Bemba: reconstruct the measures a commander could actually take

365 ALTERAM analysis

Turn a proposed response into an evidential question

In a war-crimes case concerning command responsibility, it can be easy to name a measure that appears necessary in retrospect: investigate an allegation, discipline a subordinate or refer a matter to competent authorities. The forensic task is more demanding. What would that measure have required, who could implement it, and what evidence establishes that it was available at the relevant time?

This inquiry neither excuses inaction nor substitutes an investigator’s opinion for the legal test. It gives counsel a documented basis for examining an alleged failure. The Bemba appeal illustrates the importance of assessing practical constraints alongside the measures taken, while keeping the underlying crimes and the accused person’s responsibility as distinct questions.

Public record

The conviction and the decision that reversed it

On 21 March 2016, ICC Trial Chamber III convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes arising from murder, rape and pillaging by MLC troops in the Central African Republic in 2002–2003. It found him responsible as a military commander under article 28(a). That conviction was subsequently reversed. [1][2]

On 8 June 2018, the Appeals Chamber acquitted him by majority. It identified errors concerning acts outside the confirmed charges and the assessment of necessary and reasonable measures. The majority criticised the evaluation of his limitations as a remote commander, referrals to local authorities and the mandates of inquiries. Two judges dissented, disputing both the majority’s conclusions and its approach to appellate review; they would have upheld the conviction. [2]

The acquittal concerned these war-crimes and crimes-against-humanity charges. The ICC’s announcement distinguished a separate conviction for offences against the administration of justice. In May 2020, the Court also rejected his compensation claim under article 85(3), finding that he had not established the required grave and manifest miscarriage of justice. These separate outcomes should not be collapsed into a general claim of exoneration from every proceeding. [2][3]

365 ALTERAM analysis

Create a dated register of allegations and responses

For a new authorised review, identify the incidents and alleged failures within the instruction’s scope. For each, record when information was created, transmitted and received, what it actually reported, and which response followed. Preserve original communications and translations alongside summaries. An account written after an operation may describe events accurately while still failing to establish what information reached a commander earlier.

Connect each recorded response to its implementation evidence. An order to investigate, the appointment of investigators, their access to witnesses, their report and subsequent action are different stages. A signed instruction alone does not prove that an inquiry operated effectively. Equally, an absent final report does not establish that no investigative steps occurred. Describe the evidential gap and seek the records capable of resolving it.

365 ALTERAM analysis

Test feasibility without assuming impossibility

For every measure said to have been available, identify its practical dependencies. These may include authority over the relevant personnel, communication with deployed units, access to the territory, cooperation from local institutions, transport and the ability to preserve evidence. Use contemporaneous records to assess those dependencies. Geographic distance is a circumstance to examine; it is not an automatic answer to responsibility.

Compare formal powers with demonstrated action. Records showing that a commander successfully reassigned personnel, obtained reports or secured cooperation may undermine a claim that similar action was impossible. Conversely, documented refusals, disrupted communications or limits on jurisdiction may qualify an apparently straightforward proposal. The comparison must explain whether the situations were genuinely comparable in timing, personnel and conditions.

Consider alternatives as well as the preferred measure. If direct investigation faced obstacles, examine the evidence concerning referral, requests for assistance, follow-up or other responses identified by counsel. Do not invent capabilities that the record cannot establish. Nor should an untested assertion of logistical difficulty displace evidence that a workable option existed.

365 ALTERAM analysis

Report what changes the assessment

A useful report links each proposed measure to the evidence supporting its availability, the evidence against it, the response actually documented and the unresolved questions. Keep prevention, repression and referral questions sufficiently distinct for counsel to apply the relevant legal framework. A reconstruction may support the allegation of inadequate action, qualify it or leave it unresolved.

365 ALTERAM can organise incident and response chronologies, assess communications and source provenance, and coordinate appropriately qualified specialists. The resulting work should make assumptions visible and permit another reviewer to reproduce the comparison. It must respect victims and witnesses while testing individual responsibility rigorously. Counsel retains legal strategy; the outcome of one historical appeal does not guarantee the outcome of another case.