First Ruling on Command Responsibility before the ICC

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The ICC enters its first conviction on command responsibility in the Bemba case

By Alexandre Skander Galand

On 21 March 2016, Trial Chamber III (TC III) of the International Criminal Court (ICC) issued an historical judgment in the case of The Prosecutor v. Jean-Pierre Bemba Gombo. Bemba was found guilty of murder as a war crime and crime against humanity, rape as a war crime and crime against humanity, as well as pillaging as a war crime, committed in the Central African Republic (CAR) between 2002-2003. At the relevant time, Bemba was the President of the Movement for the Liberation of Congo (MLC – Mouvement de Libération du Congo) and the Commander-in-Chief of its military branch of 20,000 soldiers. On 25 October 2002, the then President of the CAR Ange-Félix Patassé requested Bemba’s assistance to defend his government against a coup. Between 26 October 2002 and 15 March 2003, Bemba deployed 3 MLC battalions of 1,500 men to the CAR, where the above-mentioned crimes of murder, rape and pillaging against the civilian population were committed. The Bemba Trial Judgment distinguishes itself from past decisions of the ICC in two respects: it represents the first conviction for sexual violence crimes and also the first conviction pursuant to command responsibility. The present analysis will be limited to the latter, a mode of liability which has been extensively discussed before other international(ised) criminal courts and tribunals and codified in Art. 28(a) ICC Statute (see also CMN’s International Criminal Law Guidelines on Command Responsibility).

Command or Superior Responsibility in International Criminal Law

In the Čelebići judgment, the ICTY Trial Chamber affirmed that “[…] the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law” (para. 343). Respectively, that Trial Chamber found the essential elements of command responsibility for failure to act to be:

(i) the existence of a superior-subordinate relationship;

(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and

(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof (para. 346).

Command Responsibility under the Rome Statute

The text of Art. 28(a) ICC Statute is more detailed than the provisions on command responsibility contained in the Statutes of the two ad hoc tribunals. In line with the Pre-Trial Chamber’s (PTC) Decision on the Confirmation of Charges in Bemba, TC III found that the following elements must be fulfilled:

  1. crimes within the jurisdiction of the Court must have been committed by forces;
  2. the accused must have been either a military commander or a person effectively acting as a military commander;
  3. the accused must have had effective command and control, or effective authority and control, over the forces that committed the crimes;
  4. the accused either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes;
  5. the accused must have failed to take all necessary and reasonable measures within his power to prevent or repress the commission of such crimes or to submit the matter to the competent authorities for investigation and prosecution; and
  6. the crimes committed by the forces must have been a result of the failure of the accused to exercise control properly over them (para. 171).

Discussing the nature of command responsibility, TC III highlighted that under the Rome Statute a commander “shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control” (para. 173). The responsibility of a commander is distinct from the responsibility of those who commit the crimes. Adopting the language of the ICTY in Halilović, TC III maintained that command responsibility is a sui generis form of responsibility (para. 174). It must be borne in mind, however, that the sui generis form of command responsibility in Halilović was used to dismiss the need for a causal link between the failure of the commander and the crimes committed by his subordinates (see also CMN Guidelines, pp. 44-6, 84) – an issue I shall address at the end of this post. The findings in respect to each of the legal requirements under Art. 28(a) ICC Statute will now be addressed in turn.

MLC forces committed crimes within the jurisdiction of the Court  

TC III considered that it must first be established that the MLC forces in the CAR committed crimes within the ICC’s jurisdiction. Having examined the evidence on the identity of the perpetrators, the Chamber found beyond reasonable doubt that this requirement was satisfied by the MLC forces between October 2002 and March 2003 through the commission of murder as a war crime and crime against humanity, rape as a war crime and crime against humanity, as well as pillaging as a war crime on the CAR territory (paras. 694-5).

Bemba was effectively acting as a military commander

In relation to the second requirement, TC III followed the Prosecutor’s legal characterisation of Bemba as a person who was effectively acting as a military commander. As the President of the MLC and Commander-in-Chief of its military branch, Bemba had broad formal powers, ultimate decision-making authority, and powers of appointment, promotion and dismissal. Furthermore, he had direct lines of communication to commanders in the field and both could, and did, issue operational orders. Accordingly, he was found beyond reasonable doubt to have effectively acted as a military commander (para. 697).

Bemba had effective authority and control over the forces that committed the crimes

Due to an overlap between the factors relevant to assessing the status of someone effectively acting as a military commander and a person’s effective authority and control, TC III considered Bemba’s powers outlined in the previous subsection also in order to establish the third element of command responsibility (paras. 178, 696). Accordingly, the two could be subsumed under a superior-subordinate relationship, the requirement recognised before the ad hoc tribunals.

Significantly, Bemba’s effective authority and control was established with respect to the 1,500 men deployed to the CAR, although he mainly remained stationed in the MLC’s headquarters in Gbadolite, the DRC. Despite the cooperation between Patassé’s troops and the MLC troops during the CAR operation, TC III found that the latter had not been “resubordinated” to the CAR military hierarchy (para. 699). The Chamber pointed out that it was important to distinguish the principle of ‘unity of command’ from the assessment of ‘effective control’, i.e. the material ability to prevent or punish the crime (para. 698). According to TC III, effective control “needs not be an exclusive power and multiple superiors can be held concurrently responsible for their subordinates’ actions” (para. 343; see also Trial Judgement in Blaškić, para. 303). During the whole operation, Bemba maintained direct contact with the MLC commanders in the field and continued to provide logistical support and equipment to the troops. Although not finding it determinative, TC III established that Bemba issued direct operational orders to the MLC forces in the CAR (para. 700). Furthermore, the Chamber placed great emphasis on the fact that Bemba retained primary disciplinary authority over the troops, including through the establishment of commissions of inquiry, powers of arrest, and the convening of courts martial (para. 703).

