1 Thursday, 28 February 2013
2 [Appeals Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 2.59 p.m.
6 JUDGE MERON: Please be seated.
7 Good afternoon. Registrar, could you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-04-81-A, the Prosecutor versus Momcilo Perisic.
10 JUDGE MERON: Thank you. Mr. Perisic, can you follow the
11 proceedings in a language you understand?
12 THE APPELLANT: [Interpretation] Yes, I can follow.
13 JUDGE MERON: Thank you. Let me now ask for appearances by the
14 parties. First, counsel for Mr. Perisic, please.
15 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. And
16 good afternoon to all the participants in the proceedings. Today
17 Mr. Perisic will be represented by myself as the chief counsel. I am
18 Novak Lukic, and I am accompanied by Mr. Gregor Guy-Smith as the
19 assistant Defence counsel, and would have our assistants Tina Drolec,
20 Boris Zorko, Chad Mair, as well as our intern Marlene Yahya Haage.
21 JUDGE MERON: Thank you, counsel. For the Prosecutor, please.
22 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing
23 on behalf of the Prosecution. With me today, Ms. Elena Martin Salgado,
24 Ms. Bronagh McKenna, Ms. Virginie Monchy, and our Case Manager,
25 Mr. Colin Nawrot.
1 JUDGE MERON: Thank you, Ms. Brady.
2 As the Registrar announced, the case on our agenda today is
3 Prosecutor against Momcilo Perisic. In accordance with the
4 Scheduling Order issued on 15 February 2013, today the Appeals Chamber
5 will deliver its judgement. Following the practice of the Tribunal, I
6 will not read out the text of the Appeal Judgement, except for the
7 disposition, but instead will summarise essential issues on appeal on the
8 central findings of the Appeals Chamber. This oral summary does not
9 constitute any part of the official and authoritative judgement of the
10 Appeals Chamber which is rendered in writing and will be distributed to
11 the parties at the close of the hearing.
12 This case concerns events that occurred between at least
13 August 1993 and November 1995 in the territory of Bosnia-Herzegovina, or
14 Bosnia, and the Republic of Croatia, or Croatia. Starting on
15 26 August 1993 and through the rest of this period, Mr. Perisic was the
16 Chief of the General Staff of the Yugoslav army, or VJ, a position that
17 made him the VJ's most senior officer. During this period, the VJ
18 facilitated the provision of military and logistical aid to the Army of
19 Republika Srpska, or "VRS," in Bosnia and Herzegovina, and to the army of
20 the Serbian Krajina, or "SVK" in Croatia.
21 The Trial Chamber, Judge Moloto dissenting, found Mr. Perisic
22 guilty as an aider and abettor of the following crimes committed by the
23 VRS in the Bosnian towns of Sarajevo and Srebrenica: Murder, inhumane
24 acts and persecutions as crimes against humanity; and murder and attacks
25 on civilians as violations of the laws or customs of war. The
1 Trial Chamber, Judge Moloto dissenting, also found Mr. Perisic guilty as
2 a superior for failing to punish the following crimes related to SVK
3 shelling of Zagreb on 2 and 3 May 1995: Murder and inhumane acts as
4 crimes against humanity; and murder and attacks on civilians as
5 violations of the laws or customs of war. Mr. Perisic was sentenced to
6 27 years of imprisonment.
7 Mr. Perisic submitted 17 grounds of appeal challenging his
8 convictions and his sentence. He requests that the Appeals Chamber
9 reverse all of his convictions, or in the alternative, that his sentence
10 be reduced. The Appeals Chamber now turns to Mr. Perisic's contentions,
11 addressing first his grounds of appeal regarding his convictions for
12 aiding and abetting crimes in Sarajevo and Srebrenica.
13 Mr. Perisic, in his first through twelfth ground of appeal
14 submits that the Trial Chamber erred in convicting him of aiding and
15 abetting crimes committed by the VRS in Sarajevo and Srebrenica. In
16 particular, Mr. Perisic asserts that the Trial Chamber erred in holding
17 that acts of an aider and abettor need not be specifically directed
18 towards assisting the commission of charged crimes. He further contends
19 that the Trial Chamber committed a number of additional errors with
20 respect to his conviction for aiding and abetting.
