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University of New South Wales Law Journal Student Series |
‘MORE HEAT THAN LIGHT’: ‘NECESSARY AND REASONABLE MEASURES’ AND REMOTENESS IN THE BEMBA APPEALS CHAMBER DECISION ON COMMAND RESPONSIBILITY
VERONICA SEBESFI
The concept of command responsibility has generated ‘more heat than light’ in academic and judicial discourse,[1] and the recent decisions of the Trial Chamber and Appeals Chamber in the International Criminal Court (‘ICC’) case of Bemba are no exception. The Bemba case was the first time that command responsibility was prosecuted before the ICC, with many hoping that the judgments would provide clarity on areas of uncertainty arising from the wording of the Rome Statute.[2] Instead, the Trial Chamber’s initial conviction of Bemba was overturned on appeal by a 3:2 judgment that was far from unanimous and left more questions than answers. Concerning command responsibility in particular, the Majority judgment and separate opinions in the Appeal Chamber not only failed to provide clarity on elements of knowledge and causation, but also provoked further questions by concluding that the Trial Chamber had erred in failing to consider the accused’s status as a ‘remote commander’.
This article will first argue that command responsibility in international law has historically developed in a way which promotes a high standard of responsibility for superiors (Part II), before analysing the different approaches towards command responsibility taken by the Trial Chamber and Appeals Chamber in Bemba (Part III) and arguing that the Appeals Chamber Majority’s approach to ‘remote commanders’ is inconsistent with the previous development and main aims of the doctrine (Part IV).
Command responsibility is a form of indirect responsibility[3] that differs from the modes of direct liability in article 25 of the Rome Statute. Instead of the defendant taking part in the act themselves (such as in a joint criminal enterprise) or directing that the act take place (for example through ordering the crime), in command responsibility the superior is understood to have a duty to prevent and punish the commission of crimes by their subordinates where they have effective control over them, with a failure to perform that duty attracting criminal liability.[4] The rationales for holding commanders responsible for their duty to control and punish their subordinates’ criminal actions are to promote effective enforcement of international humanitarian law principles to end impunity,[5] and to further the international criminal law aim of prosecuting those who are ‘most responsible’ for serious crimes.[6]
These principles of upholding high-level accountability are evident in the way that the doctrine, and in particular what measures commanders must take to meet their duty, has been developed through national and international courts and international agreements, although areas of uncertainty have recently emerged.
Early conceptions of command responsibility were relatively simple. The basic notion of superior responsibility of military authorities for the actions of those they command has been part of rules of warfare since the ancient world, including Ancient Rome and Sun Tzu in China, and later emerged in French and American military codes in the 15th to 18th centuries.[7] More recently, the concept arose in the Fourth Hague Convention of 1907 in a general reference to belligerent parties’ ‘responsib[ility] for all acts committed by persons forming part of its armed forces’,[8] and forces being ‘commanded by a person responsible for his subordinates’.[9]
The concept of superior responsibility resulting from omissions was first crystallised in modern international case law in the United States Military Commission decision, confirmed by the United States Supreme Court, of Yamashita.[10] General Yamashita’s guilty verdict of failing to effectively control his subordinates did not include any requirement of knowledge or assessment of what measures would have been appropriate.[11] Indeed, the decision has been criticised as being informed simply by ‘a sense that Yamashita’s conduct had been criminal and should be sanctioned’.[12] Nevertheless, command responsibility was incorporated in other domestic post-Second World War cases[13] and included in domestic military law,[14] becoming a widely-accepted rule of customary international law by 1997 when it was incorporated in articles 86 and 87 of the First Additional Protocol to the Geneva Conventions (‘Additional Protocol I’).[15] The Additional Protocol I obliged superiors with knowledge of or conclusive information regarding the commission of Convention breaches by subordinates to take countermeasures – specified for the first time as ‘feasible’ and ‘necessary’ – to prevent, suppress and report to competent authorities any such breaches.[16]
