The Control Requirement of Command Responsibility: New Insights and Lingering Questions Offered by the Bemba Appeals Chamber Case

Taking the (controversial) acquittal of Mr. Bemba by the Appeals Chamber of the International Criminal Court as the point of departure, this contribution aims to shed some light on the relationship between two elements of the doctrine of command responsibility, to wit effective control and the material ability to punish or repress crimes by subordinates. We come to the conclusion that distinct perceptions of the nature of command responsibility inevitably produce different interpretations of the elements of the doctrine. If one starts from the premise that command responsibility is predicated on endangerment liability, it is fair to argue that the mere fact that subordinates have engaged in war crimes serves as a rebuttable presumption that the commander has failed to exercise the necessary control. The presumption can indeed be rebutted, first by the finding that the commander has taken adequate measures to repress or punish the perpetrators. Second, because we are dealing with criminal punishment, it must be proven that the commander can be blamed for his dereliction of duty. The commander would not be ‘guilty’ for absence or loss of control, if it either turns out that another person wielded effective control over the perpetrators, or if the commander had been entrusted with ‘command and control’, but had lost it along the way, due to, for instance, a mutiny by his subordinates.