21 The Prosecution responds that the Trial Chamber did not err in
22 convicting Mr. Perisic of aiding and abetting the VRS crimes in Sarajevo
23 and Srebrenica.
24 The Appeals Chamber recalls that the Trial Chamber concluded that
25 specific direction is not an element of the actus reus of aiding and
1 abetting. The Trial Chamber, accordingly, declined to consider whether
2 Mr. Perisic specifically directed aid towards charged VRS crimes. The
3 Trial Chamber found that Mr. Perisic made a substantial contribution to
4 these crimes, knew that his aid assisted the crimes in Sarajevo and
5 Srebrenica, and was aware of the general nature of the crimes. Based on
6 these findings, the Trial Chamber found Mr. Perisic guilty of aiding and
7 abetting VRS crimes in Sarajevo and Srebrenica.
8 The Appeals Chamber recalls that specific direction was first
9 described as a requisite element of the actus reus of aiding and abetting
10 liability in the 1999 Tadic Appeal Judgement. To date, no judgement of
11 the Appeals Chamber has found cogent reasons to depart from the
12 definition of aiding and abetting liability adopted in the Tadic Appeal
13 Judgement. Moreover, many subsequent appeal judgements have explicitly
14 referred to specify direction in enumerating the elements of aiding and
15 abetting, often repeating verbatim the Tadic Appeal Judgement's relevant
17 The Trial Chamber relied upon the 2009 Mrksic and Sljivancanin
18 Appeal Judgement in holding that specific direction was not a required
19 element of the actus reus of aiding and abetting. The Appeals Chamber
20 notes that the Mrksic and Sljivancanin Appeal Judgement stated in passing
21 that specific direction is not an essential ingredient of the actus reus
22 of aiding and abetting.
23 The Appeals Chamber recalls its settled practice to only "depart
24 from a previous decision after the most careful consideration has been
25 given to it, both as to the law, including the authorities cited and the
1 facts." The Mrksic and Sljivancanin Appeal Judgements passing reference
2 to specify direction does not amount to such careful consideration. Had
3 the Appeals Chamber found cogent reasons to depart from its relevant
4 precedent and intended to do so, it would have performed a clear detailed
5 analysis of this issue, discussing both past jurisprudence and the
6 authorities supporting an alternative approach. Instead, the relevant
7 reference to specific direction was made in a section and paragraph
8 dealing with mens rea rather than actus reus; was limited to a single
9 sentence not relevant to the Appeals Chamber's holding; did not
10 explicitly acknowledge a departure from prior precedent; and most
11 tellingly, cited only one previous Appeal Judgement, which in effect
12 confirmed that specific direction does constitute an element of aiding
13 and abetting liability. These indicia suggests that the formula "not an
14 essential ingredient" was not meant to depart from previous jurisprudence
15 establishing that specific direction is an element of aiding and abetting
17 Accordingly, the Appeals Chamber, Judge Liu dissenting,
18 considered that specific direction remains an element of aiding and
19 abetting liability, and reaffirms that no conviction for aiding and
20 abetting a crime made be entered if specific direction has not been
21 proved beyond reasonable doubt.
22 The Appeals Chamber, Judge Liu dissenting, recalls that the
23 element of specific direction establishes a culpable link between
24 assistance provided by an accused individual and the crimes of principal
25 perpetrators. In many cases, evidence relating to other elements of
1 aiding and abetting liability may be sufficient to demonstrate specific
2 direction and, thus, the requisite culpable link.
