Command and superior responsibility after the International Criminal Courts appeal decision in the Bemba case

It has long been recognised that perpetrators of war crimes, crimes against humanity and genocide seldom carry out such atrocities on their own initiative. While such acts may not be formally approved by superiors, lack of oversight or tacit approval may implicate those in command or superior positions. Where crimes such a rape and murder are widespread, there is a greater onus on the commander of forces perpetrating such crimes to respond appropriately. The jurisprudence in relation to command responsibility remains “highly disputed” and sometimes inconsistent. The controversy of applying this mode of liability was particularly evident in the aftermath of the International Criminal Court Appeal Chamber’s decision in the Bemba case. The Court did at least confirm that the Rome Statute does not endorse the concept of strict liability. However, the Appeals Chamber’s decision seems, inter alia, to have raised the burden of proof threshold to establish command responsibility to a degree that may be almost impossible to meet in future cases. This talk examiners the doctrine of command or superior responsibility as defined by article 28 of the International Criminal Court Statute and interpreted by the Trial Chamber and Appeals Chamber. It outlines the background to the Bemba case and analyses the reasoning and inconsistencies between the decisions of each chamber in order to understand the implications for applying the doctrine in future cases.

This is one of a series of seminars in the Whitaker Ideas Forum. Ray will be representing the Conflict, Humanitarianism and Security cluster.