Command responsibility in the case of the prosecutor V. Jean-Pierre Bemba Gombo during the conflict in the Central African Republic in 2002-2003

Abstract

The issues of human rights have remained the task of states, scholars and, above all, the international criminal justice system. The international criminal law acknowledges the concept of command responsibility. After the World War II, this concept become a landmark to convict numerous high-rank individuals in Nuremberg and Tokyo Trial. The ad hoc tribunals of Former Yugoslavia and Rwanda also adopts the command responsibility in a more comprehensive manner. Upon the urgency to establish a permanent judicial body, the command responsibility is also incorporated in the Rome Statute. The first individual who was convicted by command responsibility pursuant to Article 28of the Rome Statute is Jean Pierre Bemba Gombo, a Congolese political party leader and a general of Mouvement de Libération du Congo. The decision of the Appeals Chamber to acquit him on the basis that he does not bear command responsibility for the war crimes and crimes against humanity occurred in the 2002- 2003 conflict received many critiques from legal scholars and non-governmental organization. The acquittal of Bemba means there will be no reparation for the victims, particularly women and under aged girls. The legal concept of command responsibility faces challenges due to its contested jurisprudence and the intricate wording of Article 28a. To establish the liability of a military commander or an individual in a similar role under article 28a, it must be demonstrated that the forces were under their effective control, that they knew or should have known about the commission or imminent commission of crimes, and that they neglected to take all necessary and reasonable measures within their power to prevent or address the crimes. Notably, article 28 does not specify the criteria for determining the 'reasonableness' of a measure or how to ascertain if a commander has failed to take 'all' necessary available measures.