No doubt there is much to be written about Jean-Pierre Bemba Gombo’s acquittal by the Appeals Chamber – on its implications for the ICC, for politics in the Democratic Republic of the Congo, and for the standard of review in future appeals. In this post, I will focus on a single issue addressed by the Appeals Chamber: the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This may seem a narrow issue – it was, initially, but one aspect of one element of the test for superior responsibility that formed part of one ground of appeal. However, this issue turned out to play a critical role in the majority’s decision to acquit the defendant.
A majority of the Appeals Chamber – Judges Van den Wyngaert, Eboe-Osuji and Morrison – held that the second ground of appeal and part of the third ground of appeal were determinative of the appeal. The second ground averred that the conviction exceeded the charges. The third ground averred that Mr Bemba was not liable as a superior, with the relevant part upheld concerning whether he took all necessary and reasonable measures to prevent or repress the commission of his subordinates’ crimes. Within this part, the majority’s decision emphasised, in particular, two putative errors in the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures (para 191). The first concerned the Trial Chamber’s assessment of Mr Bemba’s motivation in taking the measures that he did take. This is the issue addressed in this post. The second concerned the Trial Chamber’s purported failure to appreciate the difficulties that the defendant would have faced as remote commander. This putative error is not addressed herein, except to say in passing that geography, per se, is not an altogether convincing basis on which to draw a distinction between different superiors.
Motivations in the Appeals Chamber
To take a step back, the Trial Chamber recognised that over the course of the operations carried out by the armed group under his control (the MLC) in the Central African Republic (CAR), Mr Bemba took certain measures in response to allegations of wrongdoing by his subordinates. These included (para 719), ‘the Mondonga Inquiry; a November 2002 visit to the CAR, during which Mr Bemba met with the UN representative in the CAR, General Cissé, and President Patassé; a speech given at PK12 in November 2002; the trial of Lieutenant Willy Bomengo and others at the Gbadolite court-martial; the Zongo Commission; correspondence with General Cissé; correspondence in response to the FIDH Report; and the Sibut Mission.’ Nonetheless, these were found to be inadequate to discharge his duty to take necessary and reasonable measures to prevent or repress the relevant crimes or submit them to the competent authorities (para 734).
During the appeal proceedings, in its Order of 27 November 2017 the Appeals Chamber informed the parties and participants that they would be invited to address, amongst many others, the following question: ‘To what extent is a commander’s motivation for taking necessary and reasonable measures of relevance in the assessment of their adequacy?’ In response, the Defence’s strategy was immediately evident (pages 57-58):
The reason why a commander in the field decides to take measures to prevent and punish crimes is irrelevant to an assessment of the adequacy. Adequacy is assessed objectively; motivation is necessarily subjective. In this case the Trial Chamber’s assessment of the adequacy of the measures taken by Mr Bemba included consideration of his motivation in taking them. The Trial Chamber found, yes, Mr Bemba took these measures, but he didn’t take them because he cared about preventing and punishing crime, he took them because he wanted the MLC to look good.
More importantly in the light of the Majority’s eventual reasoning, the Defence further argued:
And it’s not a passing comment by our Trial Chamber. It’s not mentioned only once. The language of the judgment shows that the Trial Chamber viewed all of the evidence on measures through this lens of Mr Bemba’s motivation. […] It was a key factor in the Trial Chamber’s reasoning and the Judges should never have turned their minds to it.
In reply, the Prosecution argued that a commander’s motivation is not something that ‘must be established […] as a matter of law’ (page 70-71). Further, it argued that motivation ‘may be evidentially relevant’ to the determination of the adequacy of the measures and that, in situations where a commander has taken minimal measures, ‘[e]vidence of his motivation then may indeed illuminate the genuineness of the measures he took, and so assist the Trial Chamber to determine the adequacy and whether the commander took, indeed, all necessary and reasonable measures within his material possibility.’ Finally, the Prosecution argued that this was how the Trial Chamber had understood the question of Mr Bemba’s motivation – it did not find him criminally liable on the basis of his motivations alone (page 72).
