Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14939

 1                           Tuesday, 6 September 2011

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 11.00 a.m.

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.

 8             Madam Registrar -- or Mr. Registrar, I beg your pardon, will you

 9     please call the case.

10             THE REGISTRAR:  Good morning, Your Honours.  This is case

11     IT-04-81-T, the Prosecutor versus Momcilo Perisic.  Thank you,

12     Your Honours.

13             JUDGE MOLOTO:  Thank you so much.

14             Could we have appearances for the day, starting with the

15     Prosecution, please.

16             MR. SAXON:  Good morning, Your Honours.  Carmela Javier,

17     Rafael La Cruz, Bronagh McKenna, April Carter, and Dan Saxon for the

18     Prosecution.

19             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

20             And for the Defence.

21             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Good

22     morning to everybody in the courtroom.  Mr. Perisic is represented today,

23     as was the case during the trial, by Novak Lukic and Mr. Guy-Smith as

24     counsel.  And together with us we have Boris Zorko, Chad Mair,

25     Tina Drolec, and Deirdre Montgomery.

Page 14940

 1             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

 2             The Trial Chamber will now deliver its judgement in the case of

 3     Prosecutor versus Momcilo Perisic.

 4             For the purposes of this hearing, the Chamber will briefly

 5     summarise its findings.  I stress that this is a summary only.  The

 6     authoritative account of the Chamber's findings can be found in the

 7     written judgement which will be made available at the end of this

 8     session.

 9             The trial has lasted nearly three years.  The Trial Chamber heard

10     over a hundred witnesses, and 3.794 exhibits are part of the trial

11     record.

12             Momcilo Perisic is a retired general of the Yugoslav Army.  On

13     the 26th of August, 1993, he was appointed chief of the General Staff of

14     the Yugoslav Army, a position he held until the 24th of November, 1998.

15     During that time, General Perisic was the top military officer of the

16     Yugoslav Army, headquartered in Belgrade, Serbia.

17             Under Article 7(1) of the Statute, General Perisic is charged

18     with aiding and abetting, war crimes, and crimes against humanity

19     perpetrated in Sarajevo and Srebrenica, in Bosnia, between 1993 and 1995

20     by the Army of Republika Srpska, known as the VRS.

21             The Prosecution alleges that the VRS conducted a campaign of

22     shelling and sniping against Sarajevo civilians throughout the Bosnian

23     war.  It submits that General Perisic, as chief of the Yugoslavia Army,

24     knowingly aided and abetted the crimes of murder, inhumane acts, and

25     attacks on civilians in Sarajevo by providing substantial assistance to

Page 14941

 1     the VRS.  That assistance allegedly included considerable quantities of

 2     weaponry, as well as the provision of salaries and other benefits to the

 3     top officers of the VRS, including General Ratko Mladic, the VRS

 4     commander.

 5             Further, the Prosecution alleges that by providing logical and

 6     personnel assistance, General Perisic aided and abetted the crimes of

 7     murder, inhumane acts, persecutions, and extermination perpetrated by the

 8     VRS during its take-over of Srebrenica in 1995.

 9             In addition to aiding and abetting, General Perisic is charged

10     under Article 7(3) of the Statute with having failed to prevent crimes

11     perpetrated by his subordinates and/or punish them for their criminal

12     behaviour.  The crimes in question include the previously mentioned

13     crimes in Sarajevo and Srebrenica, as well as separate crimes of murder,

14     inhuman acts, and attacks on civilians related to the shelling of Zagreb,

15     in Croatia, by the army of the Serbian Krajina, known as the SVK.

16             Before focussing on General Perisic's individual criminal

17     responsibility, the Trial Chamber will announce its findings on the

18     crimes perpetrated in Sarajevo, Srebrenica, and Zagreb.

19             The Trial Chamber has found that from September 1992 to

20     November 1995 the VRS conducted a lengthy campaign of shelling and

21     sniping in Sarajevo that resulted in the deaths of hundreds of civilians

22     and the wounding of thousands of others.  The Trial Chamber examined the

23     facts surrounding nine shelling and ten sniping incidents that occurred

24     in Sarajevo.  It found that the VRS had perpetrated the crimes of murder

25     as a crime against humanity, murder as a war crime, inhumane acts as a

Page 14942

 1     crime against humanity, and attacks on civilians as a war crime.

 2             In the summer of 1995, the VRS invaded the town of Srebrenica,

 3     which the United Nations Security Council had previously established as a

 4     safe area for civilians.  After taking over Srebrenica, the VRS proceeded

 5     to forcibly remove and massacre thousands of Muslim civilians and persons

 6     not taking an active part in hostilities.  The Trial Chamber found that

 7     the VRS committed the crimes of murder as a crime against humanity,

 8     murder as a war crime, inhumane acts as a crime against humanity,

 9     persecutions as a crime against humanity, and extermination as a crime

10     against humanity.

