Article 28.41 The bulk of the opinion, however, deals with the causation threshold and the burden of proof on the prosecution to establish this element. Judge Eboe-Osuji states:

What is required is merely that the defendant’s ‘contribution must be more than negligible or not to be so minute that it will be ignored under the ‘de minimis’ principle.42

Yet, the opinion goes on to argue that because of the unique nature of the military commander during times of war:

[T]he manner in which the opportunity [for the subordinate to commit the crime] was afforded goes well beyond merely ‘permitting’ or ‘not preventing’ the forbidden harm—it indeed involves ‘setting in motion’ a chain of tangible events (notably training, arming and deploying the subordinates), which culminated in the resulting harm.43

Thus, a commander who “enables the prospects of harm by creating the danger of their occurrence”44 can and should be held liable for the underlying offenses committed by her subordinates.

Judge Eboe-Osuji reaches this conclusion by comparing the two main competing theories of command responsibility: dereliction of duty and complicity. While dereliction of duty is a sui generis crime, complicity is a theory of liability holding a commander responsible as a principal for the underlying crimes committed by the subordinate. The prevailing jurisprudence of the ad hoc tribunals held that dereliction of duty was the proper lens through which to assess the criminal responsibility of commanders.45 These ad hoc tribunals traced their reasoning to Article 86(2) of Additional Protocol I to the Geneva Conventions.46

Although Article 86(2) does not clearly differentiate between dereliction of duty and complicity as the proper standard for command responsibility, the difference in language is clear. Whereas Article 28 of the Rome Statute states that a commander will be held responsible “for” the crimes committed by their subordinates, Article 86(2) merely states that superiors will not be absolved “from penal or disciplinary responsibility, as the case may be.”47 As Judge Eboe-Osuji notes, the tendency of the judges in the ad hoc tribunals to learn towards the more lenient dereliction of duty standard makes sense: there is obvious discomfort in punishing an individual for crimes committed by others when that individual neither participated in the actus reus nor shared the mens rea.48 Nonetheless, the language of Article 28 is relatively clear as the insertion of the word “for” indicates that the drafters intended to hold commanders responsible as accomplices to their subordinates and not for a separate crime. Moreover, Article 28 states that the crimes for which the commander is prosecuted must be “within the jurisdiction of the court.” Dereliction of duty—or some analogous crime—is not one of the crimes enumerated in Article 5. To that point, there is a serious problem of pleading as Bemba was tried and convicted not for dereliction of duty, but for war crimes and crimes against humanity.49 Thus, as Judge Eboe-Osuji reasons, accomplice liability is the proper lens through which to view command responsibility.

Because Article 28 purports to hold a commander responsible as an accomplice for crimes they did not participate in, Judge Eboe-Osuji argues that proving the causal connection places:

[An] exacting burden upon the Prosecution to prove the indicated links of complicity between the subordinate’s crime and the commander’s prior connivance or condonation…Failure to discharge the burden of proof on the criminal standard will result in an acquittal, as is the case with the present appeal.50

Indeed, Judge Eboe-Osuji very clearly states that the causality requirement would be met when:

(1) Where it is shown that the commander really had effective control over the subordinates, but wilfully declined or abstained from exercising such effective control, resulting in failure to prevent or repress the crime; or that he wilfully failed to punish or prompt the punishment of rogue subordinates in a manner that emboldened them subsequently to commit the same or kindred crimes that the commander voluntarily failed to punish on a previous occasion. As part of this condition, it must be shown that the failure to exercise proper control (which is the commander’s indicted failing) is attributable to the commander’s wilful abstention from exercising effective control that was within his ability at all material times: it may not be enough that the failure to exercise effective control is merely symptomatic of his real lack of effective control in the first place (except possibly in circumstances where the doctrine of endangerment may prevent him from escaping criminal responsibility, if he created the danger in the first place, but failed to put commensurate measures in place ahead of time to control the danger); (2) Where it is shown that the crimes committed after the failings indicated above are the demonstrable ‘result of’ those failures. Indeed, this is in the sense that those failings had encouraged the crimes that had been committed;51

The opinion goes on to clarify that part (2) of this test must be shown “beyond a reasonable doubt.”52

This test is interesting because it does, as indicated, provide for an exacting burden on the Prosecution, but it does not provide clarity on the issue of causation specifically. Rather, it sets an extraordinarily high bar for the prosecution to prove with regard to the mens rea of the commander, but not to the subsequent causation. Once the former is established, proof of the latter appears to be much easier. It will be very hard for the prosecutor to demonstrate beyond a reasonable doubt that the commander willfully abstained from her duties. Assuming a commander is willfully failing to control her troops, it follows that the causal connection between such failure and the underlying offenses of subordinates will be easier to establish because there is likely a widespread culture of impunity. In the end, while Judge Eboe-Osuji does provide a thorough analysis of the causation element, his ultimate holding does little to clarify what type of proof is needed for the Prosecutor to demonstrate causation beyond a reasonable doubt.

iii. Dissenting Opinion

The dissenting opinion follows the exact line given by Judge Steiner in her separate opinion at the Trial Chamber. The opinion begins by analyzing whether the “result of” element of Article 28 requires a showing that the superior’s failure to exercise control properly caused the commission of crimes by her subordinates.53 In finding that it does, the dissent relies on three primary reasons.

First, the fact that, unlike other provisions of Article 28 of the Rome Statute, explicitly calls for a causation requirement by stating that the crimes of the subordinates be committed “as a result of” the commander’s failure to exercise control properly, strongly indicates the intention of the drafters to make causality a distinct element.54 Second, holding a superior “’criminally responsible for the crimes within the jurisdiction of the Court’ committed by his or her subordinates… without causation would be incompatible with the culpability principle.”55 (Dissenting opinion at ¶ 333). The ICTY Appeals Chamber in Tadić appropriately described that principle as follows:

The basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa).56

Thus, the dissenting opinion argues, it would be irreconcilable with basic tenets of criminal law to not require a personal nexus to the underlying offenses. Finally, the addition of the “result of” element in Article 28, when it was not present in prior international criminal statutes, strongly favors the interpretation that the drafters of the Rome Statute believed the ICTY and ICTR statutes did not go far enough.

The opinion then moves on to determine what the causality threshold should be. Similar to the Pre-Trial and Trial Chambers, the dissent rejects the applicability of a strict “but-for” test. The opinion argues that the nature and complexity of the cases before the ICC are such that it would almost always be possible to construct a hypothetical scenario in which, despite the best efforts of the commander, the crimes still would have been committed because of some intervening event. Thus, it follows that, if such a test were applied, no commander would ever be convicted pursuant to Article 28. In the end, the dissent adopts the view of Judge Steiner’s “high probability” test because it will ensure that “responsibility only arises when there is a demonstrably close link between the commander’s omission and the crimes committed by his or her troops.” Likewise, it will avoid acquittal on the grounds of possible, yet highly unlikely hypothetical scenarios that could have also caused the crimes to be committed.

III. Where Does the Issue Stand Now and Where Should It Go From Here?

As is evident from the above discussion, the legal standard for causation in the context of command responsibility is far from settled. Opinions on the issue range from no contribution requirement at all to a highly stringent “but-for” test. Due to the extraordinary lack of consensus, the logical question becomes: what standard should the ICC employ moving forward? The answer to this question depends on how much precedential weight should be given to each of the competing separate majority opinions versus that of the dissention opinions, which is more consistent with both the Pre-Trial and Trial Chambers. A more careful analysis on the precedential value of split decisions on the ICC is the topic of an entirely separate paper.

For the purposes of this comment I will first try to distill a common thread from each of the opinions discussed above, giving the greatest weight to those in the majority of the Appeal Chamber. From there I will discuss potential flaws in the positions taken by the Appeals Chamber and suggest more desirable alternatives. I argue that the position taken by Judge Eboe-Osuji provides the clearest and most reasonable solution to the causation problem but that it still leaves unanswered major questions such as the factors to be taken into account by the court and the burden of proof required by the Prosecutor to satisfy each.

A. Where the Court is Now

The lack of consensus at the Appeals Chamber on the issue of causation is concerning as it leaves an important area of law wholly unresolved. Complicating this is the fact that, even among the majority, opinions differed as to the element of causation. Even so, taken together, the overwhelming majority of judges at the ICC support the notion that causation is a distinct element of command responsibility that needs to be proven. Both the Pre-Trial and Trial Chambers unanimously agreed that causation is required under Article 28. Additionally, three of the five judges in the Appeals Chamber agreed on the same issue. The problem, of course, is that two of those three judges wrote the dissenting opinion. Further muddying the waters is that the lone opinion in the majority supporting the notion of causality fundamentally differs on the standard that should be applied from the Dissenting Opinion and both the Pre-Trial and Trial Chambers, each of which are basically in total agreement.

The result is a very narrow holding that will leave a lot of work for future Courts to unravel.57 Ultimately, it is highly likely that causation will be found to be an essential element of command responsibility under Article 28. Nine of the eleven judges that reviewed the case found in favor of causation, and nearly every scholar that has written on the issue has concluded the same. Indeed, the Separate Opinion of Judges Van den Wyngaert and Morrison represents a startling departure from nearly unanimous legal consensus on this issue. Moreover, for an opinion that departs so drastically from the positions set out by the Pre-Trial Chamber, Trial Chamber and even Judge Eboe-Osuji, it cites to almost no authority, either judicial or scholarly, to support its conclusion. Thus, judges presiding over future cases before the ICC will more likely than not conclude that causation is a required element. The question of what the causation threshold should be, however, remains uncertain.

B. Where Should the Court Go From Here?

To answer the question of what the causation standard should be moving forward, it is necessary to apply the principles of interpretation set out in Articles 31 et seq. of the Vienna Convention on the Law of Treaties.58 As such, the language of the statute must be read in the ordinary meaning of the terms of the treaty “in their context and in the light of its object and purpose.”59 This section will first analyze whether Article 28 does, in fact, require proof of causation as a distinct element of command responsibility. Next, this section will attempt to determine what the appropriate causation threshold should be by evaluating the merits of each of the various tests proscribed by the Judges above. It should be noted that because I ultimately conclude that causation will be found to be a distinct element of command responsibility under Article 28, I will not consider the Separate Opinion of Judges Van den Wyngaert and Morrison in this analysis as they believe it is not.

1. Is Causation a Distinct Element?

The Rome Statute, along with the statutes for the prior ad hoc international criminal tribunals, was designed to put an end to impunity for the perpetrators of unimaginable atrocities that deeply shock the conscience of humanity. (Eboe-Osuji at ¶ 244). Indeed, the preamble to the Rome Statute includes a cross-reference to the purposes of the UN Charter, the first of which is “to save succeeding generations from the scourge of war.” Thus, from a policy perspective, it is easy to see the purpose of the Rome Statute as aimed at protecting innocent civilians from the extreme dangers of warfare committed, or contributed to, by persons in positions of command. The significance of that policy must comprise questions about the criminal responsibility of those implicated in creating the danger of such ravages of armed conflicts upon innocent civilians.

Similarly, as noted by several of the opinions, command responsibility cases before the ICC are unique in that they are often:

[L]arge scale and complex by nature, often requiring an assessment of the culpability of individuals who are physically or geographically remote from the scene of the crimes, and frequently involving many intervening actors.60

The conflict between these competing realities is obvious. On the one hand, the international community wants to bring justice to the victims of the world’s worst crimes. On the other, warfare is inherently a:

[M]ortally dangerous transaction with limited social utility… [involving] civilian victims who are the veritable grass trampled upon by dueling elephants.61

Even an army guided by the most circumspect of commanders can cause significant civilian collateral damage. The law, while recognizing that the worst impulses of war must be punished and deterred, should not be too quick to impose liability on those who may truly have been acting in good faith. Accordingly, the ICC must abide by the core principle of criminal law:

[I]ndividual criminal responsibility should only attach to an accused where there is some form of personal nexus to the crime.62

The final language and drafting history of Article 28 also both strongly support the notion that it was intended to include a personal nexus requirement between the accused and the underlying crime. As noted above, the prior ad hoc tribunals rejected a causality requirement for command responsibility. Yet, those tribunals were acting under a different statutory framework. Neither the ICTY nor ICTR statutes included any language requiring proof of causality. The inclusion of the phrase “as a result of” in Article 28 takes on important meaning when viewed against the backdrop of prior command responsibility jurisprudence. The travaux préparatoires support this.63 It seems evident from the summary of negotiations that the State Parties intended to make the causality requirement explicit in Article 28, unlike the language of the prior international tribunal statutes. Moreover, unlike other provisions of the Rome Statute, Article 28 explicitly states the nexus requirement through the addition of the “result of” phrase. Thus, in accordance with the vast majority of the Judges in Bemba and scholarship on the subject,64 it seems evident that causation is a required element of Article 28.

2. What Is the Appropriate Causation Threshold?
i. Risk Aggravation and High Probability Tests

These two tests, adopted by the Pre-Trial and Trial Chambers, along with the separate opinion of Judge Steiner and the Dissenting opinion in Appeals Chamber, respectively, are the two most pro-Prosecution standards. I analyze them together because they are essentially the same test. The “high probability” standard adopted by Judge Steiner nominally appears to raise the causality threshold from the simply “risk aggravation” test, but neither of the two opinions supporting this test do anything to clarify what separates the two.

This interpretation of the causality element represents a natural progression in command responsibility jurisprudence given the obvious semantic differences between the statutes of the ad hoc tribunals and the Rome Statute. The insertion of the phrase “as a result of” in Article 28 clearly implies that the drafters intended to depart from ICTY jurisprudence holding that causation is not a distinct element of command responsibility. Nonetheless, it is likewise evident that the Pre-Trial and Trial Chambers were uncomfortable leaping too far in the opposite direction by adopting a strict “but for” causality test. To be sure, the “risk aggravation” test does comport with the plain language of Article 28, but the rationale provided for such a test in these opinions leaves much to be desired.

First, in dismissing the enforceability of a “but for” causality test, the opinions both overstate the predictability of positive acts and understate the predictability of omissions. The Pre-Trial Chambers argues:

[C]ontrary to the visible and material effect of a positive act, the effect of an omission cannot be empirically determined with certainty. In other words, it would not be practical to predict exactly what would have happened if a commander had fulfilled his obligation to prevent crimes.65

From a naturalistic perspective, it is true that an omission cannot possess “causal energy” in that the failure to commit an act will not set in motion a series of future events.66 For example, a car will not start without the positive act of sticking the key in the ignition and turning it. But such a perspective assumes a world at absolute zero, where no molecular motion exists until some intervening actor actively changes the status quo. The reality of the world is that things are constantly in motion and the outcomes of both acts and omissions are inherently impossible to predict with certainty. It is true that the act of shooting an individual at point-blank range will almost certainly cause a deterioration in health. Yet, it is also equally true that a soccer player who fails to shoot will certainly never score a goal. Thus, while a “but for” causality test may be extraordinarily difficult to apply to a wartime scenario with thousands of potential intervening actors, dismissing that test should not be grounded in the reasoning that the causal effect of omissions is too difficult to ascertain or prove beyond a reasonable doubt.

