Argument Continued

It bears stressing that convictions have hinged upon the commander’s own behavior; that is, on his own failure to act as military, moral, and legal considerations require him to do. An oft-quoted passage by Professor Yoram Dinstein encapsulates the point:

It must be accentuated that command responsibility is all about dereliction of duty. The commander is held accountable for his own act (of omission), rather than incurring ‘vicarious liability’ for the acts (of commission) of the subordinates.7

It is not a matter of strict liability, for guilt may not lie simply because of command status. Conviction is based, rather, upon proof that a commander breached his duty by failing to act when he knew, or should have known, that subordinates were about to, or already had, committed violations of the laws of war. Allowing conviction upon proof of a mens rea lower than actual knowledge avoids what Professor Roger S. Clark called “an invitation to the commander to see and hear no evil,” which would undermine “serious effort to make the command structure responsive to the humanitarian goals involved.”8

Drafters at the 1998 Rome Diplomatic Conference embraced these views, so that Article 28(a) of the ICC Statute states:

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:

• 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
• 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.

This subpart (a) text, coupled with subpart (b)’s application of the doctrine to “other superiors,” has led to description of Article 28 as expanding liability.9

That is not what happened in last year’s appellate ruling in Bemba, however. The accused, a Congolese national, stood trial on two counts of murder and rape as crimes against humanity, plus three counts of murder, rape, and pillage as war crimes based on his liability as a commander for acts that his militia’s troops had committed in the Central African Republic. In 2016, a Trial Chamber entered convictions on all counts and sentenced him to eighteen years’ imprisonment. Two years later, the Appeals Chamber, by a vote of 3 to 2, applied a de novo standard of review and fully acquitted the accused.

Central to this result was the appellate majority’s discussion of the element set forth in Article 28(a)(ii), concerning the commander’s failure to “take all necessary and reasonable measures within his or her power to prevent or repress their commission…” The words “all” and “necessary” militate in favor of setting high expectations on what it is “reasonable” to expect of a commander. But the appellate majority placed the bar quite low. For example, Paragraph 191 faulted the Trial Chamber for:

[a] failure to fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country had an important impact on the overall assessment of the measures taken by Mr Bemba.

At odds with doctrine that holds willful blindness is no defense to a charge of command responsibility, the statement goes far to excuse a commander for absenting himself, figuratively and literally, from the field.

Paragraph 170, meanwhile, declared, without citation to authority:

Commanders 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.

The concept of “cost/benefit analysis” derives from economics, of course, and tends to prefer quantitative assessment. It thus seems ill-suited to evaluating the qualitative concerns about protection—force protection, as well as protection of civilians and persons hors de combat—that underlie command responsibility doctrine.

The apparent welcome of defense assertions of “costs” said to outweigh the “benefits” is curious for yet another reason. The Trial Chamber’s found a failure to satisfy the Article 28(a)(ii) duty of care after positing a list of measures that it ruled the accused could have taken to prevent or repress the crimes his subordinates committed. But the appellate majority rejected this line of reasoning on the ground that the accused had not been given notice that such possibilities would be taken into account. Rejection on this basis likely will astound a myriad of attorneys who have litigated complex criminal cases, and of judges who have presided over them. Removal of this method of legal reasoning provokes questions about what methods the majority would allow to the ICC’s courts of first instance. As yet there are no answers. But one thing is known: the majority’s construction treats an accused commander like an ordinary defendant, and in so doing disregards a duty of care that is justified by military practice as well as humanitarian concerns, and prescribed in law. Purporting to do so to ensure a fair trial, it ignores that there is no unfairness in holding a commander to the duty that he himself accepted when he assumed command. The doctrine of command responsibility, and not the responsible commander, has been made to step down.

This is no mere cavil. Given the Statute’s directive to concentrate on the “most serious crimes,” coupled with resource constraints and the sheer numbers of potential defendants, the actual committers of atrocities seldom will appear before the ICC. In the dock instead will be their commander, who led, acquiesced, or turned a blind eye to their criminality—or failed to punish them after crimes occurred. To tolerate such derelictions of duty is to condone indiscipline and so to increase the risks of the very harms that the doctrine of command responsibility is intended to dispel. In the court that was established to entrench a new era of accountability, the result may be that no one can be held to account.

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), 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], available online. ↩

3. 3.

   Instructions for the Government of Armies of the United States in the Field (Lieber Code), Apr. 24, 1863, art. 15, available online. ↩

4. 4.

   See Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Principle 1, II Yearbook of the International Law Commission 374 (1950), available online.

   (“Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”).

   For a definitive account of pre-World War II underpinnings for this principle, see William A. Schabas, The Trial of the Kaiser (Dec. 31, 2018), paywall. ↩

5. 5.

