Critical Issues in the Bemba Confirmation Decision

The International Criminal Court (ICC) has issued its third confirmation decision against Jean-Pierre Bemba Gombo,(1) the former president of the rebel Mouvement de Liberation du Congo (MLC) and commander in chief of its military wing, the Armee de Liberation du Congo (ALC).(2) The decision is, in principle, to be welcomed, since it constitutes a further consolidation of the ICC case law and breaks new ground in some important areas, for example the law of crimes against humanity (Art. 7 of the ICC Statute(3))(4) and command responsibility (Art. 28).(5) From an outsider's perspective it also seems that the Chamber, on the basis of the available (disclosed) evidence, took the right decision when it changed the Prosecutor's liability from (co-)perpetration (Art. 25(3)(a)) to command responsibility. Yet there are some fine legal-technical points where the Chamber did not dig deep enough, incurred conceptual errors, or drew some illogical conclusions. These issues shall be discussed briefly here, not in a destructive spirit but to contribute constructively to the improvement of the future case law.