Second, the test adopted by the Pre-Trial and Trial Chambers purports to require the Prosecutor to prove that the superior’s omissions “increased the risk” of the subordinate committing the underlying offense, but the opinion’s dicta does all the Prosecutor’s work for her. By conceding that a failure to punish past crimes will likely increase the risk of future crimes, the Pre-Trial and Trial Chambers are essentially establishing strict liability for any commander that fails to punish crimes committed by their subordinates. According to this reasoning, it seems immaterial whether the subordinate was actually motivated by the failure to punish or even that the subordinate actually knew about the prior unpunished crime. Thus, such a standard, while nominally creating a causation requirement, does not really go further than that utilized by the ad hoc tribunals.

Lastly, and perhaps most importantly, a standard that holds a commander liable for increasing the risk of crime even slightly is manifestly unfair to the accused. Certainly, victim protection is one of the primary purposes of the ICC, but it need not come at the expense of fundamental principles of criminal law. The increased risk standard allows for the conviction of a superior for the crimes of her subordinates without any showing of direct causal effect on that crime. The superior neither needs to possess the mens rea of the subordinate nor even encourage the actus reus to be held liable as an accomplice. Further, the Pre-Trial and Trial Chambers place no limit, either temporal or geographic, on the distance between the failure to punish and the underlying crime. Under such a standard, at least theoretically, a superior could be held liable for a crime committed by a subordinate that was not even under their control when the first crime went unpunished. Thus, even though victim protection is a laudable goal, superiors should not be held responsible for the underlying criminal acts of their subordinates without some showing of direct causal impact of their failure to control and those acts.

ii. Causation Beyond a Reasonable Doubt After Willful Failure to Control by a Commander

As noted above, the opinion of Judge Eboe-Osuji provides the most well-reasoned analysis of the causation issue of any of the Judges that presided over the Bemba case. Indeed, I believe Judge Eboe-Osuji was correct in his conclusion that Article 28 constitutes a form of accomplice liability for commanders and, as such, should require a close causal connection between the commander’s actions or omissions and the underlying offense. However, I think the test he provides is unreasonably strict in terms of mens rea requirements and unfortunately unspecific in terms of causality requirements.

With regard to mens rea, which Judge Eboe-Osuji says needs to be shown as a condition precedent to even getting to the causation element, the willfulness standard he provides sets an extraordinarily high bar on the prosecutor. Gathering evidence that shows a commander acted willfully in disregarding their duties pursuant to Article 28 will be very hard to do. Rarely will there be any documented record of a commander explicitly refusing to punish a subordinate, purposefully failing to train her troops or actively encouraging a subordinate to commit a war crime. If such evidence did exist, the case for the Prosecutor would be easy to satisfy regardless of the high mens rea standard.

More importantly, the proposed willfulness standard does not seem to fit with the language of Article 28. The only mens rea requirement mentioned is in Article 28(a)(i), which states that a commander’s failure to control only creates liability with respect to crimes they either “knew or, owing to the circumstances at the time, should have known”67 were being committed or about to be committed. Nowhere in the Statute is willful or deliberate ignorance of crimes mentioned as a requirement for liability. Thus, it seems that the standard proposed by Judge Eboe-Osuji is higher than that required by the Statute and would make prosecution under Article 28 exceedingly difficult.

Even if the Prosecutor could overcome the mens rea burden, proving causation under Judge Eboe-Osuji’s test would be another challenge. I think that Judge Eboe-Osuji is correct in that causation should be proven beyond a reasonable doubt, but he does not give much indication as to what factors will be weighed in order for the Prosecution to meet that burden. The opinion does mention remoteness and temporal proximity as potential factors that would influence causality, but he does not give either much weight.68 Indeed, he suggests that there is no statute of limitations on international crimes so temporal proximity between the failure to punish and the underlying offense plays almost no role in the possible causal connection with the two.69 Thus, there is no clear indication of how the Prosecutor would be able to convince Judge Eboe-Osuji that causation has been established beyond a reasonable doubt.

iii. Prescriptions

I argue that the standard adopted by the Pre-Trial and Trial Chambers is manifestly unfair to the accused as it places a severely low burden of proof on the Prosecution. A simple risk aggravation test would potentially open up liability to a wide range of commanders that may have allowed isolated infractions to go without punishment, but cannot be said to then tacitly condone all future war crimes that may be committed thereafter. While I recognize the sui generis nature of command responsibility vis-à-vis domestic criminal law, I find it hard to rationalize a step so far away from the foundational notion of nulla poena sine culpa.

Instead, the standard should be somewhat closer to that proposed by Judge Eboe-Osuji, requiring proof beyond a reasonable doubt that the underlying criminal acts were a result of the actions or omissions of the superior. Necessary factors in such a standard would be considerations of remoteness, both geographically and temporally, actual or constructive knowledge on the part of the subordinates regarding the failures of the commander, and whether the commander is still in a position of power at the time the crime is committed. Neither of these factors would be dispositive on their own, but must be weighed based on a totality of the circumstances. For example, it will be difficult to show that a commander’s omissions five years prior influenced a subordinate’s actions in the present, especially if that subordinate was not in the commander’s employ at the time of the original infraction. Likewise, it will be equally difficult to demonstrate that a commander’s failure to punish a subordinate in Kenya influenced the actions of a soldier in the Congo, without more.

Additionally, while it will be difficult or impossible to obtain direct testimonial evidence from the subordinate about their knowledge of the commander’s failure to punish or control her troops in the past, the Prosecutor may be able to establish proof of a culture of impunity by showing the widespread commission of minor unpunished infractions that may not constitute war crimes. Such a culture could lead a subordinate to believe that the commander would allow or permit more serious crimes to go unpunished. Ultimately, this standard is not perfect, but I believe it will allow for more consistent Prosecution and give the Judges a clearer lens through which to decide on the liability of commanders.

IV. Conclusion

Ultimately, the split decision in the Appeal Chamber acquitting Jean-Pierre Bemba Gombo has left the ICC with more problems than solutions. Of the many unanswered questions resulting from this decision, the question of causality in command responsibility is one that will need to be settled. As I have argued in this comment, the different causation tests proposed by each of the Judges above, if implemented, would lead to vastly different conviction outcomes. A clear standard would allow the Prosecutor to collect evidence to meet that standard instead of wasting time and resources. This would make the ICC more efficient and, consequently, help to build support among the international community.

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

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 28, available online.

  3. 3.

    Andrew P. Simester, John R. Spencer, G. Robert Sullivan & Graham J. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine 84 (4th ed. 2010).

    (The requirement of causation is fundamental to our understanding of actus reus in criminal law).

  4. 4.

    See Phillip DeLacy, The Problem of Causation in Plato’s Philosophy, 32 Classical Philology 97 (Apr. 1939), doi paywall.

  5. 5.

    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 (PTC II, Jun. 15, 2009) [hereinafter Bemba Pre-Trial Decision], available online, archived.

  6. 6.

    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.

  7. 7.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx3, Concurring Separate Opinion of Judge Eboe-Osuji (AC, Jun. 14, 2018) [hereinafter Concurring Opinion of Eboe-Osuji], available online, archived.

  8. 8.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived.

  9. 9.

    Bemba Appeals Chamber Judgment, supra note 1.

  10. 10.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, ¶ 56 (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived.

  11. 11.

    Concurring Opinion of Eboe-Osuji, supra note 7, at ¶ 202.

  12. 12.

    Otto Triffterer, Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?, 15 Leiden J. Int’l L. 179 (2002), paywall, doi.

  13. 13.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 86(2), Jun. 8, 1977, [hereinafter Additional Protocol I], available online.

  14. 14.

    Id.

  15. 15.

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

  16. 16.

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 7(3), U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], available online.

  17. 17.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, Art. 8(2), U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute], available online.

  18. 18.

    ICTY Statute, supra note 16, at Art. 7(3).

  19. 19.

    Id.

  20. 20.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement, ¶ 398 (ICTY TC, Nov. 16, 1998) [hereinafter Čelebići], available online.

  21. 21.

    Id.; M. Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia 350 (1996).

  22. 22.

    Čelebići, supra note 20, at ¶ 397.

  23. 23.

    Id.

  24. 24.

    Darryl Robinson, How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution, 13 Melb. J. Int’l L. 1 (Oct. 28, 2011), available online, archived, doi.

  25. 25.

    Trial of Lieutenant-General Shigeru Sawada and Three Others, US Mil. Comm. in Shanghai, Case No. 25, at 15 (Apr. 15, 1946), available online.

  26. 26.

    The Prosecutor v. Sefer Halilović, IT-01-48-T, Judgement, ¶ 95 (ICTY TC, Nov. 16, 2005) [hereinafter Halilović], available online.

  27. 27.

    See Robinson, supra note 24, at 28.

  28. 28.

    See, e.g., The Prosecutor v. Tihomir Blaškić, IT-95-14-A, Judgment, ¶ 75–77 (ICTY AC, Jul. 29, 2004) [hereinafter Blaškić], available online

    (concluding that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes is not an element of command responsibility that requires proof by the Prosecution in all circumstances of a case);

    The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-T, Judgment, ¶ 445 (ICTY TC, Feb. 26, 2001) [hereinafter Kordić and Čerkez], available online; Halilović, supra note 26, at ¶ 78; The Prosecutor v. Enver Hadžihasanović and Amir Kubura, IT-01-47-A, Judgment, ¶ 40 (ICTY AC, Apr. 22, 2008) [hereinafter Hadžihasanović], available online; The Prosecutor v. Jean Mpambara, ICTR-01-65-T, Judgement, ¶ 26 (ICTR TC I, Sep. 11, 2006), available online.

  29. 29.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Amicus Curiae Observations on Superior Responsibility Submitted Pursuant to Rule 103 of the Rules of Procedure and Evidence (PTC II, Apr. 20, 2009), available online.

  30. 30.

    Bemba Pre-Trial Decision, supra note 5, at ¶ 426.

  31. 31.

    Id. at ¶ 424.

  32. 32.

    Id. at ¶ 425.

  33. 33.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343-AnxI, Separate Opinion of Judge Sylvia Steiner, ¶ 24 (TC III, Mar. 21, 2016), available online, archived.

  34. 34.

    Id. at ¶ 20.

  35. 35.

    Bemba Appeals Chamber Judgment, supra note 1, at ¶ 67.

  36. 36.

    Separate Opinion of Wyngaert & Morrison, supra note 10, at ¶ 33.

  37. 37.

    Id.

  38. 38.

    Id. at ¶ 54.

  39. 39.

    Id. at ¶ 53.

  40. 40.

    Concurring Opinion of Eboe-Osuji, supra note 7, at ¶ 186.

  41. 41.

    Id. at ¶ 193.

  42. 42.

    Id. at ¶ 166.

  43. 43.

    Id. at ¶ 185.

  44. 44.

    Id.

  45. 45.

    Id. at ¶ 188.

  46. 46.

    Additional Protocol I, supra note 13, at Art. 86(2).

  47. 47.

    Id.

  48. 48.

    Concurring Opinion of Eboe-Osuji, supra note 7, at ¶ 191.

  49. 49.

    Id. at ¶ 194.

  50. 50.

    Id. at ¶ 202.

  51. 51.

    Id. at ¶ 199.

  52. 52.

    Id. at ¶ 216.

  53. 53.

    Bemba Appeals Chamber Dissent, supra note 8, at ¶ 326.

  54. 54.

    Id. at ¶ 329.

  55. 55.

    Id. at ¶ 333.

  56. 56.

    The Prosecutor v. Duško Tadić, IT-94-1-A, Judgement, ¶ 186 (ICTY AC, Jul. 15, 1999), available online.

  57. 57.

    See 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.

  58. 58.

    Vienna Convention on the Law of Treaties, Art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online.

  59. 59.

    Id.

  60. 60.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343-AnxII, Separate Opinion of Judge Kuniko Ozaki, ¶ 21 (TC III, Mar. 21, 2016), available online, archived.

  61. 61.

    Concurring Opinion of Eboe-Osuji, supra note 7, at ¶ 239.

  62. 62.

    Bemba Trial Chamber Judgment, supra note 6, at ¶ 211.

  63. 63.

    Summary of the Proceedings of the Preparatory Committee During the Period 25 March-12 April 1996, U.N. Doc A/AC.249/1, Proposal submitted by the United Kingdom of Great Britain and Northern Ireland, at 85, May 7, 1996, available online.

    (“In addition to other (types of complicity) (modes of participation) in crimes under this Statute, a commander is also criminally responsible (as an aider and abettor) for such crimes committed by forces under his command as a result of his failure to exercise proper control […]” (parentheticals in original) ).

  64. 64.

    See, e.g., Triffterer, supra note 12; Robinson, supra note 24; Kai Ambos, Superior Responsibility, in The Rome Statute of the International Criminal Court: A Commentary 823, 860 (Antonio Cassese, Paola Gaeta, John R. W. D. Jones, eds., 2002), paywall, doi.

  65. 65.

    Bemba Pre-Trial Decision, supra note 5, at ¶ 425.

  66. 66.

    Ambos, supra note 63, at 860.

  67. 67.

    Rome Statute, Art. 28.

  68. 68.

    Concurring Opinion of Eboe-Osuji, supra note 7, at ¶ 258.

  69. 69.

    Id. at ¶ 213–14.

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. 1.

    Michael G. Karnavas, The Reversal of Bemba’s Conviction: What Went Wrong or Right?, Personal Blog (Jun. 19, 2018), available online, archived.

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 28, available online.

  3. 3.

    Id.

  4. 4.

    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. 5.

    Id.

  6. 6.

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

  7. 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. 8.

    Id. ¶ 176.

  9. 9.

    Id. ¶¶ 166–68.

  10. 10.

    Id. ¶ 168.

  11. 11.

    Id. ¶ 169.

  12. 12.

    Id. ¶ 170.

  13. 13.

    Id.

  14. 14.

    Id.

  15. 15.

    Id.

  16. 16.

    Id.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 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. 20.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 170.

  21. 21.

    Amann, supra note 6.

  22. 22.

    Id.

  23. 23.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 170.

  24. 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. 25.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 171.

  26. 26.

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

  27. 27.

    Id.

  28. 28.

    Id.

  29. 29.

    Id.

