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.
Some contended that the definition could be interpreted to be consistent with international law given the phrase “at their disposal.” This language could be interpreted to emulate the language in the ICTY Appeal Chamber decision in the Čelebići case, requiring that the commander have information “available” that would have put them on notice of the crimes (para. 241). The lack of explicit language, however, created unnecessary ambiguity. And even assuming that interpretation, the definition would have still failed to clarify whether it encompassed the duty of commanders to remain informed. As the ICC pre-trial chamber noted in Bemba, “the “should have known” standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime.” (para. 429. Compare with the ICTY Appeals decision in Čelebići, para. 226)
“Effective control” The definition required that the commander have “effective control over respective conduct,” suggesting that commanders need to have control over the illicit acts of their subordinates —whereas under international law, commanders must simply have control over the military forces that carried out those actions.
Command Responsibility in the Revised Accord (and how the Government Back-Pedalled)
The parties in Colombia concluded a peace accord in September 2016. The agreement, however, was defeated by a slim margin in the October plebiscite. The parties quickly reached a new agreement with a range of modifications. One key modification was the addition of new language to the definitions of command responsibility applicable both for guerrillas and members of the armed forces:
[E]ffective control over the respective conduct means the actual possibility that the superior had to exercise an appropriate control over his subordinates, regarding the execution of the illicit conduct, as it is established in article 28 of the Rome Statute (my translation).
As we noted at the time, this new language seemed to solve the second problem outlined above —that is, the requirement that commanders had “effective control over the respective conduct.” The language not only made explicit reference to article 28 of the Rome Statute, it also included language that was at least similar to the definition of “effective control” in the ICC’s Trial Chamber ruling in the Bemba case (para. 188) and previous tribunal case-law: “’effective control’… requires the material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities.”
Army generals protested the new language, including in a public letter to President Juan Manuel Santos that criticized the reference to the “controversial article 28.” Stunningly, the government quickly announced that it had decided to delete the new language from the definition of command responsibility applicable to army soldiers. The definition for guerrilla commanders remained untouched except for a curious replacement of “article 28 of the Rome Statute” with “international law.”
But even more surprising was the FARC’s reaction. They announced they had “not permitted” the government to remove the language in the article referring to their commanders, in part, because they believed that the “command responsibility” definition would be “of concern” to the Prosecutor of the ICC, which has the situation in Colombia under preliminary analysis and could act as a court of last resort.
The Implementing Legislation (or how the Government Muddied the Waters Even More)
President Santos later promised the issue would be discussed with the military and solved in the implementing legislation. Implementing legislation, in the form of a constitutional change, which was introduced in Congress in December 2016 and, ultimately approved in March 2017, provides as follows with regard to army officers:
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 and, if it has occurred, promote the relevant investigations.
Authorities should deem that there is effective control and command of the military or police superior over the acts of his subordinates, when they demonstrate the following concurring conditions:
- That the criminal action or actions were committed within the area of responsibility assigned to the unit under his command and according to the respective level, and are related to the activities under his responsibility;
- That the superior had the legal and material ability to give orders, modify them, and enforce them;
- That the superior had the effective capacity to develop and execute operations within the area where the criminal acts where committed, according to his specific level of command;
- That the superior had the material and direct ability to take the adequate measures to prevent or suppress the criminal acts of his subordinates, as long as he had the actual or updatable knowledge of the commission of these crimes (translation and emphasis mine).
Days after this language was introduced into Congress, an op-ed by the ICC prosecutor Bensouda was published in the Colombian magazine Semana, noting that the definition “could be ‘interpreted’ as limiting the definition of command responsibility in the Rome Statute.” Indeed, as Human Rights Watch noted, the definition makes no progress in correcting the flaws mentioned above.
Mens rea. The new language makes it harder to argue that the “command responsibility” definition includes the “should have known” alternative under the Rome Statute. By adding that the commander must have “actual or updatable knowledge of the crimes,” the definition seems to require direct knowledge. (“Updatable” appears to refer to the commander’s knowledge of a crime that has already been committed.)
Effective control. While the new definition may look like it clarifies that “effective control over the respective conduct” means effective control over the military forces, in fact, it departs from the standards established by international case-law. In part (d), the proposed definition replicates, in part, the definition of “effective control” under international case-law. However, it imposes additional requirements in (a)-(c), all of which must be proved concurrently. By contrast, under the case-law of international courts, including from the ICC trial Chamber’s decision in the Bemba case (para. 188) and the ICTY trial chambers’ decisions in Perišic (para. 188) and Delić (para. 62), these criteria are merely indicative, and are only some of a broad range of indicators of effective control, with proof of effective control largely case specific.
With the legislative process concluded, the next chance to fix the definition lies in the hands of the Constitutional Court, which will have to review the legislation in the upcoming weeks.