It was systematic rape to assert dominance and shatter resistance. That is how Luis Moreno-Ocampo described the campaign of terror allegedly committed seven years ago by a Congolese militia group against civilians from the Central African Republic (CAR).
The prosecutor of the International Criminal Court (ICC) said soldiers from the Movement for the Liberation of Congo (MLC) under the command of Jean-Pierre Bemba invaded houses in groups of three and four. He said they stole all they could carry and raped the occupants - women, children and men alike. The crimes were “unspeakable”, Moreno-Ocampo said, as he began the prosecution case against Bemba last month at the ICC.
But none of the soldiers who committed the alleged crimes were in the dock in The Hague on 22 November. Nor was anyone charged with ordering them to rape, pillage and kill.
Instead, the Democratic Republic of Congo's Bemba stands accused of failing to control his troops who were fighting in CAR from 26 October 2002 to 15 March 2003. It is the ICC's first-ever case dealing with the doctrine of command responsibility, the idea that leaders both military and civilian are responsible for the acts of their subordinates.
“This is actually criminal liability by omission. If you unleash the dogs of war you have to put in place various control mechanisms to prevent the dogs of war getting out of control,” said lawyer Steven Kay who helped defend former Yugoslav president Slobodan Milosevic against similar charges.
The MLC were invited into the CAR by the then-president Ange-Felix Patassé to help put down a coup. The coup leader, former army chief Francois Bozizé, overthrew Patassé and in 2004 called in the ICC to investigate.
Prosecutors allege that Bemba is responsible for two crimes against humanity and three war crimes allegedly carried out by the MLC, the militia group which he created and ran.
The concept of commanders being held responsible for crimes committed by others is nothing new in international law.
Sun Tzu's the Art of War from the sixth century said that commanders should ensure their soldiers behave in a civilized manner. At the Nuremberg and Tokyo tribunals following World War II, German and Japanese officials were also charged under the doctrine. One of the best known cases was the trial of Tomoyuki Yamashita, a Japanese general convicted of commanding troops responsible for atrocities in the Philippines.
After a long hiatus, the UN tribunals tasked with prosecuting those responsible for war crimes in the former Yugoslavia and Rwanda continued the tradition, charging numerous leaders - military and civilian - with failing to control those under their command.
Lawyer Guénaël Mettraux has successfully defended commanders including Sefer Halilovic and Ljube Boskoski whose subordinates were alleged by the International Criminal Tribunal for the former Yugoslavia (ICTY) to have committed war crimes.
Mettraux says command responsibility cases can be difficult to prove.
“They are quite tricky to establish, because basically what you have to show is there was a chain of command linking the people who committed the crimes and the accused, and through that chain of command he could have controlled them,” said Mettraux.
Specifically, prosecutors must first establish that crimes actually occurred. Then they must prove that those committing them were subordinates and that the commander knew and constantly failed to act or punish those responsible.
“What you see in many cases is that there are ambiguities in the chain of command,” said Mettraux. “If you take the beginning of the [Bosnian] war, you did not have an army that was there to be taken over in Bosnia. You had to create it through slow centralization of bodies into one. There were periods of time where there were questions about what chain of command was functioning and under whose authority.”
Halilovic was acquitted of the charges that his soldiers from the Army of Bosnia and Herzegovina committed murder in Bosnia in 1993. Boskoski, the former minister of interior of Macedonia, was found not guilty of commanding police officers who committed war crimes against ethnic Albanians in Macedonia in 2001.
Bemba, a vice-president in the DRC transitional government which followed the 1998-2003 war, has pleaded not guilty. He was arrested in Belgium after fleeing the DRC in 2006 following his unsuccessful presidential campaign and subsequent battles between his bodyguards and soldiers loyal to President Joseph Kabila.
It's just like if I am driving a car, and I get it serviced every three months, and someone tampers with it and the brakes fail, I'm not responsible if someone got killed as a result, because I can demonstrate that I exercised due diligence. Bemba will have to do thatHis lawyers are expected to argue that the MLC soldiers were under Patassé's command in CAR and obeyed his orders, not those of Bemba, who remained largely in the DRC during the campaign. They will also say his troops were trained on human rights law, were aware of the MLC's code of conduct and were disciplined if they committed crimes.
Legal experts say that showing reasonable measures have been taken to prevent crimes is one common defence in such cases.
“Bemba can say he disciplined soldiers, that he told them not to do it,” said William Schabas, director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the chair in human rights law.
“It's just like if I am driving a car, and I get it serviced every three months, and someone tampers with it and the brakes fail, I'm not responsible if someone got killed as a result, because I can demonstrate that I exercised due diligence. Bemba will have to do that.”
Schabas says that those convicted on the basis of command responsibility typically get lighter sentences than those giving the orders to commit crimes. “If you can't prove the person gave the order and only that they were negligent, it's not as serious,” he said.
Nonetheless, the founding prosecutor of the UN-backed Special Court for Sierra Leone, David Crane, believes the command responsibility doctrine is vital when seeking justice for war crimes, particularly as prosecuting individual culprits is difficult.
Crane indicted and prosecuted commanders from the three warring factions in Sierra Leone's civil war, as well as Charles Taylor, the former president of Liberia. Many were in leadership positions but not physically present when atrocities occurred.
“Most of these cases take place years after the crimes,” said Crane. “That's a real challenge. You'd never find these individuals. They are dead. There are very few records. It's almost impossible. We could not conduct a lot of international criminal law without command responsibility.”
Moreno-Ocampo said in his opening statement that the case against Bemba would influence the behaviour of military commanders on the ground and warned that the ICC would continue to hold them responsible for crimes committed by their soldiers.
But legal observers are concerned that the prosecutor's message does not to apply to everyone.
They point out the court's legal tentacles have so far reached no further than African countries of little political importance, despite numerous allegations of unlawful activity by leaders from powerful Western nations.
“The ICC is going after soft targets,” said Schabas. “It is operating in the comfort zone of the foreign policies of the US, Britain and the big European states. It has so far stayed away from getting into waters where it might feel uncomfortable like Gaza, like Iraq, Afghanistan.
Most recently, the ICC warned North Korea that it was conducting a preliminary examination of the recent attacks on Yeonpyeong Island in South Korea and the sinking earlier this year of a South Korean warship.
“In Africa they are looking around and saying is this court just about the good guys in the north preaching to us about how to behave?” said Schabas. “Are you all so innocent? Why doesn't this court deal with the stuff that you are doing? Americans are allowing torture authorized by their own leaders to go unpunished.”
Crane, also a professor at the Syracuse University College of Law, says the legal case against the American leadership as the result of the invasion of Iraq is solid but agrees that politics will prevent any prosecutions.
“I don't see anything happening,” he said. “President Obama has said we need to let the past be the past and move forward. I remember Charles Taylor making the same comment after I indicted him - that we need to stop resurrecting the past and move forward.”
He believes this is cause for concern. “Are we deciding to develop a double standard?” said Crane. “As soon as the law is unfairly applied, and perceived to be unfairly applied, then the law itself is in jeopardy.”