Prosecutor v. Momčilo Perišić
| Court |
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Appeals Chamber, The Netherlands |
| Case number |
IT-04-81-A |
| Decision title |
Judgment |
| Decision date |
28 February 2013 |
| Parties |
- Prosecutor
- Momčilo Perišić
|
| Categories |
Crimes against humanity, War crimes |
| Keywords |
Attack on civilians; crimes against humanity; extermination; former Yugoslavia; inhumane acts; murder; persecution; Srebrenica; war crimes; Sarajevo |
| Links |
|
back to topSummary
Momčilo Perišić was born on 22 May 1944 in Koštunići, Serbia. During the period August 1993 until December 1998, he was chief of the General Staff of the Yugoslav Army (VJ). The Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague started criminal proceedings against him. Perišić was found guilty of planning and executing an attack on Srebrenica, at the time of the attack an area considered a so-called “safe area”, and for the killings of thousands of Muslims living there. In addition, Perišić was also found guilty for killing seven people and injuring approximately 200 people in Zagreb on 2 and 3 May 1995 with the help of the Army of Serbian Krajina (SVK). Perišić appealed against the decision. On 28 February 2013, the ICTY acquitted Perišić and subsequently released him.
back to topProcedural history
On 4 February 2005, Momčilo Perišić was initially indicted by the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).
On 7 March 2005, the indictment was made public, but amended later (see the amended indictment of September 2005 and the revised second amended indictment of 5 February 2008).
On 7 March 2005, Perišić surrendered and was subsequently transferred to the ICTY.
On 9 March 2005, on his initial appearance before the ICTY, Perišić pleaded not guilty to all charges.
On 2 October 2008, the trial commenced.
From 28 until 31 March 2011, the closing arguments were presented.
On 6 September 2011, Trial Chamber I found Perišić guilty of aiding and abetting crimes against humanity and war crimes committed between August 1993 and November 1995 in Sarajevo and Srebrenica. He was also found guilty as a superior of failing to punish crimes against humanity and war crimes in Zagreb on 2 and 3 May 1995. Perišić was sentenced to 27 years in prison.
On 8 November 2011, Perišić’s Defence filed his notice of appeal.
On 10 April 2012, the Defence filed its appeal brief (public redacted version). The appeal brief contained 17 grounds of appeal.
The appeal hearing took place on 30 October 2012.
back to topRelated developments
On 3 February 2014, the Office of the Prosecutor filed a motion for reconsideration of the acquittal of Perišić before the ICTY Appeals Chamber.
back to topLegally relevant facts
As chief of the General Staff of the Yugoslav Army (VJ) from August 1993 until December 1998, Perišić was the most senior officer in the VJ and, according to the indictment, had the authority to make and implement decisions for the VJ General Staff and all subordinate units, to issue orders, and to transfer and second VJ personnel to the Army of the Republika Srpska (VRS) and the Army of Serbian Krajina (SVK).
Perišić was charged with aiding and abetting in the planning, preparation, or execution of murder, inhumane acts, persecutions on political, racial or religious grounds, extermination, and of attacks on civilians. In his capacity as superior officer, Perišić was charged for failing to take measures to prevent or to punish crimes committed by his subordinates.
From September 1992 to November 1995, the VRS conducted an operation of shelling and sniping in Sarajevo, resulting in the deaths of hundreds of civilians and the wounding of thousands of others. In the summer of 1995, the VRS invaded the town of Srebrenica, which the United Nations Security Council had previously established as a safe area for civilians. After taking over Srebrenica, the VRS continued to forcibly remove and exterminate thousands of Muslim civilians and persons not actively taking part in the hostilities.
As for the SVK, it fired rockets on Zagreb on 2 and 3 May 1995, killing seven people and injuring 200. The Trial Chamber found that the SVK perpetrated the crimes of murder as a crime against humanity, murder as a war crime, inhumane acts as a crime against humanity, and attacks on civilians as a war crime.
back to topCore legal questions
Did the Trial Chamber err in finding Perišić guilty for aiding and abetting crimes against humanity and war crimes? (paras. 13-74)
Did the Trial Chamber err in finding Perišić guilty as a superior officer? (paras. 75- 120)
back to topSpecific legal rules and provisions
Updated Statute of the International Criminal Tribunal for the former Yugoslavia, 2009, UN Security Council:
ICTY Rules of Procedure and Evidence, 2009:
-
Rule 99(A) - Status of the Acquitted Person
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Rule 107 - General Provision
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Rule 117 - Judgement on Appeal
- Rule 118 - Status of the Accused following Appeal
back to topCourt's holding and analysis
On 28 February 2013, the Appeals Chamber of the ICTY reversed the Trial Chamber’s decision and acquitted Perišićof all charges.
Concerning the charges of aiding and abetting crimes against humanity and war crimes,the Appeals Chamber, Judge Liu dissenting, considered that specific direction is an element of aiding and abetting, and reaffirmed that ‘no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly’ (para. 36). The Appeals Chamber held that when the element of proximity is missing, ‘explicit consideration of specific direction is required’ in order to establish a culpable link between the assistance provided by Perišićand the crimes of the principal perpetrators’ (para. 39).