It seems unlikely that the Trial Chamber’s understanding of the relevance of Mr Bemba’s motivation was seen at the time to be of central importance to the resolution of the appeal. Nonetheless, in the Appeals Chamber, the majority judgment places great stress on it. After finding (para 177) that a commander’s motivation to preserve the reputation of his troops does not ‘intrinsically render them any less necessary or reasonable…’, it put the issue in the following terms:
The Appeals Chamber notes that the Trial Chamber’s preoccupation with Mr Bemba’s motivations appears to have coloured its entire assessment of the measures that he took. Indeed, in assessing the Mondonga Inquiry, the Trial Chamber appears to have considered what it perceived to be Mr Bemba’s adverse motivations in establishing the inquiry as a key factor in assessing the genuineness of that measure (namely, countering media allegations, demonstrating the taking of action, vindicating MLC leadership and generally rehabilitating its image). The Trial Chamber’s consideration of Mr Bemba’s motivations also significantly affected its finding regarding his correspondence with the UN Representative in the CAR (which was said to have been driven by the desire to demonstrate good faith and maintain the image of the MLC) and his withdrawal from the CAR (which was said to have been motivated by external pressure directly related to the negotiation of the Sun City agreements). Ultimately, the Trial Chamber concluded that in fact all of the measures that Mr Bemba had taken in response to allegations of crimes were driven by a motivation to counter public allegations and rehabilitate the public image of the MLC.
This assessment drove the interim conclusion that ‘in effect the Trial Chamber appears to have treated the motives as determinative, in and of themselves, of the adequacy or otherwise of the measures’ (para 178). Moreover, turning to the cumulative material impact of what it had identified as errors, the Appeals Chamber zeroed in again on the Trial Chamber’s treatment of the defendant’s motivation (para 191):
In particular, it is apparent that the Trial Chamber’s error in considering Mr Bemba’s motivation had a material impact on the entirety of its findings on necessary and reasonable measures because it permeated the Trial Chamber’s assessment of the measures that Mr Bemba had taken.
Bemba’s Motivations in the Trial Chamber
It is clear, then, that the Appeals Chamber’s understanding of the Trial Chamber’s treatment of Bemba’s motivations was critical to his acquittal. The key question is thus how the Trial Chamber treated Bemba’s motivations in its determination of whether he took all necessary and reasonable measures? After setting out the measures Bemba had taken (para 719), the judgment assesses their limited nature (paras 720-725), and finds in conclusion that ‘the measures Mr Bemba took were a grossly inadequate response to the consistent information of widespread crimes committed by MLC soldiers in the CAR of which Mr Bemba had knowledge’ (para 727).
The same paragraph, and the next, continue as follows:
The inadequacy of the minimal measures Mr Bemba took is aggravated by indications, as set out above, that they were not genuine, the manner in which such measures were executed, and the fact that only public allegations of crimes by MLC soldiers prompted any reaction, and then only to limited extent. There is no evidence that Mr Bemba took any measures in response to information transmitted internally within the MLC of crimes by MLC soldiers from, for example, the MLC intelligence services or the leads uncovered during the Mondonga Inquiry, Zongo Commission, or Sibut Mission.
The Chamber also notes the corroborated evidence that the above measures were primarily motivated by Mr Bemba’s desire to counter public allegations and rehabilitate the public image of the MLC. The fact that Mr Bemba used the above minimal and inadequate measures as a basis to address all allegations of crimes against the MLC, taken with the evidence as to his motives behind ordering such measures, illustrates that a key intention behind the measures Mr Bemba took was to protect the image of the MLC. His primary intention was not to genuinely take all necessary and reasonable measures within his material ability to prevent or repress the commission of crimes, as was his duty.
The TC judgment then goes on to discuss certain alternative measures that it believed to be available to Mr Bemba (paras 729-730), before concluding that the measures he did take ‘patently fell short’ of the required standard (para 731).
By way of evaluation, it is helpful to distinguish two issues: (i) the relevance, as a general question in the law of superior responsibility, of a commander’s motivations in taking certain measures and (ii) the Majority Judgment’s assessment of the Trial Chamber’s treatment of Mr Bemba’s motivations.
