Yugoslavia, Socialist Federal Republic of
Practice Relating to Rule 155. Defence of Superior Orders
Under the Socialist Federal Republic of Yugoslavia’s Military Manual (1988), a member of the armed forces is responsible if he commits a violation of the laws of war in execution of a superior order if he knew that such order involved the commission of a criminal act.
Under the provision of the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, entitled “Responsibility for criminal acts committed under superior orders”, the commission of a war crime is treated as an exception to the general rule that a subordinate will not be punished for a criminal act committed under superior order in execution of official duties, if he/she knew that such an act was a crime.
In 1950, during a debate in the Sixth Committee of the UN General Assembly, the delegation of the Socialist Federal Republic of Yugoslavia commented on Principle IV of the 1950 Nuremberg Principles to the effect that:
It felt that the [International Law Commission] had departed here from the charter and judgement of Nürnberg. According to those instruments, the fact that a person who committed a criminal act had acted pursuant to an order of his government or of a superior, did not relieve him from responsibility but in exceptional cases might be considered in mitigation of punishment. If this position was supplemented by the criterion of “possible moral choice”, the number of cases in which the court could acquit the guilty would be increased. Moreover, the courts might consider that the very fact that a person was in a subordinate position limited the moral choice possible to him. It was to be feared that the modification of the principle would give rise to ambiguity, and prejudice in application. Apart from that, the Yugoslav delegation fully understood the feelings of the members of the [International Law Commission] which made them want to avoid having the penalty automatically applied to subordinates and to place the responsibility upon superiors. Even though the question was left to discretion of the court, it could give rise to abuse.