Most critics of the Hague tribunal in Serbia share the view of command responsibility as a form of strict liability. They argue that command responsibility entails responsibility of a superior for the acts of his subordinates solely because of his position of authority. Such an interpretation of command responsibility, however, is erroneous. Command responsibility is not a form of strict liability.
Strict liability exists in civil law, and represents liability for damage even if the damage is caused by no fault of the liable person. For example, parents are liable for the damage caused by their child under seven years of age, even if they can prove that they looked after the child with scrupulous care, or that the damage would have occurred even if they acted with such care. Even the most careful exercise of parental care does not extricate the parents of their strict liability. Parents are liable because they are parents.
In contrast, in criminal law a person can be responsible only if culpable (acting with guilty intent or recklessness). If the Hague tribunal indeed applied strict liability to criminal law – if superiors were responsible for the acts of their subordinates solely by virtue of being superiors – such practice would represent a serious weakening of the standards achieved in national jurisdictions in the territory of the former Yugoslavia. In these jurisdictions, there is limited room for strict liability in civil law (as in the example of parents’ liability for damage caused by their child), but there is no room for strict liability in criminal law.
However, command responsibility is not a form of strict liability. If it were, the prosecutor would not have to prove the defendant’s guilt in order to get his conviction, nor would it be possible for the defendant to avoid conviction by showing that there was no culpability on his part in the commission of the crime. The prosecutor would have to prove only that the defendant was a superior to the direct perpetrators of the crime.
As command responsibility is not a form of strict liability, a prosecutor does have to prove the defendant’s guilt. The prosecutor has to prove that the superior knew or had reason to know that a crime was about to be committed but failed to take necessary and reasonable measures to prevent the crime; or, that the superior knew or had reason to know that the crime had been committed, but failed to take necessary and reasonable measures to punish the perpetrators.
This reasoning has been expressed in a number of the tribunal’s judgments, including the judgment in the Kordic and Cerkez case (2001): “It should be emphasized that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or had reason to know’ of the offences and failed to act to prevent or punish their occurrence. Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability.” (paragraph 369).
Nor is the first element of command responsibility – effective control that the superior exercises over the subordinates – “objective” in the sense some critics of the Tribunal describe it. The critics claim that the Hague considers responsible each person who nominally holds the position of a superior. By virtue of holding the position, that person, according to the critics, is considered guilty for crimes committed in his area of responsibility. The argument is without merit. If a person holds only a formal position of authority, but has no actual control over the “subordinates,” he is not responsible for the crimes they commit. Thus, in a Hague trial for the crimes committed against Serbs and Croats in the Celebici camp (near Konjic, Bosnia and Herzegovina), the court found command responsibility was not attributable to the camp’s deputy commander, Hazim Delic, because Delic, in spite of his formal position, had no “command authority in the sense that he could … punish and prevent the criminal acts of subordinates.”
A clear indication that command responsibility is not a form of strict liability is the fact that it is the prosecutor – and not the accused – who has the burden of proof. The prosecutor has to prove that the accused had effective control, that he knew or had reason to know about the crimes, and that he took no measures to prevent the crimes or punish the perpetrators. There is no assumption of effective control, knowledge, or failure to act, which would be the case if command responsibility were a form of strict liability.
Among lawyers who examine the issue of command responsibility using arguments of the profession, there is no disagreement that it is not a form of strict liability. By way of illustration: at a seminar organized in March 2004 for the prosecutors and judges of the special war crimes chamber in Belgrade, organized by the OSCE mission in Serbia, one of the trainers – the author of a book on command responsibility, and head of the Democratic Party of Serbia’s parliamentary group in the Serbian parliament – was explicit in the conclusion that command responsibility is not a form of strict liability. Unfortunately, such views are not often conveyed to the general public, probably because of an assessment that it is politically expedient to maintain a negative attitude of the public toward the Hague.