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.