Causation and the Legal Character of Command Responsibility after Bemba at the International Criminal Court

Abstract

Abstract This article concerns the issue of causation under Article 28 of the Rome Statute of the International Criminal Court and the related foundational question of the legal character of command responsibility under that provision. It has two aims. First, it notes that across the proceedings in Bemba, judges were united in understanding command responsibility as a mode of liability. It then sets out four different positions on the question of causation in Bemba and argues that none is convincing — that none is able to escape the tensions that follow from that understanding of the legal character of command responsibility. Second, it suggests that the Court revisit that foundational understanding itself: it proposes that the Court interprets Article 28 as establishing a separate offence of omission and argues that such a reading of the Statute is plausible and attractive in principle and policy terms.