Can the ICTY Sainovic and Perisic cases be reconciled?

Author:Sadat, Leila Nadya
Position:International Criminal Tribunal for the Former Yugoslavia

On February 28, 2013, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (Tribunal or ICTY) decided Prosecutor v. Perisic, (1) a case involving three of the most significant atrocities of the 1990s war in the former Yugoslavia: the shelling of Sarajevo from August 1993 until November 1995, the massacre at Srebrenica in July 1995, and the shelling of Zagreb in May 1995. (2) Perisic had been chief of the Yugoslav Army (VJ) General Staff and commander, the highest-ranking official in the Socialist Federal Republic of Yugoslavia's military hierarchy. (3) The trial ran for two-and-one-half years, during which over one hundred witnesses and nearly four thousand exhibits were tendered. The trial chamber convicted Perisic and sentenced him to twenty-seven years, (4) marking the first time that an official of the Federal Republic of Yugoslavia (FRY) was found guilty of crimes committed in Bosnia and Herzegovina. (5) The appeals chamber stunned observers by reversing that judgment, acquitting Perisic on all charges against him, and ordering his immediate release.

The appeals chamber, presided over by Judge Theodor Meron, held, by a vote of 3-2, (6) that "specific direction" is an essential element of the actus reus of aiding and abetting liability and is a factor that must be explicitly considered where the "acts of an aider and abettor are remote from the crimes" of the principals. (7) Applying this test, the chamber found that Perisic's assistance to the Army of Republika Srpska (VRS) was "remote" from the relevant crimes, and that it had not been proven that Perisic and his VJ forces had specifically directed their assistance in furtherance of crimes committed by Serb forces in Bosnia and Croatia. (8) The appeals chamber admitted that the VJ was providing large-scale assistance to the VRS, and that Perisic knew of the crimes, but concluded that "assistance from one army to another army's war efforts is insufficient ... to trigger individual criminal liability for individual aid providers [for crimes committed by those assisted] absent proof that the relevant assistance was specifically directed towards criminal activities." (9) Rather, "a finding of specific direction must be the sole reasonable inference" from the chamber's review of the evidence, (10) and because the "VRS was participating in lawful combat activities," a reasonable inference could be drawn that the Yugoslav Supreme Defense Council was directing large-scale military assistance to the Serb effort, not to the commission of VRS crimes. (11) Judge Liu penned a strong dissent, finding that specific direction was not a requirement of aiding and abetting under the ICTY Statute (as did Judge Ramaroson, although she voted for his acquittal on other grounds), and argued that Perisic had facilitated the large-scale crimes of the Serb forces in Bosnia through the provision of considerable and comprehensive aid to them. (12)

Less than one year later, a differently constituted ICTY appeals chamber, presided over by Judge Liu, (13) decided Prosecutor v. Sainovic, a massive case involving six defendants accused of forcibly displacing part of the Kosovo Albanian population by criminal means between March and June 1999, (14) both within and outside Kosovo, with a view to changing the ethnic balance in the province and ensuring the continued control by the FRY and Serbian authorities over it. Like Perisic, Sainovic addressed a particularly grievous dimension of the war in the former Yugoslavia, the "ethnic cleansing" of Kosovo by Serb forces, which ultimately provoked a NATO military intervention. (15) The trial began on July 10, 2006, and concluded more than two years later, after the reception of oral testimony from 235 witnesses and more than forty-three hundred exhibits. (16)

The trial chamber rendered an extraordinarily long and detailed judgment in four volumes, finding that during the spring of 1999, FRY and Serb forces (those of the VJ and the Ministry of Interior (MUP)) killed at least six hundred individuals besides committing other crimes, including sexual assault and deliberately destroying or damaging mosques (as the crime against humanity of persecution) (para. 283). According to the trial chamber, "[A] joint criminal enterprise ("JCE") existed, the common purpose of which was to ensure continued control by the FRY and Serbian authorities over Kosovo, which was to be achieved by criminal means" (para. 7). Moreover, the campaign of violence directed against the Kosovo Albanian population during the period from March 24, 1999, caused the departure of at least seven hundred thousand Kosovo Albanians from Kosovo (para. 435). The trial chamber rejected the argument that the VJ and MUP forces were relocating civilians for their own safety, that the forces' conduct was solely or even primarily directed at attacking the Kosovo Liberation Army rather than the civilian population, and that it was the NAT O bombing of targets that drove civilians from their homes rather than the attacks (paras. 395,480,493-95). While admitting that those may have been "factors in the complicated situation on the ground," the trial chamber noted that the Serb attacks could be conducted "with plausible deniability" because they could be "blamed not only upon the [Kosovo Liberation Army], but upon NATO as well." (17)

The appeals chamber's judgment, rendered on January 23, 2014, affirmed these findings while addressing the claims of four of the six original accused. (18) Three of the accused on appeal--Nikola Sainovic, Sreten Lukic, and Nebojsa Pavkovic--had been convicted of contributing significantly to the JCE; the crimes committed by the MUP and VJ forces used by the JCE were therefore largely found to be imputable to them. Conversely, the trial chamber acquitted Vladimir Lazarevic of responsibility as a member of the J CE, convicting him instead of aiding and abetting the crimes of deportation and forcible transfer. In a long and careful judgment, the appeals chamber confirmed most--but not all--of the convictions of all four accused (para. 263), (19) and slightly reduced the sentences of three of them.

The Sainovic judgment is important for several reasons. It is significant as a matter of historical record, since the facts regarding the ethnic cleansing of Kosovo remain hotly contested, especially in Serbia, and for its conviction of Sainovic himself who, like Perisic, was a high-ranking official of the FRY. The reliance of the Tribunal on letters directed to Sainovic by ICTY prosecutor Louise Arbour as proof of his awareness that crimes were being committed also suggests that this may be a useful practice for the ICC prosecutor to emulate. Additionally, Sainovic makes a major contribution to the ICTY's jurisprudence. In particular, the Sainovic appeals chamber went out of its way to distance itself from Perisic as a matter of substantive law, rejecting the specific direction test articulated by its Perisic counterpart, and from a methodological perspective returning to the kind of extensive analysis of customary international law found in many of the ICTY's influential early judgments such as Tadic and Erdemovic. (20) On a more concrete level, the Sainovic appeals chamber also seemed to align its findings more with Tadic and its progeny, which had found considerable cooperation between Serb forces operating outside and inside the FRY, than with Perisic, which appeared to treat them as completely independent military forces. (21) Finally, since the issue of specific direction is still relevant to several remaining appeals before the Tribunal, including Prlic and Stanisic and Simatovic, (22) the jurisprudential debate between the two differently constituted appeals chambers remains salient.

The case and its implications are briefly described below.


    The defendants in Sainovic included Sainovic himself, one of President Slobodan Milosevic's closest and most trusted associates, who served as prime minister of Serbia and deputy prime minister of the FRY; (23) Lukic, who throughout the NATO air campaign had both de jure and de facto responsibility over MUP forces in Kosovo and was found to be the "bridge" between the policy planners in Belgrade (such as Milosevic) and those on the ground in Kosovo; (24) Pavkovic, who worked closely with Milosevic on the issue of Kosovo in 1998 and 1999, and held many positions in the Yugoslav People's Army and the VJ, including as commander of the Pristina Corps and commander of the Third Army (para. 1094); and Lazarevic, who held positions in the people's army and the VJ, including as commander of the Pristina Corps during the period covered by...

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