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The two forms of superior responsibility, in relation to violations of the laws or customs of war or crimes against humanity, are themselves fundamentally different. This difference was concisely stated by Trial Chamber II in its Judgement in the Delalic et al. case, thus:

"The distinct legal character of the two types of superior responsibility must be noted. While the criminal liability of a superior for positive acts follows from general principles of accomplice liability, … the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act. As is most clearly evidenced in the case of military commanders by article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the Statute." (footnote omitted)

The distinction between the two categories of crimes should also be noted, for while a superior may be responsible for planning, ordering, instigating, etc. a violation of the laws or customs of war, there is a qualitative difference between this and the conceiving of a criminal policy, the execution of which requires the planning, ordering, instigation, etc. of unlawful acts on a widespread or systematic scale.

The present report is not concerned with attributing responsibility to the direct perpetrators of individual criminal acts during the Kosovo conflict but instead focuses on superior responsibility, under both Articles 7(1) and 7(3) of the Statute. The above chronology of the campaign mounted by the Serbian/FRY forces in 1998 demonstrates a clear pattern, and the specific examples chosen as illustrative of the campaign cannot, therefore, be regarded as isolated events. The intent of the Serbian/FRY authorities was to crush the forces of the Kosovo Liberation Army, both by direct engagement on the field and by destroying their support network among the Kosovar population as a whole. While an armed conflict necessarily involves violence and results in death and destruction on either side, the methods utilised by each party to a conflict must conform with the requirements of international law. Thus, a policy which requires the deliberate targeting of a civilian population through terrorisation and the widespread looting and destruction of property, is in itself an unlawful policy and those persons in positions of authority who plan and instigate its execution must be held accountable.

As previously stated, the events described above fall within the jurisdiction of the International Tribunal as crimes against humanity, constituting persecution of the Kosovar population, as well as murder, torture, and other inhumane acts. In addition, there can be no doubt that many violations of the laws or customs of war were committed by the