PROSECUTOR V. PERSIC. Case No. IT-04-81-A. At http://www.icty.org. International Criminal Tribunal for the Former Yugoslavia, February 28, 2013.
Armed conflict in Bosnia-Herzegovina--war crimes--aiding and abetting liability--specific direction--command responsibility--effective control
On February 28, 2013, the appeals chamber (Chamber) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) overturned the 2011 conviction of General MomCilo Perisic, the former head of the Yugoslav Army (VJ), for aiding and abetting war crimes in Bosnia-Herzegovina and Croatia. (1) By a 4-1 vote, the Chamber held that "specific direction" is an essential element of liability for the actus reus of aiding and abetting the crimes of murder, extermination, inhumane acts, attacks on civilians, and persecution as crimes against humanity and/or violations of the laws or customs of war. It also held that Perisic lacked the necessary "effective control" over his subordinates to subject him to command responsibility for their violations of the laws and customs of war.
Perisic's conviction in 2011 marked the ICTY's first judgment against an official of the former Yugoslav Army for crimes committed in Bosnia-Herzegovina. (2) Beginning in August 1993, Perisic served as the chief of the General Staff of the Yugoslav Army, the most senior VJ officer in the Federal Republic of Yugoslavia (Yugoslavia). Between 1993 and 1995, the VJ provided military and logistical assistance to the Army of Republika Srpska (VRS) in Bosnia-Herzegovina and to the Army of the Serbian Krajina (SVK) in Croatia.
The trial chamber, with one judge dissenting, found Perisic guilty, as an aider and abettor, of VRS crimes in Sarajevo and Srebrenica, (3) including murder, inhumane acts (injuring and wounding civilians, inflicting serious injuries, forcible transfer), and persecutions as crimes against humanity, as well as murder and attacks on civilians as violations of the laws or customs of war. (4) Again with one judge dissenting, it also found Perisic guilty, as a superior, for failing to punish SVK crimes in Zagreb, including murder and inhumane acts (injuring and wounding civilians) as crimes against humanity, and for murder and attacks on civilians as violations of the laws or customs of war. (5) The trial chamber sentenced Perisic to twenty-seven years' confinement.
On appeal, the majority largely followed the approach of the dissenting judge in the trial judgment. (6) One member of the appeals chamber dissented, arguing for Perisic's guilt along the lines taken by the majority in the trial chamber. The appeals chamber acquitted Perisic for the VRS offenses in Bosnia on a point of law, and for the SVK offenses in Croatia following a de novo factual review.
In terms of the offenses in Sarajevo and Srebrenica, the trial chamber had determined that the actus reus of aiding and abetting by Perisic was "proved based on the finding that VJ assistance 'had a substantial effect on the crimes perpetrated by the VRS.'" (7) Citing the 2009 ICTY appeals judgment in the MrksiC case, the trial chamber ruled that "specific direction" is not a required element of the actus reus of aiding and abetting. (8) That is, the trial chamber did not require proof that the VJ's actions in providing military support were specifically directed toward assisting the VRS in committing crimes.
The appeals chamber disagreed, relying on Tadic, the first ICTY appeals judgment to address the scope of aiding and abetting liability some ten years prior to the Mrksic ruling (para. 26). The Tadic appeals judgment had stated that "[t]he aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime ..., and this support has a substantial effect upon the perpetration of the crime." (9) The appeals chamber claimed that "[t]o date, no judgement of the Appeals Chamber has found cogent reasons to depart from the definition of aiding and abetting liability adopted in the Tadicc Appeal Judgement" (para. 28). The Chamber further claimed that while the Mrkssicc appeals judgment did state that specific direction was not an essential ingredient of the actus reus of aiding and abetting, it did so "in passing" and not as the result of "the most careful consideration" required for the Chamber to depart from its holding in TadiC (paras. 33, 34). (10)
The appeals chamber also acknowledged that other ICTY appellate judgments addressing aiding and abetting liability had not analyzed the issue of specific direction, but it...