Superior responsibility developed further in the International Criminal Tribunal for the former Yugoslavia (‘ICTY’),[17] International Criminal Tribunal for Rwanda (‘ICTR’)[18] and Special Court for Sierra Leone[19] in a manner consistent with the aim of holding superiors responsible to a high standard. Each tribunal’s statute incorporated command responsibility in similar wording to the ICTY statute, which states that a superior has 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’.[20] Tribunal judgments identified three elements from the statutes: a superior-subordinate relationship, knowledge or ‘reason to know’ of the commission of crimes, and the superior’s failure to take ‘necessary and reasonable’ preventative or punitive measures.[21] Tribunal decisions broadly defined ‘superior-subordinate relationships’ to include superiors with de jure or de facto authority,[22] expanding the circumstances in which superiors could be held responsible. Further demonstrating the tribunals’ focus on holding commanders to account for the dereliction of their duty, command responsibility was characterised as responsibility for a superior’s plain omission with no element of causal contribution required.[23] Notably, unlike the later findings in Bemba discussed below, the tribunals did not give significant consideration to the remoteness or geographic location of superiors in assessing command responsibility.[24] Cases held that ‘necessary and reasonable measures’ were to be assessed on the specific facts, considering the superior’s material ability and degree of effective control,[25] though non-exhaustive lists of factors to consider were created.[26]
The ICC’s understanding of command responsibility potentially differs due to the wording of article 28 of the Rome Statute. For example, as suggested by the United States in drafting,[27] article 28 distinguishes between military and civilian superiors[28] (though this was not an issue in Bemba as he was considered a military commander, and so is beyond the scope of this article). Other questions of interpretation emerged from the imposition of a ‘should have known’ standard for military commanders, which has not yet been applied by the ICC since the Pre-Trial Chamber and Trial Chamber in Bemba decided the case on the basis of actual knowledge;[29] the introduction of some level of causation in that the crimes must have occurred ‘as a result of’ the superior’s failures, the standard and application of which also remains uncertain after divergent judicial treatment in Bemba;[30] and the inclusion of a third form of necessary and reasonable measures of ‘submit[ing] [matters to] competent authorities for investigation’ in article 28(a)(ii) in addition to the ‘prevent’ and ‘repress’ requirements.
Bemba was the first case in the ICC to involve article 28, promising to provide some clarity on how command responsibility would be applied in the ICC. The defendant was a national of the Democratic Republic of the Congo, the former President of his self-founded political party, the Mouvement de libération du Congo (‘MLC’), and Commander in Chief of its military branch.[31] The MLC had allegedly committed crimes against humanity and war crimes, including rape, murder and pillaging, in the Central African Republic (‘CAR’) during 2002 to 2003 while MLC forces were deployed to the CAR to support the CAR’s President against a coup d’etat.[32] In the 2009 confirmation of charges, the Pre-Trial Chamber rejected co-perpetration under article 25(3) and limited the mode of liability of Bemba to command responsibility.[33]
The Trial Chamber’s 2016 decision convicting Bemba was not ‘particularly controversial’.[34] The Trial Chamber identified six elements of command responsibility in article 28, including commission of crimes under the Rome Statute by forces; the accused’s actual or effective status as a military commander; the accused’s effective control and command or authority over the forces; the accused’s knowledge of or that the accused should have known of the commission of crimes; the accused’s failure to take all necessary and reasonable measures within their power to prevent or repress the crimes or submit the crimes for investigation; and that the crimes must have been a result of the accused’s failure to properly exercise control over the forces who committed them.[35] In holding Bemba criminal responsible,[36] the Trial Chamber found that the elements of command responsibility were established both by Bemba’s leadership as president and general, positions which gave Bemba ultimate authority over arresting and dismissing military personnel, and by his additional visits to the CAR and regular communications with his forces.[37] The Trial Chamber thus concluded that Bemba had direct knowledge of crimes committed by the MLC and had not taken all necessary and reasonable countermeasures to address them (discussed below). [38]
Amongst other grounds, Bemba’s liability under article 28 was raised on appeal as per Rome Statute article 81(1)(b),[39] and the Appeals Chamber applied a standard of review that some have criticised as a de novo review of the facts.[40] The 2018 final judgment of the Appeals Chamber was fragmented and ‘contradictory’,[41] made up of a relatively brief Majority judgment, more extensive concurring Separate Opinions from Judges Van den Wyngaert and Morrison jointly and Judge Eboe-Osuji, and a joint Dissenting Opinion of Judges Monageng and Hofmański. In overturning the Trial Chamber’s conviction of Bemba’s responsibility, the Appeals Chamber’s analysis of command responsibility particularly turned on whether Bemba had taken all necessary and reasonable measures to prevent or repress the commission of the crimes.