As to the first, perhaps one reason this matter hasn’t been heavily litigated in other cases is that there isn’t a great deal of confusion in the case law or scholarship. Indeed, it is rarely addressed in any detail. Two points seem straightforward. On one hand, an adequate measure remains adequate no matter the commander’s motivation in taking it. On the other hand, the commander’s motivation in taking a measure may be relevant, as a matter of evidence, to the Court’s determination of whether the measure was, in fact, genuine and thus adequate. To illustrate, consider a situation in which a commander orders another officer to investigate crimes alleged to have been committed by her subordinates. Her sole motivation in giving the order is to garner good press coverage. If the evidence shows that the investigation was nonetheless rigorous and led to proper disciplinary sanctions, no one would suggest her motivation somehow vitiates the objective adequacy of the measure. If, though, the question arises as to whether the investigation was genuine – that is to say, whether or not it was set up to be a sham – her motivation to garner good press coverage may well be relevant in answering that question. In Bemba itself, on these bare principles the Majority (para 176) and Dissent (para 70) appear to agree.
As to the second, which was crucial to the resolution of this particular case, the Majority’s understanding of the Trial’s Chamber’s treatment of Mr Bemba’s motivation seems out of step with the actual Trial Chamber Judgment. To reiterate, the Majority held, perhaps with an assertiveness that betrays itself, that the ‘Trial Chamber’s preoccupation with Mr Bemba’s motivations appears to have coloured its entire assessment of the measures that he took.’ It held that ‘in effect the Trial Chamber appears to have treated the motives as determinative, in and of themselves, of the adequacy or otherwise of the measures.’ And, it held that ‘the Trial Chamber’s error in considering Mr Bemba’s motivation had a material impact on the entirety of its findings on necessary and reasonable measures because it permeated the Trial Chamber’s assessment of the measures that Mr Bemba had taken.’
This is not convincing. It is true that the two paragraphs quoted above are not altogether clear in their analysis of the defendant’s motives and intentions. But the preceding assessment of the measures taken, and subsequent assessment of measures that could have been taken, do not treat motivations as determinative. This is pointed out by the Dissent (para 72). Indeed, to take one example, the Trial Chamber’s evaluation of the Zongo Commission (para 722) is focused on its adequacy – on the width of its mandate, on the scope of its investigations, and on the failure to take measures following up its leads. These are common questions relevant to a determination of whether a commander has discharged his duty.
Stepping out, then, the Majority’s understanding of the Trial Chamber’s treatment of Mr Bemba’s motivations is key to the acquittal. The identification of the (putative) error operates to render it permissible for the Appeals Chamber to undertake its own review of the adequacy of the measures taken by Mr Bemba. It is here, in its own review, that the Appeals Chamber placed significant emphasis on the difficulties that flowed from the defendant’s position as a remote commander (e.g. paras 171-173; 191-192). This emphasis informed the conclusion, set out in para 192, that had the Trial Chamber properly appreciated such limitations, its ‘assessment of the measures Mr Bemba had taken would have been necessarily different.’ And that was that – one element of command responsibility under Article 28(a) was not properly established.
Two points in conclusion. First, it is important to emphasise the narrowness of this post. It concerns only how the Majority Judgment treated the issue of Mr Bemba’s motivations and the role that treatment plays in the acquittal. It makes no comment on the underlying issue of the adequacy of the measures taken by Mr Bemba, on the many interesting points raised in Judge Van den Wyngaert and Judge Morrison’s Separate Opinion, or on the other grounds of appeal. It is solely concerned with the unconvincing way that the Appeals Chamber treated the Trial Chamber’s evaluation of the measures taken by Mr. Bemba.
Second, it bears repeating that to have a criminal court is to have acquittals, and that we should be careful of conflating impunity for crimes committed in the Central African Republic in 2002-2003 with whether evidence presented in the case established beyond a reasonable doubt the responsibility of the accused in accordance with established law. If the acquittal is further evidence of a crisis for the ICC, which seems overstated, it is not the acquittal itself that is responsible, but rather a perception that a criminal court cannot acquit a defendant without doubts being raised about its future.