15 Feb No violation of Convention in conviction for war crimes on the basis of command responsibility

In the case of Milanković v. Croatia (application no. 33351/20, 20.01.2022) the European Court of Human Rights held, unanimously, that there had been no violation of Article 7 (no punishment without law) of the European Convention on Human Rights.

The case concerned the applicant’s conviction for war crimes, perpetrated by the police units under his command, against the Serbian civilian population and a prisoner of war, on the territory of Croatia between mid-August 1991 and mid-June 1992. The applicant complained that, in convicting him of those crimes, the domestic courts had applied a protocol applicable only to international armed conflicts, whereas the events had taken place before Croatian independence and thus during a non-international armed conflict.

The Court noted that the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), applicable to serious violations of international humanitarian law committed in the former Yugoslavia since 1 January 1991, referred in general terms to a ‘superior’ and therefore did not restrict its application only to military commanders or make any distinction between international or non-international armed conflict. In its case-law, the ICTY had already held that application of the concept of command responsibility to war crimes committed in an internal armed conflict was already a rule of customary international law in 1991.

The Court agreed that there was no doubt that the responsibility of commanders for war crimes committed in international or internal armed conflict was an existing rule of international law at the time of the events. Moreover, the concept of command responsibility was derived from the concept of responsible command, which did not distinguish between international and non-international armed conflict. Furthermore, command responsibility did not apply only to military commanders but also to other, non-military, superiors.

Regarding the nature of the war crimes committed by the police units under his command, the Court considered that it should have been obvious to Mr Milanković, a military-academy-educated officer, that he could be held responsible regardless as to whether those crimes were committed during international or internal conflict or by a military or non-military (police) commander. 

As regards the applicant’s remaining arguments that he had been convicted for the war crimes on the basis of his command responsibility even though as the deputy head of the police department he had not had sufficient powers to be held criminally liable as a commander, the Court noted that the domestic courts had established that the applicant had had formal and actual command authority over the police units that had committed the crimes in question and that he had been aware of those crimes. Thus, there was no violation of Article 7 of the Convention.

Reference from the official website of the European Court of Human Rights