The Trial Chamber had previously concluded that Bemba had failed to take all necessary and reasonable measures. It made this finding on the basis that the actions that Bemba had taken in response to wrongdoing, including visiting the CAR, making general warnings, establishing commissions of enquiry and corresponding with the UN representative in the CAR, were limited in their ‘mandate, execution, and/or results’ (for example, the investigative commissions he created were limited in their mandate to only specific pillaging acts) – and were thus minimal and inadequate.[42] The limited extent of these measures was especially evident when considered against the consistent reports of murder, rape and pillaging acts that the Trial Chamber found were available to Bemba from both internal and external sources.[43] In addition to criticising the nature of Bemba’s response to his force’s crimes, the Trial Chamber also noted Bemba had failed to cooperate with international investigations and that the measures Bemba had taken were merely motivated by a desire to ‘counter public allegations’ and preserve the MLC’s public image rather than actually prevent crimes.[44]
In so deciding, the Trial Chamber’s emphasis appeared to be on the taking of ‘all’ relevant measures: the Trial Chamber identified a range of general measures that Bemba could have taken to meet his duty as a commander, including ensuring adequate training for forces in international humanitarian law and adequate supervision during the 2002 and 2003 operations, issuing orders specifically preventing crimes, removing any officers and soldiers who were found to commit or condone crimes, and altering troop deployment, including withdrawing the troops from the CAR, to minimise contact with civilians and protected populations.[45] The Trial Chamber described this ‘wide range’ of options available to Bemba as being part of his ‘extensive material ability to prevent and repress the crimes’.[46] This approach was consistent with both academics such as W J Fenrick who suggest commanders must at least ensure adequate training for their forces and monitor reporting systems to ensure their efficacy,[47] and the idea that command responsibility provides a ‘normative minimum’[48] or ‘minimum standard’[49] for commanders to uphold.
By contrast, the Appeals Chamber adopted a defendant-friendly approach: the Appeals Chamber did not focus on the term ‘all’ in ‘take all necessary and reasonable measures’, but instead focused on the taking of ‘reasonable’ measures, stating (unsupported by reference to authority) that ‘commanders are allowed to make a cost/benefit analysis in deciding which measures to take’ and that ‘the Court is required to consider ... the operational realities on the ground at the time faced by the commander’.[50] The Majority decision identified a number of errors in the Trial Chamber’s findings on necessary and reasonable measures.[51] These included: that Bemba had not been sufficiently notified of the alternative measures that the Trial Chamber proposed he could have taken in order to respond to them;[52] that the Trial Chamber lacked specificity in identifying measures which Bemba should have taken and ought to have shown these measures were such that a ‘reasonably diligent commander in comparable circumstances would have taken’;[53] and that the Trial Chamber’s consideration of Bemba’s motivations had ‘permeated’ its assessment (which has in turn been criticised as a mischaracterisation of the Trial Chamber’s reasoning).[54] However, this article focuses on one of the putative errors which the Appeals Chamber identified as having a particularly material impact on the Trial Chamber’s finding of Bemba’s failure to take all necessary and reasonable measures: that the Trial Chamber had failed 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’.[55]
Without explicit reference to previous case law, state practice or academic authority (which alarmed several commentators),[56] the Appeals Chamber determined that Bemba’s remoteness meant he ‘was not part of the investigations and was not responsible for the results generated’ and that the Trial Chamber’s list of measures that Bemba could have taken was an ‘unreasonable assessment’ of the measures Bemba was materially capable of taking in the circumstances.[57] In effect, the Appeals Chamber asserted that Bemba’s status as a remote commander played significantly in his favour, arguably affording him a level of deference,[58] when assessing what measures he was capable of taking – a distinction that had not been not drawn in previous cases.
