## Facts

- Jean-Pierre Bemba Gombo led the Mouvement de libération du Congo (MLC) and served as Commander-in-Chief of its armed wing, the Armée de libération du Congo (ALC).
- In late 2002, at the request of the Central African Republic (CAR) president, MLC/ALC forces deployed from the Democratic Republic of the Congo into CAR to assist in fighting a coup attempt.
- Crimes including murder, rape, and pillage were committed by MLC troops against civilians in CAR between approximately October 2002 and March 2003.
- The prosecution pursued Bemba’s liability as a person effectively acting as a military commander under Rome Statute Article 28(a) (command responsibility), alleging he knew or should have known of the crimes and failed to take necessary and reasonable measures to prevent or repress them or to submit the matter to competent authorities.
- Trial Chamber III convicted Bemba in 2016 of two crimes against humanity (murder, rape) and three war crimes (murder, rape, pillage), based on a finding that he failed to take all necessary and reasonable measures within his power.
- Bemba appealed, challenging (among other points) the Trial Chamber’s assessment of Article 28(a) responsibility and the reliance on criminal acts beyond the scope of the confirmed charges.

## Issues

1. What standard governs appellate intervention in factual findings, and whether the Trial Chamber’s key findings on Article 28(a) were reasonably open on the record.
2. Whether the Trial Chamber exceeded the “facts and circumstances” confirmed at the pre-trial stage by relying on underlying criminal acts outside the scope of the charges, contrary to the accused’s notice rights and Rome Statute Article 74(2).
3. Whether the Trial Chamber erred in applying Article 28(a), including by misstating what “necessary and reasonable measures within [the commander’s] power” required in the circumstances of a remote commander operating through forces deployed in a foreign state.

## Decision

- The Appeals Chamber, by a 3–2 majority, reversed the 2016 conviction and entered an acquittal on all counts.
- The majority found material errors in the Trial Chamber’s assessment of Bemba’s responsibilities and of the measures he could reasonably have taken under Article 28(a), given the constraints of remote command and operations in foreign territory.
- The majority also held that the Trial Chamber relied on certain criminal acts not encompassed by the confirmed charges, exceeding the permissible scope of conviction under Article 74(2).
- The dissenting judges would have upheld the conviction, arguing the majority impermissibly re-weighed the evidence and narrowed command responsibility.

## Legal Principles

- An appellate chamber does not re-try the case; it intervenes in factual findings where the challenged finding was not reasonably open to a trier of fact on the evidence.
- Under Rome Statute Article 74(2), a conviction must be based on the “facts and circumstances” described in the confirmed charges; expanding liability to uncharged material acts violates the scope-of-charges limitation and the accused’s right to notice of the material facts.
- Command responsibility under Article 28(a) requires proof that the commander knew or, in the circumstances, should have known of crimes and failed to take all necessary and reasonable measures within his power to prevent or repress them or to submit the matter to competent authorities.
- The “necessary and reasonable measures” inquiry is context-dependent and must account for practical constraints, including the commander’s location, the degree of operational control from a distance, deployment in foreign territory, and the roles of relevant national authorities.

## Conclusion

The Appeals Chamber set aside Bemba’s command-responsibility conviction, holding that the Trial Chamber committed material errors in assessing what measures were reasonably available to a remote commander and in relying on incidents beyond the confirmed charges; the appropriate remedy was reversal and acquittal on all counts.


Prosecutor v. Bemba, ICC-01/05-01/08-3636-Red (Int’l Crim. Ct. App. Ch. 2018)