Command Responsibility Beyond Distance Authority: Responsibility and the protection of civilians under International Criminal Law

By Sabrina Odia

August 17, 2026

Photo by Voice of America via Wikimedia Commons / Public Domain

This discussion builds on an earlier legal analysis I wrote in 2020 examining the Bemba case and the question of command responsibility. That paper reflects my thinking at the time and provides a more detailed examination of the legal framework, the facts of the case and the reasoning that informed my original position.

Why this matters beyond the courtroom

The question of command responsibility is ultimately a question about what we expect from those who hold power when other people are unable to protect themselves. That question extends beyond the courtroom. In armed conflict, civilians and particularly children, are often those with the least power to protect themselves from the consequences of decisions made by others. They rely on those who hold power to exercise it responsibly: to prevent harm where possible and to act when violations occur.

For me, this is where international criminal law connects with the broader field of international human rights and children's rights. The law can establish responsibility. But behind that responsibility are people who need protection. 

Physical distance is not the same thing as lack of authority. And if physical distance does not remove authority, it should not remove responsibility. A commander does not cease to exercise responsibility simply because they are physically removed from the forces under their command. In modern command structures, orders can cross borders, information can travel thousands of kilometres, and decisions made far from the battlefield can have immediate consequences on the ground. Distance may separate a commander from the people carrying out an order. It does not necessarily separate that commander from the responsibility attached to the authority they exercise. This is the question that has remained central to my thinking since I first examined the Bemba case in 2020.

The case concerned Jean-Pierre Bemba Gombo and crimes committed by forces under his command during operations in the Central African Republic. The International Criminal Court's Trial Chamber convicted Bemba under the doctrine of command responsibility; the Appeals Chamber subsequently acquitted him. My original analysis questioned whether physical distance should carry such weight when assessing the responsibility of a commander who retained authority over forces operating elsewhere.

I would frame that argument more broadly today. The question is not simply whether a commander was physically present when crimes were committed.

It is:

What does “necessary and reasonable measures” mean when a commander has the authority and capacity to communicate, issue orders and respond to serious violations despite physical distance?

If a commander can give an order from halfway across the world, why should physical distance itself diminish the responsibility attached to that authority?

Authority carries responsibility

Article 28 of the Rome Statute requires consideration of whether a military commander had effective command and control over forces, whether the commander knew or should have known about crimes, and whether the commander failed to take all necessary and reasonable measures within their power.

The emphasis on measures “within their power” is important. Command responsibility should not become strict liability. A commander cannot be held responsible for powers they did not possess or measures they could not realistically take. But the reverse is also important. Where meaningful authority exists, that authority should carry meaningful responsibility. The greater the authority, the greater the responsibility to use that authority to prevent harm. Physical presence should therefore not become a substitute for examining actual command.

A commander may be thousands of kilometres away and still be capable of receiving information, issuing instructions, demanding reports, directing investigations or taking other measures within their authority. The relevant question should be what the commander could actually do, not simply where the commander was physically located.

Physical distance should not automatically become legal distance

This is where the Bemba case continues to raise an important legal question. Distance can affect a commander's ability to respond. It can affect the information available to them and the measures realistically within their power. But distance does not necessarily eliminate authority. If authority can operate across borders, so can responsibility. And where serious violations are occurring, the purpose of command responsibility should not be understood only retrospectively, as a mechanism for determining responsibility after harm has occurred. It should also have a protective dimension.

Where a commander has the ability to prevent or repress serious violations, the question should be whether that authority was used. What information was available? What should reasonably have been known? What orders could have been given? What measures could have been taken? And what was actually done?

These questions become particularly important where civilians are at serious risk. The seriousness and urgency of the harm should matter when assessing what constitutes necessary and reasonable action.

From authority to protection

For me, this is ultimately what makes command responsibility significant. It is not simply about identifying someone to blame after a violation. It is about recognising that authority creates the capacity to act. Where that capacity exists, there is a responsibility to use it meaningfully and effectively.

This does not mean that every commander should be held criminally responsible whenever a subordinate commits a crime. Individual criminal responsibility and the requirements of Article 28 remain essential. But neither should physical distance become an easy explanation for why responsibility did not follow authority. A commander may be physically absent and still be operationally powerful. A single instruction can travel across a battlefield, across a border, or halfway around the world. So can a failure to give one.

The legal question, therefore, is not simply whether a commander was there. It is whether the commander had the authority and capacity to act, understood or should have understood the circumstances, and took the measures that were within their power to protect people and respond to serious violations.

Looking forward

The Bemba case remains important because it forces us to examine the relationship between authority, distance and responsibility. My position is not that physical distance is legally irrelevant. It is that physical distance should not be allowed to obscure the reality of authority. 

If physical distance does not equal lack of authority, physical distance should not equal lack of responsibility. International Criminal Law must continue to balance accountability with individual criminal responsibility. But within that framework, those entrusted with significant authority should be expected to use that authority responsibly — particularly when the lives and safety of others are at stake.

Because ultimately, command is not defined only by where a commander stands. It is defined by the authority they possess, the decisions they make, and what they do with the power entrusted to them. And when that authority can travel across distance, responsibility must be capable of travelling with it.

If you would like to explore the issue further, you can read the original 2020 analysis below.

Archival examination of the Bemba case.pdf.pdf

Download PDF • 1.11MB

Originally written in 2020. Presented here as an archival work. 

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