Tribunal Criminal Tribunal for the Former Yugoslavia

Page 88

 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.


Page 89

 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


Page 90

 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


Page 91

 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

16     holding.

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


Page 92

 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

16     liability.

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


Page 93

 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,


Page 94

 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


Page 95

 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


Page 96

 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

 7     reus.

 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


Page 97

 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


Page 98

 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


Page 99

 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


Page 100

 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


Page 101

 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


Page 102

 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


Page 103

 1     arguments in his first and twelfth grounds of appeal are dismissed as

 2     moot.

 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

18     secondment.

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

25     subordinate.


Page 104

 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


Page 105

 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


Page 106

 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

 9     Zagreb.

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

15     doubt.

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

22     addressed.

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


Page 107

 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

24     arrangements.

25             Judge Theodor Meron and Judge Carmel Agius append a joint


Page 108

 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.

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25