Police and political leaders will be liable for actions of militia groups (Daily Monitor (Uganda))

August 30, 2015

I have been following the recent media reports about various political parties allegedly recruiting and training “youth groups” ahead of the 2016 general election. In one case, the youth have been called “crime preventers” with at least two prominent police officials justifying publicly their recruitment. In what seems to be a retaliatory move, some political parties have resorted to recruiting and training their own youth groups, justifying this as preparation for self defence against the anticipated actions of the crime preventers.
Whereas a debate about the legality or illegality of these groups is important, it is not as critical as the broader question of their chain of command. The national criminal laws of most countries are yet to develop a broad concept of command or superior responsibility. However, international criminal law abounds with legal authorities for the various ways in which superiors might be held liable for failing to prevent atrocities such as genocide, war crimes and crimes against humanity. One such legal regime to which Uganda is a participant is embodied in the Statute of the International Criminal Court (The ICC Statute). The Statute outlines three ways in which superiors may be held so liable: where they knew or consciously disregarded information which clearly indicated that their subordinates were committing or were about to commit atrocities, where the activities leading to the commission of the said atrocities were within their effective responsibility and control, and where they failed to take all necessary and reasonable measures within their power to prevent or repress the atrocities or to report the case for investigation and prosecution.
The key issue to note is that for this type of liability, establishing a superior’s effective control over his or her subordinates and their actions, is critical. Where the relationship between superior and subordinate is a question of law, this presents no real challenge as it would be a simple matter of referring to a clearly established chain of command within written law or other official document. The more challenging scenario would be one where such a relationship can only be established as a question of fact or de facto.
While the Rome Statute does not lay out a prescribed list of how this is to be achieved, various decisions made by the international criminal tribunals of Rwanda and Yugoslavia have relied on certain facts to reach a finding of a de facto superior-subordinate relationship. Some examples included the power of the accused to issue orders to the group and for that group to follow those orders, the accused superior having control over the finances or salaries of the group, the ability of the group or the superior’s group to participate in each others’ combat operations, mutual assistance between the superior’s own group and the implicated group, such as the taking of reinforcements of personnel from either group, whether the group reports to the accused superior, the accused superior’s ability to appoint, promote, or dismiss members of the group, the superior’s power to discipline members of the group and the power to disband the group. Each of these factual examples can apply to any of the “youth groups” and their benefactors, without necessary recourse to formal or legal frameworks justifying their recruitment.
Regardless of which side is recruiting youth and for what purpose, should there be violent actions, the question of who to hold responsible will not be limited to the youth alone. It is therefore advisable that legitimate or not, as the recruiting and training goes on, training material for each group should include the International Criminal Court Act of Uganda, the four Geneva Conventions and their Additional Protocols, and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. At the very least, everyone should know what they are getting themselves into.
Namwase Sylvie


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