Geoffrey Robertson: Precedent is critical for law holding leaders responsible

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The Independent Online

The trial of Jean-Pierre Bemba will be critical for the future of the international law doctrine of "command responsibility" – the basis for holding political and military leaders guilty for the atrocities committed by their troops with their acquiescence (often by nods and winks), but without their direct approval.

Troops loyal to Mr Bemba certainly crossed over to the Central African Republic in 2002 and committed mass murder and mass rape. One legal issue for the court will be whether he can be held responsible for their depredations without proof that he specifically ordered them, if there is evidence that he knew about them and took no action.

This principle is obviously right. It was incorporated in Article 28 of the International Criminal Court Statute, where it stands as the main threat of any future nemesis for political and military leaders. For that reason, diplomats have been hostile to it and have tried to tamper with it. In 2002, they endorsed a document called Elements of Crime which requires the prosecution to prove that the defendant has "actively promoted or encouraged" the attacks on civilians by his troops. The extent to which these diplomatic exercises have diluted the command responsibility principle in Section 28 is unclear; Mr Bemba's trial will provide the first guidance.

This prosecution has, of course, provoked the usual cry: "Why must it always be Africa?" Africa itself sought it; Mr Bemba was referred to the ICC by the government of the Central African Republic. Africa also deserves it; when barbarities are committed on this massive scale, why should the place of their commission matter in the least? And it is not always Africa. War Crimes courts have long been running in the Balkans and East Timor, and in Cambodia, Lebanon and Bangladesh.

International justice (often, the only justice possible for victims) is resented and resisted by African leaders. The African Union so fears the ICC that it has stopped it from setting up an office in Ethiopia and makes false claims about the prosecutor discriminating against Africans. Such defensive hostility obviously works to protect the perpetrators of atrocities.

Geoffrey Robertson QC is author of 'Crimes Against Humanity'

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