The Majority did not provide much further detail on this controversial distinction. Indeed, the joint Separate Opinion of Judges Van den Wyngaert and Morrison provides no further clarification. By contrast, President Eboe-Osuji’s Separate Opinion states merely that
I would not subscribe to any interpretation of the Majority Opinion as suggestion that the geographic remoteness of a commander is a factor all of its own, which would necessarily insulate him from criminal responsibility. Geographic remoteness is only a factor to be considered ... in the assessment of what is reasonable.[59]
The Dissenting Opinion similarly rejects the use of geographic remoteness as some form of defence as a matter of law. Judges Monageng and Hofmańksi note that the ‘traditional criteria have been applied’ in cases ‘concerning actors operating across international forces’ and further reiterate that remoteness is a mere factual consideration, to be taken into account along with other factors such as the structure and functioning of the military groups, in assessing the accused’s ‘material ability’ to affect the commission of crimes.[60] These Separate and Dissenting Opinions are thus more consistent with the tribunals, which held that finding effective control for necessary and reasonable measures involves a case-specific, evidence-focused assessment.[61]
On one reading, the Majority judgment’s emphasis on the limitations faced by remote commanders does have a principled basis. Judges Van den Wyngaert and Morrison were, respectfully, correct to emphasise that the Court should not ‘ask the impossible’ of military commanders, ignore the principle that command responsibility is ‘not strict liability’, or ‘always’ hold the most senior commander criminally responsible.[62] To do so would not only contradict the presumption of innocence but also apply far too high a standard for commanders to uphold in practice, arguably returning to the standard applied in Yamashita.[63]
However, with respect, the Appeals Chamber’s approach appears to ‘turn much of international criminal law theory on its head’.[64] The judges’ comments that the Court ought not give ‘priority to the desire to hold responsible those in high leadership positions’[65] diverges from both the accepted aims of the ICC to prosecute those ‘most responsible’ for crimes and the notion of command responsibility itself as a means to ensure compliance with international humanitarian law via the responsibility that commanders have for their subordinates.[66] The judges also appeared to limit ‘the main responsibility of the higher-level commander’ to merely ensuring ‘the unit commanders are up to the task of controlling their troops’,[67] and indicated that commanders may adopt a ‘cost benefit analysis’ when determining what measures to take.[68] These statements seemingly dilute the responsibilities of commanders down from taking ‘all’ reasonable measures or observing a ‘minimum standard’ – not only in their role in the prevention of crimes, but also apparently ignoring the capability (and thereby responsibility) for even high-level commanders to, at a minimum, refer matters to competent authorities or cooperate with international efforts to investigate situations where they have ‘ultimate disciplinary authority’ over forces, just as Bemba had.[69]
By thus indicating that the responsibility of remote commanders may be limited by the commander ‘sending troops to a foreign country’, the Majority decision operates to shelter or offer impunity to commanders in circumstances where instead, as Leila Nadya Sadat suggests, ‘those commanders should arguably be required to exercise a higher level of due diligence and supervision than the Majority seems to require precisely because of the risks involved’ in cross-border disputes.[70] Otherwise, the Court could risk excusing commanders for being absent and ‘tolerat[ing] indiscipline’, which would be ‘at odds with doctrine that holds wilful blindness is no defense’.[71] Diluting the level of responsibility for remote commanders in this manner also diverges from the practical application of command responsibility proposed as early as the Commentary to the 1977 Additional Protocol I. Pre-empting criticism that the burden of taking all appropriate measures is unrealistically high for commanders, the Commentary emphasised that the preventive measures of the education of troops, briefing of subordinate officers and making of relevant orders can all be enacted prior to combat or, in this case, prior to the cross-border deployment of troops (invoking the ‘minimum standard’ discussed above).[72]
The Majority judgment’s blanket approach to remoteness, treating the crimes committed by Bemba’s forces as ‘one homogenous block’,[73] may also affect the prevention and punishment of particular crimes. The potential effects of this approach are illustrated in the Majority judgment’s failure to consider how Bemba’s remoteness may or may not have affected the taking of measures for the investigation and prosecution of sexual violence crimes – a conspicuous omission given that measures (albeit limited ones) had been taken by Bemba regarding pillaging crimes, where Bemba had received reports of acts of both pillaging and rape conducted by his forces.[74]
