Readers might be interested in James Stewart’s analysis on OJ (here and here) of the ICTY Appeals Chamber’s Perisic judgment – James is rightly highly critical of the Chamber’s analysis with regard to aiding and abetting liability and specific direction. For my own take on the judgment and an outline of the issues see my earlier post here.
On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals. With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison. The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.
Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.
The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.
The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.