hrvatski

"Međunarodne ustavne dimenzije zapovjedne odgovornosti"

The paper is a preliminary communication. Summary: (1.1) The conference on command responsibility (Trakošćan, Croatia ; March 23-24, 2001), as similar gatherings, has a chance of succeeding to the extent to which the conference participants, and subsequently the public opinion in Croatia and aborad, accept that criminal responsibility for violations of humanitarian law in the territory of the former Yugoslavia is primarily a moral problem in two senses: (a) the end goal of criminal responsibility is moral recovery of the political community where grave violations of international humanitarian law have occured. (b) to that end both criminal proceedings against the suspects and punishment of the perpetrators function as part of the social order, which is in essence a moral order and includes law as a minimum of public morality, with the latter including in turn criminal law as a guarantee of fundamental legal values. (1.2) The conception stated above differs from the modern understanding of the relationship between law, morality and politics. According to the modern understanding, the end of politics is survival. Hence politics preceeds logically the social order, and uses law as a morally neutral technique. (1.3) From the conception I am advocating it follows that: (a) Croatia may try its citizens for grave violations of international humanitarian laws only if the criminal procedure within which they are tried is part of the Croatian social order ; (b) the international community may try Croatian citizens for such violations if the trial is at least part of the international social order. (1.4) It is a tenet of any conventional conception of practical (i.e. moral, legal) reasoning that the application of a general practical standard or law (value, norm) to a particular case is bound or "bent" by the system of distributive justice to which the law belongs. The reasons are as follows: (a) a general law, because it is abstract, fails, more often than not, to meet requirements particular cases to which it applies. Hence the agent applying the abstract law to a particular case can apply the law correctly only if he corrects the by ruling what the original law-maker would have legislated had he been present, and would have put into his abstract law, if he had known. Such a correction in the application of abstract laws to particular cases has been known, since Aristotle, as equity of fairness. (b) since the law-applying agent can act equitably only by doing what the original legislator would have legislated, the agent can rule only by observing all the abstract laws that the legislator has already passed. In other words, equity is bound or bent by the already establčished system of distributive justice or, put in more modern terms, by the constitution in force. (c) A typical system of distributive justice discriminates between its members by a personality trait, such as birth or wealth or occupation, into classes (e.g. into plebeians and nobles) and then rules that members of different classes are entitled to different measures of public goods (benefits and burdens), according to a universally valid proportion. Since a typical system consists mainly of general norms, i.e. of rules, it can be said to bind equity but not to bend it. (d) A less typical system of distributive justice disciminates not only between its members but also between its basic values by giving precedence to some values over others (e.g. life over safety, labour over property). A less typical system, which is approximated by primitive legal orders (not meeting requirements of the rule of law), may go even as far as to give precedence to peace or security over justice. Such a "deviation" from "the normal" hierarchy of fundamental values "bends" almost inevitably the application of every single general standard in the direction of values which may be incompatible with justice and, in the final analysis, with law (roughly in the sense explained by Lon Fuller in his analysis of the relationship between polycentric and monocentric regulatory problems, or by Ronald Dworkin in his analysis of the relationship between rules and principles). (1.5) The foregoing remarks suggest that it may be useful to inquire into components of the Croatian and the international social order with a view of finding out how the distributive justice of each "bends" the corrective justice established in cases of command responsibility. The main part of the paper points out some defects of the Croatian legal order and of the international legal order, and then analyses how the defects affect, or may affect, command responsibility before the ICTY.

međunarodno ustavno pravo, zapovjedna odgovornost, Međunarodni kazneni tribunal za bivšu Jugoslaviju, Hrvatska

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