The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.
The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing.
Remoteness in the Majority Judgment
On the status of Mr Bemba as a remote commander, the Majority Judgment makes use of a similar formulation on a number of occasions. These references arise in paragraphs 171, 189, 191, and 192:
- ‘Nevertheless … the Trial Chamber paid insufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability, as a remote commander, to take measures.’
- ‘In sum, the Appeals Chamber has identified the following serious errors in the Trial Chamber’s assessment … (i) the Trial Chamber erred by failing to properly appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country…’
- ‘The Appeals Chamber finds that the errors that it has identified have a material impact on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. … . Furthermore, the Trial Chamber’s failure to fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country had an important impact on the overall assessment of the measures taken by Mr Bemba.’
- ‘Indeed, in faulting the results of measures taken by Mr Bemba, the Trial Chamber failed to appreciate that, as a remote commander, Mr Bemba was not part of the investigations and was not responsible for the results generated. Had it done so, the Trial Chamber’s assessment of the measures Mr Bemba had taken would have been necessarily different.’
This is the emphasis on Mr Bemba’s status as a remote commander that has provoked commentary and criticism. Leila Sadat and Jennifer Trahan raise doubts, respectively, of authority and principle. On first glance, it is easy to see why. The language quoted above seems to introduce a new legal distinction into Article 28 of the ICC Statute.
Is this the right way to read the Majority Judgment? In short, it is hard to tell. On one hand, the two paragraphs after the Majority Judgment introduces the distinction discuss how, in fact, Mr Bemba’s capacity was so limited (172-173). Those paragraphs, even though brief, may be read to suggest that Mr Bemba’s geographical position was simply relevant to determining what was, in fact, reasonable to expect from him. On the other hand, the repeated emphasis on the limitations that Mr Bemba would have faced as a remote commander may be indicative of a legal distinction. This emphasis appears to assume that it follows from a commander’s remote position that he will be confronted with ‘difficulties’ and ‘limitations’ in exercising his duties under Article 28, an assumption linked to the Appeals Chamber’s perfunctory assessment of the actual measures taken by Mr Bemba. If that is right, the Majority Judgment appears to contemplate a new distinction between remote and non-remote commanders, to go along with the distinction already drawn in Article 28 between military and non-military superiors.
Geographical Remoteness and Command Responsibility in Principle
What role ought a commander’s geographical remoteness play in determining liability under Article 28 ICC Statute? Posed like that, this question is unanswerable. It is unanswerable because a commander’s geographical position, per se, bears no consistent relation to what can be expected of her in the specific situation. To be clear, this is not the same as saying that geography is irrelevant to that inquiry; indeed it may well be relevant. It is simply to say that there is no generalizable implication that remoteness makes it more difficult to take certain measures.
To illustrate, consider a commander in possession of credible information that her subordinates have committed war crimes. A remote geographical position may render the taking of certain measures (i) more difficult or (ii) less difficult, or indeed (iii) may be irrelevant to the determination of whether a measure taken was required. Thus, for instance, taking the initial investigative steps to secure evidence may be rendered more difficult by remoteness; securing funding and political support for a proper inquiry may be less difficult where the commander is remote from the battlefield; and setting the terms of the investigative mandate of an inquiry, including which crimes it investigates, isn’t straightforwardly informed by geographical position. Everything turns on the specific measure at issue and the specific circumstances at hand. It makes no sense to assert that limitations on capacity necessarily flow from a commander’s remote position.
If this is right, what then drove the Majority’s emphasis on Mr Bemba’s geographical position? One guess is that in situations of perceived over-inculpation, judges tend to seek a limiting device, and geographical proximity quickly comes to mind. Indeed, another international criminal tribunal recently went down a similar road – the decision of the ICTY Appeals Chamber in Perišić demanded an additional requirement of specific direction where the putative accomplice was remote from the scene of the crime. That road, however, is a dead-end. As James Stewart has explained in respect of aiding and abetting, ‘presence at the scene of the crime was stripped of any normative significance in national understandings of complicity many decades ago.’ So it should be with command responsibility. Though potentially relevant to determining reasonableness, there is no basis for drawing a legal distinction based on geographical position between remote and non-remote commanders.
Remoteness in the President’s Separate Concurring Opinion and Joint Dissenting Opinion
Even if it were correct to say that the Majority Opinion on its own terms draws a legal distinction between remote and non-remote commanders, the President’s Separate Concurring Opinion and Joint Dissenting Opinion of Judges Monageng and Hofmanski do not do so. To take the latter first, para 127 reads:
We note that in a case concerning actors operating across international borders, the traditional criteria have been applied. The specificities of the particular case, such as the structure and functioning of the military groups involved, as well as the remoteness of the commander are part of the factual considerations that the Trial Chamber must assess in order to determine whether the accused had the material ability to prevent, repress or report the commission of crimes.
As to the President’s Separate Concurring Opinion, para 258 reads:
For the foregoing reasons, I would not subscribe to any interpretation of the Majority Opinion as suggesting that the geographic remoteness of a commander is a factor all of its own, which would necessarily insulate him from criminal responsibility. Geographic remoteness is only a factor to be considered among other circumstances or peculiarities of a given case. It serves its greatest value in the assessment of what is reasonable as a measure to prevent or repress violations to submit them to competent authorities for investigation and prosecution.
Read together, the Separate Concurring Opinion and Joint Dissenting Opinion indicate that the remoteness of a commander may be a relevant fact rather than the basis of a legal distinction. That is three votes. Looking to future cases, Bemba does not support the drawing of a distinction between remote and non-remote commanders as a matter of law.
Back to Bemba Itself
With that in mind, it is worth turning back to the case. On review, the Majority Judgment’s assumption that Mr Bemba’s remoteness would have made responding more difficult cannot hold across the full range of measures assessed by the Trial Chamber. To take one example, how does Mr Bemba’s geographical remoteness affect the limitation of the mandates of two investigative commissions to allegations of pillage, an issue addressed by the TC at para 726? As Joseph Powderly and Niamh Hayes, as well as Susana SáCouto, have pointed out, a glaring omission in the Majority Judgment is, correspondingly, any assessment of measures taken by Mr. Bemba to investigate and prosecute crimes of sexual violence. It makes little sense for the Appeals Chamber to ascribe to Trial Chamber a generalized failure to ‘fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.’ A proper assessment requires analysis of how a commander’s location bears on the reasonableness of each specific measure.
To end, let me return to paragraph 191 of the Majority Decision, which provides the conclusion to the preceding identification of putative errors on the part of the Trial Chamber and picks out, for emphasis, the two that bear most strongly, in the Appeals Chamber’s judgment, on materiality:
The Appeals Chamber finds that the errors that it has identified have a material impact on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. 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. Furthermore, the Trial Chamber’s failure to fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country had an important impact on the overall assessment of the measures taken by Mr Bemba.
As to the first, a previous post demonstrated that the AC’s understanding of the TC’s treatment of Mr Bemba’s motivation is incorrect. As to the second, the present post argues that no such generalizable appreciation of limitations that flow from a commander’s geographical remoteness is possible. This is not to assert, in the absence of reviewing all of the evidence, that an acquittal was the wrong decision. But it is to say that the reasoning of the Majority Judgment on the issue of whether Mr Bemba took all necessary and reasonable measures is unconvincing.