   E.g., Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 418 (2d ed. 2016), paywall, doi

   (quoting 1439 edict first quoted in Leslie C. Green, Ed., Essays on the Modern Law of War 283 (2d ed. Mar. 1, 1999), paywall);

   W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 3 (1973), available online

   (quoting Sun Tzu circa 500 AD). ↩

6. 6.

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

   United Nations General Assembly, Terms of Reference of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, ¶ 6, available online

   (stating that the mechanism “focuses on evidence pertaining to mens rea and to specific modes of criminal liability, including under the principle of command or superior responsibility established under international criminal law.”). ↩

7. 7.

   Yoram Dinstein, The Conduct of Hostilities Under the Law of Armed Conflict 238 (2004), paywall, doi (parentheticals in original) ). ↩

8. 8.

   Roger S. Clark, Medina: An Essay on the Principles of Criminal Liability for Homicide, 5 Rutgers-Camden L.J. 59, 78 (1973–74), paywall ↩

9. 9.

   See Solis, supra note 5, at 437–38 (writing that Article 28(a)(ii) could be construed to enlarge potential liability, yet noting, via quotation of William A. Schabas, An Introduction to the International Criminal Court 85 (1st ed. Jul. 5, 2001), paywall, doi, that “other superiors” liability under Article 28(b) requires a mens rea higher than that for military commanders). ↩

10. Suggested Citation for this Comment:

    Diane Marie Amann, In Bemba, Command Responsibility Doctrine Ordered to Stand Down, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility#Amann.

    Suggested Citation for this Issue Generally:

    What Does the Bemba Appeal Judgment Say About Superior Responsibility Under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility.

Argument

The Rome Statute echoes centuries of military practice by stipulating that the gravamen of personal criminal liability imposed on military authorities (or civilian superiors) is the failure to prevent crimes committed by forces under his/her “effective control” when such crimes occur “ as a result of his or her failure to exercise control properly over such forces.”3 The causation factor is an important aspect of this legal test. Although, the Bemba Appeal Judgment did not extend its analysis to address this aspect of Article 28 based on pragmatic restraint because it was unnecessary as the basis of decision, this submission will conclude by briefly alluding to its implications for future cases. Article 28 requires that the actus reus of the offense is that the commander (or person effectively operating in that capacity) “failed to take all necessary and reasonable measures within his or her power to prevent or repress” violations committed by subordinate forces or “submit the matter to the competent authorities for investigation and prosecution.” This phraseology consolidated the textual strands of Articles 86(2) and 87(1) of Additional Protocol I.4 These legal predicates represent the essence of the Bemba Appeal Judgment analysis vis-à-vis Article 28.

Article 28 represents the culmination of a long developmental arc supported by centuries of pragmatic professional military practice. In lieu of extending the principles of command accountability into a non-traditional, non-linear battlefield in which the commanders utilized fluid mechanisms of control in the midst of rapidly evolving operations, the original OTP filings relied upon assertions of “co-perpetratorship” predicated on precedents interpreting the individual responsibility criteria of Article 25. Any organization united under the authority of a superior exists by definition with some shared or common purpose. The MLC under Mr. Bemba was no exception. That is the very essence of authority and command. The pretrial transformation of the Bemba case away from theories of co-perpetratorship towards Article 28 was salutary because command responsibility analysis provided the strongest basis of responsibility for the crimes alleged in the Central African Republic. That trend in charging should be sustained, and the Bemba Appeal Judgment may well foreshadow similar characterization in the pending litigation related to the Bashir case.

The Nature of Command

To command is an active verb. A commander at any level of authority employs military force to achieve military objectives yet knowingly does so at the risk of personal criminal liability for the actions of subordinates. The existence of superior responsibility as a form of vicarious liability rests upon the legal and moral necessity for controlling the lethal application of violence while simultaneously maximizing respect for the rights of non-combatants. In the words of the Čelebići bench, criminal responsibility of commanders and others in authority is:

[P]redicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine.5

The notion that commanders on the battlefield are vested with the primary enforcement of the laws and customs of war represents the essence of the developed law of command responsibility. Article 28 distills this long line of authority into the mandate that the commander “exercise control properly” over subordinate forces.

At the same time, jurisprudence is quite clear that a perpetrator can never be convicted based upon a norm which an accused could not reasonably have been aware of at the time of the acts, and this norm must make it sufficiently clear what act or omission could engage his criminal responsibility.6 This tenet operates in the shadow of the prosecutor’s obligation to prove each element of each charged offense beyond a reasonable doubt. In the context of Article 28, the inarguable corollary is that military commanders or civilian superiors cannot be convicted based on strict liability incurred by virtue of their position.7 The ICRC Commentary explaining Article 87 of Additional Protocol I makes plain in paragraph 3558 that as “regards commanders of higher levels than that of company commander, they will have corresponding obligations within the confines of the area of their competence.”8

The Bemba Appeal Judgement recognized that the Trial Chamber failed to support its reasoning with evidence sufficient to establish linkage between the actions of Mr. Bemba and the actual commission of crimes on the ground in the adjacent nation. The concurring opinion by Judges Van den Wyngaert and Morrison summarized this defect by noting that jurists must avoid:

[The] mind-set that gives priority to the desire to hold responsible those in high leadership positions and to always ascribe to them the highest levels of moral and legal culpability. Although Article 28 of the Statute can very well be applied to senior commanders, it is not always the right tool to link them directly to the conduct of the physical perpetrators. Of course, it is the responsibility of every commander at every level of the chain of command to do what they can, within their own sphere of competence and authority, to avoid that crimes are committed. However, this is a shared responsibility, in which every commander has a specific role to play.