3 In this respect, the Appeals Chamber notes that previous Appeals
4 Judgements of the Tribunal have not conducted extensive analysis of
5 specific direction. The lack of such discussion may be explained by the
6 fact that prior convictions for aiding and abetting entered or affirmed
7 by the Appeals Chamber involved relevant acts geographically or otherwise
8 proximate to, and thus not remote from, the crimes of principal
9 perpetrators. Where such proximity is present, specific direction may be
10 demonstrated implicitly through discussion of other elements of aiding
11 and abetting liability, such as substantial contribution.
12 However, not all cases of aiding and abetting will involve
13 proximity of an accused individual's relevant acts to crimes committed by
14 principal perpetrators. Where an accused aider and abettor is remote
15 from the relevant crimes, evidence proving other elements of aiding and
16 abetting may not be sufficient to prove specific direction. In such
17 circumstances, the Appeals Chamber, Judge Liu dissenting, holds that
18 explicit consideration of specific direction is required.
19 The Appeals Chamber observes that Mr. Perisic's assistance to the
20 VRS was remote from the relevant crimes of principal perpetrators. In
21 particular, the Trial Chamber found that the VRS was independent from the
22 VJ and that the two armies were based in separate geographical regions.
23 In addition, the Trial Chamber did not refer to any evidence that
24 Mr. Perisic was physically present when relevant criminal acts were
25 planned or committed. In these circumstances, the Appeals Chamber,
1 Judge Liu dissenting, considers that an explicit analysis of specific
2 direction would have been required in order to establish the necessary
3 link between the aid Mr. Perisic provided and the crimes committed by
4 principal perpetrators.
5 Accordingly the Appeals Chamber, Judge Liu dissenting, considers
6 that the Trial Chamber committed an error of law by not considering
7 whether specific direction was proved in this case. The Appeals Chamber
8 will thus proceed to assess the evidence relating to Mr. Perisic's
9 convictions for aiding and abetting de novo under the correct legal
10 standard, considering whether Mr. Perisic's actions were specifically
11 directed to aid and abet the VRS crimes in Sarajevo and Srebrenica.
12 The Appeals Chamber notes that previous judgements have not
13 provided extensive analysis of what evidence may prove specific
14 direction. However, the Appeals Chamber recalls that specific direction
15 involves finding a link between an accused aider and abettor and the
16 crimes committed by principal perpetrators. The Appeals Chamber
17 considers that the types of evidence required to establish such a link
18 will depend on the facts of a case. However, in most situations, the
19 provision of general assistance which could be used for both lawful and
20 unlawful activities will not be sufficient, alone, to prove that this aid
21 was specifically directed to crimes of principal perpetrators.
22 In order to determine whether the VJ assistance facilitated by
23 Mr. Perisic was specifically directed to the commission of the VRS crimes
24 in Sarajevo and Srebrenica, the Appeals Chamber considers relevant
25 evidence on the record de novo, taking into account where appropriate the
1 Trial Chamber's findings.
2 As a preliminary matter, the Appeals Chamber recalls that the VRS
3 was neither de jure nor de facto subordinated to the VJ. The Appeals
4 Chamber will now consider whether VJ assistance to the VRS, that
5 Mr. Perisic acknowledges having facilitated, was specifically directed
6 toward VRS crimes. In this regard, the Appeals Chamber will assess
7 Mr. Perisic's role in shaping and implementing the Federal Republic of
8 Yugoslavia's policy of supporting the VRS; whether this policy of
9 supporting the VRS was specifically directed towards the commission of
10 certain crimes by the VRS; and whether Mr. Perisic either implemented the
11 Federal Republic of Yugoslavia Supreme Defence Council, or SDC, policy of
12 assisting the VRS in a way that specifically directed aid to the VRS
13 crimes in Sarajevo and Srebrenica, or took action to provide such aid
14 outside the context of SDC-approved assistance.