Ultimately, the Appeals Chamber’s defendant-friendly approach to command responsibility appears to be out of step with previous approaches that are more directed towards holding commanders to the higher responsibility that correspondingly accompanies the higher privilege of their position. The scope of command responsibility has previously been expanded to address the irregular and informal nature of modern warfare with the inclusion of de facto superior relationships in addition to de jure superiors, thereby ensuring the aims of preventing breaches of international humanitarian law were not unnecessarily curtailed.[75] So too, then, should command responsibility evolve in step with contemporary conflicts where it is easier than ever for remote commanders to access their forces using modern communication technologies.[76] Although there is a risk that applying the approach in the Trial Chamber’s decision could create ‘perverse incentives’ for commanders not to remain in communication with their forces in remote locations,[77] the Appeals Chamber’s approach is an overreaction against this outcome which risks ‘dilut[ing] a well-established principle of international criminal law and in doing so bestow[ing] a level of discretion on commanders that will be hard to challenge’ in the ICC.[78] Challenging discretion would be particularly difficult given that there is the lack of judges in the ICC who could bring first-hand knowledge of armed conflicts to their assessment of commanders’ discretion.[79]
Looking to the future, the 3:2 split between the judges limits the potential applicability of Bemba as authority for a substantive distinction in law between remote and non-remote commanders, particularly where Judges Monageng and Hofmański and President Eboe-Osuji noted that consideration of remoteness was just one factor to consider when assessing what constitutes ‘necessary and reasonable measures’.[80] Nevertheless, the extensive focus on the practical effects of remoteness within the Majority judgment’s factual analysis means that, although President Eboe-Osuji was careful to state that ‘remoteness of location is not a controlling factor of innocence’, concerns remain regarding where the line is drawn in future cases as to how far remoteness will be able to ‘complicate the question of guilt’.[81]
Chaotic situations within armed conflicts present the opportunity for perpetuating violence if not pre-empted or responded to by commanders who have the power to influence the actions of their soldiers.[82] The mode of liability of command responsibility originally evolved out of a need to ‘plug the accountability gap’ among senior military leaders,[83] and has historically intended to use the control of commanders over their subordinates to promote the goals of preventing crimes and enforcing principles of international humanitarian law, including protection of protected persons and objects during armed conflict, and bringing offenders to justice.[84] The Appeals Chamber’s decision in Bemba, as a recent development of command responsibility, diverges from previous case law regarding the taking of necessary and reasonable measures. In doing so, the Appeals Chamber’s decision appears to weaken the standard of accountability for commanders in preventing criminal acts, particularly in the case of remote commanders. However, the divided nature of the decision between the five judges and the limited details in the reasoning raise uncertainty about the way the ICC may assess the taking of necessary and reasonable measures, while also leaving open questions regarding the impact of the Rome Statute’s different knowledge standard and the applicable standard of causation. As there is no option for the decision to be appealed, we will have to wait for a future ICC case to shed greater light on how to resolve the current heated controversies in the doctrine.
[1] William Schabas, The International Criminal Court (Oxford University Press, 2nd ed, 2016) 608.
[2] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).
[3] The debate over whether command responsibility is a mode of liability or a separate offence is beyond the scope of this article. For the Bemba decisions’ impact on this debate, see Bader Mohammed Alsharidi, ‘The Consistency of Implementing Command Responsibility in International Criminal Law’ (2016– 2017) 12 Eyes on the ICC 73.
[4] Ibid 73–4; Alejandro Kiss, ‘Command Responsibility under Article 28 of the Rome Statute’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 608, 609 fnn 2–5, 622.
[5] Prosecutor v Bemba (Judgment) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08, 21 March 2016) [172], [209] (‘Bemba Trial Decision’).
[6] Jamie Allan Williamson, ‘Some Considerations on Command Responsibility and Criminal Liability’ (2008) 90(870) International Review of the Red Cross 303, 312–13.
[7] Kiss (n 4) 609 fnn 2–5; Kai Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part (Oxford University Press, 2013) 198.
[8] Hague Convention (IV) Concerning the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910) art 3.
[9] Ibid s I ch I art 1(1).
[10] In re Yamashita[1946] USSC 27; , 327 US 1 (1946) (‘Yamashita’), discussed in Guénaël Mettraux, The Law of Command Responsibility (Oxford University Press, 2009) 5–8.
[11] See Murphy J’s dissent in Yamashita (n 10) 28.
[12] Mettraux (n 10) 369.
[13] See cases cited in International Committee of the Red Cross, Customary IHL Database, ‘Rule 153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes’ (Web Page) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule153> fn 1.