  30. 30.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 176.

  31. 31.

    Id. ¶¶ 177–78.

  32. 32.

    Id. ¶ 179.

  33. 33.

    Id.

  34. 34.

    Id.

  35. 35.

    See Miles Jackson, Commanders’ Motivations in Bemba, EJIL Talk (Jun. 15, 2018), available online, archived.

  36. 36.

    Id.

  37. 37.

    Id.

  38. 38.

    Id.

  39. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    Bemba Appeals Chamber Dissent, supra note 4.

  42. 42.

    Id.

  43. 43.

    Id.

  44. 44.

    Id. ¶ 51.

  45. 45.

    Id. ¶ 52.

  46. 46.

    Id.

  47. 47.

    Id.

  48. 48.

    Id.

  49. 49.

    Id.

  50. 50.

    Id. ¶ 50.

  51. 51.

    Id. ¶ 127.

  52. 52.

    Id. ¶ 70.

  53. 53.

    Id. ¶ 71.

  54. 54.

    Id.

  55. 55.

    Id. ¶ 72.

  56. 56.

    Bemba Appeals Chamber Judgment, supra note 7, ¶ 170.

  57. 57.

    See Aldo Zammit Borda, Precedent in International Criminal Courts and Tribunals, 2 CJICL 287, 302–03 (May 1, 2013), available online, doi.

  58. 58.

    See Amann, supra note 6.

The Appeals Chamber of the ICC: How a new Standard of Appellate Review and Onerous Standard of Proof will Impact Future Prosecutions of SGBV Crimes

I. Introduction

In many ways, the advent of the Rome Statute and the creation of the ICC served as a beacon of hope to victims of SGBV crimes, advocates for justice, and legal scholars. Never before had such extensive measures been taken to ensure that SGBV crimes would be both properly pursued and prosecuted at the international level. Indeed, for much of history, such crimes had gone seemingly unnoticed, existing on the periphery of criminal prosecutions that involved what the justice community believed to be more serious crimes. In section two, this comment discusses some of these early failures and the reasons behind them. In large part, these early failures were based on misperceptions that SGBV crimes were to be expected as an inherent part of war, which resulted in a lack of will to prosecute.

Section three discusses a new era, marked by the creation of the ICTY and ICTR, and analyzes how these tribunals took many important steps toward pursuing and prosecuting these crimes. Despite their many successes, however, in large part these tribunals failed to bring justice to victims. Although misperceptions of SGBV crimes persisted, these failures, however, were due in lesser part to a lack of will to prosecute, and more due to issues endemic to SGBV prosecutions, as well as administrative and procedural errors, resulting in dramatic failures to obtain convictions.

Finally, section four discusses the modern era of the ICC and the hope that it presented, by curing many of the errors of the early SGBV prosecutions. This illuminates the ways in which Prosecutor v. Jean-Pierre Bemba Gombo was to be a flagship case for such prosecutions, and why many watched with bated breath, to see whether the ICC would live up to its promise. Section four further discusses the appellate standard of review in the case, as well as the level of proof imposed by the Appeals Chamber, finally analyzing how these new standards will likely affect the future prosecution of SGBV crimes at the ICC.

II. The Early Prosecutions of SGBV Crimes: The Era of Impunity

To grasp the impact that Jean-Pierre Bemba Gombo’s acquittal by the International Criminal Court (ICC) will have on the future prosecution of sex and gender-based violence crimes (SGBV crimes), it is first important to understand how Prosecutor v. Jean-Pierre Bemba Gombo1 came to be a flagship case for the international prosecution of such crimes. To that end, an analysis of the prosecutorial history of such crimes at international tribunals is illuminative.

Prohibitions on the commission of SGBV crimes during conflict have existed in military codes since the fourteenth and fifteenth centuries.2 For example, in 1385, Richard II outlawed the rape of women during conflict in his Ordinances of War , and Henry V followed suit, declaring rape during conflict a capital offense.3 Indeed, as early as 1863—while still in its infancy—the United States outlawed rape during times of conflict, under punishment of death.4 Despite these early and frequent prohibitions, however, SGBV crimes have not typically been prosecuted in international tribunals.5 This allowed perpetrators to avoid punishment, and to operate with impunity in committing (or permitting the commission of) SGBV crimes during conflict.6

The most dramatic examples of such prosecutorial failures are the post-World War II prosecutions of Nazi officers during the Nuremberg Tribunal (IMT), and the prosecution of Japanese commanders during the International Military Tribunal for the Far East (IMTFE),7 in response to the thousands of women who became victims of SGBV crimes During World War II.

One of the most horrific instances is known as the “Nanking Massacre” or the “Rape of Nanking.”8 In November of 1937, following a Japanese victory against the Chinese in Shanghai, the Japanese military began to march toward Nanking.9 Concerned that he would lose his most highly-trained troops, Chiang Kai-shek ordered the withdrawal of all Chinese troops, officially abandoning the city on December 1, 1937.10 On December 13, Japanese troops arrived in Nanking under the command of Iwane Matsui, and committed one of the worst war-time SGBV atrocities on record.11 Although estimates vary, Japanese troops raped and murdered between twenty-thousand and eighty-thousand women over the course of several weeks.12

Throughout World War II, SGBV crimes were pervasive, with hundreds of thousands of women forced into brothels or concentration camps, to serve as sex slaves.13 Despite this, neither the statutory laws of the IMT (Nuremberg tribunal), nor the IMTFE, listed rape as a war crime or a crime against humanity.14 As a result, the trials which took place under these tribunals largely ignored SGBV crimes, despite records containing evidence of rape, forced nudity, sexual mutilation, and forced abortion.15 Indeed, not a single rape charge was brought during the Nuremberg tribunals.16

The IMTFE did not fare any better. Although Matsui was convicted for violations of law at Nanking, rape and other SGBV crimes were never dealt with expressly.17 Instead, such crimes were subsumed under charges for other crimes, which were presumably viewed as more severe.18 Even in the allied tribunals of minor war criminals, held under Control Council Law Number Ten,19 which expressly included rape as a chargeable crime, rape and other SGBV crimes only received minimal treatment.20

While there are many issues which make the prosecution of SGBV crimes particularly problematic, two factors in particular likely played a role in the failure of these early prosecutions. Firstly, it has been posited that for hundreds of years, rape and other SGBV crimes were viewed largely as an inevitable and expected by-product of conflict.21 Indeed, others have argued that not only were such crimes viewed as an inevitable by-product of armed conflict, but in fact rape and other SGBV crimes were viewed as a spoil of war; effectively a reward for the soldiers.22 Thus, rape has been viewed as permissible during times of conflict, even by societies that, outside of such conflicts, would view rape as reprehensible and prohibited.23

This view of rape and SGBV crimes is rooted in the historical view of women as the property of men, making rape and other SGBV offenses property crimes, or crimes against dignity, rather than the crimes of violence that they are.24 This perception of SGBV crimes as an expected by-product of war likely contributed to neither the Nuremberg tribunal, nor the IMTFE specifically listing rape as a war crime, or a crime against humanity.25

Secondly is the issue of “fair labelling.”26 Fair labelling is the theory that each crime should be individually labelled and described, in order to represent the varying nature and magnitude of that particular crime.27 The goal of fair labeling, is to distinguish between crimes which may fall under similar offense groups, but which vary in terms of their wrong-doing, and by extension, the perpetrator’s culpability.28 This is crucial for the prosecutor, the offender, the victim, and the public.29

For the prosecutor, fair labelling ensures that the elements of an offense are outlined so as to permit the gathering of proper evidence, which in turn allows the prosecutor to obtain an indictment and (hopefully) a conviction.30 For this reason, fair labelling requires that a crime’s definition be strictly constructed, and not be extended to other crimes by analogy.31 For the offender, fair labelling provides sufficient notice of the prohibited conduct with which they are charged, and in turn the penalties that may be imposed against them. Additionally, it ensures consistent verdicts against defendants by removing judicial discretion and ensuring only those who have committed a specific offense with a specific mens rea are convicted.32

Fair labelling also serves the victim, the offender, and the public, by prescribing an appropriate level of stigma to an offense (so one guilty of forced nudity is not convicted as a rapist, and vice versa).33 Finally, for the victim, it is crucial that a crime be properly and fairly labelled so as to adequately reflect the harm and pain they suffered.34

The complete failure to define or include SGBV crimes in the statutes of the IMT and the IMTFE constituted a serious violation of fair labelling, as it provided no mechanism whatsoever for victims to see their pain properly addressed, or their perpetrator properly stigmatized for their actions. Although some have argued that rape could have been prosecuted under the IMT and IMTFE statutes as “inhuman acts” or “ill treatment,” this is a null argument.35 Subsuming rape and other SGBV crimes under such headings violates fair labelling by failing to strictly construct a definition of each crime, instead extending definitions to multiple crimes by analogy, which is prohibited. Such extension by analogy fails to put the defendant on notice of the crimes or punishment they face, fails to convey to the world the proper stigma, and fails to adequately express the victim’s pain and suffering, thus serving none of the necessary interests.36

Whether it was the societal expectation that rape was a normal part of war, or the tribunals’ failure to adequately define SGBV crimes as separate offenses, the impact was clear. As one survivor of a Japanese sex-slavery compound stated:

Perhaps the answer is that these violations were carried out against women. Women are always victims of war. We all heard it being said: they are only women, this is what happens to women during war … Rape in war is a power game. It is used as a reward for the soldiers.37

Thus, the failure to effectively pursue and prosecute SGBV crimes sent a clear message to both the perpetrators and the victims of SGBV crimes that such crimes were of lesser concern, and that they could be committed with relative impunity.38 This era of impunity lasted for decades.

III. Prosecutions at the ICTY and ICTR: The Era of Honor

The outbreak of violence in Rwanda and Yugoslavia in the mid 1990s provided an opportunity for the international legal community to redeem its prior failures, and to effectively pursue and prosecute SGBV crimes. The events in Yugoslavia had once again brought the issue of SGBV crimes to the international forefront, due largely to the changing nature of how these crimes were implemented during the conflicts.39 Specifically, SGBV crimes were being used in a systematic fashion, as part of a broader policy to destroy particular national or ethnic groups.40 This marked a dramatic shift from prior conflicts, where such crimes lacked the systematic and organized implementation seen in Yugoslavia.41 This shift caused the UN General Assembly to adopt a resolution noting that the:

systematic practice of rape was used as a weapon of war and an instrument of ethnic cleansing against women and children in the areas of armed conflicts in former Yugoslavia, and especially against the Bosniak women and children in BiH.42

Although reports vary, it is estimated that between twenty-thousand and seventy-thousand women were systematically raped or subjected to other SGBV crimes during the Yugoslav dissolution war.43 Such dramatic numbers, and the apparent targeted use of rape drew media attention, as well as the attention of academics and scholars, who began characterizing the war as a “war against women,” and rape as a “weapon of war.”44

During roughly the same time period, horrendous SGBV crimes were also being perpetrated in Rwanda, again as a systematic, targeted genocide of an ethnic group (the Tutsi).45 Reports and testimony from peace-keeping forces present in Rwanda during the conflict elucidated the horrors committed, including the gang-rape and murder of girls as young as six, as well as sexual mutilation, all aimed at exterminating the Tutsis.46

Following extensive media coverage and global interest from feminist and human rights scholars, the UN was spurred to action.47 In 1992 and 1994, respectively, the UN Security Council passed resolutions 780 and 935, establishing independent commissions to investigate, examine, and record serious crimes that were committed in both Yugoslavia and Rawanda.48 Based on reports issued by each of the independent commissions, the UN established the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR), in order to prosecute the atrocities which had taken place.49

These developments brought rape out of the shadows and to the forefront of international discussion, highlighting the use of rape as a “tool of war,” rather than an expected collateral consequence.50 Fearing a repeat of the “Era of Silence” that followed World War II, feminist interest groups exerted their influence during the creation of the governing statutes for the ICTY & ICTR to ensure sufficient focus on pursuing SGBV crimes.51

These efforts saw some great success: although rape was not listed as a stand-alone breach of the laws of war,52 both of the statutes governing the ICTY and the ICTR listed rape as an independent crime against humanity.53 This was the first time that rape had been listed as a crime against humanity in international law.54 This allowed the ICTY to convict Anto Furundžija and several others for torture, as co-perpetrators of rapes.55 Perhaps an even greater success, the conviction of individuals in Prosecutor v. Kunarac marked the first time that a war crimes indictment was comprised entirely of sexual violence charges; a landmark for the international prosecution of SGBV crimes.56

In the ICTR, the Statute went a step further, expanding the tribunal’s authority in Article four of the ICTR Statute, stating that rape may be prosecuted as a breach of Article three of the Geneva Convention.57 This ensured that the ICTR ’s jurisdiction, as opposed to that of the ICTY, explicitly included the crime of rape.58 It was the ICTR that would later oversee the case of Prosecutor v. Akayesu, which served to expand the capability of international tribunals to prosecute SGBV crimes during war.59 Although this case marked the first criminal conviction for genocide, the court also found Akayesu guilty of rape as a crime against humanity.60 Perhaps more important than the convictions themselves, however, was the means by which the convictions had come about.

Akayesu’s original indictment contained twelve charges, none of which were SGBV crimes.61 At trial, however, witness testimony became a focus under the original indictment.62 Such testimony included a mother who testified about the gang rape of her six-year-old daughter, and another woman who had not only been raped herself but had been witness to other rapes committed by and under Akayesu’s command.63 For the first time in history, victim testimony directly spurred judicial action by the tribunal, thanks in large part to Judge Pillay, the only female ICTR judge, who also happened to be assigned to the panel hearing this case.64 Following witness testimony, the judges ordered an investigation as to the crimes testified to, finding that these events were not isolated.65 Furthermore, the court held that if the prosecution found that such crimes had, in fact, been committed and there was fault on the part of the defendant, the indictment should be amended to include such offenses.66 The indictment was amended in 1997, to include charges of rape as genocide, a crime against humanity, and a violation of Article three of the Geneva Convention.67

The ICTR was also progressive in defining sexual abuse to include “forced nudity,” which was a drastic step forward for SGBV prosecution as it recognized that such crimes cause significant psychological harm to victims even in the absence of physical harm; a drastic shift from prior criminal tribunals.68 Akayesu was convicted of sexual abuse as genocide, as well as rape and forced nakedness as crimes against humanity, marking the first time that rape had been considered genocide in international law, and marking the first conviction for sexual crimes causing psychological harm to the victims, not just physical harm.69

Finally, the tribunals served an important purpose in returning the doctrine of command responsibility to the international prosecution of SGBV crimes.70 Indeed, in Prosecutor v. Delalić, individuals were convicted for crimes committed by subordinates, a dramatic step forward for the prosecution of SGBV crimes.71 However, despite the fact that these tribunals achieved some important milestones for the international prosecution of SGBV crimes, many saw these tribunals as further failures by the international community to pursue and prosecute SGBV offenders.72

Indeed, when viewed as a whole, it seems that the conviction of perpetrators for SGBV crimes was the exception, rather than the rule. The ICTY and ICTR convicted only a few perpetrators of SGBV crimes, despite the factual records of these conflicts being replete with evidence of such atrocities on a massive scale.73 In many cases, the prosecutor was forced to remove SGBV crime charges from indictments, and in other cases they were never included in the first instance.74 In the end, ninety percent of the judgments put forth in the ICTR failed to include rape or other SGBV crimes, and where such crimes were included, the number of acquittals was double that of convictions for such crimes.75

Where the IMT and IMTFE had failed largely due to a lack of desire to pursue SGBV crimes and a general view of them as lesser offenses, the ICTY and ICTR failed despite their renewed focus on pursuing such crimes. Understanding why these prosecutions failed sheds light on the complex issues surrounding SGBV prosecutions and emphasizes the impact that the acquittal of Jean-Pierre Bemba Gombo is likely to have on future prosecutions of such crimes.

