Command Responsibility at the ICC and ICTY: In Two Minds on the Mental Element?

Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). 

One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am – in the symposium in the most recent Journal of International Criminal Justice), the lesser-known  confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and the mental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature.

 As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. It is not the intention of this post to enter into detail on the facts found and their interpretation by the Pre-Trial Chamber on point. There is a trial to be had on that.

To set things up, though, it is necessary to provide some background. Bemba was charged by the Prosecution for crimes against humanity and war crimes on the basis both of Article 25(3)(a), on the basis of co-perpetration, and command responsibility pursuant to Article 28 of the Rome Statute. The Pre-Trial Chamber found that he did not have the requisite mental element for Article 25(3)(a), as he did not have what the Pre-Trial Chamber decided Article 30 requires for this, i.e. dolus directus in the second degree (para 401-which is controversial in itself). As a result, they focused in some considerable depth on command responsibility and its requirements, as the OTP had charged Bemba with responsibility on the basis of Article 28 in the alternative. It is interesting in itself that the Chamber at the outset said it was only necessary to do so because they found that he was not responsible as a co-perpetrator (paras 402-3). This is rather discomforting, as if they had found that he was responsible at this stage under Article 25(3)(a), thus confirmed the charges only on that basis, ignoring command responsibility, but at trial the relevant Article 30 mental element could not be shown, it could be argued that they had not confirmed the charges on the basis of command responsibility and he therefore could not be convicted on them. This could also cause problems at trial stage as the Prosecution and Defence need to know what evidence they need to bring to support or refute the charges, therefore command responsibility ought to be dealt with whenever it is pled, not only when it is decided that there is no evidence of the necessary mental element for Article 30.

That said, this hardly even begins the controversy. The PTC begins its discussion by pointing out that command responsibility is not the same type of responsibility as that provided for in Article 25(3)(a), but makes clear that, pursuant to Article 28, this is only

 in the sense that a superior may be held responsible for the prohibited conduct of his  submit the matter to the competent authorities. This sort of responsibility can be better understood “when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act” (para 405).

There is little, if any succor here for the view that command responsibility is a sui generis form of omission liability rather than a form of responsibility for the underlying crimes. Therefore the ICTY’s current vacillations on the nature of the responsibility (see, e.g. the disagreement between the majority and minority in Hadžihasanović (Prosecutor v Hadžihasanović, Alagić and Kubura, Judgment on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, IT-01-47-AR72, 16 July 2003) and the rather awkward Orić Appeal (Prosecutor v Orić, Judgment, IT-03-68-A, 3 July 2008)) is essentially bypassed. To be fair, this is done on the basis of the abundantly clear language of Article 28 of the Rome Statute, which states that a superior is to be ‘held criminally responsible for crimes…committed by forces under his or her effective command and control…’.

 Since the evidence seemed to show that Bemba was a military commander, or someone effectively acting as such on the basis of analogous ICTY and ICTR jurisprudence (paras 409-10) the PTC decided that they only need look at Article 28(a) (which deals with responsibility of a military commander). Notably, albeit sensibly, the Chamber decided that the words ‘command’ (as used in Art. 28(a)) and ‘authority’ (as used in Art. 28(b) – dealing with civilian superiors)imply the same standard of control (para 412), even though, to avoid linguistic redundancy, the Chamber noted that the ‘modality, manner or nature’ may be different (para 413).  Following, inter alia Čelebići in the ICTY, the PTC accepted that

 “The concept of “effective control” is mainly perceived as “the material ability [or power] to prevent and punish” the commission of offences,…”effective control” also refers to the material ability to prevent or repress the commission of the crimes or submit the matter to the competent authorities. To this end, this notion does not seem to accommodate any lower standard of control such as the simple ability to exercise influence over forces or subordinates even if such influence turned out to be substantial…That said, the Chamber concurs with the view adopted by the ad hoc tribunals that indicia for the existence of effective control are “more a matter of evidence than of substantive law”” (paras 415-6).

On this basis the PTC noted that there are factors which are probative in this regard, for example, official position, the authority to give orders and ensure their implementation, the capacity to alter command structures and promote or remove people, and the ability to require people to engage or withdraw from hostilities were all relevant factors, that had been identified by the ad hoc Tribunals (para 417).

