a devastating critique of the recent decision of the ICC Appeals Chamber in the Bemba Gombo case. On the question of command responsibility:
The Majority then turned to an evaluation of Bemba’s responsibility under Article 28. This part of the judgment was highly anticipated, for it was the Appeals Chamber’s first real opportunity to elaborate upon Article 28. Bemba’s high-powered new defense team included not one but two international criminal law academics and experts, including a military lawyer, and the issues were heavily litigated and briefed. One would have expected a decision along the lines of the Čelebići Camp judgment at the ICTY which was replete with authority and considered both the Statute and customary international law to the extent required. Instead, the Majority and Separate Opinion taken together amount to approximately 30 pages, much of which is devoted to the parties’ arguments. The Dissenting Opinion (141 pages), elaborates in much greater detail, but is, of course, a dissent. Importantly, we learn from the opinions that 2 of the 5 members of the Appeals Chamber (Monagan & Hofmanski), following Judge Steiner, believe that causation is required under Article 28. We learn from the Separate Opinion of judges Morrison and Van den Wyngaert that they disagree. We don’t know the views of President Eboe-Osuji (whose opinion is not available as of this writing),* meaning that the law on this point is still unclear.* His concurring separate opinion is now available here. (Footnote added.) Paragraphs 210-16 of the opinion are of particular interest:
The Appeals Chamber split 3-2 on the meaning of “all necessary and reasonable measures” which the commander is required to take under Article 28. The Majority argued for “an assessment of what measures were at his or her disposal in the circumstances at the time.” (para. 168), and criticized the Trial Chamber extensively, identifying seven specific errors in its assessment. The Dissenting Opinion objected to the Majority’s analysis, arguing that it represented selective and unwarranted de novo review, and themselves reviewing the evidence in a much more extensive manner (hence the greater number of pages devoted to the issue). The Dissenting Opinion argued, probably correctly, that if the Appeals Chamber is going to conduct de novo review of the facts, it must review and analyze all the evidence presented to the Trial Chamber. Certainly, even under the classic standard of review, where Appeals Chambers at the ad hoc Tribunals were obliged to engage in factual review of a Trial Chamber decision, their review was extensive. Again, some key ICTY judgments come to mind such as the Krstić case.
The question of Bemba’s status as a “remote” commander was the key issue for the Majority. It asserted he was owed a certain deference due to the “limitations that Mr. Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.” (para. 191) This extraordinary statement – uttered without a single case, treaty or treatise to support it — appears not only to shelter Mr. Bemba but serves the interests of any state, regional organization or even rebel group whose forces cross borders, an increasingly frequent occurrence in today’s world. It could be argued that a commander in those circumstances should be required to exercise an even higher level of due diligence and supervision exactly because of the risks involved and the fact that most modern commanders have almost immediate access to their forces through cell and satellite phones and other modern communications methods.
The Separate Opinion asserts that the “main responsibility of the higher-level commander is to make sure that the unit commanders are up to the task of controlling their troops.” (para. 34) It adds that it is important “not to get into a mind-set that gives priority to the desire to hold responsible those in high leadership positions and to always ascribe to them the highest levels of moral and legal culpability.” (para. 35) This broad – and unfootnoted — statement turns much of international criminal law theory on its head. Given its profound potential implications, more analysis and elaboration of the judges’ meaning would have been useful.
210. From the perspective of accomplice liability, a focused appreciation of the legal consequences of the commander’s failure to submit the matter to the competent authorities requires keeping in mind that the commander (whose only prosecutable conduct is failure to have the matter investigated or prosecuted, because he was never in a position to prevent or repress) need not be held criminally responsible ‘for’ the crime of the subordinate in every instance of such a crime. It is possible—and indeed legally more sensible—to punish the commander ‘for crimes within the jurisdiction of the Court’ committed by a subordinate, whenever it can be shown beyond reasonable doubt that the commander’s failure to punish resulted in the subordinate’s commission of a ‘crime within the jurisdiction of the Court.’ That means, then, that while every instance of failure can be viewed as dereliction of duty (assuming that dereliction is ‘a crime within the jurisdiction of the Court’—a proposition already shown as highly doubtful indeed), not every instance of failure can be viewed as having resulted in the subordinate’s commission of a ‘crime within the jurisdiction of the Court.’ This is particularly the case when the subordinates commit no further crime, following the one that the commander failed to submit the matter to the competent authorities.
211. But, there may be cases in which a commander’s failure to submit the matter to the competent authorities will appreciably be seen as having resulted in a subordinate’s subsequent commission of a ‘crime within the jurisdiction of the Court.’ As noted earlier, the annals of warfare never ruled out the possibility that certain commanders would wilfully refrain from having subordinates who committed war crimes investigated or prosecuted (typically rapes and pillage), treating such violations as licenses to deserving soldiers, thus encouraging further crimes of that kind. Thus, for purposes of article 28, a commander whose past failure is proven to have resulted in subordinates’ subsequent commission of crimes may, specifically in the terms of article 28, be held criminally responsible ‘for’ such subsequent ‘crimes within the jurisdiction of the Court.’
212. It is granted that, aside from considerations of dereliction duty, the complexities of article 28 may engage the possibility that a commander may be punished, as an accessory after the fact, for the first (and possibly only) instance of the subordinates’ commission of crimes. Still, from the point of view of principle, the only way in which it will be fair to convict a commander ‘for’ the crime committed by the subordinate is if the commander’s conduct contributed to the offence: that is to say, the offence was as ‘a result of’ the commander’s failure. Failure with respect to a first or only violation cannot be said to have contributed to that particular violation.
213. It may be convenient, for purposes of prosecution based on the theory of accomplice liability, that the precedent and the subsequent episodes of criminality may be in close temporal proximity to one other, both occurring during the tenure of the accused commander. But, that such was not the case would be entirely irrelevant in characterising the nature of the commander’s responsibility under article 28—as either dereliction of duty or accomplice liability—for failing to submit the matter to the competent authorities. Indeed, it should not matter that the commander who had failed to have subordinates investigated or prosecuted on the previous occasion of criminal conduct may no longer be in post as commander at the time of the subsequent commission of crimes. All that matters is the import of the phrase ‘as a result of’ in article 28, which connects the subordinate’s crime to the commander’s failure to submit to competent authorities for investigation or prosecution. And, it means that the failure of the accused commander to have the earlier criminal conduct investigated or
prosecuted had resulted in the subsequent one.
214. It may be noted at this juncture that there is no statute of limitation for international crimes. Thus, provided there is cogent evidence showing that a subsequent crime was as a result of a wilful failure to have an earlier crime investigated or prosecuted, the commander who failed to investigate or prosecute the precedent crime may still be prosecuted and held responsible for the subsequent crime, though that commander was no longer in post when the subsequent crime was committed.
215. Upon the foregoing analysis, the theory of accomplice liability continues to rationalise the norm of command responsibility for both the purposes of the failure to submit to competent authorities for investigation and prosecution subordinates who committed crimes and the failure to prevent or repress the crimes of subordinates.
216. To conclude the discussion in this segment, it may be said that the theory of complicity puts two important and necessarily connected considerations into sharper relief. First, it makes the element of causality plainer to see in the interrelated criminality of the conducts of both the superior and the subordinate. And, in consequence, it puts in plainer perspective the fairness of holding the superior criminally responsible for the crimes committed by the subordinate. But, it all comes at the price of proof beyond reasonable doubt that the latter was caused by the former. And it is a very fair price.Footnote omitted.