15 The Appeals Chamber underscores that the parameters of its
16 inquiry are limited and focus solely on factors related to Mr. Perisic's
17 individual criminal liability for the VRS crimes in Sarajevo and
18 Srebrenica not the potential liability of states or other entities over
19 which the Tribunal has no pertinent jurisdiction. The Appeals Chamber
20 also underscores that its analysis of specific direction will exclusively
21 address actus reus. In this regard, the Appeals Chamber acknowledges
22 that specific direction may involve considerations that are closely
23 related to questions of mens rea. Indeed, as discussed below, evidence
24 regarding an individual's state of mind may serve as circumstantial
25 evidence that assistance he or she facilitated was specifically directed
1 towards charged crimes. However, the Appeals Chamber recalls again that
2 the mens rea required to support a conviction for aiding and abetting is
3 knowledge that the assistance aids the commission of criminal acts along
4 with awareness of the essential elements of these crimes. By contrast,
5 as set out above, the long-standing jurisprudence of the Tribunal affirms
6 that specific direction is an analytically distinct element of actus
8 The Appeals Chamber recalls that Mr. Perisic served as the most
9 senior officer of the VJ during the relevant period and was responsible
10 for ensuring combat readiness and organising VJ operations. Mr. Perisic
11 was subordinated to the president of the Federal Republic of Yugoslavia,
12 and the ultimate authority on defence policy and operational priorities
13 for the VJ rested with the SDC. While SDC meetings were attended by many
14 individuals, including Mr. Perisic, final SDC decisions were taken by
15 political leaders: the president of the Federal Republic of Yugoslavia
16 and the presidents of the Republics of Serbia and Montenegro.
17 The decision to provide VJ assistance to the VRS was adopted by
18 the SDC before Mr. Perisic was appointed chief of the VJ General Staff,
19 and the SDC continued to support this policy during Mr. Perisic's tenure
20 in this position. Mr. Perisic regularly attended and actively
21 participated in meetings of the SDC and he was delegated the legal
22 authority by the SDC to administer assistance to the VRS. However, the
23 SDC retained the power to review both particular requests for assistance
24 and the general policy of providing aid to the VRS.
25 The Appeals Chamber recalls that the SDC's ultimate authority
1 over the policy of aiding the VRS does not in and of itself exempt
2 Mr. Perisic from criminal liability. In assessing whether Mr. Perisic is
3 liable for aiding and abetting the VRS crimes in Sarajevo and Srebrenica,
4 the Appeals Chamber will first consider whether the SDC policy of aiding
5 the VRS was itself directed to facilitate criminal activities. This
6 could be shown either by a finding that the VRS was an entirely criminal
7 organisation or by a finding that the SDC targeted its aid towards the
8 VRS crimes.
9 The Appeals Chamber recalls that the Trial Chamber did not
10 characterize the VRS as a criminal organisation. Having reviewed the
11 evidence on the record, the Appeals Chamber agrees with the Trial Chamber
12 that the VRS was not an organisation whose actions were criminal per se.
13 Instead, it was an army fighting a war. The Appeals Chamber notes the
14 Trial Chamber's finding that the VRS strategy was inextricably linked to
15 crimes against civilians. However, the Trial Chamber did not find that
16 all VRS activities in Sarajevo or Srebrenica were criminal in nature.
17 The Trial Chamber limited its findings to characterizing as criminal
18 certain actions of the VRS in the context of the operations in Sarajevo
19 and Srebrenica. In these circumstances, the Appeals Chamber considers
20 that the policy of providing assistance to the VRS general war effort
21 does not in itself demonstrate that aid facilitated by Mr. Perisic was
22 specifically directed aid to the VRS crimes in Sarajevo and Srebrenica.
