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Commanders’ Motivations in Bemba

Published on June 15, 2018        Author: 
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Introduction

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.

Background

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. Read the rest of this entry…

 
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The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

Published on November 15, 2017        Author: 
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On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. Read the rest of this entry…

 
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