This refers to the responsibility of a commander or civilian superior for crimes committed by subordinate members of armed forces or other persons under their control. A superior can be held criminally responsible even if he or she did not order crimes to be committed. It is enough if the commander fails to prevent or punish crimes committed by subordinates.
In order to convict a person based on command responsibility, the prosecution must prove to the judges not only that crimes under the Rome Statute were committed. In addition, both of the following conditions must be proved:
- The accused person had real authority and control over subordinates who committed these crimes.
- The accused person knew or should have known:
- that subordinates were going to commit crimes, and then did not take all necessary and reasonable actions to prevent them from happening;
- or that subordinates were in the act of committing crimes, and then did not take all necessary and reasonable actions to stop the crimes in the process;
- or that subordinates committed these serious crimes, and then did not take all necessary and reasonable actions to punish them.
Jean-Pierre Bemba is the first person accused at the ICC to be charged under command responsibility. The Prosecutor initially charged him with directly planning the alleged crimes together with former CAR President Ange-Félix Patassé. Under this scenario, the Prosecutor would have to prove that Mr. Bemba intended to commit the alleged crimes. In March 2009, the Pre-Trial Chamber recommended that the Prosecutor change the charges from direct criminal responsibility to command responsibility. After the prosecution changed its application to offer the Chamber both options, the Pre-Trial Chamber decided that there was only enough evidence to proceed to trial on the basis of command responsibility. Specifically, the Pre-Trial Chamber ruled that Mr. Bemba lacked the knowledge and intent necessary to be prosecuted as a co-perpetrator. But the Chamber found that charges on the basis of command responsibility could be confirmed because there was sufficient evidence that:
- Mr. Bemba was a military commander and had effective command over those who committed the crimes;
- Mr. Bemba knew that MLC forces were committing or about to commit crimes;
- And that Mr. Bemba failed to take all necessary and reasonable measures to prevent or stop crimes being committed by MLC forces.
Crimes against Humanity
These are crimes that are committed as part of a widespread or systematic attack against any civilian population. The individual crimes are listed in Article 7 of the Rome Statute. They include such crimes as murder, extermination, rape, sexual slavery, torture and other inhumane acts.
Crimes against Humanity must possess three major elements:
- The crime must be a product of a widespread or systematic attack, not an isolated incident. If it is isolated, it must be connected to multiple acts, pursuant to a policy.
- Such crimes must be directed against a civilian population—if it is a military target, it cannot be a crime against humanity. But the act could still be a war crime.
- The alleged perpetrator must have knowledge of the attack.
The Prosecutor sought to charge Jean-Pierre Bemba with three counts of crimes against humanity: murder, rape and torture. However, the judges of the Pre-Trial Chamber only found that there was enough evidence to justify a trial on two of these: murder and rape.
An expert witness is a person whose education, training, and experience can provide the court with an assessment, opinion, or judgment within the area of his or her competence. This knowledge is usually not known or available to the general public. The person must be accepted by the court and must normally testify about facts rather than the law. The defense has the right to object to the qualification of an individual presented by the prosecution as an expert witness.
A judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality. Such fair trial procedures include the following:
- The right of the accused to a public hearing, subject to measures ordered by the court for the protection of victims and witnesses. In the trial of Mr. Bemba, certain witnesses whose testimony the court thinks will expose them to security risk, may testify under protective measures.
- Presumption of innocence until proven guilty. Mr. Bemba is considered to be not-guilty, and the court regards him as not guilty, until and unless the prosecution proves the charges against him. Mr. Bemba does not need to prove his innocence. The prosecution is required to prove his guilt in order for Mr. Bemba to be convicted.
- To be informed of the nature and cause of the charge against him. When Mr. Bemba made his first appearance before the Pre-Trial Chamber, the charges against him were read to him in open court and he was served with a copy of the charges.
- It is the duty of the court to make sure that the trial is conducted without delay.
- To be tried in his or her presence. Mr. Bemba has a right to sit in the courtroom and hear all of the evidence.
- To defend himself or through legal assistance of his choosing. Mr. Bemba personally selected the lawyers that should serve as his defense counsel. They are Mr. Nkwebe Liriss and Mr. Aimé Kilolo-Musamba.
- To be provided with legal assistance if he does not have sufficient funds to pay for one. The ICC’s administrative branch, the Registry, has determined that Mr. Bemba does have sufficient funds to pay for his own defense. However, until adequate funds can be received from Mr. Bemba’s assets, the Trial Chamber has ordered the Registry to cover Mr. Bemba’s defense costs. These costs are to be reimbursed to the ICC from Mr. Bemba’s assets.
- To examine or have examined witnesses against him. After the examination-in-chief of any prosecution witness, Mr. Bemba’s defense counsel has the right to cross-examine the witness. When Mr. Bemba presents his defense, he will have the right to call witnesses who will be examined by his defense counsel.
- To obtain the attendance and examination of his own witnesses. Mr. Bemba’s defense team, with the help of the Registry, through the Victims and Witnesses Unit, will present his witnesses before the court. The court will facilitate travel arrangement for these witnesses to The Hague where the trial is held. Mr. Bemba’s defense can obtain subpoena orders for witnesses who might be reluctant to testify but who Mr. Bemba thinks can be of help to his defense.
- To obtain the free assistance of an interpreter if he cannot speak or understand the language used in the court. Court interpreters are available to interpret witness testimonies from local languages into French and English, and from English to French (and vice-versa). Mr. Bemba, who speaks French, will understand all of the proceedings.
- Not to be forced to testify against himself or to confess guilt.
The Rome Statute states that a case is not admissible at the ICC if it “is not of sufficient gravity to justify further action by the Court” (Article 17(1)(d)). The Statute makes this requirement to ensure that the ICC focuses its limited resources on situations and cases around the world where the worst crimes are committed. But the Statute does not define “gravity”, and ICC judges have to interpret it. Mr. Bemba’s defense requested that the Trial Chamber dismiss the case, in part because it claimed that the alleged crimes did not meet the gravity requirement. But in June 2010, the Trial Chamber rejected this argument and the entire defense application.
While wars are chaotic and brutal, there is a body of international law that tries to regulate the violence in armed conflict. These rules are not meant judge why conflicts are fought, but rather, they lay the ground rules about how parties to the conflict should conduct themselves and what acts are not allowed during the conflict. Specifically, these laws aims to safeguard “protected persons”—those who are not, or are no longer, involved in the conflict. Protected persons include civilians (children and women are considered particularly vulnerable), ill soldiers, and prisoners of war. At the ICC, war crimes are listed in Article 8(2) of the Rome Statute. They include such crimes as murder, terrorism, sexual violence, cruel treatment, and pillage.
In the case of Jean-Pierre Bemba, the Prosecutor initially sought to bring five charges of war crimes: murder, rape, torture, outrages upon personal dignity, and pillaging. However the Pre-Trial Chamber found that there was only enough evidence to justify a trial on three of these charges: murder, rape and torture.