Abstract

THE PRINCIPLE OF COMMAND RESPONSIBILITY AS INTERPRETED BY THE INTERNATIONAL CRIMINAL COURT IN THE BEMBA CASE On 21 March 2016, trial chamber III of the international criminal court unanimously convicted Jean-Pierre Bemba Gombo, former vice-president of the Democratic Republic of the Congo, of crimes against humanity and war crimes committed by troops under his command in the Central African Republic between October 2002 and March 2003. This decision was of particular importance as Bemba was not convicted of having committed the crimes himself, but was held responsible for failing to prevent, suppress or refer for prosecution, crimes committed by troops under his command. As such, this was the first judgment by the international criminal court in which article 28 of the Rome Statute and the concept of command responsibility was applied extensively. On 8 June 2018 however the appeals chamber reversed the judgment of the trial chamber and acquitted Bemba of all charges. The appeals chamber found, inter alia, that the trial chamber had erred in its finding that Bemba as a military commander had failed to take "all necessary and reasonable measures" to prevent and repress the commission of war crimes by his subordinates as contemplated in article 28(a)(ii) of the Rome Statute. The authors consider the interpretation of the pre-trail chamber, the trial chamber and the appeals chamber of the phrase "all necessary and reasonable measures" and what is required for a commander to meet this standard in order to escape command responsibility under article 28(a)(ii) of the Rome Statute. It further evaluates whether there are certain minimum duties that a commander has to meet in order to satisfy the threshold of taking "all necessary and reasonable measures" and whether Bemba met this threshold. Finally, it highlights the complexities in determining ex post facto whether a commander has taken all reasonable and necessary measures in order to avoid incurring command responsibility under article 28(a)(ii). An analysis of the application of this threshold in the Bemba case is important in light of the recent arrest of more commanders in the Central African Republic for war crimes and crimes against humanity, and the findings by trial chamber II of the international criminal court that there are reasonable grounds to believe that these commanders can be held responsible for the crimes committed by their subordinates on the basis of command responsibility.