Milosevic's Guilt: Proven or Not? The Law Part II -- A Superior's Responsibility for Crimes of Subordinates

In the three indictments brought against him for war crimes, crimes against humanity and genocide, Milosevic is charged with responsibility as a superior for the crimes of his subordinates. Commonly referred to as 'command responsibility,' this theory of criminal liability is often misunderstood. It does NOT mean that one in a position of authority over another is automatically responsible for the other's criminal acts and will be punished for them. In legal parlance, that would be called 'strict (or absolute) liability.' It is a creature of the civil, not the criminal law.

For a superior to bear criminal responsibility for the acts of a subordinate, the superior must know the subordinate is about to commit a crime or know that the subordinate has committed a crime. Knowledge alone is not enough to make the superior liable for the criminal acts of another person, however. With superior authority over another comes ability (and, therefore, responsibility) to control the acts of the other. If the superior knows the subordinate is about to commit a crime and does nothing to prevent him, the superior can then be held responsible for his failure to act, which includes responsibility for the crime that he could have prevented but didn't. Likewise, if a superior finds out after the fact that a subordinate committed a crime, the superior has a duty to punish the subordinate for that crime. If the superior fails in that duty, he or she bears criminal responsibility for the crime.

In all three indictments (Kosovo, Croatia and Bosnia-Herzegovina), Milosevic is charged with the crimes of his subordinates that he knew about but failed to take action to prevent or punish. The provision of the ICTY statute he is alleged to have violated in this manner is Article 7(3):

'The fact that any of the acts referred to in articles 2 to 5 [war crimes, crimes of war, genocide] of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'

The Court must first determine whether Milosevic had 'effective control' over those who committed the criminal acts alleged. The nature of the superior-subordinate relationship differs in the Kosovo indictment from that alleged in the Croatia and Bosnia indictments. In the case of Kosovo, Milosevic, then President of the Federal Republic of Yugoslavia, is alleged to have had de jure (legal) power over the Yugoslav Army (VJ) and Serbian police units that were subordinated to the VJ during and leading up to the Kosovo war.
The Prosecution also says that Milosevic had de facto (actual) control over other forces that allegedly committed crimes in Kosovo, such as the Serbian Ministry of the Interior.

In the case of Croatia, the indictment alleges that he de facto controlled the Yugoslav People's Army (JNA) and the Territorial Defense (TO) by gaining and exercising control over the Federal Presidency by at least March 1991. He is also accused of exercising effective control over the leaders of the JNA's counterintelligence unit, KOS or KOG. In addition, as President of Serbia at the time, he is charged with control over key officials in the Serbian Ministry of the Interior (MUP) and its State Security Service (DB). The JNA and Serbian MUP, including the paramilitaries like the Red Berets that its DB allegedly controlled, are identified in the indictment as perpetrating war crimes and crimes against humanity in pursuit of the overall criminal purpose of forcibly expelling non-Serbs from one-third of Croatia in order to make it ethnically pure.

With regard to Bosnia, in addition to the alleged control over the JNA through control of the rump Federal Presidency while the Socialist Federal Republic of Yugoslavia existed, after it disintegrated Milosevic is alleged to have exercised substantial influence and control over members of the Supreme Defence Council, consisting of the presidents of the Federal Republic of Yugoslavia (FRY) and its constituent republics of Serbia and Montenegro. In addition, Milosevic is said to have had de facto (actual) control over the JNA and VJ (Yugoslav Army) through his de facto control over high ranking officers of those armies. Finally, he is accused of having de jure control over the Serbian MUP, including its State Security Service (DB) which, in turn, controlled special forces and paramilitaries who allegedly committed crimes in Bosnia.

Proof that Milosevic had de jure authority creates a presumption that he had effective control. Once de jure authority is established, the Accused must present evidence that contradicts it.

To establish de facto control, the Prosecution must show the Accused directed events and people even when he didn’t have legal authority over them. For example, if the rump SFRY Presidency carried out his wishes, it is irrelevant that he was merely president of a republic without authority over the Federal Presidency.

To hold someone criminally liable under the theory of superior responsibility, the Prosecution must prove that person knew about the subordinate’s crime or intent to commit a crime. The superior need not have actual knowledge of the event. If circumstances are such that a reasonable person would inquire, then the superior cannot defend himself by saying he didn’t know. He is obliged to investigate. In other words, if the Accused was told his Ministry of the Interior established special forces that were involved in atrocities, he was duty bound to investigate. If he failed to do so and it turns out to be true, he can be held liable for the crimes committed by the special forces. Once a superior establishes that a subordinate has committed or is about to commit a crime, he is required to take all necessary and reasonable measures to prevent or punish the offense. If, for example, the Accused learned that Mladic planned to attack the safe havens, using men and materiel supplied by the Serbian MUP, Milosevic would have been required to pull out his support. If, indeed, he exercised effective control over Mladic, then he would have been obligated to direct him not to attack the safe havens. [From the evidence, it appears Milosevic did just that when Mladic was poised to take over Gorazde in 1993.]

The third part of this series will address liability under genocide and complicity to commit genocide.