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Command Responsibility

The Serbian law on command responsibility is somewhat controversial. Serbian criminal law until recently did not contain a provision explicitly allowing prosecution on the basis of command responsibility.⁹² For this reason some commentators claim it is not possible under Serbian Law to prosecute leaders for failing to prevent or punish crimes.⁹³

The recently revised criminal code does contain a provision criminalizing a commander’s or superior’s failure to prevent commission of war crimes. The law also prescribes a lesser punishment for failure to prevent war crimes on the basis of negligence, which is intended to be akin to situations where the commander “should have known” that the crime was going to be committed.⁹⁴ Failure to punish may be charged as “failure to perform an official duty” or failure to report a crime.⁹⁵

The war crimes prosecutor believes there is no legal impediment to prosecution on the basis of command responsibility.⁹⁶ Indeed, although no one has been officially charged with omission as a form of liability under Serbian law, the Zvornik indictment contains multiple references to defendants Branko Grujic and Branko Popovic’s leadership role in Zvornik. The indictment alleges that they knew of numerous illegal actions by other defendants, including torture, mutilation and killing, and failed to prevent them—classic allegations of command responsibility.⁹⁷ The prosecutor’s office also uses aiding and abetting where there is not direct responsibility.

Although there may be no legal impediment to charging on the basis of command responsibility, a question remains as to whether the prosecutor is interested in aggressively pursuing senior officials for war crimes. Civil society members regularly criticize the prosecutor for what they see as a lack of political will to go up the chain of command.⁹⁸ The Humanitarian Law Center in particular believes that the prosecutor has a tendency to minimize the scale of war crimes and the level of government involvement.⁹⁹ This was apparent in the Scorpion decision, which was criticized for not linking the murders to the state institutions involved in the planning.¹⁰⁰ As noted above, the War Crimes Detection Unit may also be unwilling or unable to investigate high level Ministry of Interior officials. After the recent International Court of Justice decision finding Serbia in violation of the Genocide Convention for failing to prevent the genocide at Srebrenica or to punish those responsible, but (as noted above) which had held that Serbian organs did not directly take part in the genocide, there is a perceived lack of interest at the chamber in pinning responsibility on Serbian institutions.¹⁰¹ Another problem that may limit the scope of some investigations is the reluctance of Serb witnesses to testify for fear of retaliation. In Kosovo cases, witnesses often either claim to remember nothing, or identify dead people or the ICTY indictees as responsible, rather than testify against Serb police.¹⁰² The two former members of the Police Special Purpose Units accused in the Bitici case in Kosovo so far are therefore very low-level.