magnify
Home Posts tagged "command responsibility"

The “Command Responsibility” Controversy in Colombia: A Follow-Up

Published on March 13, 2019        Author:  and

A key issue arising out of the peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas is the definition of “command responsibility” that the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply when it prosecutes army commanders.

In 2017, the Colombian Congress passed a constitutional amendment containing a “command responsibility” definition that is inconsistent with the one applied under international law. A previous post reviewed the background and lead-up to the approval of that legislation. This post will examine how the controversy has evolved since. The post begins by describing the submission by the Prosecutor of the International Criminal Court (ICC) of an unusual amicus brief to Colombia’s Constitutional Court about the compatibility of the definition with international law. We then summarize the Constitutional Court’s decision upholding the definition in the amendment, before considering an ongoing case involving a former army chief, where the definition is being tested.

ICC’s Prosecutor amicus brief

In September 2017, Fatou Bensouda, the Prosecutor of the ICC (which has the situation in Colombia under preliminary examination), visited the country to obtain clarifications on certain aspects of the Special Jurisdiction for Peace, as well as information on the status of the relevant national proceedings. A month later, she submitted an amicus brief to the Colombian Constitutional Court. The brief was initially filed confidentially, but was leaked to the media and posted online. Read the rest of this entry…

 
Comments Off on The “Command Responsibility” Controversy in Colombia: A Follow-Up

Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 

Introduction

The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.

The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing. Read the rest of this entry…

 

In Bemba and Beyond, Crimes Adjudged to Commit Themselves

Published on June 13, 2018        Author: 

And now, it seems, we must fear to endure crimes adjudged to have no cognizable author – crimes that everyone knows occurred, but that escape the assignment of responsibility that is supposed to be an essential function of international criminal justice. Crimes adjudged, as one commentator lamented, to have committed themselves.

Provoking these dire sentiments is Friday’s International Criminal Court judgment in Prosecutor v. Bemba, in which a bitterly divided Appeals Chamber exonerated a politician-warlord from the Democratic of Congo (DRC) whom a Trial Chamber had sentenced to serve eighteen years in prison. The Appeals Chamber majority, constituting three of the five appellate judges, first maintained that the 2016 trial judgment merited no deference, then proceeded to evaluate the case de novo, and ultimately found all five counts of conviction unsustainable. The man whom para. 13 of the appeals decision identifies as “President of the MLC, a political party founded by him and based in the northwest of the DRC, and Commander-in-Chief of its military branch, the ALC,” thus was acquitted of charges on which he had been held since 2008. Bemba is awaiting the results of his appeal on a separate conviction for witness tampering. Yesterday, the Court ruled that he could join his family in Belgium while he awaits sentencing in that case. Read the rest of this entry…

 

The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Read the rest of this entry…