JUDGE DAQUN: I DISAGREE WITH PERISIC ACQUITTAL

Honorable Judge Liu Daqun (China) of the International Criminal Tribunal
at the Hague, Netherlands.

1. In this Judgement, the Majority reverses Perisic’s convictions for aiding and abetting murder, inhumane acts, and persecution as crimes against humanity; and murder and attacks on civilians as violations of the laws or customs of war. This reversal is predicated on the finding that the Trial Chamber erred in holding that specific direction is not a required element of the actus reus of aiding and abetting liability. The Majority then conducts a de novo review of the evidence and concludes that it was insufficient to prove that the aid Perisic provided was specifically directed towards the criminal activities of the VRS [Bosnian Serb Army] in Sarajevo and Srebrenica. I respectfully disagree with the Majority’s reasoning and its conclusion in this regard.

2. While I recognise that the specific direction requirement has been mentioned in the relevant jurisprudence, I note that it has not been applied consistently. Indeed, the cases cited by the Majority as evidence of an established specific direction requirement merely make mention of “acts directed at specific crimes” as an element of the actus reus of aiding and abetting liability. In the majority of these cases the Appeals Chamber simply restates language from the Tadic Appeal Judgement without expressly applying the specific direction requirement to the facts of the case before it. Moreover, the jurisprudence of the Tribunal demonstrates that aiding and abetting liability may be established without requiring that the acts of the accused were specifically directed to a crime. In these circumstances, I am not persuaded that specific direction is an essential element of the actus reus of aiding and abetting liability – or that it is necessary to explicitly consider specific direction in cases where the aider and abettor is remote from the relevant crimes.

3. 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. This shift risks undermining the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous crimes to evade responsibility for their acts. The present appeal is a case in point.

4. The Trial Chamber held Perisic responsible for facilitating the criminal acts of the VRS in Sarajevo and Srebrenica. Although the Trial Chamber did not characterise the VRS as a wholly criminal organisation, it nonetheless found that the crimes committed by the VRS were “inextricably linked to the war strategy and objectives of the VRS leadership.” It further found that the VRS “wag₣edğ a war that encompassed systematic criminal actions against Bosnian Muslim civilians as a military strategy and objective.” In this regard, the Trial Chamber found that the siege of Sarajevo was instrumental to the implementation of a VRS objective and that the “systematic and widespread sniping and shelling of civilians in Sarajevo by the VRS over a period of three years demonstrate₣dğ that the VRS’s leading officers relied on criminal acts to further the siege.” With regard to Srebrenica, the Trial Chamber found that the VRS pursued a strategic objective “aimed at establishing a corridor in the Drina River valley and eliminating the Drina River as a border between the Serbian states.” It concluded that “this goal was implemented through the plan of ‘plunging the Bosnian Muslim population into a humanitarian crisis and ultimately eliminating the enclave’.”

5. As the highest ranking officer of the VJ, Perisic oversaw a system which provided considerable practical assistance to the VRS. In his capacity as Chief of the VJ General Staff, Perisic institutionalised the provision of logistical assistance to the VRS and had the power to approve or deny aid requests from the VRS. The Trial Chamber noted that Perisic refused aid requests that did not comply with his procurement procedure and that his decisions in this regard were final. Moreover, the Trial Chamber considered that “Perisic’s role went beyond administering the logistical assistance process” and noted that Perisic “recurrently encouraged the SDC [Supreme Defence Council] to maintain this assistance, thereby helping craft the FRY’s [Federal Republic of Yugoslavia's] policy to aid these armies.”

6. The Trial Chamber found that Perisic presided over “a system providing comprehensive military assistance to the VRS”. It noted that this assistance included “considerable quantities of weaponry comprising a very large part of the VRS’s munition requirements” and the transfer of a number of VJ officers and key personnel to the VRS. The Trial Chamber carefully assessed the magnitude of the logistical aid Perisic directed towards the VRS and found that “without the regular supply of considerable quantities of ammunition and other weaponry, as well as fuel, technical expertise, repair services and personnel training, the VRS would have been hampered in conducting its operations in Sarajevo and Srebrenica.” Significantly, the Trial Chamber established that “important logistical and technical support was provided to the units involved in perpetrating the charged crimes” in Sarajevo and Srebrenica.

7. This comprehensive assistance was crucial to the VRS’s continued existence. The Trial Chamber found that the assistance provided by Perisic “sustained the very life line of the VRS and created the conditions for it to implement a war strategy that encompassed the commission of crimes against civilians.” Without this aid, the Trial Chamber concluded, the VRS could not have operated effectively as an army. It consequently found that “Perisic’s logistical assistance and personnel assistance, individually and cumulatively, had a substantial effect on the crimes perpetrated by the VRS in Sarajevo and Srebrenica”.

8. The Trial Chamber also reviewed extensive evidence in finding that Perisic was aware of the VRS’s propensity to commit criminal acts. It found that, from the early stages of the war, “Perisic was provided with information, from a variety of sources, of the VRS’s criminal behaviour and discriminatory intent. This information related to acts of violence against Bosnian Muslims perpetrated in the BiH theatre of war and made Perisic aware of the VRS’s propensity to commit crimes.” The Trial Chamber concluded that Perisic knew “of the VRS criminal intent in the implementation of its war strategy” and nonetheless provided assistance to the VRS war effort in the Sarajevo campaign. It further found that Perisic “knew that individual crimes committed by the VRS before the attack on Srebrenica would probably be followed by more crimes committed by the VRS after the take-over of the enclave in July 1995” and that “Perisic had contemporaneous knowledge of allegations that the VRS was committing crimes in Srebrenica.”

9. Having carefully reviewed Perisic’s submissions on appeal, I am satisfied that the Trial Chamber did not err in its assessment of the evidence on the record or in its analysis of aiding and abetting liability. Perisic’s acts, which facilitated the large-scale crimes of the VRS through the provision of considerable and comprehensive aid, constitute a prime example of conduct to which aiding and abetting liability should attach. Moreover, even assuming specific direction were a required element of aiding and abetting liability, I am not convinced that an acquittal would be justified given the magnitude, critical importance, and continued nature of the assistance Perisic provided to the VRS.

10. In these circumstances, I would have upheld Perisic’s convictions for aiding and abetting the crimes committed by the VRS in Sarajevo and Srebrenica.