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.”
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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
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.
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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.