Here the congruence ended. The PTC noted that, in spite of the moves by the ICTY to expand command responsibility out to failure to punish offences committed prior to the period of authority of the superior, there is no possibility of such liability at the ICC  (paras 418-9). Since this is a necessary implication of Article 28 though, the judges cannot be criticized for this. Similarly, since Article 28 makes it express that the offences must occur as a result of a failure to supervise underlings this means that there is some form of causality implied, although ‘the element of causality only relates to the commander’s duty to prevent the commission of future crimes’ (para 424). Given, however that counterfactuals are all but impossible to prove, the Chamber therefore asserts that’ it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under article 28(a) of the Statute’ (para 425).

Where the decision gets truly interesting is where it comes to the mental element of command responsibility.  Here we see a considerable step aside from the approach of the ICTY which perhaps accepts the critical analysis to which the Čelebići Appeals Chamber decision (Prosecutor v Delalić, Mucić, Delić and Landžo, Judgment, IT-96-21-A, 20 February 2001) on point has been subjected, although it does so against a backdrop of different statutory language, rather than directly reject that case.

To begin the PTC rightly says that there are two levels of mental element covered in Article 28, the first of which is actual knowledge. Such knowledge can be determined with the assistance of direct or circumstantial evidence, the forms of which were taken essentially from the decisions for the ICTY (paras 429-3). So far, so consistent. However, the PTC, seemingly influenced by the Amicus Curiae Brief submitted by Amnesty International and others, in para 429, also states that the second form of mental element that suffices ‘is covered by the term “should have known”,…[and]… is in fact a form of negligence’. This cuts quite directly against what the ICTY and ICTR have consistently held, at least since the decision of the Appeals Chamber in Bagilishema (Judgment, ICTR-95-1A-A, 3 July 2002, para 35) that negligence is not the standard. The mental element in the ICTY is summed up by the Appeals Chamber in Čelebići, as not covering negligence in failure to find out about offences, instead requiring either actual knowledge or that the superior ‘had in his possession information of a nature, which, at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation’ (para 239)

 However, the PTC in Bemba quite clearly prefers the ICTY Trial Chamber’s decision on Blaškić (as do many academics see e.g. Robert Kolb, ‘The Jurisprudence of the Yugoslav and Rwanda Criminal Tribunals on their Jurisdiction and on International Crimes’ (2000) 71 British Yearbook of International Law 259, pp.309-12). The Trial Chamber in that  case, which the based itself on Articles 86 and 87 of Additional Protocol I (which, like the ICTY and ICTR Statutes use the ‘have reason to know’ formulation) determined that negligence in relation to ‘failing to acquire knowledge’ suffices for command responsibility (paras 432-3). Interestingly, the PTC in Bemba uses the rather ugly compromise (that few thought was customary) between the mental element required for military and non-military superiors in the Rome Statute to support their agreement with the Trial Chamber in Blaškić (para 433).

 The PTC does, to be fair, engage with the fact of the different language in the ICTY/R Statute and the Rome Statute, when (at para 434) it says that:

“The Chamber is mindful of the fact that the “had reason to know” criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the “should have known” standard under article 28 (a) of the Statute. However, despite such a difference, which the Chamber does not deem necessary to address in the present decision, the criteria or indicia developed by the ad hoc tribunals to meet the standard of “had reason to known” may also be useful when applying the “should have known” requirement.”

Insofar as it makes the point that the relevant evidence will be the same in both instances the PTC is right, however, it is a little difficult not to see the decision as in some way critiquing the Čelebići approach to the mental element of command responsibility, since they rely on the Blaškić decision and support its interpretation of the language in Additional Protocol I (and thus the ICTY statute).

To quickly deal with the question of necessary and reasonable measures, it must be said that the PTC here (paras 435-443) essentially adopts the approach of the ICTY and ICTR, which promotes coherence and accepts that the question is not one that can be answered without looking at the particular powers that a superior has. This is not especially controversial, and shows the (good) use to which the jurisprudence of the ICTY and ICTR can be put by the ICC.

 As mentioned at the start of this post, although the ICC is often fairly respectful of the jurisprudence of the ICTY an ICTR, they are (as with genocide in the al-Bashir decision), stepping out on its own to create a separate regime of definitions of international crimes and principles of liability that at times is mandated by its Statute, but at times not. Obviously, where the Statute requires it, there is little the ICC can do other than contribute to fragmenting the definitions of international crimes and their principles of liability. Where it is not so required, I confess I am a little torn, I do not wish to promote dissensus in definitions, but nor do I think that Čelebići was correct. On balance, I think the PTC was right here. Better to be right than follow a non-binding and wrong precedent in the name of coherence.