Liability (modes of)

Definition published in the category Legal Proceedings

Last updated on

Under international criminal law, individuals can be held accountable for their own criminal conduct as well as for crimes committed by their subordinates or persons placed under their control [1]. The Rome Statute of the International Criminal Court (Rome Statute) includes different forms of individual criminal responsibility to hold accountable any person who commits, orders, solicits, induces, facilitates, contributes to, attempts a crime under the Statute, or in the case of genocide, directly and publicly incites others to commit genocide. The Statute further provides for the responsibility of commanders and other superiors for the conduct of their subordinates [2]. An accused can be prosecuted on the basis of individual or command responsibility [3], or both [4], depending on the role played by the individual in relation to the alleged crimes.

In prosecuting sexual and gender-based crimes as war crimes, crimes against humanity or genocide, the modes of liability of alleged perpetrators will depend on the circumstances of each case and the level and scope of participation in the crimes by the accused. Identifying the mode of liability for the prosecution of an alleged perpetrator can have an important impact on the outcome of a case, as the prosecution will have to present evidence in support of the selected mode of liability. This is illustrated in the case against Jean-Pierre Bemba, who was prosecuted at the ICC for his alleged command responsibility for war crimes and crimes against humanity, including the crime of rape, committed by troops under his command in the Mouvement de Libération du Congo (Movement for the Liberation of Congo). The Appeals Chamber ultimately acquitted Jean-Pierre Bemba, finding that he could not be held liable as commander for the crimes of his troops. The Appeals Chamber was not convinced by the evidence presented that he did not take all necessary measures to prevent the rapes (as well as murder and pillages) committed by his forces [5]. According to the Chamber, this was partly due to Mr. Bemba’s limited capacity to control his troops while in a foreign country [6]. This case demonstrates a difficulty observed at the ICC and other international tribunals in holding commanders or leaders responsible for acts of SGBV committed by their troops, where they are not direct perpetrators of the crime [7].

Related terms

All definitions

Footnotes

[1] International Committee of the Red Cross (ICRC), "Individual Criminal Responsibility", ICRC Casebook, n.d. On individual criminal responsibility and its different forms, see E. van Sliedregt, Individual Criminal Responsibility in International Law, Oxford Scholarship Online, 2012.

[2] Rome Statute of the International Criminal Court ("Rome Statute"), A/CON.183/9, 17 July 1998, entered into force 1 July 2002, Articles 25 and 28.

[3] This is true in most of the cases. See, for example, ICC, Pre-Trial Chamber I, Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (in French), ICC-01/12-01/18, 30 September 2019, rectified on 8 November 2019, published 13 November 2019; ICC, Trial Chamber VI, Prosecutor v. Jean-Bosco Ntaganda, Judgment, ICC-01/04-02/06, 8 July 2019; ICC, Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, Corrected version of ’Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, ICC-01/14-01/18, 11 December 2019, published 20 December 2019, corrected 14 May 2020.

[4] ICC, Pre-Trial Chamber II, Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, ICC-02/04-01/15, 23 March 2016.

[5] Article 28 of the Rome Statute provides that: "(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution." Rome Statute, op. cit.

[6] ICC, Appeals Chamber, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ’Judgment pursuant to Article 74 of the Statute’, ICC-01/05-01/08A, 8 June 2018; S. Sacouto and P. Viseur Sellers, "The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?", William & Mary Bill of Rights Journal, Vol. 27, 2019; FIDH, "Acquittal of Jean-Pierre Bemba on appeal: an affront to thousands of victims", 8 June 2018.

[7] See the acquittal of Germain Katanga on charges of sexual violence in part due to a finding of lack of effective control over the direct perpetrators as required by Article 25. ICC, Trial Chamber II, Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07, 7 March 2014. On the involvement of senior military commanders and leaders in acts of sexual violence, see P. Wildermuth and P. Kneuer, "Addressing the Challenges to Prosecution of Sexual Violence Crimes before International Tribunals and Courts", in M. Bergsmo and A. Butenschon Skyr (Eds.), Understanding and Proving International Sex Crimes, Torkel Opsahl Academic Epublisher, 2012, p. 126.