Legal Literacy - This article discusses command responsibility in humanitarian law in the Karadzic & Mladic case.

Written by:Defian Putri Tiara(Student of Law, Universitas Terbuka)

In International Criminal Law, command or superior responsibility is a progressively developing concept. This is evidenced by the increasing number of countries adopting this principle for application in national laws and regulations. According to Andrey Sujatmiko (2015), Command responsibility is classified as a doctrine with the definition of the responsibility of a military commander for war crimes committed by his subordinates or others under his control. From this understanding, it can be concluded that the commander responsible is the one who has control to regulate or mobilize.

The most phenomenal example of a command responsibility case is the Radovan Karadzic and Ratko Mladic case that occurred in Bosnia Serbia, which is a case of gross human rights violations whose development is inseparable from International Humanitarian Law.

Why are they both held Command Responsible?

Both perpetrators of these gross human rights crimes must be held accountable based on the rules of Command Responsibility. From the case described above, both perpetrators have been proven guilty of criminal acts, which include violations of human rights which, at the time of committing the crime, were still military commanders who failed to give commands and orders to their subordinates not to commit crimes under their period of power. Command responsibility is because, firstly, at the time the crime occurred, they held command power and controlled a troop. Secondly, even though they held command power and had control over troops, the authority of command and control of troops was not used to prevent criminal acts.

Based on Protocol I of 1977 Article 87, it states that in Command responsibility:

  1. The commander is responsible for preventing and prosecuting perpetrators of violations, taking action against perpetrators of violations, and reporting any violations under his control.
  2. If the commander is negligent in the actions of his subordinates, then the commander is responsible.

This is also as stated by Huge De Grotius (1625) that the state, through its authorized officials or commanders, is responsible for crimes committed by people under its power and effective control. So, if it is concluded based on the criteria for the occurrence of command responsibility, then Radovan Karadzic and Ratko Mladic must be held accountable for their criminal acts based on command responsibility.