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.

15 responses to “The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić

  1. Very clear overview of the Perisic appeals judgment by Rachel Irwin at the IWPR –

  2. Some interesting analysis emerging now. Eric Gordy argues in Balkan Transitional Justice that Perisic manifests a new phase of ICTY jurisprudence that involves wiping out any progressive development of international criminal law made in the earlier phases:

    Gordy faults the Meron-led Appeals Chamber for introducing such restrictive standards that virtually all pending cases brought by the Prosecutor must fail. His broader concerns relate both the to the truth-seeking and reconciliation functions of the Tribunal:

    “By preferring restrictive theories of liability, it steps back from the potential of the ICTY to produce a historical record that illuminates the structure of violence in the wars. And by overinterpreting traces of exculpatory evidence, it effectively abandons the concerns of victims and of actors interested in reconciliation.”

    Florian Bieber also takes a skeptical view of the Appeals Chamber, noting that despite its protestations, the Perisic ruling seems to open the door to military leaders to “deflect criminal liability by subcontracting the commission of criminal acts”:

    However, Marko Atilla Hoare takes the opposite view, describing a Carla Del Ponte era OTP that produced most of the cases now arriving before Appeals Chamber based on a limited understanding of the conflict and a primary concern with the highest-profile atrocities it produced rather than its fundamental characteristics:

    From this perspective, the OTP’s choices in the Perisic case represent a broader pattern. By pursuing Perisic for his indirect responsibility for high profile crimes committed after his Yugoslav forces had formally been separated from the Bosnian Serb army, the OTP put forward a far weaker case than if they had gone after Perisic for lower profile crimes committed earlier in the conflict by forces in Bosnia he then had direct responsibility for. And for pursuing a flashy but fundamentally weak case against Perisic, the OTP is, according to Hoare, to blame for a “monumental failure on the part of the Tribunal”:

    “He [Perisic] was one of only six officials from Serbia-Montenegro ever indicted by the ICTY for war-crimes in Bosnia. He was the only member of the high command of the Yugoslav People’s Army (JNA) or VJ ever indicted for war-crimes in Croatia or Bosnia, and the only former JNA officer from Serbia or Montenegro of any rank ever indicted over Bosnia. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has been convicted by the ICTY for war-crimes in Bosnia.”

  3. Refik Hodzic, who argued in favor of the ICTY’s reconciliation effect in the Balkan Observers debate I cited above in my original post, has now, post-Perisic, written what might well become the epitaph of the ICTY:

  4. And Srdja Pavlovic has written the requiem with Christophe Solioz.

    The Tribunal as dispenser of indulgences from the powers that be. Time to close the chapter on the Yugoslav wars:

    “Every side in those wars has received parting gifts from the ICTY. Those included the judgements on the Croatian Operation Storm, and the lack of culpability of Serbia in the Srebrenica genocide but also the acquittals of the former officer of the Bosnian Army, Naser Orić and of the Croatian generals Gotovina and Markač as well as the former Prime Minister of Kosovo, Ramush Haradinaj. One must hope that the latest reversal of Perišić’s original sentence was the last-remaining gift-basket, before the shop in The Hague closes its doors for good.”

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  6. One of the few sensible verdicts that the ICTY has delivered in its long and controversial history. The allegations were groundless, as already noted by the presiding trial chamber judge Moloto in his meticulously detailed dissenting opinion in the 2011 verdict. Obviously, some will feel otherwise but I think that’s more due to their political leanings than due to any strictly legal arguments.

    These dissatisfied voices are largely the same as those who recently celebrated the acquittal of Gotovina and Croatia as a whole, despite the clear evidence of a joint criminal enterprise headed by Tudjman in the form of verbatim transcripts. Here, on the other hand, they wanted Serbia publicly branded and condemned for supporting the legitimate aspirations of its beleaguered compatriots i Croatia and Bosnia, without any specific intent regarding the support of any crimes. According to them, any legal finesses that came in the way of this should have been ignored for the wider political utility of a guilty verdict.