A primary difficulty in prosecuting SGBV crimes is the necessity of victim and witness testimony and participation. The common law system requires that all trial testimony be heard viva voce, requiring witnesses be presented in court, under oath, and be subject to cross examination.76 Although the civil law creates additional flexibility in terms of what is admissible, the degree to which such flexibility is allowed varies, dependent on the discretion of judges who, at the international level often have not served in such a professional capacity, and may thus believe such participation is required.77

Such a belief may, in fact, be warranted, particularly given the fact that international criminal tribunals often seek to prosecute high-level officials, as opposed to the lower-level operatives who actually perpetrate the crimes. Prosecuting high-level officials often requires proving a theory of vicarious liability, such as command responsibility. This in turn requires proving that the commander knew, or should have known about the acts being committed, and that the commander failed to take the necessary measures to prevent those acts from occurring, or to punish perpetrators for acts already committed. Particularly in developing and conflict-torn areas, documentary evidence that a commander ordered crimes to be committed, or cell phone evidence linking the commander to the act is very difficult to acquire, if such evidence exists at all. These hurdles often necessitate the involvement of witness and victim testimony in order to connect the commander to his troops and their commission of such crimes.78 Indeed, even where statistical evidence reduces the necessity of victim participation, accurate reporting by victims and participation by non-victim witnesses is critical.79 Therefore, victim participation in SGBV prosecutions is often required.80

Although requiring participation of victims is not unique to the prosecution of SGBV crimes, the stigmatization of victims and other disincentives to victim participation in SGBV prosecutions are unique, posing additional barriers to effective SGBV prosecution. In fact, the failings of the ICTY and ICTR may have been due in large part to such disincentives.81 Rape and other SGBV crimes carry with them not only the physical trauma of the act itself, but also additional repercussions for victims, which remain long after the act has been completed.82 Indeed, it is often these collateral effects which make rape and other SGBV crimes a desirable weapon for those seeking to completely destroy an ethnic group or population, or to inflict longer lasting harm than one could inflict through other crimes.83 As one commenter stated, “[m]assacres kill the body. Rape kills the soul.”84

Many communities today still view women—their bodies and sexuality included—as being the property of men, whether it be their fathers, husbands, or others.85 Therefore, if a woman loses her virginity, or is declared promiscuous, it is viewed as contaminating her entire family, essentially a crime against both the family’s and the victim’s honor.86 In such societies, the victims of SGBV crimes often find themselves stigmatized and isolated from their community, rejected by their spouses and families, and considered unable to marry.87 Additionally, such victims may have become forcibly impregnated (in which case their children are often also shunned by the community), infected with HIV / AIDS (leading to further stigmatization), or even face the specter of criminal prosecution for alleged infidelity.88

All of these factors pose strong disincentives to even report the crime, as much of the stigma is likely to fall on the victim themselves, rather than the perpetrator. Additionally, where such crimes are reported, testifying at trial about an experience involving intimate areas of their body can serve to re-traumatize the victim, making testimony difficult for many.89 Finally, even if there is a victim who may otherwise be willing to testify, the logistics of transporting the victim to the tribunal, conspicuously removing them from their community for extended periods of time, and housing the victims throughout prolonged prosecutions impose additional disincentives to victim participation.90

With all of the disincentives to victim participation, for prosecution of SGBV crimes to be effective, it is critical that there be protection for victims and witnesses willing to testify, and a clear and defined prosecutorial strategy that includes sensitivity to victims in gathering evidence, questioning, and defining such crimes.91 The ICTY and ICTR, however, largely failed in these respects. As a foundational issue, it appears there was substantial gender bias within the office of the prosecutor, according to Richard Goldstone, who was appointed Chief Prosecutor at the ICTR and ICTY.92 This bias manifested itself in a failure to pursue SGBV crimes effectively during the first years of the tribunals, the Deputy Prosecutor believing Rwandan women would not be willing to come forward, and lacking the political will to pursue such crimes.93

One of the best examples of such a failure to pursue these crimes was the case of Prosecutor v. Akayesu, discussed above. Despite a record and testimony containing strong evidence of SGBV crimes, it required judicial intervention to see such crimes pursued by the Prosecutor.94 Because they failed to initially pursue such crimes, the credibility of the tribunals to deliver effective and timely justice was badly discredited, sending a message that these crimes were still viewed as lesser and unimportant.95

These initial failings were exacerbated by inadequate and ineffective prosecutorial strategies, leading to a failure to adequately protect victims.96 Gender bias led to a lack of female investigators trained in such crimes, which further disincentivized victim and witness participation, and provocative questions were often posed to victims by untrained investigators before trial, or by defense counsel at the trials themselves.97

For instance, in 2003 a defense attorney paid an unannounced visit to a secret location housing witnesses; to make the matter even worse, the attorney was a member of the same community as many of the witnesses, leading to deep-seated fear amongst the victims that their identities would be exposed.98 In another instance, during the Foča trial at the ICTY, a witness testified that she had not been selected for rape one night by the prison guards, and in response the defense attorney asked her if she was jealous of the women that had been chosen for rape.99 The case of Prosecutor v. Furundžija, also discussed above, provides yet another example: a victim suffering from PTSD due to her attack testified in the case, however the court failed to adequately protect her privacy.100 Following defense opposition, the court removed the victim’s immunity, allowing her private medical and psychological records to be released and used by the defense at trial.101 All of these failings served to discredit the tribunals, as well as to disincentivize witness participation, and indeed witnesses began to withdraw their participation, leading to indictments being withdrawn and SGBV charges dismissed for lack of evidence.102

An additional problem facing these tribunals was a failure to adequately and clearly define rape and other SGBV crimes, again violating the doctrine of fair labeling, leading to inconsistent verdicts and evidentiary requirements. This created uncertainty for prosecutors, who often failed to meet their burden of proof, or the definition’s elements focused questioning on the victim’s (rather than the perpetrator’s) conduct, thus re-victimizing them.103 A look at three cases in particular is illustrative: the cases to be examined are Akayesu, Furundžija, and Kunarac.

In the Akayesu case, the ICTR Trial Chamber I defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive,” while also defining sexual violence to include rape as “any act of [a] sexual nature which is committed on a person under circumstances which are coercive.”104 This definition violated the doctrine of fair labelling by subsuming rape under generalized “sexual violence,” a category containing numerous, undifferentiated crimes. Thus, the tribunal failed to distinguish the various harms that the crimes cause.105

Later that same year, the ICTY Trial Chamber heard Prosecutor v. Furundžija, and defined rape as “a forcible act of the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object.”106 In stark contrast to the definition from the ICTR, this definition specifically delineated assaults resulting in actual penetration of the victim from those sexual assaults falling short of penetration; additionally, it limits the body parts that can be considered part of a rape offense.107 Thus one could be guilty of rape in the ICTR, while the same conduct would result in a rape acquittal at the ICTY.

Finally, three years later, in Prosecutor v. Kunarac, Trial Chamber I of the ICTY overlooked the definition previously used by Trial Chamber II of the same tribunal, and provided yet another definition in the judgment against Kunarac, Kovač, and Kuković.108 Trial Chamber I of the ICTY defined rape as:

the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator: or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.109

Such a definition, focusing on the consent of the victim, had long been decried as misinformed because it resulted in a focus on the victim and the victim’s conduct at trial, rather than the conduct of the perpetrator, thus re-traumatizing victims.110 Finally, some have alleged that including rape and other SGBV crimes in “crimes against humanity” but not “war crimes,” as the tribunals did, also disserved the victims and prosecutors, as it requires proving that the rapes occurred as part of a broad, systemic attack on a civilian population, which may not be the case in many instances of war-time rape.111 These varied definitions created confusion among prosecutors, discredited the tribunals in the eyes of victims, and led to inconsistent verdicts, further delegitimizing the tribunals’ judgments.112 Thus, although the ICTR and ICTY had taken dramatic steps forward in bringing SGBV crimes out of the shadows, they had in many ways failed to bring real justice to victims, perpetrators, or the general public.

IV. The ICC: A Renewed Hope for the Effective Prosecution of SGBV Crimes

Due to both the achievements and failings of the ICTY and ICTR, it was amidst an atmosphere of mixed optimism and disappointment that the Rome Statute was adopted in 1998, and subsequently entered into force in July 2002.113 The Rome Statute created the ICC in order to prosecute those responsible for “unimaginable atrocities that deeply shock the conscience of humanity.”114 Many involved with gender issues, however, believed when the ICC was created that it was meant to not only provide justice to victims of SGBV crimes, but to challenge gender relations and empower women as well.115 By clearly defining and pursuing the SGBV crimes which had historically been overlooked and swept under the rug, providing crucial empowerment to victims, stigmatization of perpetrators, and acknowledging the seriousness of SGBV crimes, as well as their historical record of being misunderstood, many hoped that the ICC would send a new message to victims and perpetrators.116

Indeed, at first blush, it appeared this might be the case, as the Rome Statute and the establishment of the ICC appeared to incorporate some invaluable lessons from the experiences during the “Era of Silence” as well as the failures of the ICTY and ICTR.117 The Rome Statute was the first treaty of an international criminal court to explicitly recognize a wide range of gender-based crimes under the court’s jurisdiction, including “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.”118 Furthermore, rape and other SGBV crimes were listed both as crimes against humanity and war crimes.119 These steps marked a dramatic departure from the past, where if rape was included at all, it was included only as a crime against humanity rather than a war crime, making it harder to prove out.

Furthermore, where the ICTY and ICTR had created great confusion over the definition of rape, the parties to the Rome Statute created the “Elements of Crimes” in 2002.120 This statute set out the specific elements for each SGBV crime listed in the statute, in order to provide the court, the prosecutor, and the defense in their investigation and trial strategies, shoring up the possibility of inconsistent verdicts (and by extension inconsistent justice) for the victims of SGBV crimes that had been experienced at both the ICTY and ICTR.121

Additionally, there seemed to be acknowledgement of the failings of previous tribunals, as in the Semanza case, where theories of liability and the mens rea that attached had permitted perpetrators escape prosecution. This was evidenced by the creation of Article 28 of the Rome Statute, which reinvigorated the theory of command responsibility to hold perpetrators accountable where Article 25 failed.122 Such a fail-safe theory of liability was seen as crucial to securing convictions for SGBV crimes prosecuted at the International Criminal Court.123

The ICC also provided a clear mandate to the office of the prosecutor to put an end to impunity for the most serious crimes, including gender crimes specifically , committed as war crimes, crimes against humanity, or genocide.124 Article 54(1)(b) of the Rome Statute sought to create coherent prosecution strategy for SGBV crimes, again departing from the errors at the ICTY and the ICTR which resulted in improper investigation, and eventually to re-traumatization of victims. Specifically, Article 54(1)(b) stated that to ensure effective investigation and prosecution of crimes under the Rome Statute, the Prosecutor shall “take into account the nature of the crime, in particular where it involves sexual violence, gender violence, or violence against children.”125 Seeking to further protect victims, the Statute provided specific considerations for the protection of SGBV victims in Article 68(1).126 Article 42(9) further required that the Prosecutor appoint advisers who had expertise in SGBV crimes, which led to the creation of the Gender and Children Unit, comprised of experts in the field of SGBV crimes and crimes against children.127 Operation manuals were created to instruct prosecutors and investigators on how to proceed with a SGBV crime investigation, and specifically how to treat victims and witnesses in such cases.128

All of these developments seemed to indicate that a new era was beginning, in which SGBV crimes would be taken seriously, pursued properly, and prosecutors would be provided with the tools and skills necessary to properly bring justice to victims.129 Luis Moreno-Ocampo, the first prosecutor of the ICC perhaps put it best when he said:

Gender crimes are prominent in our prosecutions because they are prominent in the contexts being prosecuted. This only becomes remarkable against the backdrop of the prior and still prevalent norm of denying their existence, ignoring them, shaming their victims, and or defining them in legally improvable ways. In other settings, it has been as if there was a tacit agreement to look the other way as women and children were sexually abused—minimizing, trivializing, denigrating, and silencing the victims, destroying their credibility and further violating their dignity, so abusers can continue unimpeded. The body of the ICC’s first cases…signals to the world that here, at least, the deal is off.130

Thus, there was immense hope that with the formation of the ICC, and the lessons learned from previous tribunals’ failures, SGBV crimes would find their way to the front of the international legal stage for the first time in history. It was against this backdrop of renewed hope that Prosecutor v. Jean-Pierre Bemba Gombo was decided.131 Indeed, the case was a first for the international legal community in several ways: Bemba’s arrest marked the first arrest under an ICC warrant for charges of rape,132 and it was the ICC’s first prosecution under Article 28, alleging the command responsibility theory of liability.133

Perhaps most notably for the SGBV community, however, was the fact that unprecedented victim participation was authorized in this case.134 A total of 5,229 victims were authorized to participate in the trial, pursuant to Article 68(3) of the Rome Statute.135 Furthermore, it was determined by Trial Chamber III that witnesses would be permitted to tender and examine evidence pertaining to guilt, and to question parties’ witnesses, providing victims an opportunity to directly challenge and refute testimony by witnesses supporting Bemba, a first in such trials.136 Following a trial which lasted almost four years,137 Bemba was convicted as a culpable commander under Article 28(a) of the Rome Statute for the crimes against humanity of murder and rape, as well as war crimes of murder, rape, and pillaging, resulting from the conduct of his MLC troops operating in the CAR between 2002–2003.138

On April 4, 2016, Bemba appealed the decision of the Trial Chamber on six grounds.139 Although Bemba appealed on six grounds, the majority of the Appeals Chamber determined that the second ground and part of the third ground of appeal were dispositive. Only the third ground of appeal is relevant to this comment.140

The Appeals Chamber determined that whether the Trial Chamber erred in finding that Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of crimes as required for liability under Article 28(a) was alone dispositive.141 However, the majority nonetheless voiced additional concerns regarding the remainder of the third ground of appeal, namely whether Bemba had effective control over the MLC troops, and whether he had actual knowledge of crimes committed by MLC troops in the CAR, as required under Article 28(a),142 and so a brief analysis of the proof offered as to this ground will also be discussed here.

