Command Responsibility after Bemba Ray Murphy* 1 Introduction Command responsibility is a subject that has generated significant controversy since its adoption in the post-World War ii trials. It took a long time for omis- sion liability to evolve under international criminal law.1 However, today it is a well established principal that superiors are criminally responsible for the ac- tions of subordinates under their effective command or authority.2 According to Schabas, the topic has generated “more heat than light”.3 This seems an apt description of how this doctrine is interpreted and applied by international tribunals and courts. Command responsibility is a complex form of criminal responsibility and its most recent iteration is Article 28 of the Rome Statute (“icc Statute”), governing responsibility of commanders and other superiors. This contains a lengthy and complex definition of what is a long established modality dealing with individual criminal responsibility under international law.4 For an act or omission to constitute the physical element of a crime, it is not sufficient that a commander be under a mere duty to act; he or she must * Professor, Irish Centre for Human Rights, School of Law, National University of Ireland Galway 1 Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (Oxford University Press, 3rd ed, 2013) 180. 2 Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court – A Commentary (Beck Hart Nomos, 3rd ed, 2016) 1059; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) 436–8. 3 William Schabas, The International Criminal Court (Oxford University Press, 2010) 455. 4 Rome Statute of the International Criminal Court, opened for signature 14 July 1998, 2187 unts 90 (entered into force 1 July 2002) Article 28 (“Rome Statute”): Responsibility of commanders and other superiors: In addition to other grounds of criminal responsibility under this Statute for crimes with- in the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court com- mitted by forces under his or her effective command and control, or effective au- thority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military © koninklijke brill nv, leiden, ���9 | doi:�0.��63/9789004387935_008 <UN> Command Responsibility after Bemba 95 also have the material ability to do so.5 This was an important factor in the Bemba decision before the International Criminal Court (“icc”).6 It has long been recognised that perpetrators of war crimes, crimes against humanity and genocide seldom carry out such atrocities on their own initia- tive. While such acts may not be formally approved by superiors, lack of over- sight or tacit approval may implicate those in command or superior positions. Where crimes such a rape and murder are widespread, there is a greater onus on the commander of forces perpetrating such crimes to respond appropriate- ly.7 The jurisprudence in relation to command responsibility remains “highly disputed” and sometimes inconsistent.8 The controversy of applying this mode of liability was particularly evident in the aftermath of the icc Appeal Chamber’s decision in the Bemba case.9 The icc did at least confirm that the Rome Statute does not endorse the concept of strict liability. However, the Ap- peals Chamber’s decision seems, inter alia, to have raised the burden of proof threshold to establish command responsibility to a degree that may be almost impossible to meet in future cases. This article examines the doctrine of com- mand or superior responsibility as defined by Article 28 of the icc Statute and interpreted by the icc Trial Chamber and Appeals Chamber. It outlines the background to the Bemba case and analyses the reasoning and inconsistencies commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such sub- ordinates, where: (i) The superior either knew, or consciously disregarded infor- mation which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Triffterer and Ambos, above n 2. 5 Prosecutor v Lubanga (Decision on the Confirmation of Charges) (International Criminal Court, Pre-Trial Chamber i, Case No icc 01/40-01/06-803, 29 January 2007) [152], [351]–[352]. 6 Prosecutor v Bemba (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber iii’s “Judgment pursuant to Article 74 of the Statute”) (International Criminal Court, Appeals Chamber, Case No icc 01/05-01/08 A, 8 June 2018) (“Bemba Appeal”). 7 United States of America v Yamashita (1948) 4 lrtwc 1, 35. 8 Triffterer and Ambos, above n 2, 1060. 9 Bemba Appeal (International Criminal Court, Appeals Chamber, Case No icc 01/05-01/08 A, 8 June 2018). <UN>.