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Momcilo Perisic in the ICTY courtroom. (Photo: ICTY)
Appeals judges at the Hague tribunal this week overturned the conviction of Momcilo Perisic, a Serbian general who headed the Yugoslav army, for aiding and abetting large scale crimes in Bosnia and ordered his immediate release.
From August 1993, Perisic was chief of staff of the Yugoslav army, and thus its most senior officer. He was based in the Serbian capital Belgrade, and remained there as war raged in neighbouring Bosnia and Croatia.
In September 2011, he was convicted of aiding and abetting crimes committed against civilians during the 44-month sniping and shelling campaign directed against Sarajevo, which left thousands dead, as well as the 1995 Srebrenica massacre in which over 7,000 Bosniak men and boys were murdered.
In the 2011 verdict, judges found that Perisic “repeatedly exercised his authority to provide logistic and personnel assistance that made it possible for the [Bosnian Serb army] to wage a war that he knew encompassed systematic crimes against Muslim civilians”. (See Perisic First Belgrade Official Convicted for Bosnia Crimes on the judgement.)
Perisic was also found guilty, as a military commander, of failing to punish members of the Croatian Serb army, known as the SVK, for launching rocket attacks on the city of Zagreb in May 1995.
He was sentenced to 27 years in prison with credit for time served. It was the first time the Hague tribunal had rendered a verdict against a state official in Serbia for crimes committed during the war in Bosnia.
On February 28, to a packed public gallery that included survivors of the Srebrenica massacre as well as family members of the defendant, appeals judges overturned the entire original verdict.
One woman representing the Mothers of Srebrenica organisation became so upset when the acquittal was announced that she had to be led away by security guards.
Perisic, 68, sat impassively throughout the hour-long hearing. He displayed no emotion even when presiding Judge Theodor Meron ordered his release.
Reading out the verdict, Judge Meron pointed out that that the original trial chamber “declined to consider whether Mr Perisic specifically directed aid” towards the crimes of the Bosnian Serb army or VRS.
Instead, the original judges found that Perisic “made a substantial contribution to these crimes, knew that his aid assisted the crimes in Sarajevo and Srebrenica, and was aware of the general nature of the crimes”.
That, however, was not enough to establish aiding and abetting in this case, especially since the accused was “remote” from the crimes on the ground, the appeals bench found.
“The appeals chamber… reaffirms that no conviction for aiding and abetting a crime may be entered if specific direction has not been proved beyond a reasonable doubt,” Judge Meron said.
Because the original judges “erred” on this matter, it fell to the appeals chamber to consider whether Perisic’s actions were “specifically directed to aid and abet the VRS crimes in Sarajevo and Srebrenica”.
While Perisic was the most senior officer in the Yugoslav army during the period covered by the indictment, appeals judges found that “ultimate authority on defence policy and operational priorities” rested with the Supreme Defence Council of the Federal Republic of Yugoslavia, known as the SDC.
“While SDC meetings were attended by many individuals including Mr Perisic, final SDC decisions were taken by political leaders,” Judge Meron said.
Moreover, the decision to provide assistance to the VRS was put in place by the SDC before Perisic became Yugoslav army chief.
While Perisic regularly attended SDC meetings and had the “legal authority” to administer assistance to the VRS, “the SDC retained the power to review both particular requests for assistance and the general policy of providing aid”.
In determining whether the SDC policy was “directed to facilitate criminal activities”, Judge Meron pointed out that the trial judges concluded that the VRS was “not an organisation whose actions were criminal per se; instead, it was an army fighting a war”.
“The appeals chamber considers that a policy of providing assistance to the VRS’s general war effort does not in itself demonstrate that aid facilitated by Mr Perisic was specifically directed to the crimes in Sarajevo and Srebrenica,” Judge Meron said.
In fact, there was no basis to conclude that “SDC policy specifically directed aid towards” Bosnian Serb crimes. Instead, the SDC was focused on “monitoring and modulating aid to the general war effort”.
In terms of the defendant’s own role, Judge Meron said “there is no proof that Mr Perisic supported the provision of assistance specifically directed towards the VRS’s criminal activities”.
Instead, “evidence on the record suggests that Mr Perisic’s relevant actions were intended to aid the VRS’s overall war effort”.
Summing up, Judge Meron said that “assistance from one army to another army’s war effort” is insufficient, in itself, to “trigger individual criminal liability”.
“The appeals chamber underscores, however, that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts,” he added.
The appeals chamber also reversed Perisic’s conviction relating to the 1995 rocket attacks on the Croatian capital, because his effective control over the SVK troops “has not been proved beyond reasonable doubt” and thus “superior responsibility cannot be established”.
The appeals verdict was not unanimous. One member of the five judge panel, Judge Liu Daqun of China, would have upheld the aiding and abetting convictions for Sarajevo and Srebrenica.
In his dissenting opinion, Liu essentially agreed with the findings of the original judgement. He argued that “specific direction” was not required to prove aiding and abetting; that Perisic knew of criminal acts being committed by the Bosnian Serb army; and that the assistance provided to the VRS was crucial to its “very existence”.
“Perisic’s acts, which facilitated the large-scale crimes of the VRS through the provision of considerable and comprehensive aid, constitute a prime example of conduct to which aiding and abetting liability should attach,” Judge Liu wrote.
The original judgement in which Perisic was sentenced to 27 years in prison was not unanimous, either. One of the three trial judges, Justice Bakone Moloto, would have acquitted Perisic on all charges. He argued that the assistance that Perisic provided to the VRS was “too remote” from the crimes to qualify as aiding and abetting.
“To conclude otherwise, as the majority has done, is to criminalise the act of war, which is not a crime according to the statute of the tribunal,” Judge Moloto wrote in the 2011 judgement.
Perisic cited Judge Moloto’s dissenting opinion during his November 2012 appeals hearing, at which he personally implored the bench to reverse his convictions. (For more detail on this, see Yugoslav Army's Ex-Chief Seeks Acquittal on Appeal.)
“Your honours, while Judge Moloto analysed the situation and believed I should go home, two others decided I should be in prison for 27 years. Does that not contain in itself the existence of reasonable doubt?”
Rachel Irwin is IWPR’s Senior Reporter in The Hague.
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