Bemba knew that the MLC forces were committing or were about to commit the crimes

With respect to Bemba’s knowledge that the MLC forces were committing or were about to commit crimes in the CAR, TC III decided that it was not necessary to re-characterise the charges pursuant to Regulation 55 to include a “should have known” mental element (para. 718). Indeed, the Chamber found that in addition to his regular contact with the MLC officials in the CAR, Bemba followed the international news, which were reporting crimes committed by his soldiers and discussed the media allegations of crimes committed in the CAR with his senior officials (paras. 707-9, 716). It is in response to these allegations that Bemba established commissions of inquiry (Mondonga Inquiry and Zongo Commission) and the Sibut Mission. Further attesting to his knowledge, Bemba met with the UN Representative and President Patassé after hearing reports of crimes committed by the MLC soldiers, participated in the establishment of a publicly broadcast court martial, as well as wrote a letter to the FIDH President in which he noted the FIDH Report detailing the accounts of alleged acts of murder, rape and pillaging (paras. 710-5). Hence it was found, beyond reasonable doubt, that Bemba had direct knowledge of crimes committed by the MLC soldiers at various stages throughout the 2002-2003 CAR Operation (para. 717).

Bemba failed to take all necessary and reasonable measures within his power

The above-outlined measures undertaken by Bemba in response to the public allegations of crimes were, nonetheless, found insufficient for not being properly or sincerely executed (paras. 720-727). TC III concluded that these measures were primarily motivated by Bemba’s desire to protect the MLC’s public image rather than to genuinely address all allegations of crimes, thus discarding their adequacy (para. 728).

The Chamber then went on to suggest further measures Bemba could have undertaken in light of his extensive material ability to prevent or repress the crimes committed by the MLC troops. In addition to initiating a genuine investigation and prosecution of the crimes allegedly committed by his soldiers, Bemba could have, inter alia, (i) ensured that the MLC troops in the CAR were properly trained in the rules of international humanitarian law (IHL), as well as adequately supervised; (ii) issued clear orders to prevent the commission of crimes; (iii) minimised contact of the MLC troops with civilian populations; (iv) sanctioned soldiers found to have committed or condoned any crimes in the CAR; and/or (v) shared relevant information with any other authorities that might have been interested in investigating crimes committed in the CAR, and supported their efforts (para. 729). Furthermore, TC III stressed that “one key measure at Mr Bemba’s disposal was withdrawal of the MLC troops from the CAR”, but this withdrawal did not take place up until March 2003 (para. 730). In light of the measures available to Bemba, the Chamber concluded that the measures he took fell short of “all necessary and reasonable measures” within his power to prevent or repress the commission of crimes by his subordinates during the 2002-2003 CAR Operation, or failed to submit the matter to the competent authorities (paras. 731, 734).

The crimes were committed as a result of Bemba’s failure to exercise control properly

The last element – causation – is a novelty of the Rome Statute that was not present in the Statutes of the ad hoc tribunals (see also CMN Guidelines, pp. 83-90). Indeed, the chapeau of Art. 28(a) ICC Statute requires that the commission of the subordinates’ crimes was “a result of [the commander’s] failure to exercise control properly over such forces”. According to TC III, this clause is also justified by the nullum crimen sine culpa principle. Furthermore, concurring with the PTC, TC III did not require the establishment of a “but for” causation between the commander’s omission and the crimes committed (para. 211). While the PTC considered that it was sufficient to prove that the commander’s omission “increased the risk of the commission of the crimes” (para. 425), TC III did not further elaborate on the requisite standard other than saying that the nexus requirement “would clearly be satisfied when it is established that the crimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes”. The Chamber stressed that this standard is “higher than that required by law” (para. 213).

The Chamber placed an enormous emphasis on Bemba’s failure to ensure that the MLC troops under his control were aware of their obligations under IHL. In fact, his failure to take any measures to remedy this deficiency in training and to ensure adequate supervision, demonstrated that Bemba failed to exercise control properly (para. 737). Providing clear IHL training to all troops, in combination with other measures suggested earlier by the Chamber, would have “deterred the commission of crimes, and generally diminished, if not eliminated, the climate of acquiescence” towards the crimes committed by the MLC troops in the CAR (para. 738). Interestingly, TC III moreover suggested that providing the MLC soldiers with adequate payment and rations would similarly reduce the risk of pillage and rape for self-compensation.

The causality threshold gave rise to disagreement amongst the judges on the bench. Two of the three judges issued a concurring opinion, in which they present views on the standard to be applied. While Judge Steiner affirmed that the degree of risk required should be that of a “high probability”, Judge Ozaki favoured an assessment of whether the results were reasonably foreseeable. As the Defence is expected to appeal the decision, further clarification on this point is expected.

About the author

DSC_0860Dr. Alexandre Skander Galand is a Newton Post-Doc Fellow at the Center for Global Public Law, Koç University Law School. In 2015, he was a research fellow at Case Matrix Network and co-authored the International Criminal Law Guidelines on Command Responsibility. He holds a Ph.D. from the European University Institute and has previously worked as a Legal Analyst for United Nations Interregional Crime and Justice Research Institute (UNICRI) within the framework of the War Crimes Justice Project. He is a member of the Barreau du Québec, Canada.

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