[14] See legislation in Prosecutor v Mucić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-96-21-T, 16 November 1998) [336]–[337] (‘Čelebići’); International Committee of the Red Cross, Customary IHL Database, ‘Practice Relating to Rule 153’ (Web Page) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule153>.
[15] Čelebići (n 14) [343].
[16] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) arts 86–7.
[17] SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993) art 7(3) (‘Statute of the ICTY’).
[18] SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex art 6(g) (‘Statute of the ICTR’).
[19] Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the SCSL, opened for signature 16 January 2002, 2178 UNTS 138 (entered into force 12 April 2002) annex art 6(3) (‘SCSL Statute’).
[20] Statute of the ICTY (n 17) art 7(3).
[21] Prosecutor v Blaškić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-95-14-A, 29 July 2009) [484] (‘Blaškić’).
[22] Čelebići (n 14) [193]–[197]; Prosecutor v Kayishema (Judgment) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No R-95-1-A, 1 June 2001) [294].
[23] Prosecutor v Halilović (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-01-48-A, 16 November 2005) [78] (‘Halilović’); Blaškić (n 21) [77].
[24] See David Griffith, ‘Seeking Clarity: Assessing Questions of Remoteness Post Bemba’, ICC Forum (Forum Post, 25 May 2019) <https://iccforum.com/forum/permalink/116/31936>.
[25] Halilović (n 23) [63]; Čelebići (n 14) [394]–[395].
[26] Prosecutor v Strugar (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No, IT-01-42-T, 31 January 2015) [378]; Čelebići (n 14) [625].
[27] Schabas (n 1) 610.
[28] In arts 28(a) and (b) respectively.
[29] Prosecutor v Bemba (Decision Pursuant to Article 61 (7)(a) and (b) of the Rome Statute) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/05-01/08-424, June 15, 2009) [478] (‘Bemba Pre-Trial Chamber Decision’); Bemba Trial Decision (n 5) [717].
[30] Ray Murphy, ‘Command Responsibility after Bemba’ in Christian Riffel and Róisín Burke (eds), New Zealand Yearbook of International Law (Brill, 2019) 94, 102; Adam Hoskins, ‘After Bemba: Article 28 of the Rome Statute and the Requirement of Causation’, ICC Forum (Forum Post, 25 May 2019) <https://iccforum.com/forum/permalink/116/31937>.
[31] Bemba Trial Decision (n 5) [1].
[32] Yvonne McDermott, ‘Prosecutor v Bemba’ (2016) 110 American Journal of International Law 526, 526–7.
[33] Bemba Pre-Trial Chamber Decision (n 29) [342].
[34] Martyna Falkowska, ‘The Bemba Trial before the International Criminal Court: Defining an Armed Conflict through the Scope of a Commander’s Responsibility’ (2015) 54(2) Military Law and Law of War Review 267, 295.
[35] Bemba Trial Decision (n 5) [170].
[36] Ibid [742].
[37] Ibid [384], [403], [706]–[708].
[38] Ibid [710], [734].
[39] Prosecutor v Bemba (Judgment) (International Criminal Court, Appeals Chamber, Case No ICC-01/05-01/08, 8 June 2018) [29] (‘Bemba Appeal Decision’).
[40] Joseph Powderly, ‘Introductory Note to Prosecutor v. Jean-Pierre Bemba Gombo: Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment Pursuant to Article 74 of the Statute” (INT’L CRIM. CT.)’ (2018) 57(6) International Legal Materials 1031, 1032; Leila Sadat, ‘Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo’, EJIL:Talk! (Blog Post, 12 June 2018) <https://www.ejiltalk.org/fiddling-while-rome-burns-the-appeals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/> (‘Fiddling While Rome Burns?’).
[41] Sadat, ‘Fiddling While Rome Burns?’ (n 40).
[42] Bemba Trial Decision (n 5) [720]–[722].
[43] Ibid [726].
[44] Ibid [728]–[733].
[45] Ibid [203]–[204], [729]–[730].
[46] Ibid [729].
[47] Ambos (n 7) 218, citing W J Fenrick, ‘Article 28’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden, 1999) 515.
