Sexual Violence and Commanders’ Responsibilities During Conflict

On March 21, the ICC rendered the long-anticipated verdict in the Bemba case. Just three days later, the ICTY rendered its own long-awaited legal trial judgment in the Radovan Karadžić case. The coinciding of their delivery might invoke either conspiracy theories or (finally) an alignment of celestial bodies. I have heard both speculations. However, comments about the Bemba decision’s theory of liability — command responsibility — and the crimes covered are the more earthly perspective this site.

Jean-Pierre Bemba Gombo, a citizen and senator of the Democratic Republic of Congo, was the President of the Liberation Movement of Congo (MLC) political party and Commander-in-Chief of its military wing. Bemba faced five charges at the ICC stemming from crimes committed in the Central African Republic in 2002-2003: murder and rape as crimes against humanity under Article 7 of the Rome Statute, as well as with murder, rape, and pillaging as war crimes under Article 8. The Chamber unanimously found him guilty on all counts.

Bemba constitutes the first ICC guilty verdict for acts of rape or sexual violence under any provision of the Rome Statute. Even though the chambers found credible evidence of sexual violence in Katanga and Chui, the accused were not responsible under the liability mode of Article 25(3). In Lubanga, sexual assaults were not alleged, however, such evidence forms part of the record. Critically, in Bemba, the rapes — whether committed against adults or children, males or females — were integral and consistent to the pattern of acts that comprised the group’s modus operandi. The Chamber did not entertain that sexual violence could not be known to Bemba, nor that it could not be prevented or punished.

Bemba’s liability for all of the crimes charged was established under military responsibility per Article 28(a). This inaugurates an expansion of the Court’s contemplation of individual responsibility, beyond the quandaries of Article 25(3)(a) — where direct or essential participation in the crime is required — that divided the bench in Lubanga and Chui. Additionally, under Article 25(3)(a) jurisprudence there is no liability for foreseeable crimes, such as sexual violence. The original charging document in Bemba relied solely upon Article 25(3)(a), and that theory of liability might likewise have challenged the unanimity of the trial bench, if not changed the eventual outcome, in Bemba.

However, the Pre-trial chamber subsequently invited the prosecution to consider amending the charges to allege liability under Article 28, which the prosecution ultimately did. The Pre-trial Chamber’s Confirmation Decision ultimately confirmed the charges of rape, murder, and pillage under the military command responsibility provision of Article 28(a), which requires knowledge of potential or past crimes committed by subordinates to incur liability. After the start of trial, the Chamber, pursuant to Regulation 55, said alternative responsibility might be examined under Article 28(a)(i) whereby a defendant, owing to the circumstances at the time should have known, about the criminal conduct of his or her subordinates. In the end, the judgment, convicted only with regard to Article 28(a), finding that Bemba knew that his subordinates engaged in murders, rapes, and pillaging within the context of a non-international armed conflict in accordance with Article 8(2) and as a course of conduct, as required under Article 7(1).

The determination of Bemba’s liability as a commander led the Trial Chamber to decisive factual observations. Pertinently, it held that although they were geographically removed from Bemba, MLC forces had not been re-subordinated to the Central African Republic’s military hierarchy; they had remained under the effective control of Bemba since their original deployment. Significantly, in distinguishing effective control from the military doctrine of “unity of command,” the Chamber opined that effective authority and control rests on that person’s material power to prevent or repress the commission of crimes or to submit the matter to a competent authority (meaning multiple superiors might simultaneously hold such authority). The Chamber reiterated that determination of effective control was “more a matter of evidence than substantive law.”

Moreover, credible evidence of Bemba’s uninterrupted communication with the MLC hierarchy and of his receipt of local and international reports of MLC forces killing, raping, and pillaging in numerous locations in CAR established his direct knowledge of the abuses. The Chamber found that irrespective of Bemba’s response to media or civil society reports alleging abuses, or his participation in various accountability mechanisms, he was aware that his forces had committed and were about to commit crimes throughout the time period of the CAR Operation.

Additionally, the modus operandi employed by the MLC throughout the CAR Operation was relevant to the mens rea of command responsibility. The Chamber observed that MLC soldiers consistently “searched ‘house-to-house’ for remaining rebels, raping civilians, pillaging their belongings, and occasionally killing those who resisted” after General Bozizé’s rebels departed an area. The murder, rape, and pillage supplied compelling evidence of about Bemba’s knowledge of the MLC’s crimes. As mentioned earlier, the Trial Chamber didn’t need to rely on the idea that Bemba should have known about the crimes. They found that he actually knew.

The Trial Chamber also considered Bemba’s efforts to prevent or punish the crimes to be blatantly bogus, stating that they were “a grossly inadequate response to the consistent information of widespread crimes committed by MLC soldiers in the CAR.” In a thinly veiled lesson for future military leaders accused before the ICC, the Chamber admonished Bemba, noting he had the necessary material ability. He could have trained his troops in humanitarian law; issued clear orders; deployed the MLC away from civilians; initiated full investigations into crimes; removed, recalled, and dismissed offending officers and soldiers; or submitted to national or international judicial procedures. Poignantly, the court intoned, Bemba could have simply withdrawn his troops from CAR. The murders, rapes, and pillaging resulted from Bemba’s failure to exercise control properly over the MLC. Significantly, the sexual violence was not couched as renegade acts serving to prove Bemba’s lack of effective control, but rather, it was innate to the proof of a functioning modus operandi of forces that were effectively controlled by the defendant. This is band new jurisprudence of command responsibility.

Throughout the legal discussion of the requirements of command responsibility, the Chamber derived ample jurisprudential support from the ad hoc tribunals and the Special Court of Sierra Leone, citing international criminal decisions such as Nizeyimana, Popović, Brima, Blaškić, Galić, Delić, and Kamuhanda. In turn, the Bemba judgment will become seminal in the body of jurisprudence of command responsibility, and will especially offer prescient observation about superior responsibility and sexual violence. While the content of the judgment will be closely scrutinized by practitioners, academics, the military community, and civil society, the next procedural step is certain to be an appeal by the defense. 

About the Author(s)

Patricia Sellers

International Criminal Attorney and Special Advisor for Prosecution Strategies to the Prosecutor of the International Criminal Court