Yugoslavia, Federal Republic of
Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
In the Trajković case
in 2001, a Kosovo Serb and former chief of police was convicted, inter alia
, of war crimes “against the civilian population and within a concerted plan aiming at systematic atrocities of which he had a complete knowledge”. The Court based its judgment on Article 142 of the Penal Code of the Socialist Federal Republic of Yugoslavia and noted that the acts had been committed “in time of war”.
However, on appeal of the accused, 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 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 or that he should be held liable under command responsibility duties concerning the above-mentioned 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 concerning this case, the International Prosecutor for the Office of the Public Prosecutor of Kosovo stated:
Trajković’s war crimes conviction [at the District Court of Gnjilan] based upon murder was apparently through his command responsibility, since there was no credible evidence based on any factual basis that he gave direct orders to do, or personally participated in, these acts … Trajković could be found guilty of war crimes under international law through his command responsibility. [Furthermore,] Trajković could have been found guilty through the doctrine of command influence of violating international law for the “grave” injuries to … non-combatants … [Furthermore,] the trial court found Trajković guilty of a war crime for arson [as a direct result of the police and military attack on the village] committed against the home … and bus of … but again it must be implied that the liability was from command responsibility …
The issue of command responsibility must be dealt with alongside that of individual/personal responsibility (“The Subsuming Rule”) … This Opinion assumes the court below relied on the command responsibility coming directly from being at the top of a hierarchy of police officers, even if the giving of orders to murder and shoot did not occur. This Opinion then concludes that as to his being responsible under the type of command responsibility – based on evidence of control over subordinates, knowledge of their crimes, and ability and failure to prevent or punish them – Momcilo Trajković may be liable under such command responsibility. His official position of authority over subordinate … policemen, buttressed by evidence of his actual authority over them and in the community in general; his possible knowledge of subordinates’ crimes; and his obvious failure to prevent and punish them bolster a finding of command responsibility for the acts of policemen under him.
The International Prosecutor for the Office of the Public Prosecutor of Kosovo further pointed out the relation between individual responsibility and command responsibility and set forth, in a detailed way, the “requirements for findings of some individual responsibility in the context of determining command responsibility”.