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(Photo provided courtesy of the ICTY)

(Photo provided courtesy of the ICTY)

The Prosecutor v. Momčilo Perišić

Court International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands
Case number IT-04-81-T
Decision title Judgment (public with confidential annex c)
Decision date 6 September 2011
Parties
  • The Prosecutor
  • Momčilo Perišić
Categories Crimes against humanity, War crimes
Keywords aiding and abetting, crimes against humanity, Effective control, Sarajevo, Srebrenica, Superior responsibility, war crimes, Zagreb
Links
Other countries involved
  • Bosnia and Herzegovina
  • Croatia (Hrvatska)
  • Serbia-Montenegro
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Summary

Momčilo Perišić was a high-level military officer in the Yugoslav Army, which provided assistance both through sending weapons and through paying the salaries of the officers of the Army of Republika Srpska (VRS) and that of the Serbian Krajina (SVK). 

Three incidents were relevant for the purposes of his trial. The shelling and sniping in Sarajevo, the invasion of the town of Srebrenica, both perpetrated by the VRS, and the SVK's attacks in Zagreb.

The Chamber found Perišić guilty as aider and abettor to war crimes and crimes against humanity for his role in the incidents in Sarajevo and Srebrenica. 

The Chamber found him not guilty for his failure to punish the acts of the VRS in Sarajevo and Srebrenica due to the lack of his effective control over the conduct of the VRS. 

However, he was found guilty for the failure to punish the criminal behavior of the SVK, over the conduct of which he did possess effective control. Perišić was sentenced to 27 years of imprisonment.

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Procedural history

The revised second amended indictment was filed by the Prosecution on 5 February 2008. The trial commenced on 2 October 2008 and closing arguments were heard between 28 and 31 March 2011.

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Related developments

Perišić’s Defence filed its Appeal Brief on 10 April 2012. On 28 February 2013, the Appeal Chamber reversed the Trial Chamber decision and acquitted Momčilo Perišic of all charges. Concerning the charges of aiding and abetting crimes against humanity and war crimes, the Appeal Chamber held that the evidence did not prove beyond a reasonable doubt that he had specifically directed crimes committed by the VRS in Sarajevo and Srebrenica. On the conviction for superior responsibility, the Appeals Chamber found that the evidence did not support a finding of effective control of Mr Perišic over SVK soldiers at the time of Zagreb’s shelling nor was it clear whether, at the time of the Zagreb shelling, he had the authority to issue orders or to discipline soldiers in the SVK. 

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Legally relevant facts

Perišić was the Chief of the General Staff of the Yugoslav Army (VJ) from 1993 till 1998. Three incidents are relevant for the purposes of his trial: 

  1. Sarajevo (August 1993 – November 1995). The Trial Chamber held that civilians were killed by the Army of Republika Srpska (VRS) through shelling and sniping during this period with the assistance of the VJ (paras. 9-11). 
  2. Zagreb (2-3 May 1995), where on both of these days, warheads were fired by the Army of Serbian Krajina (SVK) into the center of Zagreb which lead to the death and injury of civilians (paras. 12-15). 
  3. Srebrenica (July 1995), which between 6 and 11 July 1995 was under the attack of the VRS and Bosnian Serb forces. Between 12 and 20 July 1995 Bosnian men were captured, and later executed. Starting in July 1995, the VRS forcibly transferred Bosnian Muslim women, children and elderly (paras. 16-21).
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Core legal questions

  • Did the acts committed in Sarajevo, Zagreb and Srebrenica amount to crimes against humanity and war crimes under the provisions of the Statute, and can they be attributed to the VRS and the SVK respectively? What assistance, if any, was given to them by the Yugoslav Army? 
  • Can Perišić individually be held liable under the provision of Article 7(1) of the Statute as aider and abettor to the crimes in Sarajevo and Srebrenica? 
  • Can Perišić be held liable under the superior command responsibility provision of Article 7(3) of the Statute? Did a superior-subordinate relationship exist between the perpetrators and Perišić?

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Specific legal rules and provisions

  • Articles 3 (War Crimes), 5 (Crimes Against Humanity), 7(1) (individual criminal responsibility) and 7(3) (Superior Responsibility) of the ICTY Statute.

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Court's holding and analysis

The Trial Chamber analyzed the incidents in Sarajevo, Zagreb and Srebrenica. It found that the crimes were perpetrated by the Army of Republika Srpska (VRS) in Sarajevo and Srebrenica, and by the Army of Serbian Krajina in Zagreb (SVK) (paras. 556-563; 591-597 and 729-759).

The Trial Chamber found that Perišić's assistance contributed substantially to the operations of the VRS. Accordingly, the Trial Chamber found him responsible for aiding and abetting the charged crimes under Article 7(1) of the Statute (para. 1649). 

The Trial Chamber further consideredPerišić's responsibility for failing to prevent his subordinates from committing the crimes. The Chamber concluded that Perišić did not exercise de facto control over the VRS and did not have the power to prevent or punish their conduct in Sarajevo and Srebrenica (para. 1778). Therefore, no responsibility was established under Article 7(3) of the Statute for these two incidents (para. 1785). With regard to Zagreb, however, the Chamber found that Perišić did have effective control over the SVK officers, and the superior-subordinate relationship was established during the relevant time period of 2-3 May 1995. Accordingly, the Chamber found Perišić responsible under Article 7(3) for the events in Zagreb (para. 1784). 

Perišić received a 27 year sentence (para. 1840).

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Instruments cited

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Additional materials

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Social media links