Of primary import in analyzing the Appeals Chamber decision is a brief look at the standard of review applied by the chamber. The Appeals Chamber properly noted that, under Article 83(2) of the Rome Statute, the Appeals Chamber may only intervene if it:

finds the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error.143

The Appeals Chamber then clarified this standard as it related to factual errors, stating that the task of the Appeals Chamber “[was] to determine whether a reasonable trial chamber could have been satisfied beyond a reasonable doubt as to the finding” thereby indicating some deference to the Trial Chamber’s findings of fact.144 Indeed, the Appeals Chamber stated that it would not assess evidence de novo in order to determine whether it would have reached the same conclusion, but would instead only ask whether a reasonable trial chamber could have been satisfied beyond a reasonable doubt as to the fact in question.145 This is unsurprising, as it is a standard of review which is often applied in domestic cases (at least within the United States).

What is both interesting and significant is the language that immediately followed, whereby the Appeals Chamber suggested the possibility of finding error anywhere that the finding reached by the Trial Chamber was not the only reasonable conclusion available.146 In this way, the Appeals Chamber seemingly negated the prior portion of ¶ 42 stating that the Appeals Chamber would not engage in de novo review to determine whether it would reach the same conclusion; instead the language here seemed to indicate that for a factual finding to remain intact, it was necessary that the Appeals Chamber would reach the same conclusion, or the conclusion would be subject to reversal.147

As to whether Bemba took all necessary and reasonable measures, as required by Article 28(a), the Trial Chamber found that Bemba had, in fact, taken some measures in response to allegations of the crimes being committed by MLC troops in the CAR.148 These included the Mondonga Inquiry, a visit to the CAR in 2002 in which Bemba met with the UN representative in the CAR General Cissé as well as President Patassé, a speech given at PK12, the trial of Lieutenant Bomengo and other at the Gbadolite court-martial, the Zongo Commission, correspondence with General Cissé, correspondence in response to the FIDH Report, and the Sibut Mission.149

Importantly however, the Trial Chamber found significant shortcomings in each of these measures, noting that “all of these measures were limited in mandate, execution, and/or results.”150 Specifically, the case file resulting from the Mondonga Inquiry suggested that investigators had failed to pursue relevant leads involving the responsibility of various commanders, including Colonel Moustapha himself, as well as reports of rape.151 Furthermore there were highly irregular procedures, including interviewing suspects in the middle of the night, and the inquiry’s only results were the trial of seven low-level soldiers for pillaging small sums of money and goods.152

The Trial Chamber’s analysis of the Zongo commission reached similar results: despite the fact that the commission had been created in response to public allegations of rape, murder, and pillaging by MLC troops, the commission was mandated only to determine whether pillaged goods from CAR were entering the DRC through Zongo.153 The commission failed to bring any soldiers before it for questioning, despite having the ability to do so, and no action was taken even in regards to pillaging uncovered by the commission, let alone more serious allegations.154 Similarly, after receiving the FIDH report, containing allegations of murder, rape and pillaging by MLC soldiers, and even analyzing Bemba’s criminal liability for those crimes, Bemba responded by sending a letter to the FIDH president mirroring a previous letter to General Cissé requesting assistance in investigating the allegations, however Bemba never took any action to follow up on those letters.155 The Sibut Mission, established in response to widespread media allegations of crimes by MLC soldiers in Bozoum and Sibut, appeared to be a sham as well.156

The Trial Chamber also noted that there was corroborated evidence indicating that even these insufficient measures were only taken as a result of a desire to counter public allegations against the MLC, thus lacking any intent by Bemba to take all necessary and reasonable measures, which in turn explained their conspicuous shortcomings.157 In order to clarify what would have sufficed as necessary and reasonable measures, the Trial Chamber listed six independent actions that were within the ability of Bemba to implement and would have served to prevent or repress the crimes committed by MLC troops, which indicated he had failed to take all reasonable and necessary measures.158

As to whether Bemba knew that the MLC forces were committing or about to commit the crimes alleged, as required by Article 28(a), the Trial Chamber found that Bemba did have the requisite knowledge.159 While noting that Bemba was a remote commander, operating from the DRC, the Trial Chamber noted that Bemba was the commander-in-chief, and held ultimate authority over all primary aspects of the MLC.160 Furthermore, communications equipment ranging from radios to satellite phones and Thurayas effectively enabled MLC commanders in the CAR to communicate directly with Bemba.161 Bemba visited the CAR several times during the conflict, and had direct communications with Colonel Moustapha as to the operations on the ground.162 There were even logbook records of transmissions from MLC commanders coming through the MLC transmissions center, which were then taken to Bemba.163

If this were not sufficient, there was additional evidence that military and civilian intelligence services provided reports to Bemba, including reports of murder, rape, a pillaging by MLC troops.164 Throughout the 2002–2003 CAR operation, local as well as international media outlets reported allegations of rape, pillaging and murder by MLC soldiers.165 In fact, it was in response to these reports that Bemba initiated the Mondonga inquiry, thus indicating he had received the reports.166 The FIDH report in 2003 included a detailed accounting of murder, rape, and pillaging by MLC troops, and in a letter to the FIDH President, Bemba specifically referenced this report, again indicating he had received it.167

Finally, in March 2003, an attack was carried out by Colonel Moustapha and MLC forces on Mongoumba, where only civilians were present.168 Information gathered from Thuraya devices indicated that Bemba was in constant contact with Moustapha the day before, as well as the day of the attack, and the Trial Chamber inferred that Bemba knew his forces would commit crimes against civilians during the attack, which was later confirmed by media reports.169 The Trial Chamber thus held:

In light of the above factors—in particular, the notoriety of the crimes, Mr. Bemba’s position, the available channels of communication, the regular contact between Mr. Bemba and the MLC officials in the CAR, general sources of information of crimes by MLC soldiers (including media, NGO, and MLC intelligence reports), and Mr. Bemba’s direct knowledge of the allegations of murder, rape, and pillaging by MLC soldiers at specific times throughout the 2002–2003 CAR operation…the Chamber finds beyond a reasonable doubt that…Mr. Bemba knew that MLC forces under his effective authority or control were committing or about to commit the crimes against humanity of murder and rape, the war crimes of murder, rape and pillaging.170

The Appeals Chamber, in turn, reviewed these findings of fact.171 The findings of fact as to whether Bemba took all necessary and reasonable measures were reviewed in light of Bemba’s allegations that because he was a remote commander, operating from another country, the Trial Chamber had failed to adequately consider the limitations on his ability to take certain measures.172 Specifically, Bemba argued that command responsibility was only appropriate in situations where the commander took no action whatsoever, or was actually participating or present when the crimes were committed.173

In analyzing the Trial Chamber’s findings, the Appeals Chamber held that the findings as to whether Bemba took all necessary and reasonable measures were, in fact, “tainted by serious errors.”174 An analysis of what measures are reasonable and necessary, the Appeals Chamber noted, cannot be undertaken with the benefit of hindsight, but must be viewed in light of what measures were available and feasible at the time.175

The Appeals Chamber went on to emphasize that Bemba was a remote commander, with troops in a foreign country, faulting the Trial Chamber for not adequately considering that his ability to initiate investigations in the CAR was limited as a result.176 Finally, while the Appeals Chamber admitted that the motivations of a commander in undertaking measures are relevant to whether or not such measures were conducted in good faith, it simultaneously alleged that the Trial Chamber placed too much emphasis on Bemba’s motivations, allowing them to “colour[] its entire assessment of the measures he took.”177

These findings are troublesome for several reasons. Firstly, as the dissent points out, the Appeals Chamber majority criticizes the Trial Chamber for its failure to properly consider Bemba’s status as a remote commander, and to assess in concreto what measures should have been taken, however the Appeals Chamber fails to undertake such an analysis itself.178 Instead, it appears that by modifying the standard of review as discussed above, the Appeals Chamber found it appropriate to overturn factual findings of the Trial Chamber wherever it found any doubt or disagreed with the Trial Chamber’s conclusions. This stands in stark contrast to conducting a comprehensive review of the record to determine whether a reasonable Trial Chamber could have reached the same conclusion, which the Appeals Chamber had stated was the standard of review .179 Furthermore, the Trial Chamber had conducted an assessment of what measures were available to Bemba, and had listed them in concreto in its decision, which creates significant confusion about just what level of proof the Appeals Chamber majority requires.180

Additionally, the Trial Chamber’s findings were based on a review of the entire factual record. The reason for deference to Trial Chamber findings is typically due to the fact that they are better suited to make findings of fact, given that they are able to review the entire factual record181 Here, the Appeals Chamber reviewed only the testimony of a witness whose credibility the Trial Chamber found dubious, a statement by the defendant that he sent a letter to the CAR, and several other inconsequential pieces of evidence to effectively invalidate “hundreds of items of evidence relied upon by the Trial Chamber.”182

With regard to Bemba’s limitations as a remote commander and his ability to conduct investigations in the CAR, the Appeals Chamber majority again reversed the Trial Chamber’s findings, seemingly lacking an evidentiary basis for doing so, and once again based its reversal on a limited portion of the record, and finding doubt as to the Trial Chamber’s finding of fact.183 This stands in stark contrast to the Trial Chamber’s finding that Bemba and not the CAR authorities had the primary authority to investigate and punish MLC troops for their activities in the CAR, which was based on the testimony of numerous witnesses.184

Perhaps most perplexing, however, was the majority’s assertion that it had “concerns regarding the Trial Chamber’s findings relevant to Mr. Bemba’s…actual knowledge of crimes committed by MLC troops in the CAR.”185 Although the Appeals Chamber did not further elaborate on these concerns, this statement is nonetheless highly significant.

As was discussed previously in this comment, SGBV crimes have a long history of being ignored as lesser crimes. In addition, even when such crimes have been pursued, procedural and definitional issues endemic to the prosecution of SGBV crimes have often caused such charges to be dropped from indictments or caused problems of proving out the offenses beyond a reasonable doubt. These difficulties are due in no small part to the fact that often, particularly in the context of an ongoing conflict, gathering the necessary evidence can be extremely difficult, which results in a heavy reliance on witness testimony, historically viewed as problematic. That being said, in many respects, the Bemba trial constituted what should have been the ideal conditions to attain an SGBV conviction.

The ICC was a tribunal that had an effective and coherent prosecutorial strategy, clear definitions of the offenses, and a will and desire to prosecute and pursue justice, all of which had been previously lacking in such prosecutions. Additionally, where many SGBV prosecutions lack evidence above and beyond witness testimony, the record in Bemba contains significant evidence to prove out the requisite elements, especially his knowledge of the MLC troops’ conduct. The evidence included international media reports, electronic and hard-copy communication records, hard-copy reports from numerous agencies describing the atrocities being committed, and proof of the delivery of these reports to the commander sought to be held responsible. This begs an important question which is, if a case such as Bemba fails, where the evidence is far more voluminous that can typically be expected, can there ever be an effective prosecution of SGBV crimes before the ICC?

V. Conclusion

The decision of the Appeals Chamber majority, particularly the vague and onerous level of proof required, raise significant doubt that an effective SGBV case could ever be proved out to the chamber’s satisfaction. Furthermore, even if such a case were proved out, as here, the essentially de novo review standard imposed by the Appeals Chamber creates significant uncertainty for both victims and the accused, providing little-to-no authority to Trial Chamber decisions. These problems are only exacerbated by the fact that, inexplicably, the Appeals Chamber determined it was appropriate, given the perceived factual errors, to acquit the accused, rather than to remand the case to the Trial Chamber for additional findings. There seems to be little explanation for this decision, particularly given the fact that such a decision effectively nullified four years of effort, and the participation of countless witnesses, victims, and resources.

Given all of these factors, it seems inevitable that this case will send yet another clear, decisive message to victims of SGBV crimes that the offenses against them are unimportant, their testimony is not to be believed, and that the harms done to them are unlikely to ever see justice served. Simultaneously it sends a message to prosecutors that regardless of the level of evidence obtained, convictions for SGBV crimes are unlikely to stand.

Taken together, it is likely that, even if victims somehow have not lost faith in international tribunals, prosecutors may once again be disincentivized to pursue these crimes, due to the fact that the immense resources required are nonetheless unlikely to result in a conviction or justice for the victims. For all of these reasons, the Appeals Judgment in Bemba, particularly with regards to the level of proof required, is likely extremely harmful to the future prosecution of SGBV crimes, and delegitimizes the ICC in the eyes of victims, who have once again been relegated to the periphery.

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.

    Olivera Simić, Silenced Victims of Wartime Sexual Violence 14 (2018), paywall.

  3. 3.

    Id.

  4. 4.

    Id.

  5. 5.

    Hilmi M. Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals 7 (2014), paywall, doi.

  6. 6.

    Simić, supra note 2, at 14.

  7. 7.

    See id.

    (noting that no rape charges were brought during Nuremberg tribunals).

    See also Zawati, supra note 5, at 7

    (noting the failings of the IMT and IMTFE).

  8. 8.

    Nanking Massacre, History (Aug. 21, 2018), available online.

  9. 9.

    Id.

  10. 10.

    Id.

  11. 11.

    Simić, supra note 2, at 15.

  12. 12.

    Id.

  13. 13.

    Id.

  14. 14.

    Zawati, supra note 5, at 7

    (although some have argued that rape and perhaps other SGBV crimes were impliedly included in these statutes under “inhuman acts” and “ill treatment,” Zawati argues that such subjugation under what are perceived as more severe crimes, violates the doctrine of fair labelling, requiring that a crime is expressly labelled, and explicitly defined, such that its definition is not merely extended by analogy).

  15. 15.

    Id. at 7; see also Simić, supra note 2, at 14–15.

  16. 16.

    Simić, supra note 2, at 14.

  17. 17.

    Zawati, supra note 5, at 7.

  18. 18.

    Id.

  19. 19.

    Id. at n.25.

  20. 20.

    Zawati, supra note 5, at 7.

  21. 21.

    Simić, supra note 2, at 13.

  22. 22.