23 Further, neither the Trial Chamber's conclusions nor the
24 Appeals Chamber's de novo review of the evidentiary record reveals any
25 basis for concluding that SDC policy specifically directed aid towards
1 VRS crimes. Instead, the SDC focused on monitoring and modulating aid to
2 the general VRS war effort. For example, SDC discussions addressed
3 difficulties in providing particular levels of assistance requested by
4 the VRS, salaries of VJ personnel seconded to the VRS, and how to react
5 when members of the VJ provided supplies to the VRS without official
6 approval. The Appeals Chamber observes that although the Trial Chamber
7 considered the magnitude of aid provided to VRS in concluding that VJ
8 assistance substantially contributed to VRS crimes in Sarajevo and
9 Srebrenica, evidence regarding volume of assistance does not necessarily
10 establish specific direction. In the circumstances of this case, indicia
11 demonstrating the magnitude of VJ aid to the VRS serve as circumstantial
12 evidence of specific direction. However, a finding of specific direction
13 must be the sole reasonable inference after a review of the evidentiary
14 record as a whole. In this context, the Appeals Chamber, Judge Liu
15 dissenting, considers that a reasonable interpretation of the evidence on
16 the record is that SDC directed large-scale military assistance to the
17 general VRS war effort, not to the commission of VRS crimes.
18 Accordingly, specific direction of VJ aid towards VRS crimes is not the
19 sole reasonable inference that can be drawn from the totality of the
20 evidence on the record even considering the magnitude of VJ's assistance.
21 In view of the foregoing, the Appeals Chamber, Judge Liu
22 dissenting, concludes that the SDC policy of assisting the VRS was not
23 proved to be specifically directed towards VRS crimes as opposed to the
24 general VRS war effort. Because the assistance provided to the VRS was
25 not in furtherance of specific crimes, the Appeals Chamber considers that
1 insofar as Mr. Perisic faithfully executed the SDC policy of supporting
2 the VRS, the aid Mr. Perisic facilitated was not specifically directed
3 towards the latter's criminal activities inclusive of the VRS crimes in
4 Sarajevo and Srebrenica.
5 The Appeals Chamber now considers whether Mr. Perisic
6 implementing the SDC policy of assisting the VRS war effort in a manner
7 that redirected aid towards VRS crimes or whether Mr. Perisic took
8 separate actions to the same effect. In this regard, the Appeals Chamber
9 will consider Mr. Perisic's role in SDC deliberations as well as the
10 nature of the assistance he provided to the VRS and the manner in which
11 this aid was distributed. Finally, the Appeals Chamber will consider
12 whether Mr. Perisic took actions independent of his efforts to implement
13 the SDC policy indicating that aid he facilitated was specifically
14 directed towards the VRS crimes in Sarajevo and Srebrenica.
15 The Appeals Chamber first notes that evidence relating to
16 Mr. Perisic's discussions at meetings of the SDC does not suggest that he
17 advocated specifically directing aid to support VRS crimes. The
18 Trial Chamber found that Mr. Perisic supported continuation of the SDC
19 policy of assisting the VRS. During meetings of the SDC, he argued both
20 for sustaining aid to the VRS and for adopting related legal and
21 financial measures that facilitated such aid. However, based on the
22 Trial Chamber's analysis and the de novo review of the evidence, the
23 Appeals Chamber, Judge Liu dissenting, finds that there is no proof that
24 Mr. Perisic supported of the provision of assistance specifically
25 directed towards the VRS criminal activities. Instead, evidence on the
1 record suggests that Mr. Perisic's relevant actions were intended to aid
2 the VRS overall war effort.
3 The Appeals Chamber observes that Mr. Perisic had considerable
4 discretion in providing assistance to the VRS, including the power to
5 deny requests for aid not submitted through official channels. While it
6 is possible that Mr. Perisic could have used this power to divert
7 SDC-approved aid specifically towards VRS criminal activities, the
8 Trial Chamber did not make any findings to that effect. In the
9 Appeals Chamber's review of relevant evidence also suggests that
10 Mr. Perisic simply directed assistance towards the general VRS war effort
11 within the parameters set by the SDC.
12 The Appeals Chamber recalls that indicia demonstrating the nature
13 and distribution of VJ aid could also serve as circumstantial evidence of
14 specific direction. With respect to the specific types of assistance
15 facilitated by the VJ through Mr. Perisic, the Appeals Chamber, Judge Liu
16 dissenting, finds that neither the secondment of VJ soldiers to the VRS
17 nor the provision of logistical aid appear incompatible with lawful
18 military operations. The Appeals Chamber also finds that evidence on the
19 record does not prove that Mr. Perisic took steps in context outside the
20 scope of SDC policy to assist VRS crimes.
