New court, same division: The Bemba case as an illustration of the continued confusion regarding the command responsibility doctrine

Prosecutor v. Jean-Pierre Bemba Gombo was the International Criminal Court’s first case directly addressing the command responsibility doctrine. As the first permanent international criminal court who can exercise jurisdiction over a majority of the world’s nation states, its interpretation of the doctrine was potentially an important development in international criminal law and an opportunity to affirm the legal responsibility of commanders for their subordinates’ crimes. However, rather than providing a clear articulation of the doctrine and its scope, the Appeals Chamber was split. By a 3–2 majority, it reversed the Trial Chamber’s decision and the Appeals Chamber’s judges were sufficiently divided in their reasoning that they felt compelled to deliver separate opinions. A key disagreement within the doctrine is whether command responsibility is a mode of liability or a separate offence of dereliction of duty. This disagreement feeds into further contestation about the doctrine’s core elements, including the standard of fault necessary under its actus reus or mens rea elements. This article examines the judges’ reasoning in Bemba to illustrate that, despite decades of jurisprudence and academic debate, there is still confusion on these foundational elements. Instead of being ‘settled law’, the debate on command responsibility is still live. The article maintains that the current law supports a mode of liability interpretation but proposes that reclassifying the doctrine as a separate offence could resolve many of its tensions while observing the culpability principle, satisfying its justifications, and facilitating an adequately wide scope of accountability.