121030ED

Page 14

1 time to ask questions or they may ask questions following each party's

2 submissions or at the end of the hearing.

3 Having now stated the manner in which we will proceed, I would

4 like to invite counsel for Mr. Perisic to present his appeal. Counsel

5 for Mr. Perisic, please.

6 MR. LUKIC: [Interpretation] Thank you, Mr. President.

7 Your Honours, General Perisic has been convicted for aiding and

8 abetting crimes committed by the Army of Republika Srpska in Sarajevo and

9 Srebrenica as well as for his omission to punish the perpetrators of the

10 crimes of the shelling of Zagreb.

11 At the beginning I would like to underline the dissenting opinion

12 of the Presiding Judge of the Trial Chamber who proposed that

13 General Perisic be acquitted on all counts of indictment. This opinion

14 should not be disregarded.

15 JUDGE MERON: Just wait a second. There is a problem with --

16 please proceed. Thank you. Please proceed, Mr. Lukic.

17 MR. LUKIC: Thank you, Your Honour.

18 [Interpretation] On the other hand, the majority has made

19 numerous legal and factual errors that we ask the Appeals Chamber to

20 redress with the only right outcome of these proceedings: Acquitting

21 General Perisic on all counts of the indictment. We stand by all our

22 arguments presented in our 17 grounds of appeal, and today we will mainly

23 focus on the issues and questions posed by the Appeals Chamber. However,

24 before that, we want to underline a number of key issues that we believe

25 must be comprehensively and carefully considered in deciding on this

Page 15

1 appeal. Moreover, Your Honour, one number of these questions go beyond

2 the framework of these appeals proceedings and reflect on some of the key

3 concepts of the jurisprudence of this Tribunal, its credibility, and its

4 historic place, its legacy.

5 The first of these issues and one of the most important ones is

6 the overly broad and inadmissible interpretation of aiding and abetting

7 as a form of criminal liability by the majority of the Trial Chamber.

8 The basic elements of liability on the basis of aiding and abetting have

9 been developed through the practice of this Tribunal as a rampart against

10 imposing stands of strict responsibility and support to the fundamental

11 principle of the need to establish individual responsibility. The

12 majority has violated this principle and evidently committed an error,

13 believing that it was not necessary to prove the existence of specific

14 direction in the Perisic case.

15 We assert that for establishing liability, the assistance

16 extended by the aider and abettor must be specifically directed to the

17 commission of crimes.

18 Regarding the requirement that the assistance extended must have

19 substantial contribution to the commission of crimes, this must be proven

20 as the only possible conclusion and not be replaced by generalised

21 findings and assumptions as was done by the majority. The majority

22 committed an error when establishing that actus reus has been proven in

23 this case based on the dependence of the VRS from the VJ assistance for

24 its functioning as an army. This leads to automatic criminalisation of

25 assistance for the purpose of waging war. This is precisely what the

Page 16

1 majority did, and its findings must be reversed.

2 This is not a case that deals with joint criminal enterprise.

3 The majority has confused liability under the joint criminal enterprise

4 with liability for aiding and abetting.

5 With regard to mens rea in aiding and abetting, unlike the joint

6 criminal enterprise it is necessary to prove that the aider and abettor

7 was aware that his acts assist the commission of crimes quoted in the

8 indictment. Here again, the majority again committed a mistake, an

9 error, failing to consider even the issue whether Mr. Perisic knew that

10 the assistance extended by the VJ aided the commission of crimes by the

11 VRS in Sarajevo and Srebrenica.

12 A very important issue is reconsidering the effective control,

13 effective control inquiry by the majority. The appellant claims in

14 accordance with the dissenting opinion of Judge Moloto that personal and

15 mutual admission of the existence of the relationship

16 subordinate-superior must be proven. That is a test of effective

17 control. The relationship between superior and subordinate cannot exist

18 if the superior and the subordinate do not share the conviction and do

19 not act as if they are in such a relationship.

20 And finally, Your Honours, if the Appeals Chamber finally

21 establishes the responsibility of General Perisic regarding the crimes

22 for which he was accused, then of key importance is that the Chamber

23 should reconsider the multiple errors committed by the majority in

24 concluding on the obviously unreasonable sentence.

25 Now I will give the floor to Mr. Guy-Smith, who will present our

Page 17

1 responses to your questions numbers 1 through 4, after which Mr. Bourgon

2 will take the floor, taking issue number 5, and then I will present

3 additional arguments considering the errors committed by the majority on

4 sentencing. Thank you.

5 JUDGE MERON: Thank you, Mr. Lukic.

6 Mr. Guy-Smith, please.

7 MR. GUY-SMITH: Good morning, Mr. President. Good morning,

8 Your Honours. I first of all note that we have apparently new equipment

9 for purposes of listening and talking to each other, and it says vote

10 now, and I suggest to you at the very beginning you can vote now for the

11 Defence.

12 You've asked a number of questions and what I'm going to do is

13 I'm going to respond directly to the questions that you've asked in the

14 order that they have been asked, the first being how the Appeals Chamber

15 should address the issue of specific direction in the context of aiding

16 and abetting liability.

17 The Trial Chamber majority engaged in demonstrable legal error in

18 removing the requirement of specific direction in its determination of

19 General Perisic's liability under an aiding and abetting analysis. The

20 prejudice is clear. Had the correct standard been applied he would have

21 been acquitted because there was no proof of specific direction.

22 Specific direction is an integral, important component in the

23 analysis of aiding and abetting. Its excision is a dangerous and radical

24 departure that threatens the basic concept of individual responsibility.

25 The precedent in its absence establishes -- is unsettling and far

Page 18

1 reaching. You should refine the language of previous decisions to

2 clarify the long-standing and oft repeated principle of law that the

3 actus reus for aiding and abetting requires proving two prongs: First,

4 specific direction to assist and, second, substantial effect on the

5 commission of crimes. I digress for a very brief moment, because

6 throughout the opinions that have been written in -- in this Tribunal and

7 throughout the opinions that have been written at the ICTR, in each and

8 every one of the opinions that I'll be mentioning the language is

9 specific direction and substantial effect. That's conjunctive pleading,

10 as I would say. It isn't "or," it's "and." So both of these components

11 must be met and it's throughout your decision on law.

12 The jurisprudence articulating the specific direction which you

13 sometimes framed as specific assistance directed or specifically aimed is

14 one of two prongs necessary in determining whether aiding and abetting

15 has been proved beyond a reasonable out with regard to the actus reus

16 elements has remained relatively consistent since Tadic; Delalic,

17 paragraph 344; Kupreskic, paragraph 248; Blaskic, 45; Simic, 85;

18 Blagojevic, 222; Oric, paragraph 43.

19 There is, of course, an exception. That's -- the exception with

20 the majority in our case relied on and that's Mrksic. But Mrksic rose in

21 a completely different context concerning the issue of actus reus. In

22 Mrksic it was raised regarding the mens rea for aiding and abetting by

23 omission, which is not our case. It has nothing to do with our case.

24 But even the Mrksic Chamber acknowledged the important of the requirement

25 of the direction stating that:

Page 19

1 "The fact that an omission must be," and I emphasise "directed to

2 assist, encourage, or lend moral support to the perpetration of a crime

3 forms part of the actus reus, not the mens rea of aiding and abetting,

4 but the language of directed once again is there."

5 That's paragraph 159, quoting Oric, paragraph 43.

6 So even the Mrksic Chamber included requirement of direction.

7 Therefore, based on that law, the fact that the aid was specifically

8 directed towards a crime committed must be proved beyond reasonable doubt

9 whether or not it is considered stricto senso to be an essential element.

10 We do, of course, maintain that it is.

11 However, even if specific direction was not considered to be an

12 essential element in and of itself, it is implied in the analysis.

13 Therefore, specific direction still must be proved beyond a reasonable

14 doubt before any finding that an individual aided and abetted a crime or

15 crimes can occur.

16 The Trial Chamber's majority reliance on Mrksic in paragraph 126

17 we maintain is a departure from the applicable law. It is incorrect. It

18 constitutes legal error.

19 The jurisprudence of the ICTR also continues to supply a

20 specificity standard in its analysis for determining whether the

21 actus reus of aiding and abetting has been proven or not, and I apologise

22 to those who speak the language better than I do for my mispronunciation

23 of some of these cases. See Ntawukulilyayo, paragraph 214, a case that

24 was decided after Mrksic. Kalimanzira, a case decided after Mrksic.

25 Rukundo a case decided after Mrksic. The paragraphs for the previous are

Page 20

1 74 for Kalimanzira, 54 for Rukundo. Also see Seromba at paragraph 44.

