Perisic “Had No Obligation” to Investigate Soldiers

Friday, 23 July, 2010

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Velma Šarić

IWPR-trained journalist

A defence witness told the trial of Momcilo Perisic this week that the former Yugoslav Army, VJ, chief had no special responsibility to initiate investigations into alleged wrongdoing by soldiers.

Perisic is the most senior VJ officer to be accused of war crimes in Bosnia and Croatia.

He has been charged with 13 counts of war crimes and crimes against humanity and is accused of having provided material, personnel, logistical and other assistance to Serb armies in Bosnia, VRS, and Croatia, SVK, and therefore contributing to the crimes these forces committed in the two countries.

These include aiding and abetting the 43-month siege of Sarajevo, the shelling of the Croatian capital Zagreb and the July 1995 massacre of some 8,000 Bosniak men and boys in Srebrenica.

In his capacity as army chief, Perisic is also accused of not having taken necessary and reasonable measures to prevent or punish crimes committed by his subordinates.

During his fourth testimony at the Hague tribunal, the witness, Radomir Gojovic, a past president of the military court in Belgrade, claimed that Perisic had no obligation to initiate an investigation into alleged abuses by his subordinates.

It was the sole responsibility of the prosecutor to instigate such proceedings, the witness continued, although he said that Perisic was entitled to report a criminal act to the military court “just like any other citizen”.

He also pointed out that military judges and prosecutors were independent and permanently-appointed authorities, nominated by the president of the republic after being proposed by the minister of defence.

“Our courts were fully independent judiciary institutions,” explained Gojovic. “No branch of authority could influence the judicial authorities, including military courts.

“Independence in work meant that every judge was free to decide in every case he was trying, fully independent in functioning and not bound to suggestions, wishes or regulations issued by others.”

The fact that the judges’ positions were permanent, according to Gojovic, served to ensure professionalism and legal certainty.

Gojovic said that there was a legal obligation for military superiors to arrest any members of units caught in the act of committing an offence, or to make sure that any necessary measures were taken to prevent them from fleeing.

However, according to Gojovic, Perisic as chief of staff had no “obligation to file charges to military courts” since this was “not part of his jurisdiction”.

Perisic’s indictment states that he had the authority and responsibility, as well as factual possibility, to initiate investigations, prohibit criminal activity by VJ members on duty in the Bosnian Serb and Krajina armies and investigate claims about their involvement if serious doubt arose that they may have participated in crimes in Sarajevo, Zagreb or Srebrenica.

The jurisdiction of the military courts was to try military personnel for crimes committed while on duty, said Gojovic.

“We thus had jurisdiction for all crimes committed by military personnel,” he added. “These were crimes codified by military law, which also provides for jurisdiction over civilian personnel serving in the army for certain crimes as well.

“If a civilian commits a crime against international humanitarian law, it would fall under the jurisdiction of a civilian court.”

“What happens if a crime is committed by a group of individuals, some of which are civilian and some military?” asked Lukic.

“It depends on the crime,” answered Gojovic. “If it is not a crime within the exclusive jurisdiction of a military court, then they can also be tried by a civilian court.”
He added that this was a complex issue “which depends on the crime in question”.

The criminal law of former Yugoslavia did not include the charge of command responsibility, the witness continued.

“There was no such thing as expanded responsibility in the form of so-called command responsibility, for example,” he said, adding that this meant a superior could not be charged with a crime committed by a member of his unit, regardless of whether or not he had known about it or consented.

The defence questioned the witness about the infrastructure for military courts in Republika Srpska, RS, and Republika Srpska Krajina, RSK. Gojovic answered that there was no relation between the military courts in RS and RSK and those in the Federal Republic of Yugoslavia.

In cross-examination, prosecutor Barney Thomas suggested that there was indeed a possibility for Perisic to have got involved in the legal process, by establishing a commission which would have determined whether a crime had been committed and under which circumstances it happened.

“Yes, this is correct,” Gojovic answered, adding that however it was “the prosecutor who would instigate the proceedings, if any, and that it would be the court to lead the legal proceedings” and decide on the matter.

The prosecutor then presented the witness with a document in which Perisic clarified “the accountability and status of soldiers in the 40th Personnel Centre of the VJ”, which was used to bring charges against a VJ officer serving in the SVK and which the prosecution sees as proof of Perisic's effective relationship with the military courts.

Gojovic answered that this was in fact a “legally faulty” document, as it was issued despite the fact that Perisic had no jurisdiction in the matter, and that there was no basis for him “to clarify violations of discipline in another army”.

Perisic has pleaded not guilty to 13 charges of war crimes and crimes against humanity. He was transferred to the tribunal in March 2005 and the trial began in October 2008. In late February this year, the defence started presenting its case and the trial will continue on August 23, after the tribunal's summer break, which Perisic will spend on temporary release.

Velma Saric is an IWPR-trained journalist in Sarajevo.