21 The Appeals Chamber recalls again that the VRS undertook, inter
22 alia, lawful combat activities and was not a purely criminal
23 organisation. In this context, the Appeals Chamber, Judge Liu
24 dissenting, considered that a reasonable interpretation of relevant
25 circumstantial evidence is that while Mr. Perisic may have known of VRS
1 crimes, the VJ aid he facilitated was directed towards the VRS general
2 war effort rather than VRS crimes. Accordingly, the Appeals Chamber,
3 Judge Liu dissenting, holds that Mr. Perisic was not proved beyond
4 reasonable doubt to have facilitated assistance specifically directed
5 towards the VRS crimes in Sarajevo and Srebrenica.
6 The Appeals Chamber, Judge Liu dissenting, has clarified that in
7 view of the remoteness of Mr. Perisic's actions and the crimes of the
8 VRS, an explicit analysis of specific direction was required. As
9 detailed above, the Appeals Chamber has reviewed the Trial Chamber's
10 general evidentiary findings and conducted a de novo assessment of
11 evidence on the record. In sum, the Appeals Chamber, Judge Liu
12 dissenting, is not convinced that the only reasonable interpretation of
13 the totality of the circumstantial evidence is that Mr. Perisic
14 specifically directed aid towards the VRS crimes. Instead, a reasonable
15 interpretation of the record is that VJ aid facilitated by Mr. Perisic
16 was directed towards the VRS general war effort rather than VRS crimes.
17 Accordingly, the Appeals Chamber, Judge Liu dissenting, is not convinced
18 that the VJ aid which Mr. Perisic facilitated was proved to be
19 specifically directed towards the VRS crimes in Sarajevo and Srebrenica.
20 As demonstrated above, the Appeals Chamber considers that
21 assistance from one army to another army's war efforts is insufficient in
22 itself to trigger individual criminal liability for individual aid
23 providers absent proof that the relevant assistance was specifically
24 directed towards criminal activities. The Appeals Chamber underscores,
25 however, that this conclusion should in no way be interpreted as enabling
1 military leaders to deflect criminal liability by subcontracting the
2 commission of criminal acts. If an ostensibly independent military group
3 is proved to be under the control of officers in another military group,
4 the latter can still be held responsible for crimes committed by their
5 puppet forces. Similarly, aid from one military force specifically
6 directed towards crimes committed by another force can also trigger
7 aiding and abetting liability. However, as explained above, a sufficient
8 link between the acts of an individual accused of aiding and abetting a
9 crime and the crime he or she is charged with assisting must be
10 established for the accused individual to incur criminal liability.
11 Neither the findings of the Trial Chamber nor the evidence on the record
12 in this case proves such a link with respect to Mr. Perisic's actions.
13 After carefully reviewing the evidence on the record, the
14 Appeals Chamber, Judge Liu dissenting, concludes that it has not been
15 established beyond reasonable doubt that Mr. Perisic carried out acts
16 specifically directed to assist, encourage, or lend moral support to the
17 perpetration of the specific crimes committed by the VRS. Accordingly,
18 Mr. Perisic's convictions for aiding and abetting must be reversed on the
19 ground that not all the elements of aiding and abetting liability have
20 been proved beyond reasonable doubt.
21 For the foregoing reasons, the Appeals Chamber, Judge Liu
22 dissenting, grants Mr. Perisic's second and third grounds of appeal in
23 part insofar as they relate to his convictions for aiding and abetting,
24 and reverses his convictions under counts 1, 2, 3, 4, 9, 10, 11, and 12
25 of the indictment. In view of this finding, Mr. Perisic's remaining
1 arguments in his first and twelfth grounds of appeal are dismissed as
3 Mr. Perisic in his thirteenth ground of appeal submitted the
4 Trial Chamber erred in law and in fact in determining that he was in a
5 superior-subordinate relationship with the members of the VJ seconded to
6 the SVK at the time of the shelling of Zagreb on 2nd and 3rd of May,
7 1995. The Prosecution responds that the Trial Chamber did not err in its
8 conviction of Mr. Perisic for failing to punish the crimes of the VJ
9 soldiers serving in the SVK who committed crimes in Zagreb.
