CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… one for civilian superiors, the Rome Statute created undesirable difficulties. 90 In the Bemba case, the only case before the ICC dealing with command responsibility, the Pre Trial Chamber II of the ICC held that to hold a military and ‘military-like commanders’ responsible pursuant to Article 28(a), 91 five conditions must be fulfilled. 92 Furthermore, the Pre Trial Chamber II distinguished between ‘ military commander ’ and ‘ person effectively acting as a military commander ’ . Whereas the former encompasses de iure commanders who are ‘ formally or legally appointed to carry out military functions ’, 93 the latter covers persons ‘ not elected by law to carry out a military commander’s role ’, which means that these persons are de facto military commanders. 94 The decisive criterion for a determination of the status of a superior is whether they were (or were not) formally or legally appointed. 95 Indeed, this fact has a huge relevance also to questions concerning civilian superiors who have subordinates within PMSCs. Could employees of PMSCs, for instance as senior private contractors, be regarded as de iure or de facto commanders? Under the ordinary meaning of a de iure commander, a military commander within the armed forces of the state has to be understood. Furthermore, there is usually a hierarchical subordination and a determined chain of command. 96 Within PMSCs, such a hierarchical structure is often questionable, although not impossible. It has been often argued that within PMSCs structure there are vertical structures, thus making it difficult to hold someone liable on the basis of individual criminal liability. It is therefore not possible to conclude that superiors of PMSCs could be considered as de iure military commanders, because as stated above, they are typically within the armed forces of a state. It has been explained above why superiors of PMSCs cannot be considered as military commanders within the meaning of Article 28(a) of the Rome Statute. Yet Article 28(a) not only provides for the liability of military commanders, but also 90 It is even though that the division of the provisions of responsibility does not only need to be considered negatively. From other point of view, it can be regarded also as very innovative, because for instance statutes of the ICTY and the ICTR regulate command responsibility in a different way. 91 Article 28(a) of the Rome Statute deals with the responsibility of military commanders. 92 According to the Pre Trial Chamber: “(a) the suspect must be either a military commander or a person effectively acting as such, (b) the suspect must have effective command and control or effective authority and control, over the forces (subordinates) who committed one or more of the crimes set out in Articles 6 -8 of the Statute c) the crime committed by the forces (subordinates) resulted from the suspect’s failure to exercise control properly over them, (d) the suspect either knew, or, owing to the circumstances at the time, should have known that the forces (subordinates) were committing or about to commit one or more of the crimes set out in Articles 6 – 8 of the Statute and (e) the suspect failed to take the necessary and reasonable measures within his or her powers to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution. ” Prosecutor v. Bemba , note 76. 93 Ibid. 94 KARSTEN, N. Distinguishing Military and Non-military Superiors. Reflections on the Bemba Case at the ICC . Journal of International Criminal Justice , Volume 7, Issue 5, 2009. p. 989. Available at: https://academic.oup. com/jicj/article-abstract/7/5/983/805505?redirectedFrom=PDF. 95 LIU, note 2, p. 232. 96 Check a shortened version of decision of International Criminal Court in Prosecutor v Bemba, according to which: “ The term ‘ military commander ’ refers to a person who is formally or legally appointed to carry out a military command function. Commonly, military commanders and their forces will be part of the regular armed forces of a state, such commanders will be appointed and operate according to a state’s domestic laws, procedures, or practices ” (de iure commanders). International Criminal Court. Trial Judgment in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo . Case prepared by Sylvia Scozia, LL.M. under the supervision of Marco Sassoli and Ms. Yvette Issar, University of Geneva. Available at: https://casebook.icrc.org/case-study/international-criminal-court-trial judgment-case-prosecutor-v-jean-pierre-bemba-gombo.

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