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 commanders or superiors 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 Popovics 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 themclassic allegations of command responsibility.97 The prosecutors 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.
92 Criminal Code of the Republic of Serbia, Sluzbeni glasnik Republike Srbije, Nos. 85/2005, 88/2005, 107/2005, art. 384.
93 See Implementation of Transitional Laws in Serbia 2006, Youth Initiative for Human Rights, Report No. 19, December 8, 2006, http://www.yi.org.yu/english/Publications/Documents/prelom%20knjige%20eng.pdf (accessed June 19, 2007), p. 128, citing Dragoljub Todorovic, Abolition for Commanders, DANAS, March 13, 2006.
94 Criminal Code of the Republic of Serbia, art. 384.
95 International observers feel Serbias law on command responsibility is not an obstacle to ICTY transfers. The possibility of acquittal on the basis of differences in the law on command responsibility was raised in the Kovacevic transfer decision but not resolved because he was only charged with command responsibility in the alternative. Prosecutor v. Kovacevic, Decision on Referral of Case Pursuant to Rule 11bis, November 17, 2006, http://www.un.org/icty/kovacevic-v/trialc/decision-e/061117e.pdf (accessed June 18, 2007), paras. 43-46.
96 Human Rights Watch interview with War Crimes Prosecutors Office staff, Belgrade, March 30, 2007. See also Sinisa Vasic Towards Clear Answers and Determined Stands, Justice in Transition, December 2006 (indicating that international law, including the Geneva Conventions and the ICTY Statute, takes precedence over domestic legislation).
97 Republic of Serbia, War Crimes Prosecutors Office, Case No. KTRZ-no.17/04, August 12, 2005 (Belgrade) (unofficial translation).
98 See, for example, International Center for Transitional Justice, Serbia and Montenegro: Selected Developments in Transitional Justice, October 2004, http://www.ictj.org/images/content/1/1/117.pdf (accessed June 19, 2007), p. 5; Humanitarian Law Center, Transitional Justice Report: Serbia, Montenegro and Kosovo 1999-2005, pp. 26, 32.
99 HLC on War Crimes Trials in Serbia, Humanitarian Law Center press release, July 26, 2006, http://www.hlc-rdc.org/english/War_Crimes_Trials_Before_National_Courts/Serbia/index.php?file=1462.html (accessed June 19, 2007).
100 See Tracy Wilkinson, Serbs sentenced in 1995 murders Los Angeles Times, April 11, 2007 (quoting Sonja Biserko, head of the Helsinki Committee for Human Rights in Serbia, as saying the trial showed yes, there were crimes, but by individuals and not institutions.); Nicholas Wood, 4 Serbs Guilty in Execution of 6 Bosnians, New York Times, April 11, 2007.
101 Human Rights Watch interview with U.S. government official, Belgrade, March 30, 2007.
102 Human Rights Watch interview with Ivan Jovanovic, March 30, 2007.