11             The Trial Chamber has determined that the SVK fired rockets on

12     the city of Zagreb on the 2nd of May, 1995, killing five people and

13     injuring 46.  The SVK again fired rockets on Zagreb on the next day,

14     killing two persons and injuring 54.  The Chamber found that the SVK

15     perpetrated the crimes of murder as a crime against humanity, murder as a

16     war crime, inhumane acts as a crime against humanity, and attacks on

17     civilians as a war crime.

18             Having found that crimes were committed in Sarajevo, Srebrenica,

19     and Zagreb, I will now summarise the Trial Chamber's findings on the

20     logistical and personnel assistance that General Perisic allegedly

21     provided to the VRS and SVK in conducting their operations in Bosnia and

22     Croatia.

23             The Trial Chamber found that General Perisic oversaw the

24     Yugoslav Army's provision of extensive logistical assistance to the VRS

25     and the SVK.  Logistical assistance notably included vast quantities of

Page 14943

 1     infantry and artillery ammunition, fuel, spare parts, training, and

 2     technical assistance.

 3             The Yugoslav Army already provided logistical assistance to these

 4     armies before General Perisic became its chief in August 1993.  However,

 5     logistical assistance became more centralised, structured, and

 6     co-ordinating during his tenure.  General Perisic organised a procurement

 7     procedure for the Yugoslav Army General Staff to review requests for

 8     logistical assistance.  He also regularly met and conferred with

 9     General Mladic and General Celeketic, the VRS and SVK's respective

10     commanders, about their army's military needs.

11             General Perisic and the Yugoslav Army General Staff did not grant

12     requests for assistance, although they approved a substantial proportion

13     of them, including millions of infantry bullets and thousands of shells.

14     For instance, in 1994, the VRS Main Staff estimated that it had obtained

15     from the Yugoslav Army over 25 million infantry bullets and over 7.500

16     shells, among other ammunition.

17             The Supreme Defence Council of the Federal Republic of Yugoslavia

18     granted General Perisic and the Yugoslav Army the authority to provide

19     logistical assistance to the VRS and the SVK.  Even though

20     General Perisic was not officially a member of the

21     Supreme Defence Council, he participated in the council's meetings, along

22     with its members, notably Slobodan Milosevic and Zoran Lilic, who then

23     respectively held the titles of president of Serbia and president of the

24     Federal Republic of Yugoslavia.  General Perisic regularly urged the

25     council to continue providing important logistical assistance to the VRS

Page 14944

 1     and SVK, insisting that they could not wage war without significant

 2     military support.

 3             While the international community had dispatched personnel to

 4     monitor the border between Yugoslavia and Bosnia for arms deliveries,

 5     Serb authorities were able to evade border monitors.  Sanctions by the

 6     international community did not preclude the VRS and SVK from regularly

 7     receiving considerable quantities of weaponry from Serbia.

 8             The Trial Chamber will now turn to the personnel assistance

 9     overseen by General Perisic.

10             A large number of VRS and SVK officers were drawn from the ranks

11     of the Yugoslav Army.  They officially remained members of the

12     Yugoslav Army even as they were fighting in Bosnia and Croatia under the

13     banners of the VRS and the SVK.  General Perisic proposed and carefully

14     implemented the idea to create "personnel centres" to regularise the

15     status of these officers and allow them to lawfully remain part of the

16     Yugoslav Army.  VRS officers retained their salaries and benefits as

17     Yugoslav Army members through what was known as the 30th Personnel

18     Centre, and SVK officers through the 40th Personnel Centre.  General

19     Perisic further intended the personnel centres system to help legalise

20     the deployment of additional personnel to these armies.

21             In December of 1993, General Perisic stated there were over 7.000

22     Yugoslav Army officers serving in the VRS and SVK through the personnel

23     centres.  While many officers voluntarily accepted transfer,

24     General Perisic made clear that those who refused to be sent to the VRS

25     or SVK would be dismissed from the Yugoslav Army in one way or another.

Page 14945

 1     General Perisic and other leading Yugoslav officials sought to keep the

 2     real function of the personnel centres secret in order to avoid further

 3     criticism or sanctions from the international community.

 4             The Trial Chamber will now summarise its legal conclusions on the

 5     aiding and abetting counts charged under Article 7(1).