In other words, the evaluation of “necessary and reasonable measures” is context specific and unique to each commander’s particularized circumstances and operational role.

The Importance of OPCON

Omission of any recognition or discussion of modern state practice whereby commanders around the world delegate operational control (OPCON) represents one of the most striking lacunae in the Trial Chamber analysis. The Trial Chamber asserted that the continuing flow of information from deployed MLC forces back to MLC staff and thence to Mr. Bemba provided him with ongoing authority over daily operations. In fact, commanders around the world delegate OPCON to subordinate commanders or allied officers on a daily basis; which in turn gives them authority to control the day-to-day flow of military planning and tactical operations. OPCON is particularly important when forces from a variety of nations are operating in close proximity and must deconflict friendly fires, designate zones of operation, and ensure tactical coordination.

U.S. doctrine (reflective of accepted practice in many nations, U.N. operations, and multilateral coalitions) is that OPCON delegated to another commander entails::

[T]he authority to perform those functions of command over subordinate forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction necessary to accomplish the mission. Operational control includes authoritative direction over all aspects of military operations and joint training necessary to accomplish missions assigned to the command.9

In that light, imputation of command responsibility flows from the very nature of the laws and customs of war. The entire conception of military structures is premised on some sort of operational hierarchy of authority, which explains why the principle of Unity of Command emerged as one of the universally recognized Principles of War.10 In layman’s terminology, too many cooks in the kitchen will lose every war.

In the context of the Bemba Appeal Judgment, the Trial Chamber’s failure to discuss OPCON relationships meant that it essentially substituted its own subjective assessment regarding the actual extent of Mr. Bemba’s authority as a remote commander to control tactical operations or the selection of military objectives. The repeated assertion by the Trial Chamber that MLC forces operated with a designated modus operandi to attack undefended civilian areas was actually undercut by the viva voce testimony of OTP witnesses. The Trial Chamber repeated that assertion without any discussion of the interface between a purported MLC policy (presumably promulgated or at a minimum supported by Mr. Bemba) and the actual control of operations on the ground exercised by Central African Republic commanders.

To be clear, delegation of OPCON in no way relieves senior commanders of their obligations to ensure compliance with the laws of war. However, it establishes important contextual framing for the implementation of command prerogatives, the flow of information, and analysis of actions that are “necessary and reasonable” on the part of each commander. Similarly, Mr. Bemba’s ability to conduct investigations was curtailed by both geographic and operational constraints that necessitated his reliance on intervening layers of command. In that light, his repeated petitions to U.N. officials and to leadership within the Central African Republic seem far more appropriate than the evidentiary weight accorded by the Trial Chamber.

In the real world, no responsible commander completely severs communication with forces deployed to another nation in an OPCON relationship to multinational commanders or wholly relinquishes command authority. Maintaining reporting channels to forces deployed overseas in an OPCON relationship is prima facie evidence of accepted state practice. The Trial Chamber adduced not a shred of evidence to support the assertion that the failure to surrender all authority over deployed military forces sustains criminal accountability. The ICTY Perišić Appeals Chamber observed that the “circumstantial nature of the relevant evidence” relied upon by judges means that “a finding of effective control is possible only if that is the sole reasonable inference from this evidence.” The take away is plain. Finders of fact must be clear to document the evidentiary basis for findings of effective control, particularly in the absence of testimony that the perpetrator was engaged in tactical level planning for forces that would operate in the vicinity of civilian areas nor any basis in the record indicating an ability to even implement tactical Rules of Engagement.

