One way to look at the record of the International Criminal Tribunal for the Former Yugoslavia, ICTY, might be to divide its jurisprudence into three periods.
Until 2000, it was a barely functioning institution that tried the low-ranking direct perpetrators who happened to come its way.
After 2000, it concentrated prosecutions on high-ranking political and military officials, hoping to shed light on a network of perpetrators who developed and implemented programmes of producing nationally homogeneous populations by criminal acts.
Since 2012, it has sought to see out its existence by undoing the accomplishments of the second phase, applying narrow standards of liability to shift guilt away from the commanders and back onto the people who made no decisions but carried out plans developed by others.
The latest expression of ICTY’s third wave, led by Judge Theodor Meron, is Thursday’s appeal absolving former Yugoslav Army (VJ) chief of staff Momcilo Perisic of responsibility for crimes committed by client armies in Croatia and Bosnia-Herzegovina.
In Croatia, he was charged for failure to prevent and punish missile attacks against civilians in Zagreb in 1995, and the appeals chamber found unanimously that he did not exercise command over the perpetrators of that crime.
The major portion of the appeals verdict applies to Perišić’s role in aiding and abetting crimes by the Army of Republika Srpska (VRS) in Bosnia-Herzegovina, particularly the siege of Sarajevo and the genocide at Srebrenica.
Here the opinion written by Judge Meron parallels the opinion he wrote in the Gotovina appeal, applying a narrow standard of liability and rejecting evidence related to circumstances and the overall environment.
Convictions called into question
The standard of liability adopted is so restrictive that it calls into question the entire record of convictions in international law based on the obligations of people exercising command and control functions.
Perisic’s responsibility for crimes committed by the VRS relied on the role of the VJ, which he commanded, in providing arms, fuel, personnel and the salaries of officers to the VRS.
The appeals judgment adopts the standard that this assistance only indicates liability if it was “specifically directed to the commission of crimes” (paragraph 17 of the judgment) rather than representing “general assistance directed towards a war effort” (paragraph 20).
The juxtaposition of the fact that crimes were committed on a large scale and that they were made possible by assistance from VJ is rejected as evidence of aiding and abetting, on the ground that not everything that the VRS did was a crime.
As the appeals chamber opinion has it, “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators” (paragraph 44).
By this standard, the only way that Perišić’s conviction had been upheld would have been with evidence that showed him telling the VRS, “here is some money, weapons and personnel, please use them to commit crimes.”
On the same point, the appeals chamber found that Perišić’s knowledge of crimes also does not constitute evidence of his responsibility (paragraph 68).
The conclusion is justified on two grounds. In the first place, the appeals chamber finds that it was not established that “the VRS was an organisation whose sole and exclusive purpose was the commission of crimes” (paragraph 52). It found, rather, that “VRS undertook, inter alia, lawful combat activities and was not a purely criminal organization” (paragraph 69).
In this regard the appeals chamber determined – because VRS also did some things that were not illegal – that Perisic could not have been certain that the assistance he provided was being used for illegal acts.
In making this determination, however, ICTY is partly reversing a history of findings by its own chambers and by the International Court of Justice (ICJ) that the war aims of VRS – to create a nationally homogeneous territory by killing, intimidating and expelling members of the non-Serb population – were illegal from the start.
Who ordered the crimes?
The other major part of the appeals chamber’s reasoning turns on the question of whether Perisic exercised command over the VJ officers who were seconded to the VRS and the VRS officers who were financed by the VJ.
Here a chain of logic is opened that underscores the prominent role taken on by Judge Meron in revaluing the evidence before the Tribunal.
Among the authorities that Meron cites in the Perisic judgment is last year’s Gotovina judgment, also authored by Meron. If Meron can cite Meron as an authority, the same logic suggests that Perisic can be subordinate to himself.
In fact the appeals chamber goes on to argue that Perisic did not formulate policy because as chief of military staff he was subordinate to the Supreme Defence Council (paragraph 49), a body of which he was an active member.
In his role in the Supreme Defence Council, the appeals chamber found a lack of specific incriminating evidence because there was “no proof that Perisic supported the provision of assistance specifically directed towards the VRS’s criminal activities” (paragraph 60).
More amazingly, they decided that his support for criminal activity could be questioned because he “criticised general ‘mistakes’ of the Republika Srpska leadership that resulted in international criticism of the broader VRS war effort” (paragraph 60).
The argument about subordination undermines some of the potential for the Serbian government to be thrilled with the appeals verdict.
It can be interpreted as indicating that Perisic’s personal liability is limited because the crimes were aided and abetted by the state rather than by a person.
Suggestively but unhelpfully, the appeals chamber notes that it cannot decide about “the potential liability of States or other entities over which the Tribunal has no pertinent jurisdiction” (paragraph 48).
It also warns that its decision “should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts” (paragraph 72) – a particularly disconcerting admonition considering that in acquitting Perisic they have done just what they caution against.
New and restrictive standards
Like in the Gotovina case, the ICTY appeals chamber in the Perisic case has created new and restrictive standards of evidence that have the effect of making convictions for command responsibility for violations of international humanitariam law next to impossible.
As Judge Liu Daqun notes in his dissenting opinion, “Given that specific direction has not been applied in past cases with any rigor, to insist on such a requirement now effectively raises the threshold for aiding and abetting liability.”
In fact it raises the threshold to a level at which any commander who does not physically commit a crime or specifically order its commission cannot be convicted.
The long-term effect of this precedent if it is adopted by other courts would be to empty the category of command responsibility of content, shifting liability for crimes from the people who plan, organise and finance them to the people who comply with their orders.
The emerging third generation of ICTY jurisprudence will have profound implications for the legacy of the Tribunal. By revaluing earlier assessments that were made regarding the legitimacy of the VRS’s war aims, it calls into question the theory behind the prosecution in the ongoing cases against Radovan Karadzic and Ratko Mladic.
By narrowing the terms under which convictions can be rendered for command responsibility, coordination and collusion, it invites revision of convictions that have been issued by the Tribunal in earlier cases.
By preferring restrictive theories of liability, it steps back from the potential of the ICTY to produce a historical record that illuminates the structure of violence in the wars. And by overinterpreting traces of exculpatory evidence, it effectively abandons the concerns of victims and of actors interested in reconciliation.
Eric Gordy is a senior lecturer at University College London.