Remoteness in itself cannot serve as a defence to command responsibility

 

In this fifth opinion piece reviewing the Bemba Appeal Judgment (find the previous ones here, herehere and here), Amnesty’s International Justice Team consider concerns that, following the decision, “remote commanders” may be able to evade criminal responsibility at the ICC in future cases. It argues that, although remoteness can be a relevant factor in applying the elements of Article 28, any conclusion that remote commanders should be held to a different standard is unsupported by the Statute.

According to the Appeals Chamber (para. 191), the Trial Chamber committed an error by failing to fully appreciate the limitations that Jean-Pierre Bemba “would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country”. As set out in our previous post, we find numerous aspects of the Trial Chamber’s application of Article 28 problematic. However, on this point, the Appeals Chamber’s findings are neither strongly grounded in the text of the Trial Judgment (which considers Bemba’s remote location in several instances) nor clearly justified.

Is remoteness a relevant factor in applying command responsibility?

Under Article 28, there are three central elements of command responsibility that must be proven beyond reasonable doubt in order to convict a military commander for the crimes of his or her subordinates: (1) the commander either knew or should have known that the forces were committing or about to commit such crimes; (2) he or she must have effective command and control or effective authority and control, including the material ability to prevent or repress crimes, or submit them to competent authorities for investigation and prosecution; and (3) he or she must have failed to take “all necessary and reasonable measures” to do so.

The remote location of a commander could be a relevant factor in a chamber’s determination of all three of these elements. Depending on the circumstances of the case, the fact that a commander is remote from the battlefield could have an impact on their knowledge of crimes, their “material ability” to exercise control over his troops, and their ability to take “necessary and reasonable measures”. In our view, the Trial Chamber (paras. 197-8) and Appeals Chamber were therefore right to consider Bemba’s remote location outside CAR in determining whether, on the specific facts of the case, he had failed to take “necessary and reasonable measures”. This approach is consistent with the principle endorsed by other international criminal tribunals that “a superior would not incur criminal responsibility for failing to perform an act which was impossible to perform”.

However, it is important to note that these three elements are closely related. In particular, as the Pre-Trial Chamber notes: “what constitutes a reasonable and necessary measure will be assessed on the basis of the commander’s de jure power as well as his de facto ability to take such measures”. Therefore, if it is established that a remote commander has effective authority and control over their troops, which as the Pre-Trial Chamber and Trial Chamber found requires the ability to prevent or repress crimes or submit them to competent authorities, this should have a significant bearing in determining whether the accused failed to take specific measures to fulfil these duties.

Moreover, just because remoteness could be relevant in determining certain elements of command responsibility, there is neither a logical nor a legal basis to read a distinction between remote and non-remote commanders into Article 28. After all, remoteness may be a reality in many situations that, through an effective chain of command, modern communication technologies and other factors, has little or no impact on a commander’s knowledge, control or ability to implement their duties to take measures to prevent crimes or respond effectively to them when they are committed. Commentators are right to fear that drawing general distinctions based on a commander’s location would enable “remote commanders” to shirk their duties to prevent, repress and ensure accountability for the crimes of their subordinates. An outcome that could lead to impunity for international crimes should be avoided at all costs.

Problems with the Appeals Chamber’s findings

Although the majority of the Appeals Chamber found that the Trial Chamber paid insufficient attention to Jean-Pierre Bemba’s remote location in determining that he had failed to take necessary and reasonable measures, it does not suggest that this issue was ignored entirely. Indeed, it is clear from the Trial Judgment that Jean-Pierre Bemba’s remote location from his troops was a key consideration in the Trial Chamber’s examination of whether Jean-Pierre Bemba had effective authority and control over MLC forces that committed the crimes. Regrettably, the Trial Chamber’s problematic assessment of whether Bemba failed to take all necessary and reasonable measures (see our previous opinion piece) deals less directly with the matter. However, in a subsequent section of the Judgment on causation the Trial Chamber held that “despite his remote location, Mr Bemba had the authority and ability to take measures to prevent and repress the commission of crimes”. The Appeals Chamber therefore had reason to criticize the Trial Chamber’s reasoning. The problem is that it fails to do any better or explain convincingly why this specific error was so serious that it merited overturning the conviction.

The majority makes a sweeping conclusion that the Trial Chamber “failed to fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops into a foreign country”. However, the majority itself fails to set out comprehensively those limitations or explain in detail why the Trial Chamber had reached the wrong conclusion in this regard. At one point it refers to the testimony of one witness that “MLC’s investigative efforts were dependent on the Central African authorities for access, movement, and contact with civilians”. Even then it recognizes that “the limitations alluded to by Mr Bemba did not completely curtail his ability to investigate crimes committed by MLC troops in the CAR.” The lack of in-depth analysis by the majority in this regard does little to convince the reader that the Trial Chamber committed a serious error. As Miles Jackson opines: “a proper assessment requires analysis of how a commander’s location bears on the reasonableness of each specific measure”.

Moreover, in finding that the Trial Chamber’s consideration of Jean-Pierre Bemba’s remote location was insufficient, the Appeals Judgment makes only a passing reference to the Trial Chamber’s “earlier findings as to the extensiveness of Bemba’s control over the MLC forces in CAR” – an analysis that focused significantly on his ability to control his troops remotely. As discussed above, the extent of control exercised by a commander over his or her troops is not necessarily determinative of whether they failed to take all necessary and reasonable measures, but it is nonetheless directly relevant – especially to the extent that control requires that a commander “had the material ability to prevent or repress the commission of the crimes or to submit the matter to the competent authorities”. At the very least, the majority should have explained why the Trial Chamber failed to fully appreciate the limitations that Bemba faced in taking all necessary and reasonable measures due to his remote location, in light of its findings that Jean-Pierre Bemba exercised control over MLC forces operating in CAR.

Given the lack of detailed reasoning by the Appeals Chamber, it is unsurprising that there is concern over the effect that this judgment could have on the success of future cases against “remote commanders” at the ICC or that questions are being asked as to whether this judgment could be the basis for drawing a legal distinction between remote and non-remote commanders in the future. As President Eboe-Osuji’s separate opinion confirms this was not the intention of at least one of the majority:

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.

Our bigger concern is with the majority’s conclusion that, had the Trial Chamber further considered apparently surmountable obstacles arising from Jean-Pierre Bemba’s remote location, “it would not have been open to it to reach the same conclusion”. Without further explanation of this point, the majority appears to set a low bar to absolve remote commanders of duties to prevent and repress crimes and submit allegations to competent authorities. It is difficult to reconcile such an approach with Article 28 or the object and purpose of the Rome Statute to put an end to impunity and thus to contribute to the prevention of such crimes.

The impact of the remote location of a commander on whether key elements of command responsibility have been established should be determined on the facts of each case. However, the thresholds applied in determining whether in the circumstances a commander failed to take necessary and reasonable measures should be clear and consistent with the significant duties imposed on commanders who have effective authority and control over troops, taking into account the devastating consequences of their failures to implement them.