    Laurie Green, First-Class Crimes, Second-Class Justice: Cumulative Charges for Gender-Based Crimes at the International Criminal Court, 11 Int’l Crim. L. Rev. 529, 529 (Jan. 1, 2011), paywall, doi.

  23. 23.

    Zawati, supra note 5, n.20.

    (Sir Peter van Hagenbach was the first person to be internationally prosecuted for a gender-based crime. Hagenbach was convicted of war crimes—including rapes committed by troops under his command—and was sentenced to death. Importantly, however, he was convicted only because he did not officially declare war. Had he officially declared war, the rapes committed by his troops would have been seen as permissible since there would have been an active conflict).

  24. 24.

    Green, supra note 22, at 529–30.

  25. 25.

    Id.

    (discussing the view of women as property and its effects on the treatment of rape).

    Cf. Zawati, supra note 5, at 7

    (discussing the failures of both the Nuremberg Tribunal and the IMTFE to address rape in any meaningful way).

  26. 26.

    Zawati, supra note 5, at 25.

  27. 27.

    Id. at 26.

  28. 28.

    Id. at 27.

    (Zawati provides the example of distinguishing between the single rape of a woman and the multiple rape of another woman with the purpose of impregnating her. Although both crimes could be considered rape, they inflict different harm, and have different culpability, thus they should not both simply be subsumed under the broad category of “rape”).

  29. 29.

    Id. at 34.

  30. 30.

    Id. at 27.

  31. 31.

    Id. at 7, n.23.

  32. 32.

    Id. at 32.

  33. 33.

    Id. at 30.

    (Zawati gives an example of convicting someone under a very broad definition of “rape,” where there was no penetration or even physical contact of any kind, it may unfairly stigmatize the offender as a “rapist” and the victim as a “victim of rape”).

  34. 34.

    Id. at 31.

  35. 35.

    Id. at 7, n.23.

  36. 36.

    Id. at 31.

  37. 37.

    Simić, supra note 2, at 15.

  38. 38.

    Fiona O’Regan, Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism, 43 Geo. J. Int’l L. 1323, 1351 (2012), paywall.

    (O’Regan discusses the “expressive” function of law, which suggests that legal actions, much like any other action, have an expressive function, conveying a community’s substantive values to the actors. Indeed, O’Regan argues, the expressivist function is perhaps the most effective function of international law, as the other functions of international law (namely deterrence and retribution) are often rightfully doubted as to their efficacy. Thus a consistent message that SGBV crimes are less important, and a consistent failure to effectively prosecute is likely to send a message to victims and perpetrators that such crimes will not be pursued, and by extension, that such conduct is tolerated).

    See also Zawati, supra note 5, at 7–8.

  39. 39.

    Simić, supra note 2, at 40.

  40. 40.

    Id.; see also Zawati, supra note 5, at 8.

  41. 41.

    Simić, supra note 2, at 40.

  42. 42.

    United Nations General Assembly, Rape and Abuse of the Women in the Areas of Armed Conflict in the Former Yugoslavia, A/RES/48/143 (Dec. 20, 1993), available online.

  43. 43.

    Simić, supra note 2, at 40–41.

  44. 44.

    Id. at 40 n.6.

  45. 45.

    See Alona Hagay-Frey, Sex and Gender Crimes in the New International Law n.228 (2011).

  46. 46.

    Id. at 97.

  47. 47.

    Id. at 79.

  48. 48.

    See Zawati, supra note 5, at 8.

  49. 49.

    Id.

  50. 50.

    Clay Anthony, In the Case of Prosecutor v. Jean-Pierre Bemba Gombo: Cementing Sexual Violence and Command Responsibility within International Criminal Law, 25 Tul. J. Int’l & Comp. L. 403, 408 (2016), paywall.

  51. 51.

    Id. at 408

    (discussing the involvement of feminist groups in the formation of the governing statutes for the ICTR and ICTY).

    See also Hagay-Frey, supra note 45, at 66

    (discussing the “era of silence” and its implications).

  52. 52.

    Anthony, supra note 50, at 408.

  53. 53.

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

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 5(g), U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], available online.

  54. 54.

    Hagay-Frey, supra note 45, at 83.

  55. 55.

    The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgement ¶¶ 264–75 (ICTY TC, Dec. 10, 1998) [hereinafter Furundžija Trial Chamber Judgment], available online; The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement, ¶¶ 942–43 (ICTY Trial Chamber, Nov. 16, 1998) [hereinafter Čelebići Trial Chamber Judgment], available online.

  56. 56.

    Anthony, supra note 50, at 409.

  57. 57.

    Hagay-Frey, supra note 45, at 96.

  58. 58.

    Id. at 97.

  59. 59.

    Id. at 97.

  60. 60.

    Anthony, supra note 50, at 409.

  61. 61.

    Hagay-Frey, supra note 45, at 97.

  62. 62.

    Id. at 97–98.

  63. 63.

    Id. at 98.

  64. 64.

    Id.

  65. 65.

    Id. at 98.

  66. 66.

    Id.

  67. 67.

    Id.

  68. 68.

    Id.

  69. 69.

    Id. at 99.

  70. 70.

    ICTR Statute, supra note 53, Article 6(3); ICTY Statute, supra note 53, Article 7(3).

  71. 71.

    Čelebići Trial Chamber Judgment, supra note 55, at ¶¶ 1010, 1047, 1072.

  72. 72.

    See Zawati, supra note 5, at 117

    (noting that many feminist scholars have considered these tribunals a “complete failure”).

    Hagay-Frey, supra note 45, at ¶ 101

    (discussing the various failings of both the ICTR and ICTY from a scholarly perspective).

  73. 73.

    Zawati, supra note 5, at 177

    (alleging that the ICTY and ICTR provided, at best, only “symbolic gender justice” by convicting only a few perpetrators).

  74. 74.

    Id. at 119–20

    (discussing several cases in which such charges had to be withdrawn by the prosecutor).

    See also Hagay-Frey, supra note 45, at 97

    (discussing the lack of SGBV crime charges in the initial indictment of Akayesu).

  75. 75.

    Zawati, supra note 5, at 118–19.

  76. 76.

    Ruth Wedgwood, ICC Prosecution of Mass Rape Crimes Will Require some Evidence from Victims, but the Hardship of Testifying can be Mitigated, in Contemporary Issues Facing the International Criminal Court 300, 300 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online.

  77. 77.

    Id. at 301

    (discussing the fact that some of the judges of the ICC have likely not served as professional judges).

  78. 78.

    See Linnea Kortfält, Sexual Violence and the Relevance of the Doctrine of Superior Responsibility in the Light of the Katanga Judgment at the International Criminal Court, 84 Nordic J. Int’l L. 533, 552 (2015), available online

    (discussing the acquittal of Germain Katanga as a result of the failure to link him directly to the acts committed).

    Cf. Kelly Dawn Askin, Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape without Testimony from Victims?, in Contemporary Issues Facing the International Criminal Court 275 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online

    (arguing that in modern conflicts, it may be more likely that such technological evidence could be obtained, reducing the need for victim participation).

  79. 79.

    John Hagan, The Use of Sample Survey Interviews as Evidence of Mass Rape, in Contemporary Issues Facing the International Criminal Court 295, 295 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online.

  80. 80.

    Wedgwood, supra note 76, at 300.

  81. 81.

    See Zawati, supra note 5, at 120

    (discussing, as an example, the ICTY prosecutor being forced to remove rape charges from Tadić’s indictment due to failure to provide adequate security to the key witness).

  82. 82.

    See generally, Askin, supra note 78.

  83. 83.

    Id. at 276.

  84. 84.

    Id. at 279.

  85. 85.

    Id. at 276.

  86. 86.

    Id.

  87. 87.

    Anne-Marie de Brouwer, Cases of Mass Sexual Violence Can be Proven without Direct Victim Testimony, in Contemporary Issues Facing the International Criminal Court 282, 290 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online.

  88. 88.

    Id.; see also Simić, supra note 2, at 14.

  89. 89.

    Askin, supra note 78, at 276.

  90. 90.

    See Wedgwood, supra note 76, at 302.

  91. 91.

    See generally Zawati, supra note 5.

  92. 92.

    Id. at 110.

  93. 93.

    Id.

  94. 94.

    Hagay-Frey, supra note 45, at 98; Zawati, supra note 5, at 110.

  95. 95.

    Zawati, supra note 5, at 115.

  96. 96.

    Id.

  97. 97.

    Id.

  98. 98.

    Id.

  99. 99.

    Id.

  100. 100.

    Hagay-Frey, supra note 45, at 93.

  101. 101.

    Id.

  102. 102.

    Zawati, supra note 5, at 120

    (discussing the Tadić trial, where a lack of adequate security for the key witness led to SGBV charges being dropped, and the case of Tharcisse Muvunyi, where the lead witness declined to testify and moved without providing any location information).

  103. 103.

    Id. at 118; id. at 73; see also Chile Eboe-Osuji, International Law and Sexual Violence in Armed Conflicts 146 (2012), paywall

    (discussing the reasoning for failure to include specific body parts as furthering the purposes of international law).

    Eboe-Osuji at 246

    (discussing the impacts on victims of requiring a lack of consent element).

  104. 104.

    Id. at 72.

  105. 105.

    See Zawati, supra note 5, at 24

    (stating that fair labelling requires distinguishing between offenses by subdividing, defining, and labelling them in order to convey the nature and magnitude of each crime. The failure to do so affects the defendant, the victim, and the public, as discussed above).

    See also Zawati, supra note 5, at 14

    (providing an example whereby prosecuting forced nudity and aggravated rape under the same label of sexual assault is violative of the doctrine, failing to convey appropriate blameworthiness to the public, proper stigmatization to the defendant, and properly conveying the individualized harm done to the victim).

  106. 106.

    Furundžija Trial Chamber Judgment, supra note 55, at ¶ 174.

  107. 107.

    Eboe-Osuji, supra note 103, at 146

    (discussing the drastic departure from Akayesu, and noting that this new definition requires coitus in order to establish rape).

  108. 108.

    Zawati, supra note 5, at 74.

  109. 109.

    The Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, IT-96-23-T & IT-96-23/1-T, Judgement, ¶ 460 (ICTY TC, Feb. 22, 2001), available online.

  110. 110.

    Hagay-Frey, supra note 45, at 146.

  111. 111.

    Id. at 116.

  112. 112.

    See, e.g., The Prosecutor v. Laurent Semanza, ICTR-97-20-T, Judgement and Sentence, ¶ 346 (ICTR TC III, May 15, 2003), available online

    (for instance, in the Semanza case, the Trial Chamber focused on the mens rea standard, stating it required intent to sexually penetrate the victim, with knowledge that the victim does not consent to the act, resulting in Semanza being found guilty of only one isolated incident of rape, despite the fact that he had regularly and directly ordered his subordinates to use rape. This effectively destroyed the possibility of bringing further rape crimes before the tribunal).

  113. 113.

    Anthony, supra note 50, at 410.

  114. 114.

    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], Preamble, available online.

  115. 115.

    Green, supra note 22, at 530–31.

  116. 116.

    Id. at 531.

  117. 117.

    See Anthony, supra note 50.

  118. 118.

    Rome Statute, supra note 114, at Article 7(1)(g).

  119. 119.

    Id. at Arts. 7(1)(g) & 8(2)(b)(xxii).

  120. 120.

    Anthony, supra note 50, at 410.

  121. 121.

    See International Criminal Court, Elements of Crimes, ICC-ASP /1/3, Arts. 7, 8 (Sep. 9, 2002, updated May 31, 2010), available online, archived.

  122. 122.

    Rome Statute, supra note 114, at Article 28.

  123. 123.

    Kortfält, supra note 78, at 552.

  124. 124.

    Luis Moreno-Ocampo, The Place of Sexual Violence in the Strategy of the ICC Prosecutor, in Sexual Violence as an International Crime: Interdisciplinary Approaches 151 (Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens & Larissa van den Herik, eds., 2013).

  125. 125.

    Rome Statute, supra note 114, at Article 54(1)(b).

  126. 126.

    Id. at Article 68(1).

  127. 127.

    Moreno-Ocampo, supra note 124, at 153.

  128. 128.

    Id.

  129. 129.

    Id. at 156.

  130. 130.

    Id.

  131. 131.

    Bemba Trial Chamber Judgment, supra note 1.

  132. 132.

    Green, supra note 22, at 532.

  133. 133.

    Mélanie Vianney-Liaud & Carine Pineau, Assessing Victims’ Contribution to the Determination of the Truth in the Bemba Case, 12 Eyes on the ICC 51 (2016), paywall.

  134. 134.

    Id.

  135. 135.

    Bemba Trial Chamber Judgment, supra note 1, at ¶ 18.

  136. 136.

    Vianney-Liaud, supra note 133, at 54–55.

  137. 137.

    Bemba Trial Chamber Judgment, supra note 1, at ¶¶ 10–16.

  138. 138.

    Id. ¶ 742.

  139. 139.

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

  140. 140.

    Id. ¶ 32.

  141. 141.

    Id.

  142. 142.

    Id.

  143. 143.

    Id. ¶ 35.

  144. 144.

    Id. ¶ 38.

  145. 145.

    Id. ¶ 42.

  146. 146.

    Id.

  147. 147.

    Id.

  148. 148.

    Bemba Trial Chamber Judgment, supra note 1, at ¶ 719.

  149. 149.

    Id.

  150. 150.

    Id. ¶ 720.

  151. 151.

    Id.

  152. 152.

    Id.

  153. 153.

    Id. ¶ 722.

  154. 154.

    Id. ¶ 720.

  155. 155.

    Id. ¶¶ 723–24.

  156. 156.

    Id. ¶ 725

    (noting that those on the mission were met upon landing and taken to a secluded home where only limited interviews were permitted, and in a coercive atmosphere with armed MLC soldiers walking amongst the interviewees).

  157. 157.

    Id. ¶ 729.

  158. 158.

    Id. ¶¶ 729–30.

  159. 159.

    Id. ¶ 717.

  160. 160.

    Id. ¶ 706.

  161. 161.

    Id. ¶ 707.

  162. 162.

    Id.

  163. 163.

    Id.

  164. 164.

    Id. ¶ 708.

  165. 165.

    Id. ¶ 709.

  166. 166.

    Id. ¶ 711.

  167. 167.

    Id. ¶ 714.

  168. 168.

    Id. ¶ 716.

  169. 169.

    Id.

  170. 170.

    Id. ¶ 717.

  171. 171.

    Bemba Appeals Chamber Judgment, supra note 139, at ¶¶ 120–89.

  172. 172.

    Id. ¶¶ 138, 145, 146.

  173. 173.

    Id. ¶ 138.

