Hearings in the appeal of Jean-Pierre Bemba’s case at the International Criminal Court (ICC) have over the last two days dwelt on the interpretation of what constitutes a military commander’s responsibility for crimes committed by their subordinates. Equally at the center of hearings was the level of knowledge a commander needs to have about subordinates’ crimes in order to bear criminal liability.

The hearing, which started on Tuesday, considered Bemba’s appeal against his conviction, as well as prosecution and defense appeals against the 18-year prison term handed to him in 2016. Bemba, who was commander-in-chief of the Movement for the Liberation of Congo (MLC) rebel group, was found guilty of failing to prevent or punish his troops who committed murder, rape, and pillaging in the Central African Republic (CAR) during 2002 and 2003.

Appeals judges have also heard submissions on whether they can change the legal characterization of the facts of the case under Regulation 55 of the Regulations of the Court. This would mean that, instead of considering whether Bemba “knew” about the crimes his subordinates were committing, as trial judges that convicted him found, they would instead determine whether he “should  have known” about the crimes.

Bemba’s trial was the first conducted at the ICC in which an accused was convicted over command responsibility, meaning that a commander is punishable for the crimes committed by his subordinates. Trial chamber judges established that Bemba knew that his forces were committing or about to commit crimes, but he failed to take reasonable measures to deter or to punish these crimes.

Trial chamber judges also determined that while Bemba was not in the CAR, he was able to issue operational orders directly via radios and satellite phones to commanders in that country and that at all times he maintained effective control over his troops deployed in that country’s conflict.

However, defense lawyers contend that Bemba did not maintain effective control over his troops accused of attacking civilians, as there was no physical evidence of any orders given by him or evidence of him on the ground commanding the troops.

Defense lawyer Michael Newton said Bemba took “precisely the actions required of commanders to prevent crimes,” noting that he wrote to the United Nations seeking assistance to investigate the alleged crimes, sent investigators into the conflict country, and formed a court martial to try those implicated in criminal conduct. Newton argued that once Bemba took those actions, he fulfilled his responsibilities as a commander.

However, the prosecution’s Helen Brady maintained that, as determined by trial judges, Bemba took few and grossly inadequate measures to deter the crimes. “His primary intention was to protect the MLC’s image,” not to deter the commission of crimes, she stated.

At the end of 2012, trial judges suspended hearings in Bemba’s trial, following defense protests to a notice by judges that they were considering to change the legal characterization of the facts of the charges. Whereas Bemba was being tried for failing to discipline his soldiers yet “he knew” that they were committing crimes, judges were considering changing the facts to read that owing to the circumstances at the time, “he should have known” about the crimes.

Appeals Chamber judges have sought submissions on whether they can recharacterize the facts of the case – and received divergent opinions from the defense and the prosecution. The defense argued that if the Appeals Chamber were to change the legal characterization of the facts, as per Regulation 55 of the Regulations of the Court, it would mean reopening the case against Bemba. This would be manifestly unfair, said the defense because for nearly a decade now the litigation has been over the “knew” standard. However, the prosecution argued that the Appeals Chamber has the same power as the trial chamber regarding recharacterization of the facts.

According to Kai Ambos, another defense lawyer, if the Appeals Chamber judges issue an overly broad interpretation of the command responsibility doctrine, “that will be counterproductive and nobody will apply this doctrine in the field.”

He said a commander who is guilty of “should have known” standard but failed to act would be guilty of dereliction of duty or failure to supervise, which would not amount to a crime against humanity. For it to qualify to be a criminal law responsibility, the commander needs to have had knowledge equal to that of a perpetrator.

However, Brady countered that the way the Rome Statute was drafted, the “should have known” standard is “a unique non-participatory mode of liability” that does not require the commander to be a participant or accessory to the crime. The drafters of the statute “were eager to criminalize liability different from aiding and abetting,” she said.

Furthermore, Brady said any measures Bemba could have taken but did not are evidence of his culpable action. While noting that Bemba’s conduct was causally linked to the commission of crimes, Brady added: “Had he taken identified measures, crimes would have been prevented or not occurred in manner they did.”