 6             The following considerations and findings are made by majority,

 7     Judge Moloto dissenting.  The majority finds that crimes were

 8     inextricably linked to the VRS's war strategy and objectives.  The VRS

 9     regularly made no distinction between civilian and military targets.  In

10     fact, it targeted Bosnian Muslim civilians as a matter of course.  The

11     crimes charged in this case were not perpetrated by rogue soldiers acting

12     independently.  Rather, they were part of a lengthy campaign overseen by

13     top VRS officers of the Yugoslav Army's payroll, including

14     General Mladic.

15             General Perisic is not charged with helping the VRS wage war

16     per se, yet, under the VRS's strategy, there was no clear distinction

17     between military warfare against Bosnian Muslim troops and attacks

18     against Muslim civilians.  General Perisic repeatedly exercised his

19     authority to provide logistical and personnel assistance that made it

20     possible for the VRS to wage a war that he knew encompassed systemic

21     crimes against Muslim civilians.

22             The siege of Sarajevo and the ensuing sniping and shelling of its

23     civilians were means of implementing the Bosnian Serb objective of

24     dividing Sarajevo into Serb and Muslim sectors.  Attacks against

25     civilians aimed to intimidate the population of Sarajevo and break its

Page 14946

 1     morale and spirit, as well as to destabilize Bosnia and Herzegovina as a

 2     country.

 3             Another Bosnian Serb objective was the establishment of a

 4     corridor in the Drina valley and the elimination of the Drina river as a

 5     border between Serbia and Republika Srpska.  This objective was pursued

 6     through criminal means, as the Bosnian Serb leadership sought to

 7     eliminate Muslim enclaves in that area.  Once the VRS took over the

 8     Srebrenica enclave, it proceeded to forcibly remove and massacre its

 9     Muslim population, perpetrating atrocities on a vast scale.

10             The VRS largely depended on logistical and personnel assistance

11     overseen by General Perisic in order to conduct its operations in

12     Sarajevo and Srebrenica.  The majority finds that General Perisic's

13     actions had a substantial effect on the crimes that the VRS perpetrated,

14     because its military operations encompassed a systemic crimes against

15     civilians.  Besides witness testimony, the majority relied upon numerous

16     sources of information for its conclusions, including material delivery

17     forms, personnel files, internal military reports, communication records,

18     and minutes of the Supreme Defence Council featuring discussions between

19     General Perisic, Slobodan Milosevic, Zoran Lilic, and other top

20     officials.

21             As stated earlier, General Perisic oversaw the Yugoslav Army's

22     comprehensive logistical assistance to the VRS.  Part of this help was

23     given to VRS units involved in perpetrating the charged crimes; for

24     example, the Drina Corps, the Krajina Corps, the Sarajevo Romanija Corps.

25     Overall, logistical assistance from the Yugoslav Army was critical to the

Page 14947

 1     VRS's operations because its resources were limited, its financial

 2     situation was dire, and its ammunition reserves verged on depletion as

 3     the war progressed.

 4             The Bosnian Serb leadership regularly pressed General Perisic to

 5     keep sending assistance, as it was well aware that its military

 6     operations largely depended on Yugoslav Army support.  Radovan Karadzic

 7     admitted, for instance, that, and I quote, "nothing would happen without

 8     Serbia.  We do not have those resources and we would not be able to

 9     fight."  Similarly, General Mladic admitted that "we would not be able to

10     live" if assistance was discontinued.  General Perisic himself stated on

11     several occasions that the VRS would have faced much greater difficulties

12     in waging war if military assistance had been withheld.

13     Slobodan Milosevic remarked that "everything that has been made there was

14     made thanks to Serbia and the army," a statement with which

15     General Perisic concurred.

16             In addition to orchestrating the logistical assistance system,

17     General Perisic assumed a lead role in establishing the

18     30th Personnel Centre to serve the needs of key VRS officers.  Besides

19     General Mladic, members of the 30th Personnel Centre included

20     high-ranking officers responsible for crimes in Sarajevo and/or

21     Srebrenica, namely, Stanislav Galic, Dragomir Milosevic,

22     Milenko Zivanovic, Radislav Krstic, Vujadin Popovic, Vinko Pandurevic,

23     Milan Gvero, Ljubisa Beara, Radivoje Miletic, and Dragan Obrenovic.

24     These officers continued to receive their salaries as regular

25     Yugoslav Army members.  Moreover, they retained all their rights and

Page 14948

 1     benefits as members, receiving compensation for service under difficult

 2     conditions, housing benefits, pension benefits, as well as medical

 3     insurance and treatment for themselves and their families.