  174. 174.

    Id. ¶ 166.

  175. 175.

    Id. ¶¶ 168–70.

  176. 176.

    Id. ¶ 172.

  177. 177.

    Id. ¶¶ 176–78.

  178. 178.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 46 (AC, Jun. 8, 2018), available online, archived.

  179. 179.

    Id. ¶ 47.

  180. 180.

    Id. ¶ 52.

  181. 181.

    Id. ¶ 47.

  182. 182.

    Id.

  183. 183.

    Id. ¶ 54.

  184. 184.

    Id. ¶ 56.

  185. 185.

    Bemba Appeals Chamber Judgment, supra note 139, at ¶ 32.

The right to refuse any command or order has been well established since the times of the Roman act none statute. Furthermore, even if the right to kill does exist, that right is limited to self defense. If the premise of the order or command given is to kill, without self defense, the order fails. None the less the nature of war also provides, the people that have taken the order to be a need at face, cannot be used in that context, to deny the commander to be accused. Circumstances do exist in the establishment where to deny the order would create a death sentence by doing that, in that sense following the order is self defense. In any event that self defense that maybe exists, is not for the commander to wield as his, it in itself is the prosecution’s failure to provide evidence at trial that diminishes the defense.

After the Bemba Appeals Chamber Decision, Will it be Harder to Secure Convictions for Command Responsibility in SGBV Crimes?

I. Introduction

In March 2016, former Vice President of the Democratic Republic of Congo Jean-Pierre Bemba Gombo was found guilty by the International Criminal Court’s (ICC) Trial Chamber of command responsibility for crimes against humanity and war crimes, including rape.1 This was the ICC’s first prosecution under Article 28 of the Rome Statute, which spells out the legal conditions for a finding of command responsibility for war crimes and crimes against humanity.2 However, Bemba’s conviction was subsequently overturned in 2018 by the ICC’s Appeals Chamber on procedural, evidentiary, and legal grounds. This comment will examine the shifts in standards for command responsibility prosecution and what the Bemba Appeals Chamber decision means for future command responsibility prosecutions, particularly those of sexual and gender-based violence (SGBV).

The Office of the Prosecutor (OTP) at the ICC already faces criticism for its reliance on outside actors and cooperation during the evidence gathering process, as well as the Pre-Trial Chamber’s eagerness to confirm charges prior to completing evidence gathering.3 These evidentiary issues are most apparent in cases of SGBV, where additional evidentiary and societal hurdles already exist with proving the underlying crimes. Given the more stringent standard applied by the Appeals Chamber of the ICC in Bemba, there is high likelihood that moving forward, Article 28 convictions are likely to be more difficult in weaker or failed states, particularly in cases of SGBV.

The following comment will first discuss evidentiary challenges at the ICC, particularly with regards to SGBV. Part III will examine the nature and history of command responsibility, including in prosecutions of rape or SGBV. While Bemba was the first command responsibility prosecution at the ICC, command responsibility charges have been brought in other international criminal tribunals, including the ICTY and ICTR. Part IV will discuss the ICC’s standards of review prior to Bemba, the Pre-Trial Chamber’s findings in Bemba, the Trial Chamber’s ruling in Bemba, and the divergent standard applied by the Appeals Chamber in its acquittal of Bemba. Part V will examine whether, given the Appeals Chambers findings on standards of review, confirmation and charges, and Article 28 in Bemba, convictions for command responsibility for SGBV will be more difficult in weak or failed states moving forward.

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.

The Bemba Decision and its Impact on the Command Responsibility Doctrine

In 2018, the International Criminal Court (ICC) issued a decision that arguably “transformed [the doctrine of] command responsibility into an admonition with little effect.”1 The command responsibility doctrine holds superior officers responsible for the orders they give to subordinates. Under that doctrine, commanders can be held responsible for issuing illegal orders that their forces execute, for being aware of illegal acts that forces are about to commit and not preventing those acts, or for failing to punish forces for previous illegal acts.2

The decision that had such a great impact on the command responsibility doctrine was the Bemba3 decision. Jean-Pierre Bemba Gombo, a Rwandan mayor, was charged with directing troops to commit war crimes and crimes against humanity,4 thereby violating Article 28 of the Rome Statute.5 After the Trial Chamber convicted Bemba in 2016, the Appeals Chamber reversed the decision and acquitted Bemba in 2018, finding that a number of factors prevented Bemba from being held liable under the command responsibility doctrine.6 The Bemba7 decision was shocking to many given the progression of the command responsibility doctrine and prior decisions of other international legal tribunals.8

This comment will demonstrate the progression of the command responsibility doctrine through the Yamashita9 case, a number of Nuremberg cases, and various International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal of Rwanda (ICTR) cases, culminating with the ICC’s decision in the Bemba10 case. This comment will demonstrate how the Bemba11 decision impacts the progression of the command responsibility doctrine. Ultimately this comment determines that the Bemba12 decision creates a more defense—friendly command responsibility standard by relaxing the “necessary and proper measures” clause.

I. Yamashita13 Case

An early case that enunciated the doctrine of command responsibility was the General Yamashita case.14 General Yamashita was tried in the Philippines for crimes that were committed by Japanese forces that he oversaw in October 1944.15 The trial was based on the alleged crimes of non-military necessity attacks on civilians that killed approximately 25,000 civilians, and the related homicide, pillage, destruction of religious property and starvation of prisoners of war.16 Yamashita was convicted in the Trial Chamber for “failing to discharge his duty as commander to control the operations of the members of his command,” and subsequently appealed his conviction.17 After reaching the United States Supreme Court, Yamashita’s conviction was upheld.18 Chief Justice Stone opined that Yamashita’s conviction was justified based on the affirmative duty imposed by the Fourth Hague Convention for military generals to protect prisoners of war and the civilian population.19 According to Stone’s logic, civilians and prisoners of war would no longer be protected if commanders of invading armies could direct their subordinates without being held responsible for the subordinate’s actions.20

However, despite the majority’s opinion upholding Yamashita’s conviction, Justice Murphy’s dissent illustrated that it was unclear if Yamashita actually had the requisite control over his troops.21 As Justice Murphy noted, Yamashita had only arrived in the Philippines at the end stages of the invasion so he did not have much time to assert control over the troops who committed the atrocities.22 Moreover, the Japanese army and navy fought with one another and therefore it was not even clear within the Japanese military if Yamashita truly exercised control over many soldiers.23 Finally, the Japanese substandard communications technology and Yamashita’s battle plan which divided his troops between the mountains and urban areas also made it more difficult for Yamashita to command his troops to commit atrocities or stop them from doing so.24 Overall, “there was no assertion that Yamashita had committed any of the crimes, had ordered any of the crimes, or had acquiesced in any of the crimes.”25

Yet, despite this lack of clarity regarding the extent of Yamashita’s control over his troops, the Supreme Court upheld Yamashita’s conviction and Yamashita was subsequently executed.26

In terms of the progression of the command responsibility doctrine, Yamashita’s27 case addressed the question of what level of mens rea is necessary for the command responsibility doctrine to apply.28 As detailed above, there was little proof that Yamashita actually knew or should have known that his subordinates were committing the atrocities.29 In fact, Yamashita testified at his trial that he had never given orders to murder civilians and that he did not have any information of the crimes taking place.30 Thus, when the Court ultimately convicted and executed Yamashita, it arguably created a form of strict liability of command responsibility, whereby a general was convicted solely based on the evidence that war crimes had been committed without any proof that the general had the ability to prevent the war crimes from being committed in the first place.31 Overall, the Yamashita32 decision proved to be a harsh command responsibility decision and created a prosecution—friendly standard whereby evidence of war crimes committed by subordinates could implicate commanders without any proof of commander culpability.

II. Nuremberg Cases

After the Yamashita33 case, the command responsibility doctrine was used to prosecute Senior Nazi Officials in the Nuremberg Cases in the aftermath of World War II.34 American prosecutors brought some command responsibility cases in a series of cases known as the Subsequent Nuremberg Proceedings.35 Two of the notable command responsibility cases from the Subsequent Nuremberg Proceedings were United States v. von Leeb et al.,36 and United States v. List et al.37

United States v. von Leeb et al. concerned William von Leeb and thirteen co-defendants who were all former high-ranking German officers from the German Army, Navy and German High Command.38 The defendants were charged with crimes against peace, war crimes and crimes against humanity.39 Some of the crimes defendants were charged with included invading certain countries, ordering the murder of civilians in towns the Germans wanted cleared, ordering the execution of Red Army Soldiers upon capture, and ordering the extermination of Jews.40 The von Leeb41 trial was different than other command responsibility trials in that there were clear orders from senior officers commanding others to violate international law.42 Therefore, there was no question that the superior officers were criminally responsible for their orders; rather the issue for the tribunal was to figure out the extent of an officer’s guilt for giving an order or passing along an order from a superior.43

Moreover, the Von Leeb44 tribunal was tasked with differentiating between the responsibility of commanders for orders that had come from military actors and orders that they received from the state.45 Ultimately, the von Leeb46 tribunal concluded that a high commander will not be held liable for acts that were committed at the behest of state actors without “a personal dereliction” to the high commander.47 According to the von Leeb48 tribunal, a personal dereliction occurs:

[O]nly where the act is directly traceable to [the high commander] or where [the high commander’s] failure to properly supervise his subordinates constitutes criminal negligence on his part.49

However, the von Leeb50 tribunal clarified that military commanders of occupied territories are responsible for crimes committed regardless of whether there is a personal dereliction or if it is a state command.51 Finally, the von Leeb52 tribunal summarized rule for military commanders by stating that:

[A] military commander, whether it be of an occupied territory or otherwise, is subject both to the orders of his military superiors and the state itself as to his jurisdiction and functions.53

In addition to the von Leeb54 trial, the United States v. List et al.55 trial also concerned the command responsibility doctrine and Nazi Officers. The defendants were senior Nazi officers who were charged with issuing orders to kill thousands of civilians, looting, wanton destruction of towns, refusing to quarter enemy soldiers, and deporting civilians to concentration camps.56 Since all of the foregoing crimes violated The Hague Convention of 1907, the defendants were charged with violating the command responsibility doctrine when they ordered their subordinates to commit those crimes.57 Defendants contended that they were unaware of many of the reports and orders because they had been away from their headquarters at the time that these orders and reports were delivered.58 However, despite the defendant’s denial of responsibility, the List59 tribunal ultimately held the defendants responsible, stating that “[they were] convinced that military information was received by these high ranking officers promptly” based on the known “efficiency of the German armed forces.”60

Ultimately, the Nuremberg cases of von Leeb61 and List62 contributed to the progression of the command responsibility doctrine by addressing the question of when command responsibility is conflated with superior orders. Both the von Leeb63 and List64 tribunals were tasked with determining if commanders were to be held accountable for giving illegal orders because they had received the orders themselves.65 Overall, tribunal judges usually did not accept the superior order defense, and even stated in the von Leeb66 case that to recognize a superior order defense “would be in practical effect to say that all the guilt charged in the Indictment was the guilt of Hitler alone.”67 In the end, the von Leeb68 tribunal acquitted two defendants and convicted the rest of the defendants, sentencing them to terms spanning time served to life imprisonment.69 Similarly, the List70 tribunal also acquitted two defendants and convicted and sentenced the others to terms of time served to life imprisonment.71 Ultimately, all of the defendants were released by 1955, with many of the releases carried out to cement good relations between the US and West Germany in the early years of the Cold War.72 Overall, the Nuremberg cases clarified that the command responsibility doctrine usually applies even when commanders received superior orders, although the Nuremberg cases did create an exception for high commanders who would not be held liable for any and all orders under their command.

III. ICTY Cases

The doctrine of command responsibility reappeared again in the ICTY trials. In February 1993, the United Nations (UN) Security Council passed Resolution 808 which established the ICTY to handle the humanitarian crisis in the former Yugoslavia.73 The Secretary General then proposed a governing statute for the ICTY and it was adopted in Resolution 827.74 The ICTY Statute contained the following provision on command responsibility:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute [grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.75

The ICTY command responsibility statute essentially provided that commanders could be held liable for subordinate actions if they knew or should have known that the subordinates would commit the actions or had already committed them. This ICTY codification of the command responsibility doctrine limited the interpretation of the Nuremberg cases, which held military commanders responsible for any actions committed by subordinates, regardless if the commander had known or should have known of the actions. According to the ICTY interpretation, if it was found that a military commander did not know of the actions or could not have reasonably known of them, this would absolve the commander of responsibility for subordinate actions.

In order to understand the ICTY stance on command responsibility, it is helpful to analyze two of the ICTY decisions on command responsibility, namely the Čelebići76 case and the combined Kordić & Čerkez77 ruling. The Čelebići78 case concerned four defendants who were charged with killing, torturing, sexually assaulting and beating Bosnian Serbs in the Čelebići prison camp.79 Ultimately, the court acquitted defendant Delalić after finding that he did not have sufficient command and control over the Čelebići camp so as to hold him criminally liable for subordinate actions.80 The remaining defendants were all convicted and sentenced to 7–15 years in prison.81

The Čelebići82 appellate case addressed a number of facets of the command responsibility doctrine. First, the court held that an individual may be sufficiently deemed a commander based on de facto command and need not necessarily be a military commander.83 To qualify as a de facto commander, the Appeals Chamber ruled that a superior needs to have effective control over the persons violating international law, and that effective control may be established by a showing that the superior had “the material ability to prevent or punish the commission of these offences.”84 Next, the Appeals Chamber addressed the “reason to know” requirement in Article 7(3) of the ICTY Statute.85 According to the Čelebići86 court, a superior sufficiently has knowledge of the subordinate’s crimes if the superior knew of information that would put him or her on notice of the crimes.87 The knowledge standard established by the Čelebići88 court was not a strict liability or negligence standard as the commander needed to receive relevant information to be held liable.89 However, at the same time, the knowledge standard appeared to be set relatively low, as evidenced by the court’s statement that a commander who learns that his subordinates have a violent or unstable character or have been drinking alcohol before a mission may be found to have sufficient knowledge to be held liable under the command responsibility doctrine.90

Many other ICTY cases relied and expanded on the precedent of the Čelebići91 decision, including the combined Kordić & Čerkez92 rulings and the Blaškić93 decision. Kordić and Čerkez were Croatian citizens who were charged with murder, inhumane treatment, use of human shields, pillaging and destroying religious institutions against Bosnian Muslims.94 Ultimately, the Trial Chamber found that Čerkez was liable as a commander for the inhumane treatment of detainees at the Vitez detention center.95 However, the court absolved Kordić of any command responsibility after finding that there was not enough evidence to determine that he had effective control over the treatment of the detainees.96 Thus, the Kordić & Čerkez97 decision expanded on the Čelebići98 effective control standard for command responsibility, illustrating that the effective control standard requires sufficient evidence of a connection between a commander and subordinate, which was lacking with respect to Kordić.

