In Bemba, Command Responsibility Doctrine Ordered to Stand Down
Few acts carry a weightier burden than the acceptance of authority over persons permitted to kill. The gravity of the commander’s responsibility stems from practical as well as moral concerns, and is reflected in legal doctrine dating back centuries. But [the Bemba] Appeals Chamber appeared to lighten this burden…
Few acts carry a weightier burden than the acceptance of authority over persons permitted to kill. The gravity of the commander’s responsibility stems from practical as well as moral concerns, and is reflected in legal doctrine dating back centuries. But a 2018 judgment of the International Criminal Court Appeals Chamber appeared to lighten this burden, reversing, in Bemba, convictions of an accused it described as “Commander-in-Chief” of the “military branch” of a political party over which he also presided.1 The ruling’s construction of Article 28(a) of the ICC’s Rome Statute erodes not only the foundations of command responsibility doctrine, but also societal aspirations, given voice in the Statute’s preamble, “that the most serious crimes of concern to the international community as a whole must not go unpunished…”2 Recognizing the likelihood the question again will confront some future ICC chamber, this comment argues for an interpretation that is grounded in the purposes of the command responsibility doctrine and of the Court itself.
Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.
So wrote Professor Francis Lieber in his milestone Instructions, issued in 1863, during the United States’ Civil War.3 The statement pointed to the heavy individual burden that permission to kill imposes, particularly when that permission is conferred within a system professing to place high value on the life of every human and on the liberty and security of every person. By the time of Lieber’s compilation, the moral onus already had found expression in the laws and customs of war, extensive even then and since amplified, through practice, codification, and commentary. Today, even as this body of law permits killings in combat, it also constrains them, by application of principles like necessity and by humanitarian injunctions against unnecessary suffering. At least since the post-World War II trials at Nuremberg and Tokyo, moreover, a person who acts outside these constraints risks individual punishment for violations of international criminal law.4
Leadership status does not relieve a person of this risk of punishment. Quite to the contrary. For in accepting authority over troops given permission to kill, a commander accepts the duty to be responsible for her troops’ actions as well as her own. The moral dimension of command responsibility is apparent. Supervision of permitted killings, no less than the killings themselves, stands in tension with societal valorizations of human life; indeed, tension may be greater for the reason that the commander has power to control the behavior of many persons beyond herself. A dimension of military practicality also inheres in the doctrine of command responsibility. Both the effectiveness of military operations and the protection of one’s own military forces depend on military discipline, and it is the commander’s duty to instill and maintain discipline in all persons under her authority, through training, oversight, and, when warranted, reprimand. Indicative of this moral and practical significance are command responsibility’s deep roots: many commentators date the doctrine to 1439, and some to a couple millennia before that.5 Its many legal expressions range from a 1907 treaty according “rights…of war” only to persons in a unit that is inter alia “commanded by a person responsible for his subordinates” to the 2017 terms of reference for the Syria investigative mechanism.6 As with other modes of international criminal liability, persons have endured trial, conviction, and punishment on charges of command responsibility ever since the post-World War II period.
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).
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. ↩
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. ↩
Instructions for the Government of Armies of the United States in the Field (Lieber Code), Apr. 24, 1863, art. 15, available online. ↩
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. ↩
E.g., , The Law of Armed Conflict: International Humanitarian Law in War 418 (2d ed. 2016), paywall, doi
(quoting 1439 edict first quoted in Essays on the Modern Law of War 283 (2d ed. Mar. 1, 1999), paywall);, Ed.,
W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 3 (1973), available online
(quoting Sun Tzu circa 500 AD). ↩
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.
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.”). ↩
The Conduct of Hostilities Under the Law of Armed Conflict 238 (2004), paywall, doi (parentheticals in original) ). ↩
Medina: An Essay on the Principles of Criminal Liability for Homicide, 5 Rutgers-Camden L.J. 59, 78 (1973–74), paywall ↩,
See , supra note 5, at 437–38 (writing that Article 28(a)(ii) could be construed to enlarge potential liability, yet noting, via quotation of 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). ↩
Suggested Citation for this Comment:
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.