Without clearly identifying its analogue, the Trial Chamber implicitly analogized Mr. Bemba to the Japanese Foreign Minister, Kōki Hirota, who was convicted by the IMTFE. The Tribunal noted that when Japanese forces in Nanking committed widespread atrocities, Hirota “was content to rely on assurances that he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily.”11 Of course, actual awareness of rampant criminality is an important distinguishing factor in the two cases. There is also a matter of contrasting scale in comparing the crimes in Nanking to the twenty instances documented by the Trial Chamber as the basis of Mr. Bemba’s conviction. In contrast to other commanders who knowingly facilitated rampant criminality, the defense brief argued that Mr. Bemba:

[Was] the commander that international law would have him be. He trained his army, he gave them a Code of Conduct, he actively pursued rumours of crimes, he punished those identified to him. The ICC should go out of its way in this its first command responsibility case to reinforce the principles of responsible command rather than to create a self-fulfilling construct of criminality.12

The Bemba Appeal Chamber made a contextual analysis of whether the steps actually taken were “necessary and reasonable” based on the information available to Mr. Bemba and his ability to actually exercise investigative authority on the ground. The response of the International Federation of Human Rights (FIDH) is illustrative of the context. Upon receipt of information from FIDH regarding allegations against MLF forces, Mr. Bemba phoned the President and then replied via letter on February 20, 2003. The letter informed FIDH of the investigative steps already taken and requested documentation of the instances uncovered by FIDH investigators. The reply from Sidiki Kaba on February 26, 2003 noted only that evidence in its possession had been formally referred to the ICC as early as February 13, 2003 followed by the snarky observation that “for the purposes of completion of the file, I am sure that the ICC will appreciate receiving all information contributing to the establishment of facts and responsibilities.”

The Bemba Appeal Judgment does not provide credence to the two assertions by the Trial Chamber that became the load bearing pillars of its finding that the measures actually undertaken were not “necessary and reasonable” under the particularized circumstances of the case. In particular, the commander’s subjective motivation for taking steps to respond to allegations of criminal conduct is not relevant to the determination whether the legal threshold of “necessary and reasonable” has been met. Adequacy of such measures is an objective standard evaluated based on each commander’s relative knowledge, role, and operational authority. Motivation is entirely subjective. Judicial superimposition of a duty to withdraw military forces from ongoing operations as the granddaddy of all “necessary and reasonable measures” was similarly unsupported by even a hint of state practice or jurisprudential support.

Commanders on the battlefield who control their fighters are the most important modality for suppressing violations of the laws of war in real time either proactively by proper training or reactively through the imposition of appropriate investigations and discipline. Despite that moral and pragmatic imperative, Judge Eboe-Osuji summarized the gravamen of the Majority decision on Appeal by observing that:

Since command criminal responsibility entails a degree of separation between the commander and the actual perpetration of the acts amounting to crimes, coupled with the mental disposition to commit the crimes, it is important that the finding of criminal responsibility must result from a clear analysis of the evidence in a manner that reveals beyond reasonable doubt that the commander’s failings suggest his own connivance in the crimes or his condonation of them—in the manner of wilful subscription or callous indifference—such as would convincingly approximate a mental disposition to commit the crimes that he failed to prevent or punish. I saw no such clear analysis in the Trial Judgment—nor, for that matter, that the revealed evidence would sustain it. In the absence of such clear analysis (especially when the charges are so grave as here), I do not accept it as correct that the Appeals Chamber should, through a methodised theory of ‘appellate deference,’ consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed. That would be to suffer an Orwellian catch that ill-serves any criminal justice system that purports a right of appeal against conviction. The benefit of ambiguity in a conviction judgment does not belong to the trial court that authored it. It belongs to the convicted person: by sheer operation of the requirement that guilt must be established beyond reasonable doubt.

Implications for the Future

The Bemba Appeal Judgement reveals three related implications for future command responsibility cases. Technical experts and jurists must avoid a victim-centric approach that clouds good faith assessment of the timely responses necessitated in the midst of conflict. For example, rather than working with MLC officials or U.N. investigative authorities or even local commanders to identify and isolate known perpetrators of what were grievous crimes, FIDH refused to coordinate. Responding to Mr. Bemba’s conviction at trial, Ms. Bensouda stated that: “Justice for the victims has been our primary and sole objective in this case.” Such worthy sentiments must coexist with the recognition of the commander’s primary role in investigating and ameliorating violations during armed conflict. The goals of enforcing the law and ensuring good order and professional discipline need not be deemed incompatible. In any event, the needs and concerns of victims should not obviate the importance of careful analysis of the predicate elements of personal criminal culpability.

By extension, the modern law of armed conflict provides a sort of centripetal force that helps ensure cohesion to modern multinational coalitions. As the Bemba Appeal Judgment notes:

The scope of the duty to take “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. Indeed, a commander cannot be blamed for not having done something he or she had no power to do.13

Jurists must be attuned to the investigative difficulties and political dynamics that may well inhibit timely and effective investigations. Despite what might be termed the unique circumstances of every case, all commanders have the duty to investigate reports of alleged violations committed by persons under their command or against persons who are legally entitled to their protection. Modern multilateral operations pose particular challenges to achieving these objectives. All commanders have wide discretion to order actions or take precautionary measures to ensure efficient and viable investigations. Reforming and streamlining transnational investigative procedures must therefore be a matter of first priority.

