Commanders Put on Notice

Last week, the International Criminal Court (ICC) handed down its third, and in some ways most important, sentence in its short existence. The court sentenced Jean-Pierre Bemba, a former military commander from the Democratic Republic of the Congo (DRC), to 18 years’ imprisonment for the crimes of murder, rape, and pillage committed by his soldiers in the Central African Republic (CAR) in 2002–2003.

The court convicted Bemba not for directing or participating directly in the crimes, but for failing to prevent them as a commander, finding that he was aware they were being committed by his subordinates and that he had the means to stop them (at least in part). Bemba’s (relatively) significant sentence should be a signal to military and political leaders everywhere that they must be proactive about preventing crimes in their ranks, or risk facing criminal exposure themselves. The sentence should also encourage the ICC Prosecutor to consider even greater reliance on this mode of liability, known as command responsibility, in the future.

Leading up to Bemba’s sentencing, there had been considerable speculation about where the court might end up. The first two accused to be convicted at the court had received shorter sentences: Thomas Lubanga was sentenced to 14 years for committing — as a co-perpetrator — the crime of conscripting and enlisting child soldiers, and Germain Katanga received a 12-year sentence for being an accessory to murder, attacks on civilians, destruction of property and pillaging. Even more pertinent, most of those convicted under the command responsibility mode of liability at the ad-hoc tribunals — the courts established to address a single conflict, as in the former Yugoslavia and Rwanda — had received sentences in the single digits.

However, the Bemba court was not drawn into imposing a low sentence. Instead, it struck hard and strongly endorsed command responsibility as an important and meaningful mode of liability. To be sure, the court was also driven by the extraordinary gravity of the underlying crimes. As I wrote at the time, Bemba’s conviction affirmed the ICC’s commitment to the prosecution of sexual and gender-based violence (SGBV). In its sentencing judgment, the trial chamber emphasized the gravity of the SGBV crimes, including rapes of children, committed by Bemba’s soldiers during their four-and-a-half month campaign in CAR. With respect to the sexual violence charges, the judges further found the facts that many of the victims were “particularly defenseless” and that many of the SGBV crimes were committed with “particular cruelty” to be aggravating circumstances.

At the same time, the Trial Chamber underscored the seriousness of command responsibility. “Command responsibility is a sui generis mode of liability. It is not, inherently, a hierarchical lower or higher mode of liability in terms of gravity than commission of a crime … or any other mode of liability ….” The judges found that command responsibility under the Rome Statute generally warrants a higher sentence than the same mode of liability applied in customary international law (by the ad-hoc tribunals, for example) because the Rome Statute imposes an additional requirement that the judges find that the underlying crimes were committed “as a result of [the commander’s] failure to exercise control properly over [the] forces [under his or her effective command and control].”

The judges concluded that a military or political leader found guilty for the crimes of his or her subordinates under command responsibility will be sentenced primarily on the basis of: the seriousness of the underlying crimes; whether those crimes were ongoing and repeated; the commander’s place in the chain of command (higher sentence for higher rank); and the degree of the commander’s knowledge. With regard to this last factor, while the Rome Statute allows for the conviction of a military commander who “should have known” of crimes being committed by his or her subordinates and of a political leader who “consciously disregarded information which clearly indicated” crimes were being committed by subordinates, the Bemba Trial Chamber found that in this case Bemba in fact knew that his soldiers were committing horrific crimes.

To many Americans, an 18-year sentence for any criminal involvement in murders and vicious sexual violence might seem shockingly low. But it should be remembered, as Patrick Walsh explained here, that the command responsibility mode of liability does not even exist under the Uniform Code of Military Justice (UCMJ). The closest approximation is a charge of dereliction of duty which carries a maximum six-month sentence. Moreover, the international tribunals, including the ICC, generally do not mimic the severe sentencing practices of US courts. The presumptively maximum sentence at the ICC is 30 years, though a life sentence is also possible “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” In the context of the sentencing practices of the international tribunals and the ICC, an 18-year sentence is a significant hit.

Bemba’s sentence should be a further reminder to military and political commanders that they have a duty to ensure that fighters under their effective command are not committing international crimes, and that a failure to prevent such crimes by their subordinates could result in significant criminal exposure. For the ICC, the Trial Chamber’s decision in Bemba should encourage the Prosecutor to rely on command responsibility in future cases, either as a primary or a secondary charge. In some cases, it can be easier to prove than a charge of direct involvement in crimes and it offers an important avenue to promote deterrence.

Finally, as for Mr. Bemba, his troubles are not over. He has been charged and tried separately, along with four others, with corruptly influencing witnesses in his main trial, and is now awaiting judgment. If he is convicted in this second case, which is likely, he will certainly receive an additional term of imprisonment over and above the one already imposed. 

About the Author(s)

Alex Whiting

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).