The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic

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.

There is some intuitive appeal in this reasoning. Consider, for example, the current situation in Syria, where a number of foreign governments are providing various types of support to either the Syrian regime or (more likely) the opposition, while knowing quite well that both sides have engaged in crimes against international law and that the aid that they are giving is contributing or is likely to contribute to the commission of these crimes. Are these foreign leaders thereby culpable as aidors and abettors? The Appeals Chamber is surely correct that there should be a difference between contributions to the war effort as such and to the commission of specific crimes.

Yet drawing the line between the two seems very difficult, even arbitrary, by using a specific direction standard. Perisic had every reason to know that the aid that he was providing to the Bosnian Serbs would be used in the commission of war crimes and crimes against humanity. The commission of such crimes was perhaps not an intrinsic feature of their war effort, yet these crimes were not being committed by some random bad apples, but as part of a deliberate, systematic policy of ethnic cleansing. In such circumstances it is profoundly unsatisfactory to say that Perisic was not guilty at all under any pertinent theory of criminal liability – without the aid that he was providing, the Bosnian Serbs would never have been able to commit crimes on such a scale.

Perisic thus escaped conviction for crimes in Bosnia due to his remoteness from the theater in which the offences were committed, the nature of the aid he was providing, the high standard of proof beyond a reasonable doubt, and the limitations of aiding and abetting liability (note that he was not charged under a joint criminal enterprise theory). This essentially boils down to the conclusion that it will be practically impossible to convict under aiding and abetting any political or military leader external to a conflict who is assisting one of the parties even while knowing that they are engaging in mass atrocities, so long as that leader is remote from the actual operations and is not so thoroughly stupid to leave a smoking gun behind him.

This seems to be a danger that Appeals Chamber was well aware of when in para. 72 of the judgment it remarks 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.’ But the Chamber’s disclaimer rings hollow in light of the fact that not even the vast amount of support that the FRY gave to the Bosnian Serbs was enough to establish such a level of control. Nor was this the case with regard to the Croatian Serbs, with the Appeals Chamber acquitting Perisic precisely because he (supposedly) lacked effective control over Croatian Serb forces, and thus could not be liable under superior responsibility.

And here, with regard to the crimes in Croatia, the Appeals Chamber pulled the same maneuver as in Gotovina. Rather than defer to the factual finding of the Trial Chamber that a superior/subordinate relationship existed, and disturb it only if no reasonable Trial Chamber could have reached that conclusion on the evidence it heard, the Appeals Chamber latched on the lack of adequate reasoning by the Trial Chamber with regard to the testimony of two witnesses which it properly qualified as an error of law. However, as a consequence of this error the Chamber reviewed the entirety of the evidence with regard to Perisic’s effective control de novo, i.e. without any deference to the Trial Chamber. (In a further act of irony this finding of the Appeals Chamber was joined by Judge Agius who emphatically dissented from the analogous approach in Gotovina.) And in its own assessment of the evidence, all of which was circumstantial, the Chamber found that Perisic’s effective control was not the only available inference from the record, and that he should accordingly be given the benefit of the doubt.

The Chamber’s analysis with regard to specific direction in the context of aiding and abetting liability is sure to be the most controversial aspect of the Perisic judgment. Just consider the implications of this analysis for the conviction of the former Liberian president Charles Taylor, whose appeal is now pending before the Special Court for Sierra Leone. As readers will recall, Taylor was convicted solely under aiding and abetting liability, and on my admittedly cursory look at the trial judgment (at p. 2446 ff) not only is there no mention of specific direction, but there is also little  qualitative difference between the types of assistance given by Taylor and by Perisic. What will the SCSL Appeals Chamber’s take on Perisic be, I wonder? It hasn’t acquitted any of its defendants in the past, and I doubt it will start with that now in its most high-profile case, but I also don’t see how Taylor and Perisic could really be distinguished.

Then there is the truly vexing conceptual problem of placing specific direction within the actus reus of aiding and abetting liability, which I find very hard to distinguish from a shift from knowledge to purpose as a matter of mens rea (as was done, for instance, in the ICC Statute). In a short joint concurring opinion Judges Meron and Agius indeed state their preference for incorporating specific direction into the mens rea standard. I would appreciate comments on this from readers who are better criminal lawyers than I – but, again, in any event the line that the Appeals Chamber has tried to draw to me seems unclear. (I note in passing that interesting parallels could be drawn to the ICJ’s Bosnian Genocide judgment and its discussion of complicity as a matter of state responsibility).

So much about the judgment itself. Some questionable legal moves aside, what in my view makes it even more unfortunate are its wider consequences, in particular in the solidification of official narratives of the warring parties in the former Yugoslavia  – and in that the Perisic and Gotovina acquittals are depressingly similar.  Even though both the trial and appellate judgments provide ample evidence of the enormous amount of support that the then FRY provided to the Croatian and Bosnian Serb separatists, the current Serbian government has decided to treat the Perisic acquittal as some kind of general exoneration of Serbia as a state for its involvement in mass atrocities in Bosnia and Croatia. It thus, for instance, decided to emulate the Croatian government, which had sent a state plane to pick Gotovina and Markac up from the Hague with a red carpet welcome in Zagreb upon their acquittal, and sent its own decrepit and barely airworthy jet for Perisic, who then grandstanded at a press conference at the Belgrade airport about the innocence of the Serbian state, people, and his own little self, to much applause from the Serbian press, officials and elites. And so, through an act of concerted political manipulation, the ICTY becomes an instrument for collectivizing innocence rather than for individualizing guilt, becoming indeed the opposite of what many of us had hoped it would be.