Institute for War and Peace Reporting | Giving Voice, Driving Change
Momcilo Perisic in the ICTY courtroom. (Photo: ICTY)
At his appeals hearing this week, former Yugoslav army chief Momcilo Perisic implored judges to overturn his conviction and said their decision would have “far reaching consequences”.
From August 1993, Perisic was the highest authority in the Yugoslav army. He was based in Belgrade, and remained there as war raged in neighbouring Bosnia and Croatia.
He was convicted in September 2011 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, during 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”. (For more, see Perisic First Belgrade Official Convicted for Bosnia Crimes.)
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.
This week, 68-year-old Perisic, dressed in a suit and reading from prepared notes, told the appeals bench that they would “have to do some soul-searching” as his case was “unique in the world”.
“The decision you make has far-reaching consequences to any [army] chief of staff,” he said.
“Everyone who follows these proceedings is fully aware that assistance to waging of war is given every day,” he continued, pointing out that countries like the United States and France have involved themselves in conflicts “thousands of kilometres away from their territories” and did not “suffer any consequences for it”.
“That’s quite different from my situation – the assistance was done to protect the territory of my own state. What would you have expected me to do as chief of the general staff of the [Yugoslav army], when war was raging around us and threatening to spill over into [the Federal Republic of Yugoslavia]?” he asked the appeals bench.
Perisic says he continues to feel “deep regret” for the victims who suffered, but insists his actions at the time were aimed at “preventing the expansion of war and [were] based on international and domestic law”.
He pointed out that one judge in the original chamber dissented from the majority on nearly every point of the verdict, finding that there was insufficient evidence to find Perisic guilty for aiding and abetting crimes committed at Sarajevo and Srebrenica.
In a lengthy dissenting opinion, the judge, Bakone Justice Moloto, argued that the assistance Perisic provided to the VRS was “too remote” from the crimes in question to qualify as aiding and abetting, and that the majority’s conclusions “criminalise the act of war, which is not a crime according to the statute of the tribunal”.
“Your honours,” Perisic said, “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?”
Earlier, Perisic’s defence lawyers made similar arguments, especially concerning military assistance from one country to another, and about how upholding Perisic’s conviction would affect culpability in current conflicts throughout the world.
“In rendering vital and critical assistance to Libyan rebels to overthrow the previous regime, with knowledge of crimes committed by the self-same rebels, leaders in France, the United States, the United Kingdom and NATO – to name a few – would be liable for aiding and abetting any or all of [the rebels’] crimes,” said Gregor Guy-Smith, one of Perisic’s lawyers.
The same, he said, was true of any assistance given by western nations to the rebel army in Syria.
“Any and all officials, political and military, with mere knowledge that crimes were committed [and] who facilitate assistance to foreign armies, would be… liable for aiding and abetting any crimes committed by those they assist,” Guy-Smith contended. “We do not believe the jurisprudence of this institution would lend support to such an absurd state of affairs.”
Presiding Judge Theodor Meron interjected and asked what kind of military assistance would be considered “sufficiently substantial to meet the threshold” for a conviction for aiding and abetting crimes.
Guy-Smith said he was not sure he could answer that question in the “abstract”.
“When you ask how much would be sufficient in the context of a war being waged, it’s virtually impossible to put a figure on it,” the lawyer said.
The judge continued to press the issue.
“Is there a point on the spectrum where the magnitude of aid reaches such proportions that it’s sort of obvious that it must, by its very nature, have a substantial effect on crimes?” Judge Meron asked.
Guy Smith replied that the question was akin to asking “how long does a fire maintain itself” before it burns out.
“As long as there is fuel for the fire, the fire will continue to burn,” the lawyer said.
In its response to the defence arguments, the prosecution argued that Perisic “was not convicted for aiding and abetting because he supported the [Bosnian Serb army] in its war effort”. Instead, prosecuting lawyer Barbara Goy said, “he was convicted because he knowingly gave crucial support to an army whose units systematically committed crimes. He knew he was giving support that would have a substantial effect on the commission of crimes in Sarajevo and Srebrenica.”
She argued that Perisic “oversaw a system that provided extensive and comprehensive logistical and personnel assistance” to the Bosnian Serb army and those units that committed crimes in Sarajevo and Srebrenica.
“These units depended on Perisic’s support to function as an army and to conduct operations in Sarajevo and Srebrenica, where crimes were systematically committed,” Goy said, adding that Perisic’s assistance “had a substantial effect on the crimes themselves.”
Judge Meron once again intervened and asked the lawyer whether Perisic “could have stopped aid being sent from his country.” He also pointed out that the assistance began before Perisic became chief of the general staff of the Yugoslav army in 1993.
“We acknowledge that aid was already in progress when he became chief of staff, but he institutionalised the aid, he did nothing to stop it or to channel the aid into legitimate purposes,” Goy responded.
“But could he have done it, do you think? In terms of his powers? Could he have said to Belgrade, ‘No more aid’, for example?” Judge Meron asked.
After consulting with her fellow-prosecutors for a moment, Goy told the bench that the “judgement doesn’t deal with it”.
“All we know is that his authority went the other way – he persuaded [the Supreme Defence Council] to give him authority to give assistance,” Goy said.
The appeals judgement will be delivered in due course.
Rachel Irwin is IWPR’s Senior Reporter in The Hague.
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