2 Nahimana, at paragraph 214. I'm sorry. Nahimana, paragraph 42,

3 Ntagerura which I believe is paragraph 74. I will have to double-check

4 that. And Ntakirutimana, which is at paragraphs 530 and 532. In each

5 and every one of those cases you have used the language specifically

6 directed or one of the other forms of that that I have mentioned

7 previously and substantial effect. So specific direction remains again

8 and again and again.

9 The wordings of Article 6.1 of the ICTR statute and 7.1 of our

10 statute are identical. And I think if you review the cases just

11 mentioned you'll see the composition of the appeals bench is similarly

12 so. So there is really no logical reason why the Appeals Chamber would

13 continue to include specific direction or aim in the definition of the

14 actus reus in aiding and abetting after Mrksic if in fact it's not a

15 requirement. Obviously it is.

16 A proper construction of the statute taking due account of its

17 purpose requires the conclusion that in the interests of certainty and

18 predictability the Appeals Chamber should follow its previous decisions

19 taken on the jurisprudential path articulated since Tadic clarifying in

20 the instant case and henceforth that specific direction must be proven.

21 And I take solace in the teachings of this Chamber from Aleksovski. I

22 paraphrase paragraph 107.

23 There are a number of consequences here departing from this well

24 recognised test in failing to articulate that specific direction is an

25 integral and indeed a component part of aiding and abetting liability.

Page 21

1 First, there is no direct link between the assistance given and the crime

2 committed. There's a question that exists in all trials. What is a

3 specific direction in practical terms? And what must the trier of fact

4 look for to determine whether it has or has not been proved? In this

5 regard, we refer you to the dissenting opinion of Judge Moloto who has

6 defined specific direction as the existence of a direct link between a

7 practical assistance provided, the aid and the --

8 THE INTERPRETER: Kindly slow down for the interpreters, please.

9 MR. GUY-SMITH: I just realised that. I do apologise. That's at

10 paragraph 10.

11 Absent such a direct link it cannot be said that the aid was

12 specifically directed towards the commission of the crime. The existence

13 of a direct link between the aid given and the crime committed is not the

14 same as proof of a cause-effect relationship between the conduct of the

15 aider abettor and the commission of the crime. That's the condition

16 sine qua non which is a more stringent requirement which has been

17 rejected in the jurisprudence of the Tribunal. Specific direction

18 however is something different. It requires a direct link between the

19 practical assistance provided and the crime committed. In the sense of

20 the practical assistance provided in and of itself directly assisted the

21 crime.

22 Second, under the majority's holding, a finding of guilt can be

23 imposed whether the assistance given is temporally or geographically

24 remote to the crime committed irrespective of any intervening causes. In

25 cases where practical assistance was provided to the principal

Page 22

1 perpetrator from a remote location or a much earlier time, it is all the

2 more important to prove that the practical assistance was specifically

3 directed to the commission of the crime. In this we fully agree with

4 Judge Moloto's dissenting opinion in paragraph 10. But furthermore the

5 Kupreskic case is instructive in this regard. There you found that

6 Kupreskic acts of unloading weapons from his car was not sufficient for

7 finding that his acts were acts specifically directed towards the --

8 assisting the crime of persecution. You took into account the passage of

9 time between the act and the criminal activity, explaining the six month

10 length of time between when Kupreskic was observed unloading the weapons

11 and when the attack on Ahmici actually occurred diminishes the likelihood

12 that the weapons were intended to be used for attacking the Muslim

13 population. Paragraph 277.

14 Similarly, Kalimanzira's conviction for aiding and abetting

15 genocide was quashed because of the lack of any proven immediate

16 connection between his speech and specific killings. That's at

17 paragraph 923.

18 We contend that these cases establish that specific direction

19 must be considered an explicit component because otherwise there's a

20 missing link between the accused's acts and the crime.

21 And third, if the actus reus of aiding and abetting is reduced

22 solely to a consideration of substantial effect on the commission of the

23 crime, a mere knowledge standard is wholly inadequate to impose

24 individual assessorial liability. Whether or not you accept our argument

25 in ground 7 that purpose is and has been customary international law

Page 23

1 standard for the mens rea prong of the test, without inclusion of

2 specific direction as part of the actus reus analysis in the law of

3 aiding and abetting in real terms what occurs is that this law runs

4 dangerously close to diluting the minimal standards necessary for the

5 requirement of individual culpability. Without specific direction, mere

6 knowledge of a crime and any assistance which had a substantial effect on

7 the commission of a crime would result in a conviction even if that

8 assistance was not meant to assist any crime. Such a standard fails to

9 establish a minimal threshold of behaviour for liability. Part is

10 rendering assistance will not know what behaviour is legally appropriate

11 and what is legally prohibited.

12 Objectively speaking, the practical effect can be demonstrated by

13 some examples from the events of the past 12 months. The arming and

14 training of the Sudanese in the DRC military police and security

15 personnel while embargoes were in place, or give rise to aiding and

16 abetting liability for British officials. I need not remind you of the

17 situation in Darfur and the indictment against Omar Bashir.

18 United Kingdom officials have known of the knowledge of crimes have been

19 committed --

20 THE INTERPRETER: Kindly slow down, please.

21 MR. GUY-SMITH: And have been rendering assistance for the past

22 five years there. In rending vital and critical assistance to the Libyan

23 rebels to overthrow the previous regime with knowledge of by crimes being

24 committed by the selfsame rebel forces, leaders in France, the

25 United States, United Kingdom, and NATO, to name but a few, would be

Page 24

1 liable for aiding and abetting any or all of their crimes. Inasmuch as

2 British Secretary Hague may wish to cast the assistance as humanitarian

3 given to the forces in Syria the training and communication assistance

4 given to the opposition forces with full knowledge of those crimes being

5 commit by rebel forces there subjects those giving assistance to aiding

6 and abetting liability.

7 In effect, if the majority's holding is upheld in this case, the

8 result is clear. Any and all officials, political or military, with mere

9 knowledge that crimes were being committed who facilitate assistance to

10 foreign armies, state or non-state, during a conflict will be liable for

11 aiding and abetting any crimes committed by those they assist.

12 We do not believe the jurisprudence of this institution would

13 lend any support even if inadvertent to such an absurd state of affairs.

14 Specifically direction insulates against this. It makes clear that the

15 assistance must be directly linked to committing the crime consistent

16 with the requirement of individual liability. The majority's finding in

17 this case is specific direction was not required was clearly erroneous

18 and clearly prejudicial.

19 Turning to your second question: Whether aid that is not

20 specifically directed toward a particular crime can have a substantial

21 effect required to enter a conviction for aiding and abetting.

22 Following the discussion regarding specific direction the answer

23 to this question is very simply no. In the absence of specific direction

24 substantial effect alone, no matter how substantial the effect of

25 practical assistance turns out to be, is insufficient to enter a

Page 25

1 conviction for aiding and abetting. To find otherwise effectively

2 eviscerates the requirement of individual criminal responsibility and

3 this case highlights why. To paraphrase --

4 JUDGE MERON: May I ask you a question on this prong of

5 substantial effect. Given the massive nature of the aid provided by the

6 VRS, what kind of aid would you yourself consider sufficiently

7 substantial to meet the threshold required for conviction for aiding and

8 abetting?

9 MR. GUY-SMITH: I don't know if I can answer that question in the

10 abstract and I'll tell you why, Your Honour. The difficulty with that is

11 that during a time of conflict, the amount of -- of supplies or logistic

12 assistance that was given or is given in any conflict situation I don't

13 believe is necessarily quantified, and I haven't been able to find anyone

14 who can tell me how it would be quantified with regard to the issue of

15 used for legitimate military purposes. So when you ask the question of

16 how much would be sufficient in the context of a -- in the context of a

17 war that's being waged it's virtually impossible to put a figure on that.

18 I will be attending to the issue of substantial effect because I believe

19 that's directly related to the fourth question you've asked and I think I

20 may be able to pick up some more of it there. I'm appreciative of your

21 question though.

22 JUDGE MERON: What I'm curious about is if you look at sort of a

23 spectrum of various kinds of aid, is there a point somewhere on that

24 spectrum where the magnitude of the aid reaches such proportions that

25 it's sort of obvious that aid must by its very nature have substantial

Page 26

1 effect on the commission of the crimes.

2 MR. GUY-SMITH: I don't think you can make that analysis and I --

3 once again I understand what your question is. I think in some senses

4 you're really asking, kind of, what I would call the question of how long

5 does a fire maintain itself, and is there a point in time when a fire

6 will burn itself out, and the answer to that question is obviously as

7 long as there's fuel for the fire, the fire will continue to burn, but in

8 the history of human behaviour, in our entire history we have never

9 seemed to be in a situation where it's the lack of some kind of

10 assistance that has the fire burn out. It seems to occur for entirely

11 different reasons.

