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.

What are the Mistakes of These Two People?

Ratko Mladic, as a leader of military operations, knew that his troops were carrying out shooting operations and spreading terror and murder on civilians with the intention of exterminating the Bosnian Muslim population in Srebrenica and Sarajevo. Mladic is also known as the “Butcher of Bosnia” for the war crimes he committed and hid after the end of the 1995 war and did not take responsibility for his actions.

The UN War Crimes Tribunal for Yugoslavia ruled that the former Bosnian Serb military leader had committed genocide, war crimes and crimes against humanity and was sentenced to life imprisonment. Meanwhile, in the case of Radovan Karadzic, he was a superior, namely the political leader of the government Serbia in Bosnia whose power included commanding the military forces of the Serbian government in Bosnia and had the power to appoint, promote and dismiss military officials who had committed war crimes and he was found guilty of the war crimes he committed in March 2016 and sentenced to 40 years in prison.

In conclusion, based on the power and authority that they both had, they knew of crimes committed by their subordinates who were involved or would be involved in crimes. However, they did not use their authority and power at all to prevent, prosecute or punish the perpetrators for these criminal acts.

What are the Main Elements in the case of Radovan Karadzic and Ratko Mladic?

  1. There is a subordinate relationship between the commander and the perpetrator of the crime according to the hierarchy of the chain of command. In the case of Radovan Karadzic and Ratko Mladic, when violations occurred that caused suffering to thousands of people in Bosnia Serbia, their status was leaders. So, subordinates who commit crimes under his leadership, then the leader is responsible in the principle of command responsibility.
  2. It needs to be proven that the commander knew or should have known that the troops.This is often called the mens rea of command responsibility. In this case, the superior knew or had reason to know that a crime had occurred or was being committed under his command was being or would be or had even committed a violation Law International (Shandy Victor Hezkia Mewoh, 2019).
  3. The commander has failed to prevent and punish the perpetrators of the violation. Radovan Karadzic and Ratko Mladic as leaders who have legal obligations or legal obligations have failed or neglected to use them to stop, prevent, prosecute and control, including not punishing the actions of their subordinates. So, they have failed to exercise effective control and are responsible based on the principle of command responsibility.

 References

  • Mewoh, Shandy Victor Hezkia. 2019. Responsibility of Commanders for Mistakes Made by Subordinates According to International Humanitarian Law. Jurnal Lex Et Societatis Vol. VII/No.7
  • Sujatmiko, Andrey. 2015. Human Rights and Humanitarian Law. Jakarta: Raja Grafindo
  • BBC News. 2020. Ratko Mladic, commander of the 'Butcher of Bosnia' who killed 8,000 Muslims in Srebenica, requests to be released from punishment. https://www.bbc.com/indonesia/dunia-53909781 (accessed 07/02/2023)

*This article represents the personal opinion of the author and does not represent the views of the editors Legal Literacy Indonesia.