Bemba case critical test for ICC

The International Criminal Court in The Hague has plenty of critics, both among those states who have yet to commit themselves to its jurisdiction fearing a loss of legal sovereignty, and those who say that the court’s work is disproportionately focused on Africa.

One can see the merit in both points of view, though the one rather answers the other.

Why, if you’re a big and powerful country, willingly submit yourself to a higher authority when you’re complicit in, or condone, the crimes in question?

Why have the ICC’s only three cases to date, along with most of its ongoing investigations, dealt with war crimes in Africa?

The Jean-Pierre Bemba case, if successful, offers at least the prospect of impact beyond the African continent.

The prosecution seeks to define legally the responsibility a military commander has for the actions of his troops, whether he has ordered those actions or not.

It seeks to place the onus on him to reign in his forces, to prevent the commission of war crimes, and to seek out and punish offenders.

More importantly, the prosecution seeks to define acts of mass sexual violence as war crimes for which the commander himself is responsible, whether he knew about them, ordered them, or as Luis Moreno Ocampo, chief prosecutor of the ICC, contends in the Bemba case, simply looked the other way, giving his forces tacit approval to do as they liked.

Neither the issue of command responsibility, nor the question of mass rape as a weapon of war, are new to international law. But having them conjoined in this way is new.

The importance of this trial, if indeed it results in a conviction, is that it will send out a global warning to those in positions of military authority and responsibility.

And it will send a powerful message to the all-too-frequent victims of sexual violence, that there is a means of redress.

Well, the latter message will more likely be received by campaign groups than the victims themselves.

Most victims are unlikely to know or understand the legal niceties of a decision reached in The Hague, so far away from the forests and jungles of war.

As for the commanders, well they’ll only care if their home country, or the place in which they commit their troops to plunder, is a signed-up, ratified member of the ICC.

There are only 114 of those to date. So it’s not a perfect system, and it won’t be a perfect precedent, if indeed it comes.

But it will be better than having mass crimes of “domination and humiliation”, as Ocampo described acts of sexual violence, go largely unrecognised and unpunished as they mostly do.
 
And it might help limit the use of an often winning weapon in the arsenal of military command.

Especially in Africa.