12 JUDGE MERON: Thank you. Thank you, Mr. Guy-Smith.

13 MR. GUY-SMITH: Sure.

14 One cannot simply ignore the reality that relations between

15 states are often reinforced by the provision of significant military aid.

16 Many foreign armies are dependent to various degrees upon such assistance

17 to function. In this context, in many conflict zones around the world,

18 the provision of military aim, aid is aimed at supporting mutual

19 interests such as the terms of war, the promotion of regional and global

20 peace, stability, prosperity, and other objectives. That's paragraph 32

21 of Judge Moloto's dissent.

22 If effect if the effect of the aid given becomes a sole litmus

23 test for conviction pursuant to the law of aiding and abetting which I

24 think goes somewhat to the question you've asked, Your Honour, then all

25 military and political leaders who support the provision of logistical

Page 27

1 assistance to a foreign army dependent on such assistance irrespective of

2 a quantitative amount will be liable for aiding and abetting should any

3 war crimes or crimes against humanity occur. Unfortunately, as they

4 inevitably do in all wars, unfortunately.

5 Turning to your third question whether the aid facilitated by

6 Mr. Perisic met the requirements of specific direction, if any, in the

7 context of aiding and abetting liability.

8 The aid facilitated by Perisic did not meet the requirements of

9 specific direction, if any, and the majority erred in so finding. No

10 evidence was presented that any of the assistance given was specifically

11 directed at providing practical assistance to the perpetration of crimes

12 in Sarajevo or Srebrenica, and your reasoning in Kupreskic which was

13 discussed in relation to question number 1 demonstrates that not any act

14 of assistance constitutes aiding and abetting. Only acts that are

15 specifically directed towards assisting a crime is sufficient. The

16 evidence establishes that the assistance given was in the context of

17 supporting the war effort and the judgement is replete with paragraphs

18 referring to that, such as paragraphs 107, 109, 1234, that he oversaw

19 a -- assist in providing comprehensive military assistance, 1235, 1236,

20 1237, 1365 attempt to accept -- attempt to have people accept peace,

21 1366, 1369, attempt to persuade Mladic to accept peace which is important

22 in the context of a war, because these are the activities that are being

23 engaged in. 1406, 1407, 1408, 1411 and -12 when there are meetings with

24 prominent members of the RSK and RS. Again for the purpose we would

25 contend, if not at least for peace. 1414, 1597, 1598. 1599 which I

Page 28

1 think goes to some of what you were referring to again, Your Honour, in

2 terms of specific -- and I'm analysing this under the rubric of specific

3 direction -- could not have waged war if the assistance had been

4 withheld, could not have survived or defended its territory. That's what

5 it was directed towards. That's why the assistance existed. And that's

6 what the majority found repeatedly throughout this judgement.

7 1602, the VJ depended heavily on FRY and VJ assistance -- the VRS

8 depended heavily on FRY and VJ assistance in order to function as an army

9 and wage war. All of this established that the aid facilitated to

10 support the war effort not the specific direction for a crime.

11 With the above in mind examination of the aid facilitated by

12 Perisic fails to meet the specific direction prong of the test for

13 finding aiding and abetting liability. Looking at first of all

14 personnel. The evidence was that all but three of the VJ corps members

15 were sent to the VRS before General Perisic became Chief of Staff. There

16 was no proof that those three members were involved in the commission of

17 crimes in Sarajevo and Srebrenica. It certainly cannot be said that

18 personnel based on that was the -- that the use of the provision of

19 personnel based on those facts was proof beyond a reasonable doubt that

20 the assistance provided by Perisic was specifically directed to the

21 commission of crimes in these locations. Financial assistance and

22 benefits, there was no link proved between this sort of practical

23 assistance. That the payment of the salaries were great help to the VRS,

24 at paragraph 167, or that the VRS was able to carry out their combat

25 duties once again a function of war without impediment, paragraph 1618,

Page 29

1 does not meet the test. Indeed the majority conceded during the

2 suspension of salaries, none of the VRS members left the VRS because the

3 VRS military command would not let them.

4 Finally when taking a look at the instrumentality of war, the

5 actual tools that were used to commit the crimes, well, here the record

6 is crystal clear. The Prosecution failed to prove a direct link for any

7 of the crimes committed, the majority specifically acknowledges failure

8 of proof, stating:

9 "The majority recognises that the evidence does not establish

10 that the specific weapons used in committing the charged crimes stem from

11 the logistical assistance process overseen by Perisic."

12 Can't get much clearer than that, and the Prosecution did not

13 challenge this finding. And it's clear from the holding that the aid

14 facilitated by Perisic did not constitute specific direction. Why you

15 may ask? And the answer once again is clear. The majority immediately

16 after recognising this failure of proof rejected that specific direction

17 prong long-held sacred at this institution stating:

18 "However, the majority recalls that the acts of the aider and

19 abettor need not have been 'specifically directed' to assist the crimes."

20 Paragraph 1624.

21 Without this linkage, Perisic cannot be held liable for aiding

22 and abetting. The specific direction test was clearly not met, and the

23 majority certainly erred.

24 There's also another matter that needs to be dealt with which is

25 while a possibility exists that ammunition coming from the VJ was used

Page 30

1 during the commission of the crimes in Sarajevo, this is certainly not

2 the only reasonable inference that can be drawn from the evidence

3 presented. As such, the principle of in dubio pro reo requires reversal

4 since the majority failed to establish that was the only inference to be

5 drawn. And very briefly, if you take a look at the examination of the

6 discussion of the Srebrenica or Selsky bullets, they were specifically

7 found. The only bullets found at Srebrenica were found not to be

8 attributed to the logistical assistance provided by Perisic specifically

9 found beyond a reasonable -- beyond any doubt that it was impossible to

10 attribute those bullets to Perisic.

11 JUDGE MERON: Could you give a reference to that statement?

12 MR. GUY-SMITH: That would be found in paragraphs 125 -- 1295 to

13 1302.

14 In conclusion, none of the practical assistance coming from the

15 VJ can be considered to be specifically directed to the commission of

16 crimes so as to support a finding beyond a reasonable doubt that

17 General Perisic aided and abetted those crimes. The majority entirely

18 avoided this analysis in this first instance in finding Perisic guilty.

19 Had the law been properly applied a finding of the actus reus was not

20 proven beyond a reasonable doubt would have been entered counts 1 through

21 4, the aiding and abetting counts, must be reversed. Clearly if you find

22 the specific direction prong has not been met there's no need to examine

23 substantial effect issue, and I submit to you under the relevant

24 jurisprudence that findings should be made. But you've asked that

25 further question.

Page 31

1 The unqualified answer is yes to your last question. The

2 Trial Chamber did err in finding the assistance facilitated as

3 substantial effect. The entire analysis concerning substantial effect is

4 predicated upon the majority's unreasonable reliance on dependence and

5 whether it's true or not as somehow being the same as -- when I say by

6 whether it's true or not I'm referring to the dependence, whether or not

7 the dependence is true or not, it's not the same as being a substantial

8 effect of commission of crimes. The question is not whether the VRS

9 substantially depended upon the VJ support to function as an army but

10 rather whether the support of Perisic had a substantial effect on the

11 perpetration of crimes. The dependence of an army as a whole on a

12 foreign army as a whole alone does not automatically lead to the only

13 reasonable conclusion that such assistance provided that dependent army

14 and distributed by that army to its subordinate units, and for an example

15 of that you have the finding in paragraph 1237 that the VRS Koran depot

16 received most of its ammunition from the VJ and it was then distributed

17 out. So the legitimate -- legitimate military delivery of ammunition

18 cannot be attributed to him in terms of what happened to it subsequently

19 because there's no direct link.

20 In Kalimanzira decided a year and a half after Mrksic, this

21 Chamber found that genocidal exhortations in a newspaper prior to the

22 commencement of genocide in Rwanda did not fulfil the actus reus of

23 aiding and abetting even though there was probably a link between the

24 accused's actions and the killings. You found:

25 "There was not enough evidence for a reason trier of fact to find

Page 32

1 beyond a reasonable doubt that the congruent publications in the first

2 months of 1994 substantially contributed to the commission of acts of

3 genocide between April and July of 1994."

4 JUDGE MERON: Why wasn't the distribution of arms from the Koran

5 centre not dependent on Mr. Perisic?

6 MR. GUY-SMITH: I'm saying that the -- that the -- the arms

7 being -- the ammunition being sent to the Koran centre, it does not -- it

8 does not settle the test. Certainly there's a dependency there but that

9 dependency doesn't deal with the link of the crimes because the

10 dependancy there -- if -- if there be such a thing does not deal with the

11 question of substantial effect of the crimes because there are so many

12 different ways that these weapons or ammunition were being used. So you

13 can't draw -- you can't draw a direct link of -- the absence of a direct

14 link you cannot find liability. For -- under the substantial effect

15 analysis.