As one final observation in passing, commanders must be diligent to discredit media reports or allegations that they deem inappropriate or unsupported. The law of command responsibility should not become a weaponized facet of asymmetric warfare. Social media posts, intentional disinformation efforts, and distorted media accounts, inter alia, represent potent avenues for paralyzing the conduct of hostilities. Manufactured media accounts may also seek to polarize domestic populations and degrade nimble strategic or tactical decision-making. Illegitimate exploitation of jus in bello norms could permit the legal structure to be portrayed as a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. Manipulation of the media by parties to the conflict designed to mask genuine war crimes could lead to a cycle of cynicism and second-guessing that weakens the overall commitment of some military members to remain bound by the law. Commanders must be proactive in identifying such abuses and explaining them to the public and to policymakers.

A Few Thoughts on Causation in the Context of Article 28

The Bemba Appeal Judgment did not address the causation requirement embedded in Article 28. Such analysis was unwarranted on the basis of the actual holdings. Causation is required based on the plain text of the Rome Statute, and at a superficial level this is not a complex matter. If a commander fails to take “necessary and reasonable” preventive action, the very failure to “properly exercise” the inherent duties of command might be said to have “caused” resulting offenses. Causation is a minimum requirement for imputation of individual criminal responsibility for all offenses. Command responsibility charges necessarily entail consideration of both affirmative acts and omissions, and as a theoretical matter both forms of liability should rely upon consistent standards of criminal responsibility. With respect to causality, the standard for affirmative acts and for omissions should be equivalent. Hence, the proximate cause of war crimes in the case of action should simply be inverted to a “but for test” in cases of omission to ensure logical consistency.

In the lex specialis of command responsibility, the commander’s liability is based on far more than mere negligence or dereliction of duty. Crimes committed by subordinates within her effective control are imputed to the commander. This should require a much higher threshold than a finding that the commander’s actions merely increased the risk of resulting offenses. Judge Steiner postulated such a minimal threshold in dicta. If future ICC cases establish such a low threshold for the causation standard, the result would create the functional equivalent of strict liability because the very decision to deploy forces to accomplish military mandates can fairly be said to increase the risk of war crimes. Without wars there can be no war crimes. Pacifists around the world would welcome this evolution of command responsibility. It would, however, represent radical departure from the intentions of States Party or accepted customary international law. The important point in the context of causation is that injecting an artificial view of the law rather than sustaining strict fidelity to the intentions of states or the realities of military operations might seriously undermine the credibility of the ICC.

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, ¶¶ 700–05 (TC III, Mar. 21, 2016), available online, archived. ↩

2. 2.

   Id. ¶ 702. ↩

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, as amended, [hereinafter Rome Statute], Arts. 28(a) and (b) (emphasis added), available online. ↩

4. 4.

   Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Arts. 86(2), 87(1), Jun. 8, 1977, [hereinafter Additional Protocol I], available online. ↩

5. 5.

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

   (The Čelebići case was the first was the first litigation to involve superior responsibility since World War II and resulted in the acquittal of Zejnil Delalić who had been charged with eleven counts of grave breaches of the 1949 Geneva Conventions and violation of the laws and customs of war on the basis of his alleged command over the Čelebići prison-camp at the relevant time. The Trial Chamber found that Mr. Delalić did not have command and control over the Čelebići prison-camp and over the guards who worked there, such as to entail his criminal responsibility for their actions); see also The Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement, ¶ 202 (ICTR TC II, May 21, 1999), available online. ↩

6. 6.

   The Prosecutor v. Mitar Vasiljević, IT-98-32-T, Judgment, ¶ 193 (ICTY TC II, Nov. 29, 2002), available online. ↩

7. 7.

   The Prosecutor v. Laurent Semanza, ICTR-97-20-T, Judgement and Sentence, ¶ 404 (ICTR TC III, May 15, 2003), available online.

   (“Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area. While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone”). ↩

8. 8.

   International Committee of the Red Cross, Commentary of 1987: Duty of Commanders, ¶ 3558 (1987), available online. ↩

9. 9.

   See Operational Control in Department of Defense Dictionary of Military and Associated Terms 253 (Nov. 8, 2010, as amended through Aug. 15, 2011), available online. ↩

10. 10.

    The Oxford Companion to American Military History 557 (John Whiteclay Chambers II, ed., 1999), paywall.

    (The Principles of War crystallized as military doctrine around the world around 1800. The accepted principles are: Objective, Offensive, Mass, Economy of Forces, Maneuver, Unity of Command, Security, Surprise, and Simplicity). ↩

11. 11.

    United States et al. v. Sadao Araki et al., Judgment (Kōki Hirota), at 49791 (IMTFE, Nov. 4, 1948), available online. ↩

12. 12.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Public Redacted Version of Appellant’s document in support of the appeal, ¶ 549 (AC, Sep. 28, 2016), available online, archived. ↩

13. 13.

