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Never has the doctrine of command responsibility been shaken as when the Appeal Chamber of the International Criminal Court issued the Bemba Appeal Judgment. The latter solely addresses whether the defendant – Jean-Pierre Bemba, former Commander-in-chief of the Mouvement de libération du Congo – took reasonable and necessary measures to prevent or punish his subordinates’ crimes perpetrated in the Central African Republic. Yet, the various dissenting, separate and concurring opinions advocate opposing positions on the scope, elements and nature of this notorious doctrine. This paper relocates the ‘sharp disagreements’ that surfaced during the Bemba Appeal Judgment within the broader phenomena of the individualisation of war. Through an in-depth examination of the interpretation offered by the appellate judges, it designs a model of command responsibility that properly individualises Article 28 Rome Statute, and, by the same token, respect the fundamental rights of military commanders.
The expanding number of UN treaty bodies with competence to rule on individual complaints as well as the increasing amount of complaints lodged before these bodies trigger the question whether they are capable of acting as a unified institution when dealing with individual complaints or whether they remain as a fragmented institutional site. In this article, we comparatively analyse the case law of all treaty bodies between 2013 and 2016 with the aim of assessing whether UN treaty bodies are moving towards a common institutional trajectory. We find that despite textual differences, the treaty bodies’ case law displays both early signs of a common institutional trajectory and risks of institutional fragmentation. The most significant common institutional trends are access friendliness; self-referential citations, a preference for implicit harmonisation; and case by case activism with respect to individual remedies. Yet, we also identify lack of systematic and explicit cross treaty-fertilization and diverging approaches to specifying general remedies as risks that may undermine the formation of a common institutional trajectory. We argue that the early signs of informal collective institutionalisation may be capable of fostering a common institutional identity in the years to come, if risks of fragmentation are acknowledge and mitigated.
This article shows that in the 20 years following the adoption of the Rome Statute of the International Criminal Court its nature has surfed on three waves. Building upon the Court’s case law on the principle of legality and the immunity of state officials from non-party states, it shows that the Statute was initially conceived to be of universal nature, transcending the interests of all states. However, following a series of pushbacks, the Court revised this case law to rightly acknowledge that its Statute is first of all a multilateral treaty regulating the conduct committed in the territory and by nationals of its states parties. Yet, this second wave maintained the potential for the Statute to be universally applicable when the Court’s jurisdiction is based on ad hoc declarations of acceptance or Security Council referrals. However, the journey to amend the Statute to define the crime of aggression and new war crimes might have made the prospects for universal application dependent upon universal ratification. This article argues that this third wave certainly evinces a novel shift towards state consent, but that direct and indirect forms of consent can still premise the Court’s jurisdiction over situations concerning states which have not ratified the Statute or its amendments.