Bad News For Warlords Everywhere

International Criminal Court convicts a commander

by PETER DOERRIE

In its third-ever ruling, the International Criminal Court in The Hague found Congolese defendant Jean-Pierre Bemba guilty of two counts of crimes against humanity and three counts of war crimes. Critically, the court convicted Bemba on the grounds of “effectively acting as a military commander with effective authority and control over the forces that committed the crimes.”

This is the first time that the ICC has rendered a judgement based on “command-and-control responsibility.” While special tribunals have applied this judicial norm as long ago as the Nuremberg Trials following World War II, its successful application by the ICC opens up a new avenue of prosecuting warlords, militia leaders and military commanders responsible for crimes in times of war.

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Bemba stood accused of rape, murder and pillaging in connection with his militia’s intervention in the Central African Republic’s civil war in 2002.

While Bemba himself didn’t personally participate in the operation, 1,500 men from his Mouvement de Libération de Congo supported Central African president Ange-Félix Patassé in Patassé’s fight against the troops of Gen. François Bozizé. MLC troops deployed in the capital Bangui in October 2002 and left in March 2003 after Bozizé gained the upper hand and subsequently ousted Patassé, who died in exile. Bozizé himself was ousted in 2013 by yet another rebellion.

Accounts of the behavior of Bemba’s forces rank among the most disgusting descriptions of wartime conduct. “The civilian population was the primary rather than the incidental target of the attack,” presiding judge Sylvia Steiner, who is Brazilian, said in her judgement. “MLC soldiers by force knowingly and intentionally invaded the bodies of the victims by penetrating the victims’ anuses, vaginas or other bodily openings with their penises.”

According to the judges, Bemba’s soldiers systematically raped, murdered and plundered the Central African population in lieu of monetary payment — and in order to frighten them into submission.

A boy in the town of Birao in northern Central African Republic, which was largely burned down during fighting in 2007. Photo via Wikipedia

“The Chamber concluded beyond reasonable doubt that Jean-Pierre Bemba Gombo was a person effectively acting as a military commander (Article 28(a) of the ICC Rome Statute), who knew that the MLC forces under his effective authority and control were committing or about to commit the crimes charged,” the court found. “Additionally, he failed to take all necessary and reasonable measures to prevent or repress the commission of crimes by his subordinates during the 2002–2003 CAR Operation, or to submit the matter to the competent authorities.”

Bemba’s defense counsel didn’t dispute that the crimes happened or that MLC soldiers may have been involved. Instead, they concentrated on Bemba’s personal responsibility, claiming that there was no proof he gave any direct orders to commit the crimes.

The ICC’s verdict makes clear that this line of defense won’t hold up in the international court. Instead, military commanders must take responsibility for their troops’ behavior.

“[It] makes clear that military commanders and political superiors must take all necessary steps to prevent their subordinates from committing such heinous acts,” Samira Daoud of Amnesty International said in a statement following the verdict.

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A rebel in Central African Republic in 2007. Photo via Wikipedia

This is potentially very bad news for many military commanders and their political superiors around the world. While the Bemba trial has shown that proving “command responsibility” is a complicated legal undertaking — the trial took five years — the finding considerably narrows the wiggle room that, before, allowed top brass to blame war crimes on their underlings.

Of course, most victims of war crimes still won’t get their day in court, at least not at the ICC. The court in The Hague still suffers from its fundamental flaw — it’s supposed to mete out objective justice based solely on the merits of the case. But it relies on governments to cooperate in apprehending victims and supporting investigations.

For example, while the United States has supported some of the ICC’s cases and investigations, it remains a non-signatory to the Rome Statute, the court’s legal foundation — and America actively discourages investigations involving allied countries such as Israel.

The U.N. Security Council can both refer cases to the ICC and prevent it from investigating a situation. This has rendered large parts of the world off limits for the ICC’s prosecutors, because the permanent member states of the Security Council — including the United States, China and Russia — have a de facto veto over the court’s investigations.

As a consequence, all cases at the ICC so far have concentrated on African victims and African perpetrators, leading to charges of institutional racism. These political problems are unlikely to change in the near future.

Still, crimes against humanity and war crimes don’t come with any statute of limitations. And while the ICC is politically embattled, it also won’t go anywhere. International institutions are incredibly hard to get rid of once they’re established.

The Bemba ruling will also set a precedent for other courts and shape legal doctrine. The command responsibility charge was used to convict defendants on multiple occasions in the Nuremberg Trials, as well as in several special tribunals covering civil wars in the Balkans and Africa. But the trend in combating impunity is to establish permanent international courts such as the ICC or to compel national courts to apply international law. These courts will look towards the ICC for guidance on how to handle cases such as Bemba’s.

It’s unlikely that this will have a great impact on the decision-making of military and political commanders — at least in the short term. But after a few more convictions of war criminals such as Bemba, warlords and rogue commanders everywhere will have to take into account the strong possibility that, sometime in the future, someone will try to haul them in front of a judge.

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