16 The VRS was entitled to fight and the material provided -- the

17 military logistics was appropriate to that purpose. Crimes committed as

18 a byproduct of bad practices accesses poor command and control deserve

19 punishment admittedly, but declaring the VRS essentially a criminal

20 organisation as a means of affixing criminal liability on Perisic abuses

21 basic concepts of criminal law undermines international humanitarian law

22 and risks casting an inappropriate wide net of liability over state

23 practice that only served to undermine the legitimacy of international

24 criminal law.

25 Lacking direct evidence it is therefore -- this case is therefore

Page 33

1 based on circumstantial evidence. The law is clear in this regard.

2 Where an inference is drawn from circumstantial evidence to establish a

3 fact upon which a conviction relies it must be the only reasonable

4 inference that could be drawn from the evidence presented. That Perisic

5 contributed to the facilitation of the commission of crimes is not the

6 only reasonable conclusion. An alternative reasonable explanation is the

7 assistance provided by Perisic was direct in supporting the war effort

8 not the commission of crimes and that such assistance did not

9 substantially contribute to those crimes. In addition to the fact that

10 there is no evidence presented intended for those crimes to occur the

11 conclusion of general dependence is insufficient for finding of

12 substantial effect. Suspicion is not evidence speculation based on

13 assumptions is not evidence, and it is certainly not proof beyond a

14 reasonable doubt. General Perisic should be acquitted on counts 1

15 through 4. I cede the floor to Mr. Bourgon unless you have any

16 questions.

17 JUDGE MERON: Thank you Mr. Guy-Smith.

18 Mr. Bourgon.

19 MR. BOURGON: Good morning Mr. President. Good morning

20 Honourable Judges of the Appeals Chamber.

21 I have the honour of addressing you this morning in relation to

22 question 5.

23 JUDGE MERON: Wait for interpretation, please.

24 MR. BOURGON: Our answer to this question is straightforward.

25 The Trial Chamber erred in finding that Mr. Perisic had de jure and

Page 34

1 de facto authority to discipline and to issue command orders to

2 40th Personnel Centre members.

3 I will address the three prongs of the question. The de jure

4 authority, de factor authority to discipline, de facto authority to issue

5 binding orders.

6 The first topic deals with the de jure authority. The majority's

7 analysis on this issue at paragraphs 1657 to 1667 is circular and does

8 not support the conclusion drawn. The majority's analysis is wrong

9 because it rests on two incorrect premises.

10 First, the majority took the view that the de jure relationship

11 between Mr. Perisic and members of the 40th Personnel Centre was governed

12 by the law on VJ. That is incorrect. I will explain why.

13 Secondly, Mr. Perisic's authority over members of the VJ after

14 they transferred to the 40th Personnel Centre, the majority took the view

15 that there was no change in General Perisic's authority, which is also

16 incorrect.

17 Here is the argument: First of all, the creation of the

18 40th Personnel Centre was an exceptional situation and something that was

19 not governed by the law on the VJ. From a de jure standpoint, the

20 command and control between the VJ and members of the

21 40th Personnel Centre was governed on the instructions on Personnel

22 Centres, and that is P734, not by the law on VJ.

23 More importantly, the majority itself confirm at paragraphs 1766

24 and 1767, that once VJ members transferred to the 40th Personnel Centre,

25 they entered a new chain of command. This altered the de jure command

Page 35

1 and control relationship. The majority actually stated:

2 "Once a VJ officer complied with an order transferring him to the

3 40th, he entered the chain of command of the SVK."

4 This actually confirms that the de jure superior from that point

5 on was Celeketic, who was the commander of the SVK. He was the de jure

6 superior.

7 More importantly, VJ members could the not be disciplined by

8 General Perisic once they had been transferred to the

9 40th Personnel Centre. This is confirmed by Prosecution evidence, and

10 that is P1082.

11 Moving on to de jure authority to punish.

12 The argument is as follows: First of all, the majority relies on

13 its finding of de jure that Perisic was de jure superior and that we have

14 seen is incorrect.

15 Secondly, as found by the majority, Mr. Perisic only used his

16 ability or his purported ability to punish after the fall of the RSK. So

17 the conclusion is simple. There is no proof that at the time of the

18 shelling of Zagreb, Perisic could initiate proceedings against members of

19 the 40th Personnel Centre.

20 Thirdly, the majority in order to infer nonetheless that he could

21 at the time initiate proceedings went to look at evidence of events which

22 took place after the fall of the RSK on 8 August 1995. Now, that's

23 significant, because the fall of the RSK was a major change of

24 circumstances. From that moment on, the SVK and its chain of command no

25 longer existed, so the members of the 40th Personnel Centre were no

Page 36

1 longer under the command SVK commander, and then it must be recalled that

2 the SVK commander was the de jure superior when Zagreb was shelled.

3 What Perisic could do from both a de jure point of view and a

4 de facto point of view before the fall of the RSK and after the fall of

5 the RSK is entirely different. Consequently, the majority's analysis

6 looking at evidence after 8 August 1995 was flawed from the start.

7 Fourthly, the majority advanced some possible reasons why

8 Mr. Perisic would have waited until after the fall of the RSK to use his

9 powers to initiate proceedings, but that -- the reasons put forward by

10 the majority are flawed. Let me give you just one example.

11 They say Perisic used his authority to punish -- did not use

12 until November of 1995 because he did not need to make use of his

13 authority unless the military objectives of the VJ diverge from those of

14 the SVK. Well, clearly, Mr. President, Mr. Milosevic and Mr. Perisic

15 disagreed whole-heartedly about the shelling of the Zagreb. On

16 1 May 1995, Mr. Milosevic said to Mr. Perisic in a conversation:

17 "I wish to God that Celeketic would ... can't you tell him not to

18 listen to Martic anymore, please! Martic is going to drag them into a

19 horrible war."

20 How much more can they disagree? Hence, the shelling of the

21 Zagreb would have necessarily triggered the authority of Perisic or the

22 need for Perisic to punish people, to punish members of the 40th.

23 It follows, Mr. President, on the basis of all these arguments

24 that the majority's inference that Perisic could initiate proceedings

25 against members of the 40th at the time Zagreb was shelled is plainly not

Page 37

1 the only reasonable inference that can be drawn on the basis of the

2 evidence. There's definitely another possible logical and plausible

3 conclusion. He did not do it because he had no authority to do it.

4 Third topic. Authority to issue binding orders.

5 Once again, Mr. President, the majority here rests its analysis

6 on the fact that de jure would have been the -- sorry, that Perisic would

7 have been the de jure superior of members of the 40th Personnel Centre.

8 As I've mentioned earlier, he was not. Celeketic was the de jure

9 superior of members of the 40th Personnel Centre.

10 Secondly, the majority's erroneous finding that Perisic had a

11 general ability to issue binding orders rests on two orders that would

12 have been issued before May 1995, which means before the event or during

13 the event, two orders, both of which do not establish in any way command

14 authority on behalf of Perisic.

15 The first of these orders, 24 March 1995, that's P1925, whether

16 it was obeyed or not - that's one of the Prosecution's argument - is

17 beside the point. This order is clearly not one that establishes command

18 authority over the SVK. The fact that you establish some kind of

19 committee to discuss the assistance given to the SVK does not demonstrate

20 that Mr. Perisic had command authority or could issue binding orders.

21 As for the second of these orders, that's P1800, issued on

22 7 December 1994. Now, as was highlighted by Judge Moloto in his

23 dissenting opinion, this order can easily be distinguished from an order

24 given within a chain of command. It was sent directly from Milosevic.

25 Celeketic responded directly to Milosevic. Martic was not a member of

Page 38

1 the 40th Personnel Centre, and Perisic was only instrumental --

2 instrumental in passing this order along. Once again, Mr. President,

3 this order fails to demonstrate any kind of command authority on the part

4 of Mr. Perisic over the SVK before or when Zagreb was shelled.

5 Now, once again the majority attempted to justify the fact that

6 there was no orders issued until much later, and one of the -- one of the

7 reasons they advance is the fact that Mr. Perisic did not need to use his

8 authority unless the objectives diverge with those of the SVK. I've

9 addressed this argument already.

10 Perisic and Mr. Milosevic both clearly disagreed with the

11 shelling of Zagreb. Had Mr. Perisic had the authority to issue a command

12 order to Celeketic, he would have. He didn't do so because he did not

13 have this authority.

14 Now, on this point, Mr. President, I refer the Appeals Chamber to

15 two cases before the Appeals Chamber, that of General Hadzihasanovic and

16 that of General Blaskic. Blaskic 29 July 2004; Hadzihasanovic

17 22 April 2008. In both cases, the Appeals Chamber found both of these

18 generals did not exercise effectively control even though they had issued

19 some orders to the alleged subordinate: On the one hand the Mujahedin,

20 that was Hadzihasanovic; on the other hand, the 4 Military Police Platoon

21 that was General Blaskic.