    What it all boils down to is that the VRS was not a criminal organization, being that its main goal was to safeguard 1.5 million Serbians under attack by hostile opposing armies. Providing material assistance to the VRS was to Perisic simply an act of assisting the safeguarding of the lives and safety of these 1.5 million compatriots. As judge Moloto succinctly noted in the 2011 verdict, if Perisic was to be found guilty for such an act, then where would that leave the accountability of high-ranking officials of NATO member states who have been far more directly involved in Iraq, Afghanistan and elsewhere? Perisic had no command responsibility like Gotovina and others had, so this was the only reasonable verdict (though reason hasn’t always and consistently been applied in the Hague)…

  7. Dear observer,

    Thank you for your comments. For reference, my current back of the envelope definition of reconciliation in the former Yugoslavia is now when you and ‘deep water of truth’ (who commented extensively and mutually exclusively from your viewpoint on my Gotovina acquittal post) can sit down like to two reasonable people and agree on some things and agree to disagree on others. In my view, the Tribunal’s recent jurisprudence makes that less not more likely. I would also like to remind you of Marko Hoare’s crucial point. Either the Tribunal is legitimate or it is not. If you accept Perisic, I’m afraid Gotovina is part of the package.

  8. I appreciate the reply… As for your remark, just to clarify, I don’t accept the legitimacy of the ICTY in general. My agreement with the acquittal of Perisic and with the paraphrased opinion of judge Moloto is merely on a coincidental and (IMHO) commonsensical level. I don’t find any more merit or value in this verdict than in the Gotovina verdict from the point of view of the legality of their respective actions or their respective culpability. This verdict hasn’t in any way altered my view on either Perisic or the conflict as a whole. However, that doesn’t mean that I’m oblivious to the political implications of ICTY verdicts.

    In light of that, I can feel a certain fleeting satisfaction with regards to Perisic’s acquittal as the whole point of his trial was a conscious attempt to tie Serbia with war crimes in Bosnia/Croatia. I have no doubt in mind that if it wasn’t for purely political considerations, this trial wouldn’t have commenced at all. All the major crimes attributed to Perisic in his indictment were otherwise already dealt with in other indictments and trials, many of which have already been concluded. This trial was not about processing a perpetrator of previously unprocessed crimes, it was merely an attempt to try to establish an even more distant and politically more lucrative chain of culpability.

    As for the Gotovina case, there are a few notable differences that many “western” commentators are more than happy to gloss over in order to maintain their own entrenched stereotypes. First of all, Gotovina was at best a third-rate choice in terms of his role in the crimes against Krajina Serbs. His importance and the importance of his trial was not the result of a specific choice either by Krajina Serb victims or by Serbs in general. The importance of Gotovina’s trial stemmed from the mere fact that it was the only trial in the ICTY concerned with processing crimes against Serbs in Croatia (so much for accountability and reconciliation) and the only possibility that someone would be sentenced for crimes committed against Croatian/Krajina Serbs in the ICTY and very likely at all.

    Croatia has quite logically used the jurisdiction of the ICTY as an excuse for not processing crimes committed by Croatian armed forces against Croatian/Krajina Serbs, while at the same time refusing to deal with requests by Serbian courts on these and similar charges. Again, politics plays a part in this as Western governments regularly refuse to comply with Serbian extradition requests while they are more than to extradite Serbs to Croatia who have been dealt harsh sentences in absentia using less than trustworthy witnesses. If we were to judge by ICTY rulings, then of course crimes against Croatian/Krajina Serbs are a negligible if not entirely non-existant category. Thankfully, I’m not constrained by the political realities of the ICTY in fotming my judgment about this conflict.

