“All Necessary and Reasonable Measures” – The Bemba Case and the Threshold for Command Responsibility

2020 ◽  
Vol 20 (2) ◽  
pp. 163-213 ◽  
Author(s):  
Martha M. Bradley ◽  
Aniel de Beer
Keyword(s):  
Central African Republic ◽  
Rome Statute ◽  
International Criminal ◽  
Democratic Republic ◽  
Criminal Responsibility ◽  
Vice President ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Republic Of The Congo

On 21 March 2016 Trial Chamber iii of the International Criminal Court unanimously convicted the former Vice-President of the Democratic Republic of the Congo, Jean-Pierre Bemba Gombo, on the basis of the doctrine of command responsibility for crimes against humanity and war crimes committed by troops under his command in the Central African Republic from 2002 to 2003. On 8 June 2018 however, the Appeals Chamber reversed the judgment and acquitted Bemba of all charges. The Appeals Chamber held that the Trial Chamber erred in finding that Bemba failed to take all necessary and reasonable measures to prevent and repress crimes committed by his subordinates as contemplated in Article 28(a)(ii) of the Rome Statute. This article evaluates the meaning of “all necessary and reasonable measures” in the context of command responsibility and considers whether Bemba met this threshold in order to avoid incurring criminal responsibility under Article 28(a)(ii).

Prosecutor v. Callixte Mbarushimana: Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges” (Int'l Crim. Ct.)

2013 ◽  
Vol 52 (2) ◽  
pp. 417-439 ◽  
Author(s):  
Ruth Frolich
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Democratic Republic ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Republic Of The Congo

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

scholarly journals Prosecutor v. Jean-Pierre Bemba Gombo: Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III's “Judgment Pursuant to Article 74 of the Statute” (Int'l Crim. Ct.)

2018 ◽  
Vol 57 (6) ◽  
pp. 1031-1079 ◽  
Author(s):  
Joseph Powderly
Keyword(s):  
International Criminal ◽  
Vice President ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
First Case ◽  
Majority Judgment ◽  
Republic Of The Congo ◽  
History Of

On June 8, 2018, the Appeals Chamber of the International Criminal Court (ICC) delivered its eagerly anticipated judgment on the appeal of Jean-Pierre Bemba Gombo against his conviction by Trial Chamber III in March 2016 for war crimes (murder, rape, and pillage) and crimes against humanity (murder and rape). Bemba's conviction was notable for the variety of “firsts” it gave rise to for the ICC. As a former vice-president of the transitional government of the Democratic Republic of the Congo (DRC) and president of the Mouvement de libération du Congo (MLC), he became the most senior leader to be successfully convicted by the ICC. His conviction was the first in which an individual was found responsible for the commission of crimes pursuant to command responsibility under Article 28 of the Rome Statute. Of particular significance was the fact that this was the first conviction at the ICC for acts of rape and sexual violence committed against women and men. Finally, this was the first case in the history of international criminal law where members of the defense team were arrested, tried, and convicted of crimes against the administration of justice during the course of the trial. The trial judgment was heralded as “a turning point in the ICC's history” following the debacles in the Lubanga, Katanga, Chui, and Kenya cases. However, we now have a new addition to the list of firsts: with the Appeals Chamber's majority judgment (decided 3-2), Bemba becomes the first accused to have his conviction overturned in full.

IV.ProsecutorvThomas Lubanga, Decision of Pre-Trial Chamber I of the International Criminal Court, 29 January 2007

2007 ◽  
Vol 56 (3) ◽  
pp. 713-724 ◽  
Author(s):  
J Craig Barker ◽  
Matthew Happold
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Democratic Republic ◽  
Democratic Republic Of Congo ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Republic Of Congo ◽  
Commander In Chief