22 Here you have General Perisic did not even issue any order. Now,

23 that's significant.

24 Now, also I refer to Witness MP-80. He stated that Mr. Perisic

25 did not assign task, did not take decisions along classical military

Page 39

1 lines. That's paragraph 1719 in the judgement, and also transcript 8851.

2 Witness MP-80 also confirmed that Martic was a superior to

3 Celeketic and that Perisic did not issue command orders to Celeketic.

4 The evidence about the relationship between Celeketic and Perisic plainly

5 illustrates that there was neither any de jure or de facto authority on

6 behalf of Perisic to issue command orders.

7 The evidence of MP-80 is critical in this regard because it

8 establishes clearly that neither Perisic or Celeketic believed or acted

9 as though they were in a superior-subordinate relationship.

10 Let me conclude by addressing quickly the system of command and

11 control which the majority stated was bifurcated in two chains of

12 command.

13 JUDGE MERON: You have five minutes, Mr. Bourgon.

14 MR. BOURGON: I'll finish in two minutes, Mr. President.

15 From a military standpoint this simply makes no sense. Celeketic

16 followed Martic's order to shell Zagreb and refused to follow

17 Mr. Perisic's attempt to convince him to stop. This makes it clear that

18 Perisic did not have de facto authority to issue orders to Celeketic.

19 Martic's, whose orders were followed, is the one who exercised effective

20 control. If Mr. Perisic would have had de facto authority, he would have

21 simply bypassed Celeketic and ordered directly the Orkan crew, who were

22 members of the 40th Personnel Centre, and tell them to stop. He didn't

23 do that because he did not have the authority to do so.

24 Lastly, Mr. President, I will conclude in saying that in light of

25 all these observation, it is evident that there was no authority on

Page 40

1 behalf of Perisic to issue binding orders which answers your question and

2 the three prongs of your question. There was no authority on behalf of

3 Mr. Perisic either de jure or de facto to issue binding orders or to

4 initiate disciplinary proceedings at the time Zagreb was shelled.

5 Accordingly, the majority's finding must be reversed.

6 Thank you, Mr. President.

7 JUDGE MERON: Thank you, Mr. Bourgon. Do any of my distinguish

8 colleagues wish to ask any questions? I see not. Therefore, we will --

9 oh, Mr. Lukic, you -- you still have four minutes.

10 MR. LUKIC: [Interpretation] Thank you, Your Honours. I see that

11 I don't have enough effective control over the members of my team but I

12 will try to be as brief as possible and say a few words about the

13 sentence.

14 I am in a very delicate situation. I am supposed to speak about

15 the punishment where once I profoundly believe that General Perisic is

16 innocent. Therefore I held that after your conclusion with respect to

17 the previous appeals -- grounds of appeal, you will not be faced with the

18 consideration of the grounds of appeal 14 to 17. However, on this

19 occasion, I have to point out certain errors committed by the majority

20 that invalidate the sentence of 27 years of imprisonment. By attaching

21 importance to non-relevant facts and by estimating crucial and important

22 facts without providing any statement or reasons for their conclusions

23 and by applying double counting and by reasoning that does not follow the

24 practice of the case law of this Tribunal, the majority committed such

25 errors that make the decision on the sentences completely unsustainable.

Page 41

1 Our ground of appeal number 14 indicates that there are errors

2 that the majority committed when concluding on the gravity of the crimes

3 and the role of General Perisic. The jurisprudence is ... I will skip

4 this portion and at this point I will address only the submissions

5 contained in our last ground of appeal, ground 17, relating to mitigating

6 circumstances, and I will reaffirm everything that we stated in the

7 appeal's brief under grounds 14, 15, and 16. For interpreters, it is

8 paragraph 20 of the written submissions I gave them. I would like to

9 move on to our last ground of appeal, ground 17, and indicate the errors

10 that the majority committed with respect to mitigating circumstances.

11 JUDGE MERON: We are not getting translation. Could you repeat

12 your sentence, please.

13 MR. LUKIC: [Interpretation] Bearing in mind particularly the

14 mandate of this Tribunal and Chapter VII of the UN charter, acts directed

15 at promoting peace in the territory of the former Yugoslavia were

16 generally accepted as a mitigating circumstance. These are the words of

17 the Appeals Chamber decision in the Babic case, paragraph 71.

18 Peace is always an imperative of the international community.

19 Acts and consequences directed and contributing to peace must be valued

20 especially by the international community.

21 The importance of acts themselves are what you, Your Honours,

22 emphasised in the appeals judgement in Blagojevic, paragraph 330. What

23 matters are acts for promoting peace regardless of the damage that the

24 accused effected. However, the activities and consequences in

25 General Perisic's case, the majority suppressed both with regard to his

Page 42

1 important activities in achieving peace in Bosnia, that the Trial Chamber

2 found in paragraphs 1365 to 1369, as in the crucial moves that led to the

3 liberation of the French pilots, paragraph 1378 to 1384.

4 The majority in minimalising and even completely rejecting these

5 circumstances uses similar argumentation. They do not consider it to be

6 mitigating circumstances because Perisic in these activities was

7 motivated by military and political interests of the FRY and acted

8 insincerely. By reasoning in this way the majority committed an error.

9 Specific acts and consequences of these acts do not matter to the

10 majority. However, the consequences of the Perisic's -- of Perisic's

11 acts may not be ignored bearing in mind the said values that the practice

12 of this Tribunal respects. I remind you that the Chamber in its

13 judgement quoted evidence that the French President Chirac conditioned

14 the signing of the Dayton Peace Accords on the liberation of the pilots

15 and that Perisic played a crucial role in their liberation,

16 paragraph 1383.

17 Is it possible that anything can override the findings on the

18 acts and consequences of the acts of Mr. Perisic that were directly

19 focused and led to the conclusion of peace in Bosnia. For you, too,

20 Your Honours, the effect and consequences are important. I will remind

21 you in the Appeals Chamber of Dragomir Milosevic in the Appeals Chamber

22 judgement in the Dragomir Milosevic case in paragraph 317 you accepted as

23 a mitigating circumstance the participation of the accused in the

24 agreement on the cessation of sniping. This related to a very important

25 agreement, and although its effect was vastly inferior to that of the

Page 43

1 Dayton Accords, you concluded at the time that this action by

2 General Milosevic did have a certain positive effect. Through this

3 decision you have shown that the international community does not

4 disregard actions and consequences. The majority in this case did not

5 find it significant and thus committed a discernible error.

6 JUDGE MERON: Mr. Lukic, I think your point is clear and we will

7 look closer at it, I can assure you. But we will adhere to the

8 timetable. We will now rise for a pause and resume at 10.30.

9 --- Recess taken at 10.11 a.m.

10 --- On resuming at 10.30 a.m.

11 JUDGE MERON: Please be seated. Now we will have the

12 Prosecution, one hour. We will have Prosecution, one hour. My

13 colleagues tell me that the French translation was sometimes came late

14 because of the too great of speed of the delivery of the argument by the

15 counsel for the Defence, and I would ask counsel not to speak too fast to

16 make sure that the French interpreters are not exposed to too much

17 pressure and stress. Thanks.

18 MS. GOY: Good morning, Your Honours. We have divided the

19 response to Perisic's appeal in the following way: I will address

20 Your Honours on Perisic's liability for aiding and abetting and will in

21 this context address Your Honours' questions 1 through 4. After that,

22 Ms. Martin Salgado will address Your Honour on Perisic's liability under

23 Article 7(3), and will answer Your Honours' question number 5. And at

24 the end of our submission, Ms. Brady will address Your Honours on

25 sentencing.

Page 44

1 Before answering Your Honours' questions 1 through 4, we would

2 like to provide some context and shortly address the Prosecution's

3 response in relation to Perisic's liability for aiding and abetting.

4 These are grounds 1 through 12.

5 The focus will be on ground 1, the overarching ground in relation

6 to Perisic's liability for aiding and abetting.

7 Perisic was not convicted for aiding and abetting because he

8 supported the VRS in its war effort. Perisic was convicted because he

9 knowingly gave crucial support to an army whose units systematically

10 committed crimes. He knew that he was giving support that would have a

11 substantial effect on the commission of the crimes of the VRS in Sarajevo

12 and Srebrenica. As Chief of the General Staff of the VJ, Perisic oversaw

13 a system that provided extensive and comprehensive logistical and

14 personnel assistance to the VRS. The units that committed the crimes in

15 Sarajevo and Srebrenica, the Sarajevo-Romanija Corps, the SRK, and the

16 Drina Corps were among the VRS units receiving that assistance. These

17 units depended on Perisic's support to function as an army and to conduct

18 the operations in Sarajevo and Srebrenica in which crimes were

19 systematically committed.

