In Bemba and Beyond, Crimes Adjudged to Commit Themselves

And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case.

No doubt commentators will excavate and analyze every aspect of this seismic decision, which comprises not only the Appeals Chamber’s eighty-page principal opinion, but also the 269-page dissent by Judges Sanji Mmasenono Monageng and Piotr Hofmański, as well as the thirty-four-page separate opinion by two members of the majority, Judges Christine Van den Wyngaert and Howard Morrison. (The panel’s fifth member, ICC President Chile Eboe-Osuji, did not write separately; the main opinion’s first sentence states that he “concurs, as part of the majority, with the essence of these dispositive reasons and the outcome.”) This post is limited to considering the decision’s treatment of culpability as part of a global turn away from not-too-distant notions of accountability.

As recently as the 1990s, “accountability” reigned as a watchword of global security. The end of the Cold War – the East-West standoff that had hastened the close of post-World War II tribunals in Europe and Asia – was seen to augur as well an end to impunity. International crimes that had gone unpunished and, indeed, virtually unacknowledged, were once again to be the subject of scrutiny by international tribunals. For the first time in decades, it was said, perpetrators should fear that their international wrongdoings could be called to account. And in fits and starts, that is what began to happen, first at ad hoc and hybrid tribunals focused on events in places like the former Yugoslavia, Rwanda, Cambodia, and Sierra Leone, and eventually at The Hague’s permanent International Criminal Court. On occasion allegations of international crimes, related to the Balkans, Africa, and elsewhere, even made their way to the International Court of Justice.

But something happened along this journey toward a new era of accountability. International criminal tribunals’ assessments of atrocity at times devolved into hypertechnical parsing of what internationalists call “modes of liability.” University of British Columbia Professor James Stewart tracked this development in a 2011 article, ultimately calling for a “unitary theory” of liability. Many others, among them Oxford Professor Miles Jackson, objected to that resolution. Without joining the debate in full, then and now I have shared Stewart’s concern that international modes-of-liability jurisprudence, as it has evolved, may pose a threat to an asserted goal of international criminal justice: accountability, the assignment of responsibility for atrocities. Friday’s decision in Bemba points in that direction, with regard to a mode of liability not discussed in Stewart’s article.

The form of liability at issue in Bemba was command responsibility. It is a time-honored doctrine with roots in military justice and international humanitarian law; indeed, the International Committee of the Red Cross describes it “as a norm of customary international law applicable in both international and non-international armed conflicts.” Command-responsibility doctrine recognizes war’s awful consequences, and so imposes extra duties of care upon officers who accept to lead others in the use of lethal, armed force. In judgments by post-World War II tribunals and since, command responsibility has been accepted as an exceptional instance, in which proof of criminal negligence will support convicting leaders for their troops’ international crimes.

Drafters at the 1998 Rome Diplomatic Conference likewise accepted that doctrine (indeed, they extended it, to encompass “other superiors”). With respect to military leaders, Article 28(a) of the ICC Statute thus provides:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The trial judgment in Bemba had relied on that provision as its basis for conviction. But the Appeals Chamber majority overturned that result, in a decision that turned on its interpretation of  Article 28(a)(ii). It placed emphasis not on the word “all,” but rather on a defendant-friendly construction of what might be “necessary” and “reasonable.” By way of example, para. 170 of the appellate decision stated, without citation to authority: “Commanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates.” That phrasing embodies an extraordinary degree of deference, a presumption of regularity that after-the-fact adjudicative proceedings seem seldom likely to surmount.

One might think this presumption could be overcome by positing a list of measures that ought to have been taken, as a means to determine whether the defendant had not done all he could have to stop his troops’ crimes. In point of fact, the trial judgment in Bemba had done just that. But the Appeals Chamber objected, characterizing any such listing as unfair absent notice to the defendant that such possibilities would be taken into account. Evincing scant regard for the ethical roots of the doctrine that imposes extra duties of care upon military leaders, the appellate majority thus transformed command responsibility into an admonition with little effect, a legal burden too easily shirked.

It is in this sense that we may speak of international crimes adjudged to have no cognizable author, of crimes that committed themselves. Some human did them, of course. But except for the rare circumstance in which a high-level official himself has done the evil deed, the actual committer of rape, pillage, and other atrocities never will appear at The Hague. For it is not the role of international criminal tribunals to punish every one of the myriad combatants who act in violation of international law, and in any event states parties do not provide the International Criminal Court with the resources required for such mass prosecutions. Rather, in conferring jurisdiction “over persons for the most serious crimes of international concern,” the ICC Statute urges prosecution of those persons who lead others to criminality, who unlawfully condone others’ actual commission of such crimes. In diluting the very doctrine by which the law may call to account a person who has accepted the burden of high rank – the “Commander-in-Chief” of a party’s “military branch,” for example – a court dilutes the normative force of international criminal justice.

Friday’s result in Bemba did not occur in a vacuum. Also jumping to mind is Prosecutor v. Katanga. As I discussed in a 2016 chapter (p. 266), there an ICC chamber acknowledged that the illegal recruitment and use of underaged children had been rampant, yet by application of the statutory modes of liability adjudged no accused leader responsible for those war crimes. And University of Paris Professor Pierre-Marie Dupuy similarly has given the label of “A Crime without Punishment” to the International Court of Justice conclusion that genocide did take place in the Balkans, but that no state was responsible. Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible. This latter result offers neither deterrence nor punishment, and it drastically reduces avenues for redress. It is a far cry from the promise of accountability that formed the foundation of the 1990s revival of international criminal justice. 

Twenty years after that moment when 120 states affirmed in the ICC Statute “that the most serious crimes of concern to the international community as a whole must not go unpunished,” it is high time to confront, and combat, an apparent drift away from the assignment of responsibility for international crimes.

Amann, who has served since 2012 as the International Criminal Court Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, contributes this post solely in her personal capacity; it is not meant to reflect the views of any other person or institution.