10 The Trial Chamber's finding of superior responsibility was based
11 in part on Mr. Perisic's position as a senior officer of the VJ. More
12 specifically, the Trial Chamber found that some members of the VJ,
13 including the perpetrators of charged crimes in Zagreb, were seconded
14 from the VJ to assist war efforts of the Republic of Serbian Krajina.
15 These VJ soldiers seconded to the SVK were administratively assigned to a
16 unit of the VJ named the 40th PC which provided, inter alia, their
17 salaries, housing, and educational and medical benefits during
19 The Appeals Chamber recalls that a superior cannot be held
20 criminally liable for the acts of his subordinates unless, among other
21 factors, he exercised effective control over those subordinates. The
22 Appeals Chamber further recalls that an accused may not be held liable
23 under Article 7(3) of the Statute for failure to punish crimes that were
24 committed by a subordinate before the accused assumed command over the
1 As an initial matter, the Appeals Chamber notes that the
2 Trial Chamber did not sufficiently discuss and analyse the evidence of
3 relevant witnesses. In context, this constituted a failure to provide a
4 reasoned opinion and thus an error of law. In view of the
5 Trial Chamber's legal error, the Appeals Chamber will proceed to assess
6 the evidence relevant to Mr. Perisic's exercise of effective control
7 de novo.
8 The evidence relating to Mr. Perisic's effective control is
9 circumstantial and thus can support a finding of effective control only
10 if this is the only reasonable interpretation of the record. In order to
11 determine whether Mr. Perisic exercised effective control over the
12 perpetrators of crimes in Zagreb, the Appeals Chamber will consider
13 relevant evidence, taking into account as appropriate the Trial Chamber's
14 relevant findings. The Appeals Chamber first recalls that SVK forces
15 shelled Zagreb on 2 and 3 May 1995, resulting in the death and injuries
16 of civilians. The Trial Chamber found that this shelling was ordered by
17 Milan Celeketic, a VJ soldier seconded to the SVK through the 40th PC on
18 the basis of instructions from Republic of Serbian Krajina President
19 Milan Martic. The Trial Chamber also found that during the SVK attacks
20 in Croatia, Mr. Perisic instructed Celeketic not to shell Zagreb.
21 However, these instructions were not obeyed.
22 The Appeals Chamber considers evidence regarding Mr. Perisic's
23 ability to issue binding command orders to VJ personnel seconded through
24 the 40th PC. However, having carefully considered relevant
25 circumstantial evidence, the Appeals Chamber is not convinced that the
1 only reasonable conclusion is that Mr. Perisic could issue command orders
2 to seconded VJ soldiers at the time of the shelling of Zagreb.
3 The Appeals Chamber also considers evidence concerning
4 Mr. Perisic's ability to discipline VJ soldiers seconded through the
5 40th PC. The Trial Chamber noted that Mr. Perisic was involved in
6 disciplinary proceedings against VJ soldiers seconded through the 40th PC
7 following the fall of the Republic of Serbian Krajina several months
8 after the crimes in Zagreb took place. However, the Appeals Chamber
9 notes evidence that SVK forces came under direct VJ control after the
10 fall of the Republic of Serbian Krajina. In these circumstances, a
11 reasonable interpretation of this evidence is that Mr. Perisic only
12 acquired disciplinary powers over VJ members seconded to the SVK after
13 the shelling of Zagreb.
14 Finally, the Appeals Chamber notes the existence of evidence that
15 Mr. Perisic had some control over promotions and resignations within the
16 40th PC. The Appeals Chamber also notes that Mr. Perisic was heavily
17 involved in SVK operations through his management of VJ aid and possessed
18 the power to approve or deny particular requests for assistance and
19 secondments. This evidence suggests that Mr. Perisic had some influence
20 over VJ members seconded to the SVK.