In addition to the Kordić & Čerkez99 decisions, the ICTY expanded on the question of the level of knowledge required of superiors in the Blaškić100 decision. Blaškić was a Bosnian Croat general who was charged with persecutions, unlawful attacks against the civilian population, willful killing, taking civilian hostages and using civilian shields.101 The Trial Chamber had concluded that Blaškić was negligent when he did not inform himself of his subordinates crimes.102 However, the Appeals Chamber overturned this ruling, upholding the Čelebići103 standard of knowledge instead (i.e., holding a superior responsible only if information was available to him which would have put him on notice regarding the offenses committed by subordinates).104 Thus, the Blaškić105 appellate decision clarified the knowledge requirement for the command responsibility doctrine in that a superior needs to have actual information available to him which would allow him to have the requisite knowledge to be held criminally responsible.

Overall, the Čelebići,106 Kordić & Čerkez107 and Blaškić108 decisions added to the progression of the command responsibility doctrine by clarifying that an individual is sufficiently considered a commander for the purposes of the command responsibility doctrine if they have effective control over their subordinates as established by evidence that the commander had the material ability to prevent or punish the commission of these offenses. Furthermore, the decisions clarified that the standard of knowledge required for the command responsibility doctrine to apply is that the superior needs to have information available to him which would have put him on notice regarding the offenses committed by subordinates. As opposed to the Nuremberg decisions, the ICTY cases elaborated the command responsibility doctrine in a way that created a more favorable doctrine for the accused in that they could now argue that they did not have the requisite control or knowledge of their subordinates, which had not been available to them in the earlier cases.

IV. ICTR Cases

Similar to the ICTY, the ICTR adjudicated a number of cases that concerned the command responsibility doctrine. The ICTR was established after the UN Security Council passed Resolution 955 to create an international tribunal to address the atrocities that were being perpetrated in Rwanda.109 As the ICTR was established in a relatively short period after the ICTY, the ICTR’s provision on command responsibility directly matched the ICTY language. This language was reflected in Article 6(3) in the ICTR Statute.110 The ICTR interpreted the Article 6(3) command responsibility doctrine through a number of cases including the Bagilishema111 case and the Kayishema & Ruzindana112 cases.

The Prosecutor v. Bagilishema113 was the first important ICTR judgment addressing the doctrine of command responsibility.114 Bagilishema was a former mayor of the Mabanza commune in Rwanda, who was charged with genocide, complicity in genocide, violations of the Geneva Conventions, murder, extermination and other crimes against humanity.115 An issue at the forefront of the Bagilishema case was the extent to which an accused needs to have knowledge of their subordinate’s crimes.116 In its reasoning, the trial chamber had inquired as to whether Bagilishema was negligent when he failed to acquire knowledge of his subordinates actions.117

Ultimately, the Appeals Chamber affirmed Bagilishema’s acquittal after finding that the prosecution had failed to prove that Bagilishema had the requisite knowledge of his subordinates actions.118 In it’s reasoning, the Appeals Chamber relied on the Čelebići119 decision, and clarified that the standard for knowledge is “whether the accused knew or had reason to know of the subordinates’ crime,” and was not a per se negligence standard of responsibility for a commander who failed to inquire about his or her subordinates even if the commander did not know or have reason to know of the subordinate’s crimes.120 The Appeals Chamber clarified the command responsibility requirement in their opinion, by stating that:

[T]he law imposes upon a superior a duty to prevent crimes which he knows or has reason to know had been committed, by subordinates over whom he has effective control.121

However, the Appeals Chamber did state that a military commander could be held liable:

[I]f he fails to discharge his duties as a superior either by deliberately failing to perform them or by culpably or willfully disregarding them.122

Thus, the Bagilishema123 decision reinforced the Čelebići124 holding that the command responsibility knowledge requirement was not a negligence standard but rather required proof that the commander knew or should have known of his or her subordinate’s crimes.

In addition to the Bagilishema125 case, the Kayishema & Ruzindana126 cases further elaborated on the ICTR’s standard of command responsibility. Kayishema and Ruzindana were Rwandan prefects who were charged with conspiracy to commit genocide, crimes against humanity, and war crimes.127 One of the primary issues in the case concerned what constituted “necessary and reasonable” measures to prevent a subordinates crime.128 The Appeals Chamber cited the Čelebići129 standard of “necessary and reasonable measures” which was held to be “measures that are within [a commander’s] material possibility.”130 The Kayishema & Ruzindana131 Appeals Chamber then reinforced the Trial Chamber judgment where the court had clarified that a commander can be held responsible if they were in a position to prevent or punish their subordinates.132 However, the Appeals Chamber created a loophole for commanders by stating that at times it can be impossible for a commander to take necessary and reasonable measures to prevent subordinate crimes, and therefore:

[A]ny imposition of responsibility must be based upon a material ability of the accused to prevent or punish the crimes in question.133

Thus, the Kayishema & Ruzindana134 cases further explained what constitutes “necessary and reasonable” measures, recognizing that there may be times when commanders may not have the ability to effect any of their subordinate actions. Thus, the ICTR standard for “necessary and reasonable” measures departed from the Yamashita135 case of strict liability where General Yamashita was executed for subordinate crimes despite arguably not being in a position to prevent or punish his subordinates.

Overall, the Bagilishema136 and Kayishema & Ruzindana137 cases added to the progression of the command responsibility doctrine by further clarifying the standard of knowledge needed for a commander to be held liable for subordinate actions and what “necessary and reasonable measures” needed to be taken to absolve a commander from liability. The Bagilishema138 decision reiterated the Čelebići139 view that a negligence standard of knowledge was not enough to hold a commander responsible; rather the standard for knowledge was whether the superior knew or had reason to know that their subordinates were going to commit the crimes. Furthermore, the Kayishema & Ruzindana140 cases clarified the “necessary and reasonable measures” standard by stating that the measures needed to be within a commander’s material possibility, and acknowledging that there may be times where a commander does not have the ability to prevent or punish subordinate’s crimes. This standard for “necessary and reasonable measures” was a clear departure from the earlier Yamashita141 case and was markedly more favorable for accused commanders who now had the option of arguing that it was impossible for them to prevent their subordinates from committing their crimes.

V. ICC and the Bemba142 Decision

The command responsibility doctrine was further expanded on in the ICC. Unlike the ICTY and ICTR, the ICC took a while to be established. Proposals to create an international tribunal began at the turn of the Twentieth Century, however, the ICC was officially established in 2002.143 The Rome Statute, the founding statute of the ICC, lays out the laws and rules that regulate the daily operations of the ICC. Specifically, Article 28 of the Rome Statute addresses the topic of command responsibility.144 The Article reads as follows:

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.145

The ICC command responsibility doctrine clearly evolved from the ICTY and ICTR command responsibility doctrines. The ICC doctrine utilized the concept of “known or should have known” along with the concept of “necessary and proper measures,” both ideas taken from the ICTY and ICTR command responsibility statutes.146 However, the ICC Statute specifically states that a commander is required to have “effective control” over subordinates before being held responsible for his or her actions.147 While the ICC Statute is unique in mentioning the concept of “effective control,” the concept is also borrowed from the Čelebići148 ICTY case. Thus, it is apparent that the ICC command responsibility doctrine evolved from the ICTY and ICTR decisions involving the command responsibility doctrine. However, the ICC differentiated it’s standard for the command responsibility doctrine in terms of the level of knowledge required, necessary and reasonable measures standard, and causality requirement.

The ICC established its command responsibility doctrine in the The Prosecutor v. Jean-Pierre Bemba Gombo.149 The June 2009 Bemba hearing was the first opportunity for the ICC to interpret the command responsibility doctrine of the Rome Statute.150 Bemba was a leader of the Mouvement pour la Liberation du Congo (MLC) who was charged with rape, murder, torture, pillage and crimes against humanity and war crimes.151 Initially, the Trial Chamber had decided in 2016 that Bemba was criminally responsible pursuant to Article 28(a) of the Rome Statute for crimes committed by MLC troops in the Central African Republic between October 2002 and March 2003.152 The court determined that Bemba was guilty after finding that Bemba qualified as a military commander who had effective control over the MLC troops.153 The Trial Chamber adopted the Čelebići154 test from the ICTY trials, to find that Bemba had effective control over the MLC troops because Bemba had the “material ability to prevent and punish criminal conduct by his subordinates,” and therefore, had effective control over the troops.155 However, the Trial Chamber elaborated on the ICTY “effective control” standard, adding that the factors of a commander’s official position, a commander’s power to issue or give orders, and a commander’s capacity to ensure compliance with his orders, are all necessary criteria to analyze in an effective control analysis.156

However, although the Bemba157 Trial Chamber adopted the ICTY “effective control” standard, it also differentiated the command responsibility doctrine in a number of ways. First, the ICC disagreed with the ICTY practice to hold commanders liable for crimes committed before the commander had authority over the subordinate.158 Additionally, the Bemba159 Trial Chamber created a causality requirement since:

[I]t is […] necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged.160

As the Trial Chamber stated, if a commander failed to prevent a subordinate’s crime, in order to hold the commander criminally responsible, it is necessary to prove that the commander’s omission led to the increased risk of the commission of the crime to hold the commander criminally responsible.161 Thus, the Bemba162 court enumerated a causality requirement in the command responsibility doctrine, which other international courts had not done.

Surprisingly, however, in June 2018, the Appeals Chamber of the ICC acquitted Bemba from the charges of crimes against humanity (murder and rape) and war crimes (murder, rape and pillaging).163 The Appeals Chamber determined that Bemba had been wrongfully convicted for specific criminal acts that were outside the scope of the charges, and after deciding that Bemba was not lacking in taking “all necessary and reasonable measures” since he was a remote commander with limitations in terms of how much he could investigate subordinate crimes.164 Ultimately, the Appeals Chamber identified a number of reasons why Bemba did not take all necessary and reasonable measures and therefore should be acquitted of the charges.165 A number of these reasons include the considerations that Bemba was limited in the extent to which he could investigate and prosecute crimes because he was a remote commander with troops in a foreign country, additionally the consideration that Bemba sent a letter to CAR authorities, and also the consideration that the Trial Chamber faulted Bemba for his measures that were poorly executed by his subordinates.166

In its analysis, the Appeals Chamber essentially interpreted the “all necessary and reasonable measures” clause by emphasizing “necessary and reasonable” in a way that favored defendant commanders.167 As the Bemba appeals decision illustrates, Bemba was acquitted of his charges because it was deemed that it wasn’t necessary or reasonable for him to mitigate his subordinates crimes because he was in a remote geographical location where it was difficult for him to investigate or prosecute his force’s actions.168 The Appeals Chamber succinctly stated that:

[C]ommanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates.169

Ultimately, the Appeals Chamber’s analytical framework really seems to be defendant friendly as they create the calculus to be a flexible cost/benefit analysis as opposed to the previous Yamashita,170 Nuremberg, ICTY and ICTR analyses, all of which were less forgiving to defendants and often held defendants accountable, especially when defendants knew or should have known of the crimes that their subordinates were committing.

Evidently, the majority Bemba171 Appeals Chamber decision creates a command responsibility standard that is highly defense friendly, and creates a higher burden for the prosecutor to fill. Once the ICC acquitted Bemba of any responsibility for his subordinates crimes after giving credence to the fact that he was a remote commander and that he communicated with the CAR authorities, commanders in future cases have a lower burden to plead once they argue that they were remote commanders and lacked investigative and other powers over their forces. The lightened command responsibility doctrine under Bemba172 definitely contrasts with the ICTY and ICTR command responsibility doctrine where commanders were prosecuted because they should have known of their subordinates crimes, and were not afforded the opportunity to have their actions analyzed according to cost benefit analyses of the mitigating factors in their military location or otherwise.

Overall, the command responsibility doctrine has progressed in many ways from its first iteration in the days of General Yamashita. Evidently, it appears that in 1944 a commander would be killed for crimes that he may have had little control over, while that same commander may be acquitted in 2018 in the face of a lot more damning evidence. Tracing the progression of the command responsibility doctrine through the Yamashita,173 Nuremberg, ICTY, ICTR and ICC trials illustrates how the doctrine was clarified, relied on and distinguished through trials that spanned decades and miles from each other. Generally, the doctrine that has currently emerged purports to hold commanders responsible for illegal actions of their subordinates that they knew of or should have known of and that they failed to take all necessary and reasonable measures to prevent. However, as the case law illustrates, the doctrine is open to much interpretation, and often courts may choose to interpret the doctrine in a number of ways. And while some scholars argue that the Bemba174 acquittal “transformed command responsibility into an admonition with little effect, a legal burden too easily shirked,”175 only time will tell the effect that the Bemba176 decision will have on international jurisprudence and the command responsibility doctrine overall. Perhaps command responsibility as a whole will adopt this defense friendly standard, or perhaps others will ignore Bemba’s177 acquittal and forge their own interpretations We can’t predict what the Bemba178 effect will have. However, we can accurately predict that the command responsibility doctrine will continue to evolve, continue to expand and continue to progress for many years to come.

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

  1. 1.

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

  2. 2.

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

  3. 3.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute(AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived.

  4. 4.

    Press Release, ICC, ICC Appeals Chamber Acquits Mr. Bemba from Charges of War Crimes and Crimes Against Humanity (Jun. 8, 2018) [hereinafter Bemba Press Release], available online.

  5. 5.

    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], available online.

  6. 6.

    Bemba Press Release, supra note 4.

  7. 7.

    Bemba Appeals Chamber Judgment, supra note 3.

  8. 8.

    Amann, supra note 1.

  9. 9.

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

  10. 10.

    Bemba Appeals Chamber Judgment, supra note 3.

  11. 11.

    Id.

  12. 12.

    Id.

  13. 13.

    Yamashita, supra note 9.

  14. 14.

    Id.

  15. 15.

    De Landri, supra note 2, at 4.

  16. 16.

    Id. at 5.

  17. 17.

    Michael J. Sherman, Standards in Command Responsibility Prosecutions: How Strict, And Why?, 38 N. Ill. U. L. Rev. 298, 301 (2017), available online.

  18. 18.

    Id.

  19. 19.

    Id.

  20. 20.

    Id. at 301–02.

  21. 21.

    Id. at 302.

  22. 22.

    Id. at 302–03.

  23. 23.

    Id.

  24. 24.

    Id. at 303.

  25. 25.

    Id.

  26. 26.

    Id. at 301.

  27. 27.

    Yamashita, supra note 9.