 4             The majority finds that General Perisic aimed to help the VRS

 5     retain and recruit qualified officers by providing such rights and

 6     benefits as incentives to serve in the VRS.  General Perisic was well

 7     aware that the payment of salaries was, in his own words, of "great help"

 8     to the VRS.  Republika Srpska had serious difficulties with remunerating

 9     VRS personnel in light of its grave financial problems.

10             Finally, the majority finds that General Perisic had knowledge

11     that the VRS's operations encompassed grave crimes against civilians.

12     General Perisic received information from a variety of sources concerning

13     the VRS's criminal behaviour and discriminatory intent against Muslims.

14     Under General Perisic's direction, the Yugoslav Army's intelligence and

15     security organs monitored views -- monitored the views of the

16     international community and international media concerning the conflict

17     in Bosnia and Herzegovina.  The Yugoslav Army General Staff also received

18     diplomatic reports about proceedings at the United Nations

19     Security Council concerning grave abuses against civilians in Sarajevo

20     and other parts of Bosnia and Herzegovina.

21             In particular, General Perisic was alerted to the fact that the

22     VRS was conducting a campaign of sniping and shelling against civilians

23     during its siege of Sarajevo.  These regular attacks were well documented

24     and widely reported for a period of three years.  General Perisic could

25     not have reasonably discounted this information simply because he and his

Page 14949

 1     allies considered it biased against the Serbs.  The fact that information

 2     could, in certain instances, be biased or one-sided does not undermine

 3     the finding that General Perisic had notice of the VRS's crimes in

 4     Sarajevo; namely, murder, attacks on civilians, and inhumane acts.

 5             With regard to the atrocities perpetrated during the take-over of

 6     Srebrenica in July 1995, the majority underlines that General Perisic had

 7     already been notified long before this tragedy that the VRS had a

 8     propensity to target civilians.  Further, he was aware of the escalating

 9     tensions in the Srebrenica area and that the VRS was preparing a military

10     attack there.  The majority is satisfied that General Perisic knew that

11     it was highly probable that the VRS would forcibly transfer

12     Bosnian Muslims and commit killings and other abuses with discriminatory

13     intent once Srebrenica had fallen under VRS control.  In other words,

14     General Perisic knew of the likelihood that the VRS would perpetrate the

15     crimes of murder, inhumane acts, and persecutions in Srebrenica.

16             However, the Trial Chamber unanimously finds that the evidence

17     does not establish beyond a reasonable doubt that General Perisic could

18     reasonably have foreseen, based on his knowledge of the VRS's prior

19     conduct, that the VRS would engage in the radical, systemic extermination

20     of thousands of Muslims in Srebrenica.

21             The Trial Chamber will now render its findings on the counts

22     charged under Article 7(3) of the Statute.

23             The Trial Chamber recalls that, besides aiding and abetting

24     crimes, General Perisic is accused of failing to prevent crimes

25     perpetrated by his subordinates and/or punish them for their criminal

Page 14950

 1     behaviour.

 2             In order for General Perisic to be culpable under this mode of

 3     liability, the Trial Chamber must consider whether a superior-subordinate

 4     relationship existed between General Perisic and the perpetrators,

 5     including whether he exercised effective control over them.  The

 6     Trial Chamber underlines that mere co-operation or the mere ability to

 7     exercise influence is not sufficient to establish effective control.

 8             Firstly, the Chamber finds that the VRS's crimes in Sarajevo and

 9     Srebrenica were perpetrated by officers who were de jure subordinated to

10     General Perisic, namely, officers who were members of the

11     30th Personnel Centre and officially remained part of the Yugoslav Army.

12     However, possession of de jure authority in the absence of an inquiry

13     into the de facto state of affairs is generally insufficient to establish

14     effective control under the applicable legal standard, which requires

15     proof of the material ability to prevent or punish the criminal behaviour

16     of subordinates.

17             The trial record neither contains evidence of command orders by

18     General Perisic to members of the 30th Personnel Centre nor evidence of

19     disciplinary or criminal proceedings initiated by Perisic against them.

20     Rather, the evidence reflects General Perisic's inability to impose

21     binding orders on General Mladic, the VRS commander, who maintained a

22     measure of independence throughout the war.  Even though General Perisic

23     had a collaborative relationship with Mladic and substantially aided his

24     operations, the evidence does not establish that he exercised effective

25     control over him or any other Yugoslav Army officer serving in the VRS

Page 14951

 1     through the 30th Personnel Centre.  The evidence does not establish

 2     beyond a reasonable doubt that a superior-subordinate relationship

 3     existed at the relevant time between General Perisic and perpetrators of

 4     the crimes committed in Sarajevo and Srebrenica.  Accordingly, the

 5     Trial Chamber holds that General Perisic is not criminally responsible

 6     for failing to prevent the VRS's crimes or punish their perpetrators.