20 Given that Perisic's support was crucial to units's whose war

21 efforts included the systematic commission of crimes, this support also

22 had a substantial effect on the crimes themselves.

23 JUDGE MERON: Tell me, please, could Mr. Perisic as Chief of

24 Staff have stopped the aid being sent by his country?

25 MS. GOY: The --

Page 45

1 JUDGE MERON: That aid began before he became Chief of Staff?

2 MS. GOY: We acknowledge, Your Honours, that the aid was already

3 in progress when he became Chief of Staff, but he institutionalised the

4 aid and he did nothing to stop it or to channel the aid into legitimate

5 or unlawful purposes.

6 JUDGE MERON: But could he have done it, you think, in terms of

7 his powers and authority? Could he have said to Belgrade, No more aid,

8 for example?

9 MS. GOY: If I could have a moment to consult, Your Honours.

10 [Prosecution counsel confer]

11 MS. GOY: Your Honours, the judgement does not -- does not deal

12 with it. All we know is that his persuasive authority in the supreme

13 Defence, called the SDC went the other way. He persuaded them to give

14 him authority to provide assistance. He could therefore also have tried

15 to have used persuasive authority the other way, but because there are no

16 findings in the judgement, we cannot speculate. All we know is he did

17 not make the attempt to do that. Rather, he knowingly gave support to

18 the SRK and the Drina Corps whose units would probably commit crimes as

19 he knew.

20 From the early stages of the war, Perisic was aware of the VRS's

21 discriminatory intent and criminal conduct in fighting the war in

22 Bosnia and Herzegovina.

23 In relation to Sarajevo specifically, Perisic knew that the SRK

24 was carrying out an unlawful campaign of shelling and sniping, and he

25 knew that they would probably commit more crimes as the siege continued.

Page 46

1 In relation to Srebrenica, he knew of the grave threat to the

2 enclave. He knew that tensions had already escalated. He also knew of

3 the high probability that crimes would be committed against the

4 population as a consequence of the attack on the enclave, and through

5 numerous sources Perisic became aware that the Drina Corps was, in fact,

6 committing crimes in Srebrenica.

7 He also knew that his acts would assist the commission of these

8 crimes because of the nature and the scope of his assistance and the

9 systematic nature of the commission of the crimes.

10 This is why he was found liable for aiding and abetting, for

11 knowingly providing crucial support to an army whose units systematically

12 committed crimes.

13 Contrary to what the Defence suggests, this does not mean, if one

14 holds Perisic liable for aiding and abetting, that one criminalises any

15 assistance to war efforts. The legal standard does not place unrealistic

16 constraints on waging war or assisting war. Rather, the test for aiding

17 and abetting contains sufficient safeguards against criminalising every

18 form of assistance to an army.

19 First of all, the actus reus requires not any kind of assistance

20 but one which has a substantial effect on the commission of the crimes.

21 Second, the actus reus needs to be coupled with the mens rea, and

22 this requires that the accused has to be aware not only of a small or

23 remote risk that crimes will be committed, but has to be aware of the

24 probability that crimes will be committed.

25 And it is not enough that the accused knows that any crime will

Page 47

1 be committed. Rather, he needs to be aware of the type of crime that

2 will be committed, which requires awareness of the essential elements,

3 including the mental state of the physical perpetrators.

4 The accused further needs to know that his acts will assist the

5 commission of the crime. And again, knowledge of a small or remote risk

6 is not sufficient. He needs to be aware of the probability that his acts

7 will assist.

8 And this mens rea needs to be present at the time the accused

9 provides assistance.

10 In light of these requirements, the test is far from a strict

11 liability test as the Defence suggests. By providing crucial support to

12 units that systematically commit crimes in the knowledge that they will

13 probably commit more crimes and knowing due to the nature of the support

14 that it would have a substantial effect on these crimes, Perisic meets

15 all of these requirements.

16 Perisic was correctly found liable for aiding and abetting. All

17 grounds in relation to his liability for aiding and abetting should be

18 dismissed.

19 Turning now to Your Honours' question. In the first question

20 Your Honours asked --

21 JUDGE MERON: Can I ask you, please, to clarify one question

22 which would help me understand the difficult problems that we have

23 better.

24 Imagine that the Appeals Chamber would feel that aid must be

25 specifically directed in order to enter a conviction for aiding and

Page 48

1 abetting. Could you point, please, to evidence on the record that would

2 support a conviction for aiding and abetting if we consider this a

3 requirement of specific direction to be a necessary one.

4 MS. GOY: Your Honours, the -- this depends very much on what is

5 understood by specific direction in order to know what evidence would be

6 required, and with Your Honours' permission, I'd like to address

7 Your Honour's question one first in order to explain what we understand

8 by it.

9 Thank you. In the first question Your Honours asked how should

10 the Appeals Chamber address the issue of specific direction in the

11 context of aiding and abetting liability. Our answer is as follows: The

12 Appeals Chamber in Mrksic, in paragraph 159, has settled the issue by

13 finding that specific direction is not an essential ingredient of the

14 actus reus of aiding and abetting, and there are no cogent reasons to

15 depart from this finding.

16 In ICTY case law, specific direction has, if at all, only ever

17 been discussed as part of the actus reus of aiding and abetting. This

18 actus reus consists of assistance, encouragement or moral support, which

19 has a substantial effect on the commission of a specific crime of the

20 principle. Specific direction is not an essential element of the

21 actus reus, because it is encompassed by its other elements.

22 And I would try to explain our position by going in the following

23 steps: First, I would like to look at the origins of the words "specific

24 direction" in the jurisprudence of this Tribunal. Second, I would like

25 to look at the interpretation of "specific direction" by the

Page 49

1 Appeals Chamber in Blagojevic on which the Appeals Chamber in Mrksic

2 relies. And, third, I would like to look at the situation of an accused

3 who is geographically remote from the scene of the crime.

4 Starting with the words, the origins of the words "specifically

5 directed."

6 Your Honours will recall that the notion of specific direction

7 was introduced into the jurisprudence by the Appeals Chamber in Tadic in

8 the context of distinguishing between aiding and abetting liability and

9 liability for joint criminal enterprise. And Your Honours will find on

10 your screen now the relevant paragraph of the Tadic appeals judgement.

11 That's paragraph 229(iii).

12 Can Your Honours see? Do you have it on your screens? Yes?

13 So the Appeals Chamber in Tadic said, and I quote from the

14 beginning of that paragraph:

15 "The aider and abettor carries out acts specifically directed to

16 assist, encourage or lend moral support to the perpetration of a certain

17 specific crime ... and this support has a substantial effect on the

18 perpetration of the crime."

19 So what is required for aiding and abetting are acts which are

20 specifically directed to a certain type of conduct: The assistance,

21 encouragement or moral support, which in turn go to a specific crime.

22 And the Appeals Chamber contrasted that with what is required for

23 joint criminal enterprise and I quote the rest of that paragraph:

24 "By contrast, in the case of acting in pursuance of a common

25 purpose or design, it is sufficient for the participant to perform acts

Page 50

1 that are in some way -- that in some way are directed to the furthering

2 of the common plan or purpose."

3 So what is required for joint criminal enterprise is any kind of

4 conduct can even be the perpetration of the crime itself, which is

5 directed to the furthering not of a specific crime but more broadly to

6 the common purpose. So this is the context in which that language was

7 introduced.

8 As an objective element, we are discussing here the actus reus,

9 conduct which is specifically directed to assist a specific crime

10 objectively can only mean that it was conduct which was sufficiently

11 connected with the specific crime to provide assistance.

12 It does not make sense in our view to require that the only

13 objective meaning of the act must be to assist the crime, because almost

14 every act could be used for criminal or noncriminal action.

15 This is consistent with the case law of the Furundzija trial

16 judgement, paragraph 243, which said that the conduct of the aider and

17 abettor itself may be perfectly lawful. It only becomes criminal when

18 connected or combined as the Furundzija trial judgement said with the

19 principal's unlawful conduct. And whether the aider and abettor's acts

20 are sufficiently connected to assist depends on the context.

21 Finding that practical assistance provided had a substantial

22 effect on the commission of the crime in question will encompass that it

23 was assistance sufficiently connected with the crime.

24 And this is what the Appeals Chamber in Blagojevic meant when it

25 stated that specific direction will often be implicit in the finding that

Page 51

1 the accused provided practical assistance to the principal perpetrator

2 which had a substantial effect. That is Blagojevic appeals judgement

3 paragraph 189.