As a result, by evaluating the evidence de novo under the correct legal standard, the Appeals Chamber, Judge Liu dissenting, held that the evidence did not prove beyond a reasonable doubt that Perišićhad ‘specifically directed to assist, encourage or lend moral support to the perpetration of [the] certain specific crime[s]” committed by the VRS’ in Sarajevo and Srebrenica (para. 73).
With regard to Perišić’s conviction for superior responsibility, the Appeals Chamber found that the evidence did not support a finding of effective control of Perišićover SVK soldiers at the time of Zagreb’s shelling, nor was it clear whether, at the time of the Zagreb shelling, Perišićhad the authority to issue orders or to discipline soldiers in the SVK (paras. 119-120).
Therefore, the Appeals Chamber reversed the Trial Chamber’s judgment and acquitted Perišić (para. 121).
back to topFurther analysis
C. Jenks, ‘Prosecutor v. Perišić’, The American Journal of International Law, July 2013, Vol. 107(3), pp. 622-627.
C. Jenks, ‘Prosecutor v. Perišić (ICTY), Introductory Note by Chris Jenks’, International Legal Materials, 2013, Vol. 52(5), pp. 1065-1116.
A. Coco and T. Gal, ‘Losing Direction: The ICTY Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić’, Journal of International Criminal Justice, March 2014, Vol. 12, pp. 345-366.
S. Vasiliev, ‘Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem – Comments Occasioned by the Šainović et al. Appeal Judgment and the OTP Motion for Reconsideration of the Perišić Appeal Judgment’, SSRN, 8 February 2014, pp. 1-16.
back to topInstruments cited
back to topAdditional materials
‘The case before the ICTY’, International Criminal Tribunal for the former Yugoslavia.
‘Case Information Sheet - Momčilo Perišić’, International Criminal Tribunal for the former Yugoslavia.
‘Momcilo Perisic’, TRIAL.
Media Office of the ICTY, ‘Appeals Chamber Acquits and Orders Release of Momčilo Perišić’, ICTY, 28 February 2013.
M. Simons, ‘Court Overturns War Crimes Conviction of Former Chief of Yugoslav Army’, International New York Times, 28 February 2013.
‘UN court clears ex-Yugoslav army chief’, Aljazeera, 28 February 2013.
‘Momcilo Perisic: Yugoslav army chief conviction overturned’, BBC News, 28 February 2013.
‘UN court acquits Yugoslav army chief Perisic on appeal’, Global Post, 28 February 2013.
G. De Launey, ‘Momcilo Perisic Hague acquittal leaves little sense of justice’, BBC News, 28 February 2013.
T. Escritt, ‘Ex-Yugoslav army leader acquitted of war crimes’, Reuters, 28 February 2013.
M. Corder, ‘UN appeals court acquits ex-Serb military chief’, Yahoo! News, 28 February 2013.
‘Appeals Chamber Acquits General Perisic’, Sense Agency,28 February 2013.
‘UN court acquits ex-Yugoslav army leader Perisic’, Deutsche Welle, 28 February 2013.
T.J., ‘Two puzzling judgments in The Hague’, The Economist, 1 June 2013.
O. Bowcott, ‘Hague war crimes ruling threatens to undermine future prosecutions’, The Guardian, 13 August 2013.
back to topSocial media links
M. A. Hoare, ‘Why was Momcilo Perisic acquitted?’, Greater Surbiton.
M. Ristic, ‘Hague Acquits Yugoslav General Perisic of War Crimes’, Balkan Transitional Justice, 28 February 2013.
K. Sutherland, ‘ICTY Appeals Chamber Acquits Momčilo Perišić’, International Criminal Law Bureau, 28 February 2013.
B. Gallagher, ‘The ICTY Perisic Acquittal: Implications’, Croatia Business Report, 28 February 2013.
K. Herting, ‘ICTY overturns ex-Yugoslav army chief's war crimes conviction’, Jurist, 28 February 2013.
R. C. Williams, ‘The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić’, TerraNullius, 1 March 2013.
‘Judge Daqun: I Disagree with Perisic Acquittal’, Srebrenica Genocide Blog, 7 March 2013.
M. Milanovic, ‘The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic’, EJIL: Talk!, 11 March 2013.
R. Irwin, ‘Do Overturned Convictions Undermine Hague Tribunal?’, Institute for War & Peace Reporting, 20 March 2013.
J. G. Stewart, ‘Guest Post: The ICTY Loses its Way on Complicity – Part 1’, Opinio Juris, 3 April 2013.
K. J. Heller, ‘Why the ICTY’s “Specifically Directed” Requirement Is Justified’, Opinio Juris, 2 June 2013.
A. Fielding, ‘Judge Harhoff, Specific Direction and the Perisic Acquittal’, Beyond The Hague, 9 August 2013.
D. Dzidic, ‘Unjust’ Acquittal of Yugoslav General Perisic Challenged’, Balkan Transitional Justice, 4 February 2014.
