Dear Readers – This article is a summary of a paper published by the author in French in the Belgian Review of International Law. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative 

By placing the Jean-Pierre Bemba case in its context, and then in the judicial history of the theory of command responsibility that originated from the Yamashita case, this article addresses some of the shortcomings of the Bemba confirmation of charges decision. More information on the doctrine of command responsibility in the trial of Bemba is available here.

In examining Bemba’s mental state, also known as the mens rea, the article argues that the finding of the Pre-trial Chamber II (the Chamber) of the International Criminal Court (ICC) appears to be less persuasive. The omission of the intent in the analysis made by the Chamber of the mens rea is due to the possible misconception it made on the legal nature of command responsibility. It seems like the Chamber viewed command responsibility as a vicarious liability, although it is simply a liability for omission. Furthermore, when addressing issues of knowledge, the Chamber did not appear to clearly distinguish between the standard “knew” and the standard “should have known,” the latter requiring to be applied, “owing to the circumstances at the time,” which seems to refer to circumstantial evidences. Indeed, the standard of knowledge is not “knew or should have known” as claimed by the Chamber, but “knew or, owing to the circumstances at the time, should have known”. Thus, although the Chamber affirmed to have applied the standard “knew,” a careful reading of its decision suggests that this standard was not appropriate because it relied more heavily on indirect evidences than on direct and/or circumstantial evidences to establish that Bemba “knew.”

Moreover, on the field of knowledge as an element of the mens rea, it was important that the Chamber clearly distinguish between the “prior knowledge,” which means that Bemba was aware that by sending or by keeping his forces in the Central African Republic (CAR), it will result, in the normal course of events, to the commission of crimes; and the retroactive or ex post facto knowledge, which means that Bemba was aware that his forces had committed crimes in the CAR. Again, a careful reading of the confirmation decision in its entirety suggests that the Chamber rejected Bemba’s prior knowledge.

The knowledge that has been established in a less controversial way seems to be the ex post facto knowledge. However, such finding poses a problem: to prevent, one must have had a prior knowledge of the fact. When the knowledge is ex post facto, then the crimes can no longer be prevented because they have already occurred. All that remains to do is to punish the perpetrators. In other words, the ex post facto knowledge alone can reasonably not lead to a failure to prevent. However, it seems that is exactly how the Chamber has reasoned.

If some shortcomings made by the Chamber in this decision can be forgiven, what will be hard to forgive is the fact of relying on a trial decision of the International Criminal Tribunal for the former Yugoslavia (ICTY), while the ruling was overturned on appeal. Indeed, when interpreting the standard “should have known,” the Chamber relied on the ICTY trial judgment in the Blaskic case rendered on March 3, 2000, while failing to note that this ruling, and in particular the paragraph that the Chamber was referring to, was rejected on appeal on July 29, 2004. This methodological error is so serious that it casts suspicion on all the arguments related to the way Bemba’s knowledge was established in the confirmation decision.

Finally, and assuming that the ex post facto knowledge was established in less controversial way as noted earlier, which implies a possible failure to punish, it was important for the Chamber to discuss how a rebel leader can be bound by that duty. There are two reasons for this: (i) a rebellion or an armed militia is a private matter and the rebels do not have the necessary legitimacy to create criminal tribunals to try individuals in a manner consistent with internationally recognized human rights; and (ii) the Rome Statute as well as the 1949 Geneva Conventions criminalize as a war crime the fact of punishing an individual without offering him (or her) the guarantees of a fair trial. How then can a rebel leader discharge the duty to punish in a manner consistent with internationally recognized human rights?

In the particular circumstances surrounding the Bemba case, three points need to be emphasized: (i) Bemba could neither submit the matter relating to the alleged crimes committed by his forces to the Congolese national government against which he was fighting, nor to the CAR government led by president Bozizé; (ii) he could not submit them to neighboring States because they did not enact laws granting their criminal tribunals universal jurisdiction allowing them to try alleged crimes committed abroad against foreigners and by foreigners residing abroad; and finally; and (iii) he could not submit the matter to the ICC since it was not yet operational. Its first Prosecutor, Luis Moreno-Ocampo, was indeed elected a few months after the CAR armed conflict.

The option chosen by Bemba, i.e. to establish a commission of inquiry and seek support from the United Nations as well as that of the International Federation for Human Rights (FIDH), was in these circumstances the minimum one could expect from him if he had to act in a manner consistent with internationally recognized human rights against potential suspects. Indeed, the UN has valuable experience in establishing commissions of inquiry and creating international criminal tribunals. In terms of necessary and reasonable measures to establish the facts and punish the potential perpetrators of the CAR atrocities, it was then more than important for the Chamber to explore a little deeper into this track. On this point, it should be noted that the obligation imposed on the military superior to search for information about the criminal conduct of his forces, as well as to take necessary and reasonable measures to prevent or repress the commission of crimes, is an obligation of means, although a careful reading of the Bemba confirmation decision seems to suggest that it is an obligation of result.

A clarification of these different points in the Bemba confirmation decision would have been welcomed for establishing the Bemba’s mens rea. Otherwise, the Chamber may be criticized as returning to the old concept of strict liability that had largely presided over the conviction and the hanging of General T. Yamashita after World War II, carrying with it all the criticisms that are known. 

Jacques B. Mbokani is a PhD candidate at the Université catholique de Louvain in Belgium as well as a lawyer and activist from the Democratic Republic of the Congo.