4 And it is important to keep in mind when looking at that

5 Blagojevic appeals judgement that the Appeals Chamber in paragraph 193

6 concluded its discussion on specific direction by saying that the

7 principal question for aiding and abetting for the actus reus is whether

8 the accused had a substantial effect on the perpetration of the crime.

9 This means that the Appeals Chamber in Mrksic correctly interpreted

10 Blagojevic as meaning that specific direction is not an essential

11 ingredient of the actus reus of aiding and abetting.

12 If we look now at the situation of an accused who is

13 geographically removed from the scene of the crime, the answer in our

14 view remains the same. There is no reason why the legal test should be

15 different in case of geographically removed accused. The Defence does

16 not provide support for their proposition other than pointing to

17 Judge Moloto's dissenting opinion to the trial judgement which itself

18 does not provide further support.

19 Remoteness in our view can be a factor in the Trial Chamber's

20 assessment of the principal question whether on the facts the acts of the

21 accused have a substantial effect on the commission of the crime.

22 So the accused's remoteness may in practice mean that it can be

23 more difficult to show that the conduct had a substantial effect if the

24 accused is far away from the scene of the crime, but this does not change

25 the legal test. And we have also addressed in our response brief in

Page 52

1 paragraphs 96 to 99 that for aiding and abetting the assistance must not

2 be direct. So the fact that assistance was provided to a depot which

3 then provide it to the units does not mean that the connection is not

4 sufficient.

5 To conclude, as part of the actus reus specific direction is

6 encompassed by the requirement that the aider and abettor must carry out

7 acts of assistance, encouragement and moral support which have a

8 substantial effect on the crime. And just for completeness, we would

9 like to add it is not possible to interpret specific direction as a

10 subjective requirement of aiming at a purpose. And I would just like to

11 remind Your Honours the Defence referred to the language of aiming at in

12 some of the ICTR appeals judgements and we looked at where the language

13 of aiming at came from and it seems to have come from a translation error

14 we might say, because the first time it appeared was, as far as we could

15 find, was in the Ntagerura appeals judgement --

16 JUDGE MERON: You might be going a tiny bit too fast.

17 MS. GOY: Oh, I'm sorry.

18 The first time it appeared, as we could find, was in the

19 Ntagerura appeals judgement. In the English translation of that

20 Ntagerura appeals judgement, the judgement was rendered in French and in

21 the French in paragraph 370, the Appeals Chamber used the French terms

22 "act qui vise specifiquement a," which is the -- the -- the French phrase

23 that was used from the very beginning when they translated what the

24 Appeals Chamber had said in Tadic. So the French translation did not --

25 the French original did not introduce new terminology. It was in the

Page 53

1 English translation of it that the words "aiming at" were introduced, and

2 they were then late reused in other judgements. So aiming at from our

3 point of view simply occurred as a translation error.

4 So it's not possible to understand specific direction as a

5 subjective requirement. The Appeals Chamber in Mrksic in paragraph 159,

6 that is the same paragraph I already referred to, made it very clear the

7 notion of direction forms part of the actus reus, not of the mens rea of

8 aiding and abetting.

9 And more importantly, the mens rea for aiding and abetting is

10 knowledge, and I refer Your Honours generally to ground 7 of our

11 response. And this knowledge standard is incompatible with understanding

12 specifically directed as purpose.

13 This knowledge standard is based on customary international law.

14 It has been applied in this Tribunal and the ICTR for more than 10 years,

15 and it is also applied by other international courts and tribunals such

16 as the Special Court for Sierra Leone, the Special Tribunal for Lebanon,

17 the Extraordinary Chambers in the Courts of Cambodia. And there is no

18 cogent reason to depart from this standard of knowledge.

19 Article 25(3)(c) the aiding and abetting paragraph of the ICC statute

20 does not constitute cogent reasons because it was not intended to nor

21 does it constitute an expression of customary international law.

22 The Appeals Chamber in Mrksic in the same paragraph 159 has

23 correctly and explicitly rejected any elevated mens rea standard.

24 To conclude our answer on question 1, specific direction is

25 encompassed in the other elements of aiding and abetting liability.

Page 54

1 JUDGE MERON: So you are suggesting that the Rome Statute

2 language that the person must have acted for the purpose of facilitating

3 the commission of a crime as a requirement for aiding and abetting is not

4 something that we should take into account.

5 MS. GOY: No, Your Honours. That is not -- it does not

6 constitute a reflection of customary international law. If one looks at

7 the negotiation history, it was a compromise that was negotiated because

8 it couldn't be agreed upon whether the language of intention or knowledge

9 should be used and this is the language that was introduced, but there is

10 nothing to suggest in the -- in the -- in the -- when one looks at how it

11 was established that suggests that the State parties were trying to

12 establish customary international law.

13 Turning to Your Honours' second question: Can aid that is not

14 specifically directed towards a particular crime have the substantial

15 effect required to enter a conviction for aiding and abetting?

16 In a way I've already answered this question in my response to

17 question 1.

18 Only if one were to understand specific direction as a subjective

19 requirement, which it is not, can we even ask the question whether aid

20 which is not specifically directed towards a particular crime can have

21 the substantial effect on the commission of the crime, because then it

22 would be an independent inquiry from the objective requirement of

23 substantial effect, and then the answer would be yes, because it is an

24 independent subjective inquiry from the objective requirement of

25 substantial effect.

Page 55

1 But as we have explained, specific direction cannot be

2 interpreted as such a subjective requirement. Rather, as I've just

3 explained, specific direction as part of the actus reus is encompassed in

4 the requirement that assistance has to have a substantial effect.

5 If Your Honours follow this position, then the question does not

6 really arise. However, if we were to answer if, the answer would be like

7 this: An act which is not directed as assisting the specific crime in

8 the sense that it is not sufficiently connected to consist in assistance

9 cannot have the substantial effect which is required for aiding and

10 abetting. This means the answer would be no.

11 Turning to Your Honours' third question. Did the aid facilitated

12 by Perisic meet the requirements of specific direction, if any, in the

13 context of aiding and abetting? And I'd like to come back to

14 Your Honour Meron's question at the very beginning asking me to point to

15 specify evidence, because now as I've explained our position, I'm able to

16 refer to that.

17 Only if one were to -- to understand specific direction in the

18 sense of aiming at a purpose, the subjective requirement, would one say

19 that the aid facilitated by Perisic may not have met the specific

20 direction requirement, because the Prosecution's case at trial was

21 never -- and therefore we cannot point to any evidence that it was

22 Perisic who aimed at assisting the specific crimes. But I emphasise

23 again, in our view specific direction means the acts are sufficiently

24 connected with the specific crime to provide assistance and because here

25 the acts were connected with the specific crimes in the sense that his

Page 56

1 conduct had a substantial effect on them, the answer is yes. And I will

2 elaborate on the substantial effect of Perisic's assistance.

3 So the evidence we would refer Your Honour to is the one we have

4 mentioned in our response brief with regard to grounds 5 and 6, the

5 grounds dealing with the substantial effect.

6 Turning to Your Honours' fourth question then: Did the

7 Trial Chamber err in finding that the assistance facilitated by Perisic

8 have a substantial effect on the commission of the VRS's crimes?

9 The short answer is no. The Trial Chamber did not err.

10 Given the crucial nature of the support that Perisic provided to

11 the VRS units which systematically committed crimes, the only reasonable

12 conclusion is that Perisic's conduct did have a substantial effect on the

13 commission of the VRS's crimes in Sarajevo and Srebrenica. The

14 Trial Chamber found that the logistical assistance Perisic provided and

15 the personnel assistance both as individually as well as accumulatively

16 had a substantial effect on the VRS's crimes in Sarajevo and Srebrenica.

17 And this conclusion is the only reasonable one, because the VRS

18 units in Srebrenica and Sarajevo, the Drina Corps and the SRK, depended

19 on the VJ to fight war. Perisic's support was crucial for fighting that

20 war. That war encompassed the systematic commission of crimes by the

21 VRS. It was not a mere byproduct as the Defence said today. This means

22 that the support provided by Perisic was crucial also for the commission

23 of the crimes and therefore had a substantial effect on these crimes.

24 Perisic was the architect of the system which supported the VRS

25 through personnel assistance and logistical assistance which both had a

Page 57

1 substantial effect.

2 And I will first address the personnel assistance. Perisic

3 sustained the lifeline of the VRS officers in Sarajevo and Srebrenica by

4 creating and maintaining the personnel centres.

5 Through the personnel centres he ensured that the VJ officers who

6 were serving in the VRS continued to receive their salaries from the VJ

7 and enjoyed all the VJ benefits.

8 Because they were members of the personnel centres, the officers

9 could implement the war strategy which encompassed the systematic

10 commission of crimes in the way they did, without worrying about the

11 basic needs of themselves and the needs of their families.

