CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ extends to “ person(s) effectively acting as military commander(s) ” . In the Pre Trial Chamber II’s view, that was the case of Mr. Bemba. The Pre Trial Chamber II further stated that such position also includes individuals who do not perform exclusively military functions. 97 These persons, not formally appointed but having “ effective control over a group of persons through chain of command ”, have to be considered as de facto commanders. 98 De facto commanders could be considered also PMSCs superiors active in the field. If they would exercise sufficient control over PMSCs employees and would follow a chain of command, they could be in the author’s view considered as de facto commanders within the meaning of Article 28(a) of the Rome Statute. Again, the criterion of a chain of command within PMSC is questionable, because many times, “ private military contractors are not clearly captured by the military chain of command. ” 99 The determination of status as a de facto commander would therefore depend on a case by case basis. Nevertheless, despite the above mentioned analysis and findings of the Pre Trial Chamber II., the Appeals Chamber of the International Criminal Court decided by majority to acquit Mr. Bemba from the charges brought against him. The decision of the Appeals Chamber was based on the argument that the Trial Chamber III. had erroneously convicted Mr. Bemba for specific criminal acts that were outside of the scope of the charges as confirmed, but more importantly, the Trial Chamber erred in its evaluation of whether Mr. Bemba had failed to take all necessary and reasonable measures to prevent or repress the crimes of the Mouvement de libération du Congo ’s troops. Thus, according to the Appeals Chamber, one of the elements of command responsibility under article 28 (a) of the Statute was not properly established. 100 The decision of the Pre Trial Chamber II. is nevertheless important, because it analyzed the position of individuals who do not perform exclusively military functions. As mentioned above, this could have serious implications for superiors of PMSCs. Besides that, the Rome Statute also establishes individual criminal responsibility within the meaning of Article 28(b) of the Rome Statute. This provision establishes the liability of civilian superiors, if the subordinates who committed crimes within the jurisdiction of the ICC were under their effective authority and control. Superiors of PMSCs, especially those who are not active in the field, could be considered as superiors within the notion of Article 28(b) of the Rome Statute. Superiors of PMSCs, especially senior contractors, have the ability to decide the issues connected to their subordinates. They can mainly decide who stays in the company or who will have to leave. According to Kate Neilson, such ‘legal control’ is not enough. Such control can only be viewed through the lens of the management of the company, or labor law issues. For Article 28(b) to be applicable, a PMSC superior must also have de facto control. For instance, in cases where the PMSC superior decides where the PMSC personnel is sent, which duties they must follow and subsequently in which activities they are engaged in, then effective control may be established. 101 One may also contend 99 LOWENSTEIN, A. K. Inherently Governmental Functions and the Role of Private Military Contractors. Yale Law School . New Haven, USA, Available at: https://www.ohchr.org/sites/default/files/Documents/Issues/ Mercenaries/WG/AllardKLowensteinIHRClinic.pdf. 100 International Criminal Court. The Appeals Chamber. Situation in the Central African Republic in the case of the Prosecutor v. Jean-Pierre Bemba Gombo. Available at: https://www.icc-cpi.int/sites/default/files/CourtRecords/ CR2018_02984.PDF. 101 NEILSON, note 4, p. 157. 97 Ibid. 98 NEILSON, note 4, p. 136.

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