On 29 January 2007, Pre-Trial Chamber I of the International Criminal Court (the ICC) handed down its decision confirming the charges brought against Thomas Lubanga Dyilo, the first defendant to appear before the Court. In this and earlier decisions in the case, the Chamber has said a number of interesting things about the admissibility of cases before the Court, the elements of the war crime of child recruitment and the modes of liability under the Rome Statute of the International Criminal Court (the Rome Statute).140More generally, however, the Chamber's actions also say much about the role the judges of the ICC see themselves as undertaking in the Court's proceedings.Thomas Lubanga is a national of the Democratic Republic of Congo (the DRC). He describes himself as a politician. It is alleged that from its foundation in 2000 he has been the leader of theUnion des patriots congolais(the UPC) and commander-in-chief of its military wing, theForces patriotiques pour la liberation du Congo(the FPLC). From mid-2002 to the end of 2003, the FPLC was engaged in fighting in the region of Ituri in the DRC. During the conflict, the UPC/FPLC is alleged to have committed numerous atrocities, including the widespread recruitment of children into its ranks.141The DRC had become a party to the Rome Statute on 11 April 2002 and, accordingly, the Statute entered into force for it on 1 July 2002, the date of the Court's establishment. Following strong hints from the Prosecutor,142on 19 April 2004 the President of the DRC referrred to the Court ‘the situation of crimes within the juris- diction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute’.143On 23 June 2004, the Prosecutor opened an investigation into the situation, the ICC's first.144On 19 March 2005, Lubanga was arrested and detained by the DRC authorities, and charged with genocide, crimes against humanity, murder, illegal detention and torture in relation to crimes alleged committed between May 2003 and February 2005. On 17 March 2006, Lubanga was transferred from Congolese custody to that of the ICC.

Developments at the International Criminal Court

2012 ◽  
Vol 11 (2) ◽  
pp. 365-448
Author(s):  
Julieta Solano McCausland ◽  
Enrique Carnero Rojo
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Central African Republic ◽  
International Criminal ◽  
Democratic Republic ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Republic Of The Congo ◽  
Victim Participation

Abstract This column covers the activity of the International Criminal Court during the last third of 2010 through mid-May 2011. The Court has continued investigating situations in five countries (the Democratic Republic of the Congo, Uganda, Sudan, the Central African Republic and Kenya) and opened a new investigation following a referral by the United Nations Security Council (Libya). The judicial activity of the Court continued with four accused persons undergoing trial, two more waiting for their trial to start, and six more awaiting the confirmation of charges hearing. The Chambers of the Court continued to develop the rules applicable to pre-trial and trial proceedings. In the period covered by this column they confirmed the law on the admissibility of a case, ruled on the proceedings concerning the first challenge by a State to the admissibility of a case and on stay of proceedings, and brought consistency on the issue of victim participation across cases.

Developments at the International Criminal Court

2011 ◽  
Vol 10 (3) ◽  
pp. 429-506 ◽  
Author(s):  
Julieta Solano McCausland ◽  
Enrique Carnero Rojo
Keyword(s):  
International Criminal Court ◽  
Central African Republic ◽  
International Criminal ◽  
Democratic Republic ◽  
Criminal Court ◽  
The Third ◽  
Republic Of The Congo ◽  
Victim Participation

Abstract This column covers the activity of the International Criminal Court during the second third of 2010. The Court has continued investigating situations in five countries (the Democratic Republic of the Congo, Uganda, Sudan, the Central African Republic and Kenya) and has started one new case. The judicial activity of the Court has remained stable, with three accused persons undergoing trial and one more waiting for his trial to start. Several Chambers have continued to develop the rules applicable to pre-trial and trial proceedings, confirming their previous decisions, including on the issue of victim participation during the trial. Moreover, the Court has adopted its first decision charging a suspect with allegations of genocide and has ruled on the admissibility of the third of its cases to proceed to trial. All in all, during the period of time covered in this column, the Court has continued the conduct of its investigations and trials.

Common Purpose Liability Versus Joint Perpetration: A Practical View on the ICC's Hierarchy of Liability Theories

2016 ◽  
Vol 29 (3) ◽  
pp. 897-915
Author(s):  
MARJOLEIN CUPIDO
Keyword(s):  
Rome Statute ◽  
Criminal Responsibility ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
General Terms ◽  
Actus Reus ◽  
Inferior Status ◽  
Common Purpose ◽  
Different Levels

AbstractOn 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga for war crimes and crimes against humanity. Katanga's conviction is based on the concept of common purpose liability as regulated in Article 25(3)(d) of the Rome Statute. This liability theory establishes criminal responsibility for wilfully or knowingly contributing to the crimes of a group of persons who act together pursuant to a common purpose. The ICC regards common purpose liability as a residual liability theory, which provides for a lower level of blameworthiness than principal forms of criminal responsibility, such as joint perpetration. This article appraises the residual and inferior status of common purpose liability by comparing the ICC's application of common purpose liability and joint perpetration. The comparison makes clear that common purpose liability in theory stipulates lower actus reus and mens rea standards than joint perpetration. However, in practice the ICC applies the requirements of both these liability theories in a context-dependent way in interplay with the particular facts of individual cases. It can therefore not be concluded in general terms that common purpose liability by definition constitutes a less serious type of criminal responsibility than joint perpetration. Instead, it is preferable to adopt a flexible approach, which recognizes that common purpose liability covers a variety of conduct entailing different levels of blameworthiness.

