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Command Responsibility and the Trial of Jean-Pierre Bemba

The trial of Jean-Pierre Bemba will examine what happened in the Central African Republic (CAR) between October 26, 2002 and March 15, 2003.  But in order to convict Mr. Bemba, the prosecution will not only have to prove that civilians and other protected persons were victims of crimes.  Prosecutors will have to establish that Mr. Bemba is criminally responsible for the alleged crimes, as well as prove to the judges that Mr. Bemba had a particular relationship to the forces who directly committed the alleged crimes in CAR.  In short, the prosecution will seek to prove that Mr. Bemba had “command responsibility” for these crimes.

What is command responsibility?

Command responsibility is the legal liability of a commander or civilian superior for crimes committed by subordinate members of armed forces or other persons under their control.  A commander can be held criminally responsible even if he or she did not order crimes to be committed.  It is enough if the commander fails to prevent, repress or punish crimes committed by subordinates.

The principle of command responsibility was first used in the trials of Nuremberg and Tokyo after World War II.  Since then it has resulted in convictions at other tribunals, including those for Rwanda and the former Yugoslavia.  When the Rome Statute of the International Criminal Court was written in 1998, its Article 28 also created the possibility for individuals to be held criminally accountable on the basis of command responsibility.  The trial of The Prosecutor vs. Jean-Pierre Bemba Gombo marks the first time that a trial at the ICC will be based on Article 28.

Expected prosecution and defense arguments

The judges of Trial Chamber III will be watching to see whether the prosecution can prove particular elements necessary to find that Mr. Bemba had command responsibility for crimes.  (Separately, the prosecution also has the burden of proving that MLC members committed the alleged crimes in CAR.) During the hearings on the confirmation of charges, the prosecution and defense already raised arguments about these requirements.  We can expect that each will be raised again during Mr. Bemba’s trial.

Did Mr. Bemba command and control the MLC?

For command responsibility to apply, Article 28 requires that an accused military commander has “effective command and control” over the forces who directly committed the crimes.  In its amended document containing the charges from March 30, 2009, the Office of the Prosecutor argues that this description applies to Mr. Bemba and the Movement for the Liberation of Congo (MLC).  The Prosecutor claims that during the period that crimes were allegedly committed in CAR, Mr. Bemba was the President and Commander in Chief of the MLC.  The Prosecutor also argues that Mr. Bemba had effective command and control over the MLC.  At trial, the prosecution will present evidence that while MLC forces were in CAR, Mr. Bemba issued orders that his soldiers followed, he directed and disciplined MLC commanders, and he had the power to prevent and repress the commission of crimes.

During the pre-trial hearings on confirmation of charges, the defense argued that Mr. Bemba did not have effective command and control over MLC forces.  This is likely to be an argument central to Mr. Bemba’s defense in the trial.  Specifically, the defense will recall that it was then-CAR President Ange Félix Patassé who invited the MLC into the country.  They will argue that the MLC worked closely with the army of CAR, so that during this time, it was former President Patassé who had command and control over MLC forces, not Mr. Bemba.  Further, the defense is likely to argue that Mr. Bemba could not have effective command over the MLC because he was not in regular enough contact, and reports to him from the military front were not detailed enough.

Did Mr. Bemba know, or should he have known, that his forces were involved in crimes?

For command responsibility to apply, Article 28 requires that the commander either knew or “should have known that the forces were committing or about to commit such crimes”.  The prosecution will argue that there is more than enough evidence to show that Mr. Bemba knew, or at least should have known, that his soldiers were committing crimes.  They will argue that Mr. Bemba visited CAR during the military campaign, mentioned reports of war crimes in private conversation and in speeches to his troops, and suspended two commanders suspected of pillaging.  Further, the prosecution is likely to argue that Mr. Bemba had good lines of communication to his forces, and used them.  Even if he couldn’t learn of crimes this way, the prosecution will argue that Mr. Bemba would have learned of them through local and international media reports.  And finally, the prosecution will point to a letter Mr. Bemba sent to the Secretary General of the United Nations in the middle of the military campaign, in which he denied accusations of war crimes against his troops. To deny such accusations, the prosecution will argue, Mr. Bemba had to be aware of them.

Based on arguments presented at the hearings on the confirmation of charges, Mr. Bemba’s defense can be expected to argue that Mr. Bemba was in the Democratic Republic of Congo during the military campaign and did not receive concrete information from his chain of command regarding alleged crimes.  The defense will argue that Mr. Bemba fulfilled his duty to know by receiving regular reports from the field, but that these reports were missing details of the operations and alleged crimes.

Did Mr. Bemba act to prevent, stop, and punish crimes by his forces?

By itself, effectively commanding and controlling a force that commits crimes known to the commander (or whose crimes should be known to the commander) is not enough to establish command responsibility.  Article 28 has one further requirement: that the commander does not “take all necessary and reasonable measures within his or her power to prevent or repress” the crimes, or to ensure that competent authorities are notified who can investigate and prosecute the crimes.

The prosecution can be expected to argue that Mr. Bemba’s response to reports of MLC crimes was not sufficient.  The prosecution is likely to argue that MLC training was not effective and its code of conduct not widely available to its soldiers.  They will also point to the small number of MLC officers disciplined for crimes committed in CAR and their minimal punishment to show that the efforts to repress crimes were not genuine.  Likewise, the prosecution will say that Mr. Bemba’s speech to a small number of soldiers warning of grave consequences for indiscipline, and a late invitation to the UN to investigate were not sufficient responses to the situation in CAR.

The defense can be expected to argue that Mr. Bemba did take all necessary and reasonable steps within his power to prevent or repress crimes by MLC troops.  They will argue that MLC troops received comprehensive military training, including on the importance of human rights law.  They will point to a published code of conduct for the MLC, and to an MLC military judicial system that was used to discipline soldiers for crimes during the CAR fighting.  The defense can be expected to argue that Mr. Bemba’s call for a UN investigation of the situation in CAR and a speech to MLC forces both represented significant efforts to prevent and punish the perpetrators of crimes.

A question of interpretation

Although there have been successful prosecutions on the basis of command responsibility at other war crimes tribunals, this will be the first at the ICC.  The language of Article 28 of the Rome Statute that will be used in this trial describes command responsibility for a military commander somewhat differently than do the statutes for the Rwanda and Yugoslav tribunals.  At those courts, the prosecution must show that the commander “knew or had reason to know” that crimes were being committed in order for command responsibility to apply.  As we have seen, the Rome Statute requires the prosecution to show that a military commander “knew… or should have known” about the crimes.  This language – “should have known” – seems to imply that a commander has a duty to know what his troops are doing.  How the ICC judges interpret this part of the Rome Statute could be important to the final outcome of the case.