The ICC and commander-centric military justice

It has occasionally been suggested by opponents of Sen. Kirsten E. Gillibrand's salutary proposal to shift UCMJ disposition power from the commander to an independent legally-trained prosecutor that doing so would run afoul of the commander's responsibility under the law of armed conflict. The March 21, 2016 decision of the International Criminal Court's Trial Chamber III in Situation in the Central African Republic (Prosecutor v. Bemba Gombo), No. ICC-01/05-01/08, refutes this theory. The judgment makes it clear that a commander would not incur command responsibility for failure to repress crimes within the meaning of Article 28(a)(ii) of the Rome Statute if he or she submits the matter, as provided by national law, to competent authorities for prosecution. The Trial Chamber decision states (pp. 93-96):

b) Failure to repress the commission of crimes or submit the matter to the competent authorities for investigation and prosecution

205. Article 28(a)(ii) also criminalises the failure of the commander to “repress” the crimes. The word “repress” means to “put down”, “subdue”, “restrain”, and “keep or hold back”. The notion of “repression” therefore overlaps to a certain degree with “prevention”, particularly in terms of a duty to prevent crimes in progress and crimes which involve on-going elements being committed over an extended period.

206. The Chamber concurs with the Pre-Trial Chamber that the duty to repress also encompasses an obligation to punish forces after the commission of crimes. The Chamber notes that the statutes of the ad hoc tribunals do not make reference to a duty to “repress”; rather the terms “to prevent [...] or to punish” are used. The term “repress” is used in Article 2 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 86 of Additional Protocol I where, as in the Rome Statute, this notion is distinguished from “prevention”. The International Committee of the Red Cross (“ICRC”) Commentary to Article 86 of Additional Protocol I indicates that the purpose of the requirement that commanders repress crimes is to ensure that military commanders fulfil their obligation to search for the perpetrators and either bring them before the courts or hand them over to another state for trial.

207. A commander’s lack of formal competence to take certain measures does not relieve the commander of the duty to take all necessary and reasonable measures within his power to repress the crimes. In the event the commander holds disciplinary power, he is required to exercise it, within the limits of his competence. If he does not hold disciplinary power, measures which may, depending upon the circumstances, satisfy the commander’s duties include proposing a sanction to a superior who has disciplinary power or remitting the case to the judicial authority with such factual evidence as it was possible to find. The ad hoc tribunals have established what has been termed a “minimum standard” for measures that may fulfil the duty to punish, directing that a Trial Chamber “must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators”. The duty to punish includes, at least, the obligation to investigate possible crimes in order to establish the facts. The commander is required to take an “important step in the disciplinary process”.

208. If the commander has no power to sanction those who committed the crimes, he has an obligation to submit the matter to the competent authorities. This obligation to submit the matter also arises where the commander has the ability to take certain measures, but such measures would be inadequate. On a plain reading of Article 28(a)(ii), the Chamber finds that a commander cannot be considered to have discharged his duty to submit the matter if he does not submit the matter to an authority competent to investigate and prosecute the alleged perpetrator. Further, referral to a non-functioning authority or an authority likely to conduct an inadequate investigation or prosecution may not be sufficient to fulfil the commander’s obligations.

209. The Chamber considers that the duty to punish or to submit the matter to competent authorities aims at ensuring that offenders are brought to justice, in order to avoid impunity and to prevent future crimes. These duties arise after the commission of the crimes.

Footnotes omitted; emphases added. The separate opinions of Judges Kuniko Ozaki and Sylvia Steiner are not to the contrary on this point,