Yugoslavia, Federal Republic of
Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
In the Trajković case
before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, a Kosovo Serb and former chief of police was convicted, inter alia
, for having participated in crimes committed against the civilian population in 1999, acts which the District Court found had to be qualified as war crimes under Article 142 of the Penal Code of the Federal Republic of Yugoslavia, as well as crimes against humanity. The Court also found that the acts had been committed “in time of war”.
However, on appeal, the Supreme Court of Kosovo overruled this judgment and ordered that the case be returned to the same court for retrial. The Supreme Court found, inter alia, that:
The state of facts was erroneously established in relation to all charges as there is no direct or conclusive evidence that the accused acted personally or gave orders leading to the alleged crimes … During the retrial, the court of first instance should therefore assess … the issue of the accused’s personal responsibility for participation in the crimes alleged.
In a written opinion in the Trajković case before the District Court of Gnjilan in Kosovo (Federal Republic of Yugoslavia) in 2001, the International Prosecutor for the Office of the Public Prosecutor of Kosovo stated:
This Opinion has concluded that [the accused] was not properly found guilty of any of the crimes under individual liability (the direct giving of orders to commit the crimes …) … Individual responsibility subsumes command responsibility. Because of this “subsuming rule”, we must first evaluate whether individual responsibility might attach, as a finding that a defendant is individually responsible for a war crime or crime against humanity will preclude the need to analyse his culpability under command responsibility. The rule is stated in the statute and decisions of the ICTY.