The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?

Abstract

On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome Statute came into force, and despite increasing recognition of the prevalence of sexual violence in the situations under the jurisdiction of the court, the ICC has yet to issue a single, final conviction for the crime of sexual violence. A number of commentators have critiqued various aspects of the judgment, including the standard of review used by the Appeals Chamber. However, with few exceptions, little of this commentary has focused on the impact of the Appeals Chamber’s analysis of command responsibility under Article 28 of the Rome Statute on sexual and gender-based crimes. We argue that the majority’s decision — in particular, its analysis of the necessary and reasonable measures that a commander is required to take to avoid liability under Article 28 — lacks the kind of insight that a critical gender analysis would have offered. We conclude that absent reconsideration, the Court’s jurisprudence on modes of liability will remain a major obstacle to the successful prosecution of cases of sexual and gender-based crimes at the ICC, especially for high-ranking accused who either did not clearly order the crimes or were not physically present during the commission of those crimes.