 7             Secondly, General Perisic is charged with failing to punish the

 8     perpetrators of the SVK's rocket attacks on Zagreb in May 1995.  The

 9     Trial Chamber similarly finds that the lead perpetrators of these crimes

10     were SVK officers who were de jure subordinated to General Perisic

11     because they officially remained part of the Yugoslav Army and were

12     members of the 40th Personnel Centre.  However, unlike against VRS

13     officers, General Perisic initiated disciplinary proceedings against

14     officers serving in the SVK through the 40th personnel centre.

15             The Trial Chamber by a majority, Judge Moloto dissenting, finds

16     that General Perisic exercised effective control over Yugoslav Army

17     officers serving in the SVK through the 40th Personnel Centre.  This

18     conclusion is further based on the finding that General Perisic had the

19     ability to issue command orders to senior SVK officers serving in the

20     40th Personnel Centre, who considered them binding.  The majority

21     therefore finds that a superior-subordinate relationship existed at the

22     relevant time between General Perisic and perpetrators of the criminal

23     attacks on Zagreb on the 2nd and 3rd of May 1995.

24             The majority finds that although General Perisic was immediately

25     notified of both of the SVK's rocket attacks on Zagreb, he failed to take

Page 14952

 1     "the necessary and reasonable measures" to punish the perpetrators whose

 2     grave crimes were left unsanctioned.  The majority thus holds that

 3     General Perisic is culpable of failing to punish his subordinates for

 4     their crimes in Zagreb.

 5             General Perisic, will you please rise for the Tribunal's final

 6     verdict and sentence.

 7                           [The accused stands up]

 8             JUDGE MOLOTO:  The Trial Chamber finds you not guilty and

 9     therefore acquits you on Count 13:  Extermination as a crime against

10     humanity in relation to Srebrenica.

11             The Trial Chamber finds by majority, Judge Moloto dissenting,

12     that you are guilty as an aider and abettor under Article 7(1) of the

13     Statute of the following counts:

14             Count 1, murder as a crime against humanity in relation to

15     Sarajevo; murder as a violation of the laws or customs of war in relation

16     to Sarajevo; inhumane acts (injuring and wounding civilians) as a crime

17     against humanity in relation to Sarajevo; attacks on civilians as a

18     violation of the laws or customs of war in relation to Sarajevo; Count 9,

19     murder as a crime against humanity in relation to Srebrenica; Count 10,

20     murder as a violation of the laws or customs of war in relation to

21     Srebrenica; Count 11, inhumane acts (inflicting serious injuries and

22     wounding and forcible transfer) as a crime against humanity in relation

23     to Srebrenica; Count 12, persecutions on political, racial, or religious

24     grounds as a crime against humanity in relation to Srebrenica.

25             Regarding Article 7(3) of the Statute as a separate mode of

Page 14953

 1     liability for Counts 1, 2, 3, and 4 and Counts 9, 10, 11, and 12, the

 2     Trial Chamber finds that you are not guilty as a superior for failing to

 3     prevent crimes by subordinates or punish their perpetrators.

 4             The Trial Chamber finds by majority, Judge Moloto dissenting,

 5     that you are guilty as a superior under Article 7(3) of the Statute for

 6     failing to punish your subordinates for their crimes on the following

 7     counts:  Count 5, murder as a crime against humanity in relation to

 8     Zagreb; Count 6, murder as a violation of the laws or customs of war in

 9     relation to Zagreb; Count 7, inhumane act, including injuring and

10     wounding civilians, as a crime against humanity in relation to Zagreb;

11     Count 8, attacks on civilians as a violation of the laws or customs of

12     war in relation to Zagreb.

13             In evaluating the proper sentence for these crimes, the majority

14     has considered both aggravating and mitigating circumstances outlined in

15     the official Judgement.  In particular, the majority emphasizes that the

16     VRS's crimes lasted over a long period of time and that the victims were

17     numerous and particularly vulnerable.  The majority further underlines

18     that you kept providing assistance to the VRS for months after being

19     informed of the VRS's enormous massacre in Srebrenica.

20             For these crimes, the majority sentences you, Momcilo Perisic, to

21     a single term of 27 years in prison.  You are entitled to credit for the

22     time period you have been in custody, which amounts to 1.078 days.

23             You may be seated.

24             This concludes the delivery of the Judgement, which will now be

25     made available to the public.  And this marks the end of the trial.

Page 14954

 1                           Court adjourned.

 2                           --- Whereupon the hearing adjourned at 11.33 p.m.