    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) (emphasis added) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

14. Suggested Citation for this Comment:

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

    Suggested Citation for this Issue Generally:

    What Does the Bemba Appeal Judgment Say About Superior Responsibility Under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility.

Analysis

1. As the MLC ’s military commander during the period charged, Jean-Pierre Bemba’s responsibility under Article 28 of the Rome Statute was upheld in the decision of Trial Chamber III. The subsequent decision of the ICC Appeals Chamber releasing Jean-Pierre Bemba, set an unfortunate precedent in that it will be difficult to prosecute other officials using similar facts.

2. The other contradiction in this procedure is that his conviction for witness subordination, subsidiary to the main proceedings, was sustained at the same time that he was acquitted on the much more serious principal charges. It raises the question of the seriousness of the approach taken by the judges of the ICC.

3. The victims of Bemba’s crimes were sacrificed due to the negligence of the judges. These victims were not prepared to receive news about Jean-Pierre Bemba’s acquittal by the ICC.

4. There is a need to revise this case law, which has no legal basis.

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

6. Two other cases are currently before the ICC concerning CAR. We wonder whether victims and witnesses will have the courage to cooperate with the Court through the Prosecutor’s Office.

7. On June 13, 2018, the ICC Victims Fund announced the acceleration of its Bemba Victim Assistance Program.1 This Special Fund stated that “physical and psychological rehabilitation, as well as material support” will be provided within a reasonable time. An amount of €1 million was mobilized for the victims.

8. Victims must be informed as the procedure evolves so as not to cause further harm to victims who have waited more than ten years with the hope of getting redress.

9. Decisions and changes in the form and amount of assistance should be communicated to victims in a timely and transparent manner. Lots of messages must be shared in advance with victims to avoid causing further harm to victims who have waited over ten years to discover that justice remains elusive.

10. Following the Bemba decision handed down by the ICC Appeals Chamber, most of the civil society organizations that support victims have become discouraged.

Recommendations and Conclusion

• We suggest that members of civil society be deeply involved in every step of informing the victims and the public about the evolution of the ICC’s procedure. These organizations, in turn, can inform and educate the public and victims in order to restore their confidence.

• Civil society constitutes a bridge between the Court and the victims. This is especially true in the accompaniment and documentation for the Victim’s Fund. This must be proactive and work with the lawyers in CAR.

• Particular emphasis should be placed on the participation of victims, especially by increasing their knowledge of the competence of the ICC and the procedure to be followed through panels and forums.

• Will the victims fund be able to take into account all the victims?

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

1. 1.

   Press Release, ICC, Following Mr Bemba’s Acquittal, Trust Fund for Victims at the ICC Decides to Accelerate Launch of Assistance Programme in Central African Republic (Jun. 13, 2018), available online. ↩

2. Suggested Citation for this Comment:

   Nadia Carine Fornel Poutou, What does the Bemba Appeal Judgment Say about High Responsibility under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility#Poutou.

   Suggested Citation for this Issue Generally:

   What Does the Bemba Appeal Judgment Say About Superior Responsibility Under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility.

Argument Continued

Because of the split in the views of the five judges, this issue was not clearly decided. Nonetheless, since it was raised by the Court and two judges clearly thought it important, if not decisive, it is worth examining the issue briefly. We can only guess where the Majority derived the “remote commander” standard from since the Majority’s statement on this question is unfootnoted. One possibility is the Perišić judgment from the ICTY Appeals Chamber, which, equally controversially,12 found that “explicit consideration” that the accused had specifically directed the crimes was required for convictions in which the perpetrator was accused of “aiding and abetting” the commission of crimes committed by others, in cases of “remote” perpetrators. The Perišić Majority found, Judge Liu dissenting, that prior ICTY appeals judgments had not discussed “specific direction” because those cases:

involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators. Where such proximity is present, specific direction may be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution […] Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction. In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required.13

Like Bemba, Perišić was heavily criticized. Although the acquittal was surprising, most of the commentary critiqued the judgment, including this author, due to concerns that the Chamber had strayed from existing precedent in a manner that seemed unprecedented and problematic.14 Neither the Bemba nor the Perišić majorities cited authority suggesting that “remoteness” is relevant to the legal standards applicable to superiors, commanders, or, in the case of Perišić, aiders and abettors,15 although obviously remoteness could be a factor (but not a legal criteria) in assessing the reasonableness of a commander’s actions in a particular situation. (The unfairness of the Yamashita case comes to mind).16

In Bemba’s case, in particular, his defense was largely predicated upon the notion that he actually knew that crimes were being committed and that he took reasonable measures to investigate and stop those crimes. He received reports and was in regular contact with his troops,17 convened two commissions to address some of the crimes reported (the effectiveness of which were found to be lacking by a majority of the judges examining them, but not by the Appeals Chamber Majority), and claimed he had sent a letter to the CAR authorities requesting an investigation.18 Thus, Mr. Bemba, as would be the case of most modern commanders, clearly had access to information regarding the activities of his troops, making the notion of remoteness seemingly irrelevant to the question whether he had committed a dereliction of duty in failing to prevent further abuses or punishing those that had already occurred.

