Legal Literacy - This article discusses command responsibility in humanitarian law in the case of Karadzic & Mladic.
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 that has a definition, namely the responsibility of a military commander for war crimes committed by his subordinates or other persons under his control. From this understanding, it can be concluded that the commander who is responsible is the one who has control to regulate or mobilize.
The most phenomenal example of a command responsibility case is the case of Radovan Karadzic and Ratko Mladic which occurred in Bosnia Serbia, which is a case of gross human rights violations whose development cannot be separated from International Humanitarian Law.
Why Were They Both Held Accountable for Command Responsibility?
Both perpetrators of serious 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 committed, which include violations human rights serious violations, who 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 due to the fact that, firstly, when the crime occurred, they held command power and they controlled a troop. Secondly, even though they held command power and had control over the troops, the authority of command and control of the troops was not used to prevent criminal acts.
Based on Protocol I of 1977 Article 87 states that in Command responsibility:
- The commander is responsible for preventing and taking action against perpetrators of violations, taking action against perpetrators of violations, and reporting any violations under their control.
- If the commander is negligent regarding the actions of their 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. Thus, if concluded based on the criteria for the occurrence of command responsibility, Radovan Karadzid and Ratko Mladic are indeed obligated to be held accountable for their criminal acts based on command responsibility.
What Were the Faults of These Two People?
Ratko Mladic, as a military operations leader, knew that his troops were carrying out shooting operations and spreading terror and murder against 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 went into hiding 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 sentenced him 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 having the power to appoint, promote and dismiss military officials who had committed war crimes, and he was found guilty of war crimes in March 2016 and sentenced to 40 years in prison.
In conclusion, based on the power and authority they both possessed, 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, take action against, or punish the perpetrators of these criminal acts.
What are the Main Elements in the cases of Radovan Karadzic and Ratko Mladic?
- 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 Karadzid and Ratko Mladic, when violations occurred that caused suffering to thousands of people in Bosnia Serbia, their status was as leaders. Thus, subordinates who commit crimes under their leadership, the leader is responsible under the principle of command responsibility.
- 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 their command, was being, would be, or had even committed a violation. Law International (Shandy Victor Hezkia Mewoh,2019).
- The command has failed to prevent and punish the perpetrators of criminal offenses. Radovan Karadzic and Ratko Mladic, as leaders with legal obligation, have failed or neglected to use their authority to stop, prevent, prosecute, and control, including failing to punish the actions of their subordinates. Therefore, they have failed to exercise effective control and are responsible under the principle of command responsibility.
References
- Mewoh, Shandy Victor Hezkia. 2019. Commander's Responsibility for Subordinates' Mistakes 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 Srebrenica, requests to be released from punishment. https://www.bbc.com/indonesia/dunia-53909781 (accessed 07/02/2023)
*This article is the personal opinion of the writer and does not represent the views of the editors of Legal Literacy Indonesia.
Comments (0)
Write a comment