March 1, 2013 4 Comments
Momčilo Perišić is the latest of a series of high ranking inmates at the ICTY that have been freed by the court. The last time I recall him being released was from his duties as Serbia’s Deputy Prime Minister in the first DOS government of Zoran Djindjić. He had to resign after he was caught meeting a US embassy official at Motel šaric outside Belgrade in what looked a lot like a conspiratorial meeting. While the “spy” affair never was fully cleared up, it seems that Perišić tried to pass on incriminating documents against Milošević. It also served as ammunition for Vojislav Koštunica and his loyal army chief Pavković against Djindjić. Perišić broke with Milošević in 1998 over Kosovo, but already met student protestors in 1996-7 to assure them tanks would not be used. After his break with Milošević he created his “Movement for a Democratic Serbia” and joined DOS. However, his movement was never more than a personal vehicle and once he was arrested and then dismissed as Deputy Prime Minister, he movement and political engagement came to end. It is thus ironic when a comment for Sense notes that “Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.”
The latest judgment is troubling in challenging a number of key findings of a number of earlier rulings of the ICTY about the linkages between the army of the RS (VRS) and the Yugoslav army. The key argument of the judgement is that the concept of “aiding and abetting” is only applicable, if it was directed towards committing crimes and it does not suffice if assistance was used to commit crimes. The understanding o the appeals chamber of the VRS leads to rather odd conclusions “Appeals Chamber agrees with the Trial Chamber that the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war. The Appeals Chamber notes the Trial Chamber’s finding that the VRS’s strategy was “inextricably linked to” crimes against civilians. However, the Trial Chamber did not find that all VRS activities in Sarajevo or Srebrenica were criminal in nature.” (para. 53).” This is reiterated later on: “VRS was participating in lawful combat activities and was not a purely criminal organisation.” This assessment is highly problematic. First, the purpose of the VRS seems hard to reconcile with lawful combat activities, second arguing that not all activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities. I agree with the dissenting opinion of judge Liu who argued that “to insist on such a requirement [of a specific direction] now effectively raises the threshold for aiding and abetting liability. This shift risks undermining the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous crimes to evade responsibility for their acts.” (para.3). Liu also challenges the idea that even if the Trial Chamber did not consider the VRS a criminal organisation, it was found to have conducted “systematic criminal actions against Bosnian Muslim civilians” (para.4) and that Perišić know about the crimes committed by the VRS (as in fact anybody reading a good newspaper at the time did) (para. 8).
In brief, the decision suggest that you can provide crucial support including weapons to an organization conducting a war that committed “systematic criminal actions” and get free because you did not direct them specifically to commit these crimes. Although the judges note (para. 72) that “that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts. If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces,” it seems to have become a lot easier to do just that.