21 Having assessed different types of evidence relevant to
22 Mr. Perisic's effective control, the Appeals Chamber will now consider
23 whether this evidence, assessed in its totality, proves that at relevant
24 times Mr. Perisic possessed effective control over SVK members implicated
25 in committing crimes during the shelling of Zagreb. The Appeals Chamber
1 again notes the circumstantial nature of relevant evidence. In these
2 circumstances, a finding of effective control is possible only if that is
3 the sole reasonable inference from this evidence.
4 The Appeals Chamber concludes that while some evidence on the
5 record is consistent with Mr. Perisic's possessing effective control over
6 soldiers seconded through the 40th PC, other evidence on the record
7 suggests that during the shelling of Zagreb, Mr. Perisic did not possess
8 effective control over members of the perpetrators of charged crimes in
10 In these circumstances, a finding that Mr. Perisic exercised
11 effective control over those who committed crimes in Zagreb during the
12 shelling of that town is not the sole reasonable inference from the
13 totality of the circumstantial evidence in this case. Thus,
14 Mr. Perisic's effective control has not been proved beyond reasonable
16 Absent a finding of effective control over subordinates, superior
17 responsibility cannot be established. Thus, the Appeals Chamber reverses
18 the Trial Chamber's finding that Mr. Perisic was liable for failing to
19 punish relevant VJ soldiers serving in the SVK for their actions during
20 the shelling of Zagreb. Mr. Perisic's remaining submissions regarding
21 superior responsibility are therefore rendered moot and need not be
23 For the foregoing reasons, the Appeals Chamber finds that the
24 Trial Chamber erred in convicting Mr. Perisic for failing to punish VJ
25 soldiers seconded through the 40th PC for crimes that took place during
1 the shelling of Zagreb on 2 and 3 May 1995. Accordingly, Mr. Perisic's
2 thirteenth ground of appeal is granted.
3 I shall now read out the full operative text of the Appeals
4 Chamber's disposition.
5 Mr. Perisic, will you please stand.
6 For the foregoing reasons, the Appeals Chamber, pursuant to
7 Article 25 of the Statute and Rules 117 and 118 of the Rules, noting the
8 respective written submissions of the parties and the arguments they
9 presented at the hearing of 30 October 2012, sitting in open session,
10 grants, Judge Liu dissenting, Momcilo Perisic's second and third grounds
11 of appeal in part; reverses, Judge Liu dissenting, Momcilo Perisic's
12 convictions for murder, inhumane acts, and persecutions as crimes against
13 humanity, and for murder and attacks on civilians as violations of the
14 laws or customs of war; and enters, Judge Liu dissenting, a verdict of
15 acquittal under counts 1, 2, 3, 4, 9, 10, 11, and 12 of the indictment;
16 grants Momcilo Perisic's thirteenth ground of appeal; reverses
17 Momcilo Perisic's convictions for murder and inhumane acts as crimes
18 against humanity, and for murder and attacks on civilians as violations
19 of the laws or customs of war; and enters a verdict of acquittal under
20 counts 5, 6, 7, and 8 of the indictment; dismisses, Judge Liu dissenting,
21 as moot Momcilo Perisic's remaining grounds of appeal; and orders, in
22 accordance with Rule 99(A) and 107 of the Rules, the immediate release of
23 Momcilo Perisic, and directs the Registrar to make the necessary
25 Judge Theodor Meron and Judge Carmel Agius append a joint
1 separate opinion.
2 Judge Liu Daqun appends a partially dissenting opinion.
3 Judge Arlette Ramaroson appends a separate opinion.
4 Mr. Perisic, you may be seated.
5 Judgement, Registrar, would you please distribute copies.
6 The hearing of the Appeals Chamber of the International Criminal
7 Tribunal for the former Yugoslavia stands adjourned.
8 --- Whereupon the hearing adjourned at 3.56 p.m.