Dear readers – Below find a report written by Lisa Clifford, a journalist and commentator specialising in issues of justice and human rights in central Africa. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
“If you unleash the dogs of war you have to put in place control mechanisms to prevent the dogs of war getting out of control.”
That’s how lawyer Stephen Kay describes the doctrine of command responsibility, the idea that leaders both military and civilian are responsible for the acts of their subordinates.
The trial of Jean-Pierre Bemba – accused of failing to control his troops in the Central African Republic – is the International Criminal Court’s (ICC’s) first-ever command responsibility case, but the concept of commanders being held responsible for crimes committed by others is nothing new in international law.
Sun Tzu’s the Art of War from the sixth century said that commanders should ensure their soldiers behave in a civilised manner. At the Nuremberg and Tokyo tribunals following the Second World War, German and Japanese officials were also charged under the doctrine. One of the best known cases was the trial of Tomoyuki Yamashita, a Japanese general convicted of commanding troops responsible for atrocities in the Philippines.
After a long hiatus, the United Nations tribunals tasked with prosecuting those responsible for war crimes in the former Yugoslavia and Rwanda continued the tradition, charging numerous leaders – military and civilian – with failing to control those under their command.
But such cases can be difficult to prove.
Prosecutors will have to show the chain of command linking Bemba to those who committed crimes and prove that through the chain of command he could have controlled them.
Specifically, they must first establish that crimes actually occurred. Then they must prove that those committing them were subordinates and that Bemba knew and constantly failed to act or punish those responsible.
Ambiguities in the chain of command are one of the many challenges for prosecutors, according to lawyer Guénaël Mettraux, who has represented defendants charged with failing to control their subordinates in the wars in the former Yugoslavia.
“If you take the beginning of the [Bosnian] war, you did not have an army that was there to be taken over in Bosnia. You had to create it through slow centralisation of bodies into one. There were periods of time where there were questions about what chain of command was functioning and under whose authority.”
Bemba’s lawyers will argue that the Movement for the Liberation of Congo (MLC) soldiers were under Ange- Félix Patassé’s command in CAR and obeyed his orders, not those of Bemba who remained largely in the DRC during the campaign. They will also likely say his troops were trained on human rights law, were aware of the MLC’s code of conduct and were disciplined if they committed crimes.
Showing reasonable measures have been taken to prevent crimes is one common defence in such cases.
“Bemba can say he disciplined soldiers, that he told them not to do it,” said William Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the chair in human rights law.
“It’s just like if I am driving car, and I get it serviced every three months, and someone tampers with it and the brakes fail, I’m not responsible if someone got killed as a result, because I can demonstrate that I exercised due diligence. Bemba will have to do that.”
Many international trials take place years after the crimes were committed, making the prosecution of individual culprits unrealistic. It is in these cases that the likes of David Crane, the founding prosecutor of the UN-backed Special Court for Sierra Leone, turn to a command responsibility charge.
“You’d never find these individuals. They are dead. There are very few records. It’s almost impossible,” said Crane. “We could not conduct a lot of international criminal law without command responsibility.”
Crane indicted and prosecuted commanders from the three warring factions in Sierra Leone’s civil war, as well as Charles Taylor, the former president of Liberia. Many were in leadership positions but not physically present when atrocities occurred.
ICC prosecutor Luis Moreno-Ocampo said in his opening statement on November 22 that the case against Bemba would influence the behaviour of military commanders on the ground and warned that the ICC would continue to hold them responsible for crimes committed by their soldiers.
But some are concerned that the Court’s legal tentacles have so far reached no further than Africa, despite allegations of unlawful activity by western leaders in places like Gaza, Iraq, and Afghanistan.
This isn’t going over well among many Africans and international commentators like Schabas. “In Africa they are looking around and saying is this court just about the good guys in the north preaching to us about how to behave,” he said. “Americans are allowing torture authorised by their own leaders to go unpunished.”
The ICC recently warned North Korea that it was conducting a preliminary examination of the recent attacks on Yeonpyeong Island in South Korea and the sinking earlier this year of a South Korean warship. It said in December it is monitoring the situation in Ivory Coast.
Crane agrees that politics are a factor in prosecutions. “President Obama has said we need to let the past be the past and move forward. I remember Charles Taylor making the same comment after I indicted him – that we need to stop resurrecting the past and move forward.”
This is cause for concern. “Are we deciding to develop a double standard?” said Crane. “As soon as the law is unfairly applied, and perceived to be unfairly applied, then the law itself is in jeopardy.”