“Bemba and Beyond,” reflections on command responsibility

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

2 thoughts on ““Bemba and Beyond,” reflections on command responsibility

  1. Thanks for that interesting post . In that affair unfortunately , the doctrine of ” vicarious liability” it its plain meaning , has been ignored . An official , can, and should be responsible , for crimes or torts of his agents , due simply to :

    Lack of training, lack or educating them ( educating the agents , means : soldiers , commanders etc…) So, effective control and knowledge and prevention , should encompass the education and training . One should read in this regard , the relevant provisions of Geneva convention , with those relevant in the Rome statute , and apply it in accordance , here I quote :

    ” Article 83 — Dissemination

    1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population.

    2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof. ” ( Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 )

    So , one should read the whole above , with article 21 ( applicable law ) of the Rome statute , dictating so :

    ” 1. The Court shall apply:

    (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

    (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

    And reach clear conclusion , that : controlling , should comprise also : teaching and educating .And in accordance , ask also , in that case of Bemba , to what extent , he was responsible , for lack of : training , teaching , educating forces subordinated to him .


  2. Pingback: Malian suspect at ICC: New opportunity for accountability for sexual crimes | IntLawGrrls

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