Prosecutor v. Ruto.

2015 ◽  
Vol 109 (3) ◽  
pp. 610-616
Author(s):  
Charles Chernor Jalloh
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Vice President ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Legal Obligations ◽  
Election Violence

On October 9, 2014, the Appeals Chamber of the International Criminal Court (ICC or Court) unanimously held that, under the ICC Statute, a trial chamber has the power to order witnesses to appear before it to give testimony in pending proceedings, which imposes legal obligations on the individuals concerned to comply. In so ruling, the appellate chamber upheld a controversial trial chamber decision granting the ICC prosecutor’s request to summon eight witnesses to testify in the joint trial of Kenya’s vice president, William Samoei Ruto, and former journalist Joshua arap Sang, both of whom faced charges of crimes against humanity for their alleged role in “post-election violence” that led to the deaths of over twelve hundred people (para. 9).

Bemba and the Individualisation of War: Reconciling Command Responsibility under Article 28 Rome Statute with Individual Criminal Responsibility

2020 ◽  
Vol 20 (4) ◽  
pp. 669-700
Author(s):  
Alexandre Skander Galand
Keyword(s):  
Central African Republic ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Fundamental Rights ◽  
Appeal Chamber ◽  
Military Commanders ◽  
Commander In Chief ◽  
Individual Criminal Responsibility

Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant – Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de libération du Congo – took reasonable and necessary measures to prevent or punish his subordinates’ crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the ‘sharp disagreements’ that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.

Developments at the International Criminal Court

2010 ◽  
Vol 9 (3) ◽  
pp. 495-555
Author(s):  
Julieta Solano McCausland ◽  
Enrique Carnero Rojo
Keyword(s):  
International Criminal Court ◽  
Central African Republic ◽  
International Criminal ◽  
Democratic Republic ◽  
Legal Framework ◽  
Criminal Court ◽  
Disclosure Of Information ◽  
Republic Of The Congo ◽  
Victim Participation ◽  
The Way

AbstractThis column covers the activity of the International Criminal Court during the first four months of 2010. The Court has continued investigating alleged crimes in four situations (the Democratic Republic of the Congo, Uganda, Darfur/Sudan and the Central African Republic) and has started investigations in a fifth country (Kenya). The judicial activity of the Court has gained momentum, with proceedings against four accused persons, including ongoing trials against three persons. The commencement of the trial of one more person is pending, and an additional six individuals remain subject to warrants of arrest. Several Chambers have confirmed their previous decisions on the way in which trial proceedings must be prepared and conducted, including the scope of victim participation at trial and the legal framework for non-disclosure of information to the Defence as an exceptional measure of protection during trial. Moreover, the first decision on a Prosecutor’s request to open an investigation has been adopted. All in all, during the period of time covered in this column the Court has consolidated the foundations for the conduct of its investigations and trials.

scholarly journals Situation in the Islamic Republic of Afghanistan

2021 ◽  
Vol 115 (4) ◽  
pp. 688-694
Author(s):  
Yurika Ishii
Keyword(s):  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Afghanistan War ◽  
Islamic Republic ◽  
First Case

On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) decided to authorize the prosecutor to commence a proprio motu investigation into the alleged war crimes and crimes against humanity committed during the Afghanistan War since 2003. This decision is the first case where the requirements for the authorization of an investigation under Article 15(4) of the ICC Rome Statute (Statute) were tested on appeal. The case lays down a marker as to how the ICC sees the division of roles between the Pre-Trial Chamber and the Office of the Prosecutor. The Appeals Chamber proved willing to give the prosecutor broad discretion at the investigation stage. Without limiting principles, this approach may eventually expand the role of the Court beyond what the Statute permits.

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