Ambiguous Direction

The Acquittal of Momčilo Perišić

by by Simon Engler


MOMCILO PERISIC IS FREE. On February 28, the Appeals Court of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in The Hague, acquitted the 68-year-old Serb of all charges of crimes against humanity. The court’s decision overturned a September 2011 ruling, in which Perišić, a former general in the Yugoslav Army, was convicted of aiding and abetting atrocities committed by Serb forces during the Bosnian War of 1992–1995.

     The charges leveled at Perišić in 2011 were grave. The Tribunal accused the former general of logistically supporting the Army of Republika Srpska (VRS), whose predominantly Serb members massacred over 8,000 Bosnian Muslims near Srebrenica in July 1995. Perišić was also accused of equipping the VRS for its assault on Sarajevo, in which hundreds of civilians were killed, and of failing to punish subordinates for deadly rocket attacks on Zagreb, in May 1995. For his complicity, the ICTY sentenced Perišić to 27 years’ imprisonment. On March 1, he returned to Serbia.



THE ACQUITTAL IS NOT AN ATTEMPT to revise history. The Tribunal does not doubt that Perišić provided assistance to war criminals, nor has it called into question the crimes committed by the VRS. The atrocities at Srebrenica, Sarajevo, and Zagreb are well documented.

     The ruling is instead a reevaluation of individual culpability for war crimes. The defense referred primarily to the 1999 appeal of Duško Tadić, a former Serb paramilitary convicted of crimes against humanity in northwestern Bosnia. At the Tadić appeal, the Tribunal distinguished between two degrees of complicity in war crimes: While logistical assistance “specifically directed” to the execution of atrocities constituted criminal aid and abetment, general assistance unintended for criminal use did not. Perišić’s lawyers argued that only evidence of the former—of the “specific direction” of aid to atrocity—could, following the Tadić precedent, produce a just conviction.

     After further review of the case, the Appeals Court determined that the weaponry and personnel Perišić provided to the VRS were intended for general military purposes, and not specifically for civilian murder. They found no evidence that Perišić instructed the VRS to use the aid he provided for crimes at Srebrenica. The Court ruled evidence of general aid insufficient for a conviction under the precedent of the Tadic appeal, and overturned the Tribunal’s earlier ruling.

     The decision is an historic anomaly. None of the twentieth century’s most important statutes on war crimes require evidence of specific direction for conviction on criminal aid and abetment. Neither the charter of the International Military Tribunal at Nuremberg, nor the United Nation’s Code of Crimes against the Peace and Security of Mankind, nor the Statute of the International Tribunal for the Rwandan Genocide refer to specific direction. The charter on which the ICTY was founded does not mention the concept. But in the mixed common-civil system of the Tribunal, the recent acquittal has codified a precedent that will affect future practice. Beyond the justice or injustice of a single man's freedom, this is perhaps the greatest significance of the ruling.



LIU DAQUN, A CHINESE JURIST who has served at the Tribunal since 2000, issued the only dissenting opinion on the Perišić appeal. According to Liu, requiring evidence of specific direction for conviction in cases such as Perišić’s “effectively raises the threshold for aiding and abetting liability.” The acquittal, in other words, might hinder the future prosecution of officials complicit in war crimes.

     The consequences of the ruling could be immediate. To begin, the acquittal opens the door for appeals from a handful of former Yugoslav and VRS officials— Vinko Pandurević, Ljubomir Borovčanin, Drago Nikolić, among others—currently imprisoned for ICTY convictions of criminal aid and abetment.

     And officials might now protect themselves from legal culpability by deliberately avoiding the specific direction of assistance to the execution of crimes—or by making such direction obscure. To this end, the Appeals Court warned that the Perišić acquittal “should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts.” The Court did not indicate how such misinterpretation should be avoided.