Turning then to the impact of this fractured—and unfootnoted—finding on the future meaning of Article 28, it would appear to be very little as the “remoteness” standard garnered only two votes.19 And perhaps, just as Perišić was later “reversed” by a differently constituted ICTY Appeals Chamber in Sainović,20 Bemba’s specific contribution to our understanding of Article 28 may ultimately be de minimis. Yet it is not clear that the ICC has the capacity yet to “self-correct” in cases such as this. For this reason, even though the Bemba judgment may not be decisive to future cases on the meaning of Article 28, the fact that two judges “discovered” this suddenly dispositive factor on appeal may have a chilling effect on future cases. It incentivizes defense lawyers to raise every conceivable argument, hoping to convince the judges to accept them even if they represent novel or unprecedented theories; it could render trials longer as the law of the ICC becomes increasingly unsettled; it may upset victim communities (as was clearly the case in Bemba); and the presence of thinly-footnoted judicial opinions may raise legitimacy questions about the Court’s jurisprudence. Judgements that read more like personal opinions, as opposed to carefully constructed arguments resting upon legal precedent, raise the concern that the judges are engaging in what the late U.S. Supreme Court Justice Antonin Scalia called “judicial-speculation-made-law”—involving assumptions about the meaning of the Rome Statute, as opposed to a careful exegesis of the travaux préparatoires of the Rome Statute, a systemic examination of existing legal precedent, and the sources of law set out in Article 21 of the Statute.

This is deeply worrying, and has been a concern of many close readers of the ICC’s judgments for some time. It seems to have been the approach taken by the judges in deciding to import the control of the crime theory into Article 25(3) of the Statute, which was both unprecedented and problematic, as I have written elsewhere.21 It is also evidenced by the controversy regarding the acquittal of Laurent Gbagbo, which resulted once again in a fractured decision (of a Trial Chamber) and, because the standard of review for a “no case to answer” decision is not clear—and fifteen weeks after the acquittal, no judgment has been issued—in little guidance to other Chambers or the Prosecutor regarding the appropriate standard to be applied.22 It also seems apparent in even a superficial reading of Pre-Trial Chamber II’s recent decision not to allow the Prosecutor to open an investigation into the Situation in Afghanistan, relying for the first time on a novel—and once again unfootnoted—analysis of the “interests of justice” in Article 53(1) of the Rome Statute.23 One commentator has described the Afghan decision as a “judicial meltdown”24 and four distinguished supporters and leaders of the Court have concluded that at this point the ICC “needs fixing,” due in part to the poor quality of some of the Court’s judgements.25

Legal realists may not find any of this surprising. They may assume that politics is at play, or perhaps that “what the judge had for breakfast” explains more about the outcome of a particular case than an analysis of the law.26 Yet while a well-established court can probably weather criticism of the kind now being directed at the ICC, a young court like the ICC cannot. In a world in which it is struggling to gain a foothold, establish its legitimacy, and win the trust of States and civil society, the missteps of the past year—including the Bemba decision—suggest a real need for the Court’s judiciary to reconsider their approach. They may wish, for example, to stop issuing decisions seriatim and with so many crippling dissents, taking instead as their model Chief Justice Marshall of the United States Supreme Court, who built that once frail institution into the powerhouse it is today by insisting upon unity and collegiality on the part of his brethren,27 and that the Court pay attention to the norm of stare decisis.28 As with the United States Constitution, or the Treaty of Rome that established the European Economic Community in 1957, the ICC Statute is complex, and its interpretation difficult, presenting the ICC’s judges with many challenges. However, like the judges of the European Court of Justice and the United States Supreme Court, the judges of the International Criminal Court must find a way to successfully navigate these complexities so as to build trust and confidence in the Institution. Otherwise, the Court may well remain on shaky ground for the foreseeable future. Fortunately, the unanimous, and thoughtfully reasoned judgment in the Appeals Chamber’s most recent decision in the controversial Al-Bashir immunities case, suggests that they are beginning to take these ideas on board,29 although even that case involved a four judge “concurrence” and a two judge “partial dissent” (which has yet to be issued).

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.

   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. ↩

3. 3.

   For a positive view of the judgment see, e.g., Alexander Heinze, Some Reflections on the Bemba Appeals Chambers Judgment, Opinio Juris (Jun. 18, 2018), available online, archived.

   Amnesty International, The Bemba Appeals Judgment Warrants Better Investigations and Fair Trials—Not Efforts to Discredit the Decision (Jun. 19, 2018), available online. ↩

4. 4.

