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Home Posts tagged "Remoteness"

Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 
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Introduction

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. Read the rest of this entry…