The Srebrenica Massacre - Nova Srpska Politicka Misao

Securing Verdicts: The Misuse of Witness Testimony at The Hague
To be sure, Article 7(3) of the ICTY statute is based on Article 86(2)
of the Protocols I Additional to the Geneva Conventions, but there are
significant differences. Protocol I states, “The fact that a breach of the
Conventions or of this Protocol was committed by a subordinate does
not absolve his superiors from penal disciplinary responsibility…if they
knew, or had information which should have enabled them to conclude
in the circumstances at the time, that he was committing or was going
to commit such a breach and if they did not take all feasible measures
within their power to prevent or repress the breach.” The ICTY statute
states, “The fact that any of the acts referred to in…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 ICTY statute replaces “penal disciplinary
responsibility” with “criminal responsibility.” And “information
which should have enabled them to conclude in the circumstances
at the time” is replaced by the much vaguer, all-embracing, “had reason
to know.” And “feasible measures within their power to prevent or repress
the breach” that superiors are expected to take is replaced by “necessary
and reasonable measures.” Through this change of wording, the
burden of proof clearly shifts from prosecutor to defendant. It is the
difference between a prosecutor having to prove a superior’s knowledge
of crimes and his power to prevent them, to a superior having to prove
his lack of knowledge of crimes and/or lack of power to prevent them.
According to Protocol I, effective command has to be proved; according
to the ICTY statute, effective command is presumed.
Through such nebulous notions as “complicity,” “aiding and abetting”
and “complicity by aiding and abetting,” the ICTY is able to convict
whomever it likes, despite the absence of any evidence of
involvement in war crimes. In effect, whoever is in command is responsible
for every crime committed by anyone who is under his command.
Needless to say, such an expansive reading of command
responsibility only applies to adversaries of the United States, never to
the United States itself. No one dreamed of assigning responsibility for
My Lai to President Lyndon B. Johnson; or the infamous “turkey shoot”
at Rumaila during Gulf War I to President George H.W. Bush; or Abu
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