Monday, October 10, 2011

Commander and Chief: Cultural Constraints Related to Command Responsibility

The trial of Jean Pierre Bemba, at the International Criminal Court raises important issues related to the theory of command responsibility. This is the first case at the International Criminal Court which focuses on the doctrine to establish the criminal responsibility of an accused in a case before the Court. On face value, the facts of the Prosecutions case reveal that Mr. Bemba being the President of the Movement for the Liberation of Congo (MLC) and commander in chief of its military wing, the Arme´e de Liberation du Congo (ALC)., had a particular relationship to the troops directly involved in the commission of the crimes in the Central African Republic (CAR) during 2002 and 2003. In short, through a chain of command he was directly responsible for the crimes committed by his troops in the region. The basis of this type of responsibility is codified under Article 28 of the Rome Statute, which holds that military commanders can be held individually accountable for the crimes of their troops if they fail to exercise effective control over those under their command, regardless of whether or not they are connected to the crime in question. Article 28 goes even further to distinguish between military and non-military commanders complicating the rule even further.

In the ICC’s first pronouncements on article 28, relating to the case, the Court’s Pre-Trial Chamber II confirmed Bemba’s de jure military commander status subject to article 28(a) for a number of the crimes charged. While the element of effective control is the leading criterion to establish command responsibility in many of the ad hoc tribunals, the hierarchical superior-subordinate relationship has many a time been downplayed. As Nora Karsten notes in her article entitled Distinguishing Military and Non-military Superiors, to have effective control presupposes a superior position within a hierarchical entity. In other words there has to be cohesion and stability in a military unit if responsibility of that unit falls onto the person supposedly leading that unit. “Superior Responsibility cannot attach to leaders of loosely joined or spontaneously assembled groups.” Even if command responsibility were to attach to a civilian superior, the degree of control exercised over their subordinates should be similar to the degree of control as exercised by military commanders. (Delalic case ICTY) So in other words the Bemba case hinges upon establishing the superior-subordinate relationship and naturally the effective control he maintained over his troops.

Many of the ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have applied the concept as narrowly to include a more traditional-military like context where it would be easier to demonstrate the superior-subordinate relationship thereby also establishing the effective control element, due to their correlation. In the Bagilishema case at the ICTR, the threshold requirement for effective control was the same for military and civilian commanders, but the way in which it is established varies in each instance. Furthermore, it is interesting that in a number of judgments at the ICTY, no weight was given to the fact that civilian superiors had different sanctioning powers when compared to military superiors.  

In other words, the difference between military commanders and their civilian counterparts essentially mean that a military type of relationship between commanders and their subordinates must essentially be military in nature; in other words, orders must be given through a structured chain of command. Danny Hoffmann, in his article entitled ‘The Meaning of Militia: Understanding the Civil Defence Forces of Sierra Leone,’ provides an illuminating take on the issue of command responsibility in the context of the Sierra Leone Civil Defence Forces(CDF) militia. Hoffman, an anthropologist and Professor at Washington University wrote an expert witness report on behalf of the Defence in the Fofana case, arguing that the CDF was the result of the ‘militarization of a social network rather than a military organization.’ The main issues contested in Hoffmann’s report was that each conflict is specific in the context within which it occurs, that is, within its own culture, history, social structures and local dynamics.

The CDF as a an umbrella organisation did not meet the strict definition of a militia, to meet the standards of what a militia should meet, namely wearing uniforms, carrying weapons, being subject to discipline. In fact, combatants in the CDF identified themselves both as members of the CDF and as members of more localised units (kamajors, gbethis, donsos etc). Kamajors for instance, were traditional hunters from the Mende ethnic group, who protected the communities they resided in whenever conflict threatened, by carrying weapons, secret medicines (hale) and exercising violence when necessary. In other words they were temporarily militarized social institutions.

This meant that there was no centralized, military command structure as averred in the Prosecution’s case. Secondly, the CDF’s organisational logic was based on relations of patronage. The social being of an individual was measured by the people with whom one had relations of dependence on. This meant that a number of individuals could claim the title of commander whilst not having exact duties or fixed subordinates under their control, correspond to the ‘true’ rank or title of commander as understood by western societies.

Also, the CDF’s hierarchical system functioned according to local understandings of patronage and responsibility. A patron/commander in other words would supply food, shelter, ammunition and mediation to his dependants and in return such dependants would be obliged to provide to their patrons needs as deemed necessary, through provision of money and security. Titles were used loosely and claimed liberally. This also meant that the person of immediate importance to these combatants were their patrons rather than person of superior rank. This became evident through the fact that combatants regularly switched sides voluntarily from the RUF to the CDF.

In short, the Fofana Case demonstrates the constraints involved in using the doctrine of command responsibility, as applied to militias which do not operate within the same cultural, historical and social contexts. If intermediary officers play a different role than their counterparts in the North do, and if patronage has the consequence of misrecognizing those who are in a position of authority or through a recognizable chain of command, then using the doctrine will yield unfair results at the international level.

In the Bemba PTC decision the Chamber relied on the position of Bemba as ‘Commander-in-Chief’ of the ALC and did not rely on military rank as such. It said it took into account the character of the ALC and the MLC when it made its assessment; Bemba’s status as military commander was qualified by the MLC and ALC, as military entities. It went on to hold that the ALC was ‘structured like a conventional army’. In my opinion its decision is vague. Already the word ‘like’ reflects that the MLC could not have been conventional in any sense of the word. It was also not made clear whether the Chamber relied on Bemba’s authority to issue orders through a structured chain of command, or through effective control over his troops. If, the Bemba case in any way resembles the Fofana case, I believe that the Prosecution will have a lot of difficulty in transposing command responsibility onto Bemba if it can be proven that the MLC was not a traditional or cohesive military unit and did not operate through a structured chain of command. Hoffmann’s article provides us with enough food for thought on that issue.  

Posted by Ingrid Roestenburg-Morgan

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