Bemba and the Individualisation of War: Reconciling Command Responsibility under Article 28 Rome Statute with Individual Criminal Responsibility

Abstract

Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant – Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de libération du Congo – took reasonable and necessary measures to prevent or punish his subordinates’ crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the ‘sharp disagreements’ that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.