[48] Monal Gera, ‘Defining Necessary and Reasonable Measures in Command Responsibility’, ICC Forum (Forum Post, 8 July 2019) <https://iccforum.com/forum/permalink/116/32061#Gera20190622>.
[49] Mettraux (n 9) 20.
[50] Bemba Appeal Decision (n 39) [169]–[170]; Murphy (n 30) 97; Diane Marie Amann, ‘In Bemba and Beyond, Crimes Adjudged to Commit Themselves’, EJIL:Talk! (Blog Post, 13 June 2018) <https://www.ejiltalk.org/in-bemba-and-beyond-crimes-adjudged-to-commit-themselves>.
[51] Bemba Appeal Decision (n 39) [189].
[52] Ibid [11], [188].
[53] Ibid [6]–[7], [170].
[54] Ibid [70] (Separate Opinion of Judges Monageng and Hofmańksi); Miles Jackson, ‘Commanders’ Motivations in Bemba’, EJIL:Talk! (Blog Post, 15 June 2018) <https://www.ejiltalk.org/commanders-motivations-in-bemba/>.
[55] Bemba Appeal Decision (n 39) [191].
[56] Murphy (n 30) 96; Joseph Powderly and Niamh Hayes, ‘The Bemba Appeal: A Fragmented Appeals Chamber Destablises the Law and Practice of the ICC’, PhD Studies in Human Rights (Blog Post, 26 June 2018) <http://humanrightsdoctorate.blogspot.com/2018/06/the-bemba-appeal-fragmented-appeals.html> .
[57] Bemba Appeal Decision (n 39) [192]–[193].
[58] Sadat, ‘Fiddling While Rome Burns?’ (n 40).
[59] Bemba Appeal Decision (n 39) [258] (Separate Opinion of Judge Eboe-Osuji).
[60] Ibid [127], [170] (Separate Opinion of Judges Monageng and Hofmańksi).
[61] See (nn 23–26) and the accompanying text.
[62] Bemba Appeal Decision (n 39) [36] (Dissenting Opinion of Judges Van den Wyngaert and Morrison).
[63] Mettraux (n 9) 271–2.
[64] Ibid 269; Sadat, ‘Fiddling While Rome Burns?’ (n 40).
[65] Bemba Appeal Decision (n 39) [35] (Dissenting Opinion of Judges Van den Wyngaert and Morrison).
[66] Diane Marie Amann, ‘In Bemba, Command Responsibility Doctrine Ordered to Stand Down’, ICC Forum (Forum Post, 27 May 2019) <https://iccforum.com/responsibility#Amann> (‘Ordered to Stand Down’); see also (nn 5-6).
[67] Bemba Appeal Decision (n 39) [34] (Dissenting Opinion of Judges Van den Wyngaert and Morrison).
[68] Ibid [170].
[69] Bemba Trial Decision (n 5) [733].
[70] Leila Nadya Sadat, ‘Prosecutor v Jean-Pierre Bemba Gombo’ (2019) 113(2) American Journal of International Law 353, 358 (emphasis added) (‘Prosecutor v Bemba’).
[71] Amann, ‘Ordered to Stand Down’ (n 66).
[72] International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff, 1987) 1023.
[73] Powderly and Hayes (n 56).
[74] Ibid; see also Susana Sacouto, ‘The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-Based Crimes?’, International Justice Monitor (Blog Post, 22 June 2018) <https://www.ijmonitor.org/2018/06/the-impact-of-the-appeals-chamber-decision-in-bemba-impunity-for-sexual-and-gender-based-crimes/>.
[75] Mettraux (n 9) 122–3; see also (n 22) and the accompanying text.
[76] Sadat, ‘Prosecutor v Bemba’ (n 70) 358.
[77] Michael Newton, ‘The Bemba Appeal Judgment Prevented Misalignment between the ICC Implementation of Article 28 and Best Practices Governing Military Operations around the World’, ICC Forum (Forum Post, 27 May 2019) <https://iccforum.com/responsibility#Newton>.
[78] Murphy (n 30) 118.
[79] Ibid.
[80] Jackson (n 54).
[81] Bemba Appeal Decision (n 39) [3] (Separate Opinion of Judge Eboe-Osuji).
[82] Murphy (n 30) 118.
[83] Ibid.
[84] Bemba Trial Decision (n 5) [172], [209].
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