   For other critical perspectives see, e.g., Diane Marie Amann, In Bemba and Beyond, Crimes Adjudged to Commit Themselves, EJIL Talk (Jun. 13, 2018), available online, archived; 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; Jennifer Trahan, Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard, Opinio Juris (Jun. 25, 2018), available online, archived; 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, archived; Alex Whiting, Appeals Judges Turn the ICC on Its Head With Bemba Decision, Just Security (Jun. 14, 2018), available online, archived. ↩

5. 5.

   Chile Eboe-Osuji, ICC President, Keynote Address at American Society of International Law Annual Meeting, A Tribute to Robert H. Jackson—Recalling America’s Contributions to International Criminal Justice (Mar. 29, 2019), available online. ↩

6. 6.

   Richard J. Goldstone, Acquittals by the International Criminal Court, EJIL Talk (Jan. 18, 2019), available online. ↩

7. 7.

   See The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15, Rendering of a Decision (TC I, Jan. 15, 2019) [hereinafter Gbagbo Trial Chamber Judgment], available online

   (citing to the video as no written decision has been released as of this writing. These are the decisions on the motions for provisional release and no case to answer).

   See also Gbagbo and Blé Goudé Case, ICC, available online (last visited Apr. 30, 2019). ↩

8. 8.

   Bemba Appeals Chamber Judgment, supra note 1, ¶ 191. ↩

9. 9.

   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), available online, archived. ↩

10. 10.

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

11. 11.

    Id. ¶¶ 54–69. ↩

12. 12.

    The Prosecutor v. Momčilo Perišić, IT-04-81-A, Judgement (ICTY AC, Feb. 28, 2013), available online. ↩

13. 13.

    Id. at 39. ↩

14. 14.

    See, e.g., James Stewart, “Specific Direction” is Unprecedented: Results from Two Empirical Studies, EJIL Talk (Sep. 4, 2013), available online; Antonio Coco & Tom Gal, Losing Direction: The ICTY Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić, 12 J. Int’l Crim. Just. 345 (Mar. 22, 2014), paywall, doi. ↩

15. 15.

    The Perišić Chamber referred to temporal factors as providing relevant precedent, and extrapolated, without discussion, from those to geographic factors. ↩

16. 16.

    In re Yamashita, 317 U.S. 1 (Feb. 4, 1946), available online. ↩

17. 17.

    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, ¶ 459 (PTC II, Jun. 15, 2009), available online, archived. ↩

18. 18.

    Bemba Appeals Chamber Dissent, supra note 10, ¶ 68.

    (The Dissent suggests that the evidence of the letter is questionable, agreeing with the Trial Chamber on that question. Whether or not Bemba actually sent it is not a question this comment addresses; rather, I note only that it seems to indicate that he requested an investigation because he knew crimes were being committed). ↩

19. 19.

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

20. 20.

    Leila Nadya Sadat, Can the International Criminal Tribunal for the former Yugoslavia Šainović and Perišić Cases Be Reconciled?, 108 Am. J. Int’l L. 475 (Jul. 2014), paywall, doi. ↩

21. 21.

    Leila Nadya Sadat & Jarrod M. Jolly, Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot, 27 Leiden J. Int’l L. 755 (Jul. 24, 2014), paywall, doi. ↩

22. 22.

    Gbagbo Trial Chamber Judgment, supra note 7. ↩

23. 23.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online.

    (The discussion on this point is on pages 28–31. The only source cited in those four pages is the Prosecutor’s Policy Paper on the Interests of Justice). ↩

24. 24.

    Sergey Vasiliev, Not Just Another ‘Crisis’: Could the Blocking of the Afghanistan Investigation Spell the End of the ICC? (Part I), EJIL Talk (Apr. 19, 2019), available online. ↩

25. 25.

    Prince Zeid Ra’ad Al Hussein, Bruno Stagno Ugarte, Christian Wenaweser & Tiina Intelman, The International Criminal Court Needs Fixing, Atlantic Council (Apr. 24, 2019), available online. ↩

26. 26.

    See Frederick Schauer, Thinking Like a Lawyer 129 n.15 (2009), available online.

    (This quote is often attributed to Jerome Frank, although scholars dispute the likelihood that he actually made this claim). ↩

27. 27.

    Charles F. Hobson, Defining the Office: John Marshall as Chief Justice, 154 U. Pa. L. Rev. 1421 (2006), available online. ↩

28. 28.

    Jack Knight & Lee Epstein, The Norm of Stare Decisis, 40 Am. J. Pol. Sci. 1018 (Nov. 1996), available online, doi. ↩

29. 29.

    The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Judgment in the Jordan Referral re Al-Bashir Appeal (AC, May 6, 2019), available online. ↩

30. Suggested Citation for this Comment:

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

    Suggested Citation for this Issue Generally:

    What Does the Bemba Appeal Judgment Say About Superior Responsibility Under Article 28 of the Rome Statute?, ICC Forum (May 27, 2019), available at https://iccforum.com/responsibility.