The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić

by Rhodri C. Williams

The Appeals Chamber of the ICTY continued its run of high-profile acquittals yesterday, rejecting all the charges against former chief of staff of the Yugoslav Army (Vojska Jugoslavije or VJ) Momčilo Perišić. The real shock in this series came early, with the highly controversial and bitterly split decision releasing Croatian Generals Ante Gotovina and Mladen Markač last November. Two weeks later, the blogosphere took the acquittal of Kosovo Albanian former fighters Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj somewhat more in stride. Here, the case against the accused was known to be shakier and the Chamber managed a unified decision. 

So in some senses, the Perišić decision seems to establish a pattern. The Appeals Chamber appears to be applying a stricter level of scrutiny than anyone initially expected, and cases seen as relatively strong must therefore fall along with the shaky ones. Perišić appears to have been somewhere in the middle. As BBC notes, the Trial Chamber had sentenced Perišić to hard time – 27 years – for having knowingly supported Serb forces in Bosnia that carried out crimes against civilians in Sarajevo and Srebrenica. On the other hand, Perišić had already been acquitted of any direct involvement in crimes such as the Srebrenica massacre, and the remaining ‘aiding and abetting’ charges proved easy for the Appeals Chamber to unpick.

This is not to say that some legal controversy is excluded. In this case, the Appeal Chamber’s decision was not unanimous, and the lone dissenter, Judge Liu, asserts that the majority effectively raised the bar in a manner that “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). However, whatever legal debates will arise from the relatively pithy 50 page decision in Perišić, a great deal of speculation will continue to focus on what remains unsaid. In discussing the earlier Haradinaj decision, I tried to get at what I considered to be some serious non-legal concerns about the ICTY legacy:

… the Tribunal’s jurisprudence remains not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

In discussing these issues, it is crucial not to fall into an unquestioning reliance on the same ethnic stereotypes and tropes that fuelled the war. Dunja Melcic provided a useful reminder on this point in her recent discussion on Greater Surbiton of the popular and media reception of the Gotovina judgment:

‘The Serbs’ didn’t perpetrate any act of genocide and there is no formulation in the Court’s documents that would justify such reckless language. A war-crimes tribunal should be the place where this supercilious ethnicistic treatment of the conflict and the war finds its end. What counts at the Court, is the crime and not the nationality of the accused.

It is nevertheless impossible to ignore the fact that the Court has become enmeshed between two opposing Yugoslav ethno-nationalist theses, either of which would gravely undermine the credibility of the Court if they could be proven, and – crucially – both of which are incompatible with the fundamental idea of the Court as an impartial judicial actor without political motives.

On one hand, the Del Ponte-era Office of the Prosecutor (OTP) has been accused of Tito-style negative equality tactics in its investigation and indictment choices – if you indict a Serb, you must also indict a Croat, a Bosniak, a Kosovar Albanian and ideally a Macedonian to show that you are an equal opportunity punisher. In its current, ongoing dissection of Del Ponte-era prosecutions, on the other hand, the Appeals Chamber has been accused of Tito’s other ostensible tragic flaw, namely anti-Serb bias as a means of keeping the former Yugoslavia’s largest and most rambunctious constituent people in check.

The anti-Serb bias crowd could be excused for feeling a bit of whiplash right now. Having failed to secure accountability for crimes against Serb civilians in Croatia and Kosovo in November, the Tribunal went on to issue a rare life sentence for genocide to Bosnian Serb former general Zdravko Tolimir in December 2012 (in a case now on appeal to the Trial Chamber). Now, with the Perišić decision, the Appeals Chamber appears to have snapped back to an equal opportunity (non)punisher mode.

The likelihood that the decision will be received as some type of appeasement of the Serbs – or even an absolution of 1990s Serbian state policy in the same way the Gotovina decision was taken as washing Tudjman-era Croatia clean – is manifest in the BBC’s recent analysis piece on Perišić:

But the Perisic verdict may help to restore faith in the neutrality of the special court. Serbian human rights activist Natasa Kandic told the BBC that it was an important judgement for all Serbs.

“They will see the ICTY is not just trying to prove that Serbs are criminals. They will say the ICTY has proved that Serbia does not have state responsibility for the atrocities in Sarajevo and Srebrenica,” she said.

Lurking behind these debates is the fundamental question of whether the Tribunal should be engaged in any other project than identifying, investigating, charging and trying those responsible for the worst crimes related to the collapse of the former Yugoslavia. The assumption from the earliest days of the Tribunal was that these activities would inherently facilitate a complementary truth-seeking function, creating an accurate and undeniable historical record of how such atrocities could have been perpetrated.

This proposition has generated plenty of debate and the verdict had until recently appeared mixed. Just one month before Gotovina, for instance, Mirko Klarin described the Tribunal’s truth-seeking function as imperfect but “the best we have.” In a current and ongoing debate hosted by the Balkan and Caucasus Observatory  on whether the ICTY has contributed to reconciliation, participants have ranged from a pragmatic line (“if we are one day ready to embark on the road of genuine reconciliation based on truth and accountability, the ICTY’s work will be our starting point”) to the viewpoint that the Court has failed to take sufficient steps to prevent its own perceived politicisation:

The ICTY has not invested enough time and energy in explaining its work to local communities, and this has nourished claims that it is an unjust, biased and political court.

So what does the Appeals Chamber’s decision in Perišić mean for this debate? Without entering into the legal merits, the latest decision seems to underscore how unsettled international criminal law remains today, a full twenty years after the Tribunal was formed. This far on, one would expect (hope?) that the Appeals Chamber would have had ample time to set out clear lines of precedent that the OTP could rely on in bringing cases that had a reasonable chance of being upheld.

The fact that the outcomes of cases before the Tribunal remain so difficult to predict reflects inherent difficulties of doing justice in the wake of a war as complicated and protracted as that in the West Balkans. However, in the view of observers such as Marko Milovanovic, deeply split decisions such as that in Gotovina also reflect a professional failures on the part of the Tribunal. However you carve it up, the result hardly seems conducive to truth-seeking and reconciliation.