  9. So if I gather correctly, your view is that Serbia was not involved in war crimes in Bosnia and Croatia and the VRS was largely involved in an ethnic self-defence action. I guess I can’t help but wonder if willingness to acknowledge massive and unjustified crimes against non-Serbs and a rather more active curiosity regarding who carried them out might not ultimately be a much better way of shoring up the current legitimacy of places like the RS than blanket denial. Of course, I understand that blanket denial is the easiest response to the other side’s blanket denial, but if somebody doesn’t get their head out of the sand first, well, then there everyone remains with their bottoms up in the air.

  10. It’s common knowledge that Serbia did not wage wars in Bosnia and Croatia, so in light of that it’s hard for me to “admit” to war crimes by Serbia as a matter of principle. Had Serbia taken over control of the JNA forces in Croatia and Bosnia, rather than agreeing to trhe withdrawal and dismantlement, the war would have ended in a few months at the most. It’s no secret OTOH that Serbia supported the legitimate war effort of 2 million disenfranchised Serbs who had to protect their political and national rights, which were under serious threat by the likes of Tudjman and Izetbegovic. That support was absolutely necessary and legitimate, and the support as such does not carry legal responsibility for any war crimes.

    I think it’s safe to say that no country in the world has been as scrutinized for war crimes as Serbia has. It has been the target of not just one, but two separate international courts (ICJ and ICTY) and both have thus far given verdicts that acquit Serbia from involvement in war crimes. In that sense, I feel a certain moral satisfaction as I know that Serbia wouldn’t have gotten away with such crimes if there was as much as an inkling that it might have participated in them.

    Serbia is simply too small and insignificant to be able to counter the heavy-weight influence of the likes of USA/EU/NATO in these international courts, and these influences do want to see Serbia branded guilty for war crimes, as this has been their political rhetoric from the start and it would deflect their own responsibility and heavy involvement in the conflict.

    The legal attention given to the possibility of Serbia being involved in war crimes has certainly been without precedent in legal history and highly disproportional compared to the attention given to other states involved in far more deadly 20th-century conflicts. How many millions of civilians died for instance in Vietnam, Algeria, etc? Of course, political realities dictate that international criminal/humanitarian law does not apply to those who defend their “national interests” thousands of miles from their own borders with complete disregard for any civilian casualties. I’m happy and proud to note that Serbia has never been part of this group of states who are serial breakers and mass violators of international criminal/humanitarian law…

  11. I have always been fundamentally opposed to stigmatizing Serbia or Serbs (or anybody for that matter) with collective guilt and very concerned about Serb victimhood (or any victimhood for that matter) in the breakup of the former Yugoslavia. However, trying to pretend that *any* party to the conflict has nothing to apologize for contradicts the fundamental principle of ‘daj ne seri’ and gives all other parties a wonderful excuse to continue ignoring the skeletons in their own closet.

  12. Marko Milovanovic has come out with an interesting analysis of the Perisic judgment at EJILTalk:

    Milovanovic is critical of the decision but not as scathing as he was in the case of the Gotovina judgement. He notes that the Chamber’s position on aiding and abetting is not indefensible from a legal perspective but that it does risk opening up precisely the prospect the Appeals Chamber seeks to ward off, namely that crimes could be subcontracted by responsible parties careful enough not to leave any trace of direction. He also notes that Perisic may provide a crucial precedent in the pending appeal of Charles Taylor’s conviction (on an aiding and abetting theory) by the Special Court for Sierra Leone.

    Moving beyond points of law, Milovanovic puts such a fine point on the reconciliation issue that I will let it speak entirely for itself:

    “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.”

  13. Rachel Irwin at IWPR tries to make sense of everyone trying to make sense of it all, in an in-depth piece.

    Christian Axboe Nielsen, a historian at Aarhus University in Denmark, has the quote of the month in regard to how you explain two consecutive cases of defendants going from hard time to full acquittal:

    “The intensely problematic thing is explaining to the diverse populations of the former Yugoslavia how this makes any sense at all.”

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