By Benjamin Dürr
The International Criminal Court (ICC) is expected to deliver its judgment against the Congolese politician and militia leader Jean-Pierre Bemba Gombo in the near future. Bemba has been charged with two counts of crimes against humanity: murder and rape; and three counts of war crimes: murder, rape, and pillaging. The ICC prosecutor accuses Bemba of having had command responsibility for these crimes.
Q: What’s it all about?
His case will be groundbreaking – it’s the first time that ICC judges are applying the concept of command responsibility, which is a way to hold a superior responsible for what others have done.
International crimes such as genocide and war crimes are often committed by a large number of individuals. But the persons facing trial in The Hague are sometimes not the ones who murdered, raped or pillaged themselves – they are the people who gave orders to their subordinates.
Q: What is command responsibility?
Command responsibility is a part of International Humanitarian Law – the laws of war. It was used at Nuremberg where senior officials in the Nazi regime were held responsible for what German troops had done.
It’s become a tool for prosecutors to hold the leaders of both military and other looser groups accountable.
Q: How does command responsibility work exactly?
The underlying concept of command responsibility is the assertion that superiors have a duty to either prevent crimes by their subordinates or to punish them after the crimes have been committed.
The prosecutors must prove three elements:
1. A superior-subordinate relationship must exist, and the commander must have “effective control” over his/her soldiers.
2. There must be evidence the superior “knew or should have known” that the subordinate was about to commit or had committed crimes.
3. Even though s/he had control and knew of the crimes, s/he did not take necessary steps to stop his subordinates or to punish them afterwards.
Q: How have prosecutors tried to use the concept?
At the Yugoslavia Tribunal, which has had 20 years to work out how to prosecute military commanders, there are examples that show command responsibility.
Zdravko Mucić was the commander of a prison camp in Bosnia and found guilty of murder and torture as war crimes even though it was his subordinates who committed the crimes. Mladen Naletilić was a Croatian military commander, who was shown to have had effective control over his troops who were attacking villages. But he was acquitted of mistreating prisoners because the prosecution couldn’t establish that he had reason to know what his men were doing.
The Yugoslavia tribunal says that commanders are held responsible for their failure to act. But at the ICC, commanders can be held responsible for their soldiers’ crimes as if they had physically committed the crimes themselves.
Q: How else can the Rome Statute hold commanders responsible?
In the case against Thomas Lubanga Dyilo, commander-in-chief of a Congolese militia, prosecutors alleged that he, together with other commanders, had a “common plan” to take over control over the province of Ituri. Lubanga was one of the co-perpetrators who, to make this plan succeed, built an army into which he also enlisted children.
The prosecution used videos showing Lubanga surrounded by children, and the judges found the evidence convincingly demonstrated a common plan, Lubanga’s own contribution and his intent.
In other cases at the ICC, the concept of indirect co-perpetration has been used. It’s where, for example, two militia groups carry out an attack together, the leaders share a common plan, and they are indirect perpetrators since they committed the crimes through the soldiers over which they have control.
Q: So what will apply to Bemba?
Bemba was the leader of the Movement for the Liberation of Congo (MLC) and has been accused of war crimes and crimes against humanity. According to the prosecution, his troops raped, murdered and looted in the neighbouring Central African Republic (CAR) in 2003. Bemba has denied that he had control over his men. He has argued that he was in the Democratic Republic of Congo at that time and did not know of the crimes being committed by his troops. A prosecution witness has said Bemba had a satellite phone which he used to communicate with his commanders. But a defence witness told the Court that the MLC fighters were under the control of CAR generals.
Now the judges have to decide which arguments they find more convincing.
Additional Justice Hub links:
Click here for an overview of the case.
Click here for a Q & A on the arguments in court about command responsibility in the Bemba case.
Click here for a report about the end of the trial.
Benjamin Dürr is a German journalist, based in the Netherlands.
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