If Colombia fails to effectively prosecute military and guerrilla commanders over war crimes or crimes against humanity, the International Criminal Court will take over these cases, the ICC’s chief prosecutor said.
In a column published in weekly Semana, ICC prosecutor Fatou Bensouda said that the revised peace agreement signed by President Juan Manuel Santos and FARC leader Rodrigo Londoño, a.k.a. “Timochenko” on November 24 “all direct references to … article 28 of the [Rome] statue have been eliminated.”
Article 28 of the Rome Statute obligates all member states of the ICC to adequately prosecute military and guerrilla commanders responsible for war crimes committed under their watch.
Article 28 – Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
The references were in the initial peace agreement, but presumably scrapped in an attempt to appease the opposition by the military and former President Alvaro Uribe, under whose watch thousands of innocent civilians were executed.
Uribe led the campaign that successfully sought to sink the initial peace deal after years of fierce and consistent opposition to the preceding talks.
According to Bensouda, the revised transitional justice system that is currently being debated in Congress “contains language that could be ‘interpreted’ as a limitation to the definition of responsibility of superiors as described in the Rome Statute.”
The chief ICC prosecutor reminded Colombia that the Rome Statute applies when a military or guerrilla commander effectively has control over subordinates guilty of war crimes.
The peace deal leaves a suspected commanding war criminal the possibility to reject responsibility if he or she was not actively engaged in war crimes committed by his subordinates.
Bensouda additionally reminded Colombia’s lawmakers that the court has already tried the former vice-president of The Congo, Jean-Pierre Bemba, for war cries and crimes against humanity committed by his subordinates.
Bemba is currently serving a 18-year prison sentence in a prison in The Netherlands where the court is located.
“It must be understood that the obligation to adopt all necessary and reasonable measures to prevent and punish a crime is not limited solely to the direct commanders. When a high-level commander does not adopt this type of measures based on the information he has to his disposition, his criminal responsibility is also activated.