12 This had a substantial the effect on the crimes in Sarajevo and

13 Srebrenica, because the key officers responsible for those crimes such as

14 Ratko Mladic, Dragomir Milosevic, Stanislav Galic, Radislav Krstic,

15 Vujadin Popovic, Milan Gvero, Zdravko Tolimir and others were members of

16 the 30th Personnel Centres. They could fight the war which included the

17 systematic commission of crimes without the concerns for their basic

18 needs and those of their families, because the personnel centre system

19 ensured that they received their salaries, their pensions, housing

20 benefits, health insurance and medical assistance.

21 So to conclude, the personnel assistance did have a substantial

22 effect on the crimes in Sarajevo and Srebrenica.

23 In addition to the personnel assistance Perisic also provided

24 logistical assistance which had a substantial effect on the commission of

25 the crimes. Perisic and I referred to that already in the beginning in

Page 58

1 my answer to Judge Meron's question, he persuaded the Supreme

2 Defence Council to give him legal authority to provide such assistance

3 and he encouraged the SDC to maintain that assistance throughout. He

4 agreed with Mladic on the appropriate procedure by which Perisic would

5 approve the requests for assistance by the VRS.

6 As Chief of the General Staff of the VJ, Perisic therefore

7 oversaw a system that provided comprehensive and extensive logistical and

8 technical assistance the VRS. This included large quantities of

9 ammunition and other weaponry, technical expertise, repair services,

10 fuel, and personnel training.

11 This system under Perisic made it possible for the VRS to

12 function as an army and to fight the war, and among those receiving the

13 assistance were the units we are concerned with, the SRK and the

14 Drina Corps.

15 Because the VJ under Perisic was the key contributor of such

16 assistance, mostly free of charge, the assistance had a substantial

17 effect on the commission of the crimes. Without the system overseen by

18 Perisic, the Drina Corps and the SRK could not have fought the war in

19 Sarajevo and Srebrenica in the way they did, and they could also not have

20 committed the crimes as they did.

21 The Chamber carefully analysed the evidence and provided a

22 detailed factual review. In the following I will focus on the assistance

23 provided in the connection with weaponry.

24 The General Staff of the VJ under Perisic's supervision provided

25 large quantities of weaponry and related assistance to the VRS including

Page 59

1 to the SRK and the Drina Corps, and this support was provided through

2 three main channels.

3 First of all, weaponry was provided directly to the VRS units

4 including the Drina Corps and the SRK upon request of the Main Staff, and

5 I refer Your Honours specifically to trial judgement paragraph 1062 and

6 1064.

7 Second, the Koran depot that was the VRS storage depot for

8 weaponry which supplied the Drina Corps and the SRK obtained

9 approximately 70 per cent of its ammunition from the VJ.

10 And third, the VJ General Staff under Perisic provided important

11 logistical assistance to Pretis. Pretis was the industrial company and

12 factory that produced weaponry for the VRS. And this Pretis factory

13 supplied, among others, the Drina Corps and the SRK. Pretis produced

14 large calibre artillery ammunition, shells, mines, and modified air

15 bombs. The VJ General Staff under Perisic was actively involved in

16 practice. It provided support for the production of air bombs. This

17 support included devising the model by which the air bombs were modified,

18 sending experts to solve operational problems with the air bombs and

19 providing the VRS with parts for the air bombs.

20 The VJ General Staff also tested practice weaponry at VJ

21 facilities, and, very important, the VJ General Staff repaired VRS

22 weaponry and overhauled Pretis artillery casing at Kragujevac, a

23 technical overhaul company. Due to this overhaul, the casings could be

24 reused up to five times. In addition to the logistical assistance I have

25 just discussed, the VJ under Perisic's authority also provided fuel,

Page 60

1 training, and technical expertise to the VRS. These different ways of

2 logistical support were so important to the VRS including the Drina Corps

3 and the SRK that it depended on them to fight the war regardless of its

4 other sources of supply.

5 And Mladic and Perisic themselves acknowledged this dependence.

6 Perisic, for example, told the SDC in February 1994 the RS and the RSK

7 certainly can't be defended without our assistance and weapons and

8 military assistance. That's trial judgement 965, Exhibit P782. And

9 Mladic says we would not be able to live without the FRY assistance.

10 That's trial judgement 1598, Exhibit P1282.

11 The Trial Chamber carefully analysed the other sources of supply

12 on more than 20 pages. It found that the logistical assistance that the

13 VRS received from the VJ with Perisic's approval was very important in

14 comparison with other sources.

15 So regardless of the other sources of supply, the VRS, including

16 the Drina Corps and the SRK, depended on the VJ to wage a war, a war that

17 encompassed the systematic commission of crimes. It is therefore

18 inevitable that the Drina Corps and the SRK also depended on the VJ to

19 commit the crimes in Sarajevo and Srebrenica.

20 The Trial Chamber reached the only reasonable conclusion when

21 finding that the logistical assistance provided by Perisic had a

22 substantial effect on the commission of the crimes.

23 Contrary to the Defence's suggestion, this is not undermined by

24 the fact that the Trial Chamber was not able to find beyond a reasonable

25 doubt on the evidence presented in this case that Perisic was involved in

Page 61

1 providing specific shells and bullets recovered from crime scenes in

2 Sarajevo and Srebrenica. And I would like to point out that these

3 bullets were, in any event, only a sample.

4 First of all, there were numerous other forms of practical

5 assistance that I've just discussed.

6 In addition, in light of the amount of ammunition provided, the

7 length of time during which they were provided, no way of channeling them

8 between lawful and unlawful use and the number of crimes committed, it

9 simply would not have been reasonable to conclude that the ammunition

10 provided by the VJ was only used for lawful purposes. Rather, given how

11 crucial the provision of weaponry was for the VRS, their war effort,

12 including the criminal aspect of it in Sarajevo and Srebrenica, would

13 have been much more difficult or even impossible if the VJ had not

14 provided large quantities of weaponry.

15 And this is regardless of whether the Trial Chamber was able to

16 find on the basis of the evidence presented that these specific bullets

17 were provided by the VJ.

18 To conclude, the Trial Chamber reached the only reasonable

19 conclusion: The personnel assistance as well as the logistical

20 assistance Perisic provided had a substantial effect on the commission of

21 the crime by the VRS in Sarajevo and Srebrenica.

22 JUDGE MERON: Could I ask you, Counsel, this question, it may

23 sound a bit hypothetical and it will be, but it would help us understand

24 the problems presented by this case, but before asking it, let me repeat

25 something which should be entirely obvious to everybody who knows the

Page 62

1 practice of this appeals court. When we ask questions, it does not at

2 all mean that this -- they represent our own view. We are probing,

3 because we want to know more about the problems, and this is the spirit

4 in which you should understand my question.

5 Now, assume that the military aid supplied by country B -- A is

6 100 per cent, is full. So we don't have to worry about the origin of the

7 munition. Assume that it is the entire -- it comprises the entire

8 supply. The country supplies therefore the entire military aid to a

9 warring party in the neighbouring country B. In the neighbouring country

10 B there is a war going on and the recipient engages both in lawful

11 military activities but also in large-scale shelling of civilian towns.

12 Would without more the Chief of Staff of country A be criminally liable?

13 MS. GOY: The answer to -- to the question depends on whether all

14 the requirements of aiding and abetting are met. So the first question

15 would be is there a substantial effect by the aid on the commission of

16 the crime? So --

17 JUDGE MERON: That's only ammunition and weapons that they have.

18 Assume that.

19 MS. GOY: The question is then how much did the Chief of Staff

20 know when providing --

21 JUDGE MERON: Assume it is known but nothing more than known.

22 [Prosecution counsel confer]

23 MS. GOY: Your Honours, the -- the question is if, according to

24 our position, if the Chief of Staff is aware of both, that the -- that

25 there is not only a small or remote risk that crimes will be committed,

Page 63

1 but there is the awareness of a probability of crimes, and he is aware

2 that the assistance provided will probably be used for the -- for the

3 commission of these crimes, then from our point of view the requirements

4 of aiding and abetting are fulfilled.

5 JUDGE MERON: Thank you. Thank you. If you want to develop it

6 further. I did not mean to interrupt you.

7 MS. GOY: No. I just wanted to add maybe one requirement which

8 comes back to what Your Honour said in the very beginning. The question

9 might also be whether there are ways in this hypothetical scenario to

10 channel the assistance into the use for legitimate purposes and the use

11 for non-legitimate purposes. So this may be a factual question, an

12 additional factual question that Your Honours may have to take into

13 account in deciding on the actus reus and the mens rea.

14 JUDGE MERON: Thank you.

15 MS. GOY: This would end my submission on the four questions.

16 Unless Your Honours have further questions I would hand over to my

17 colleague, Elena Martin Salgado.

18 MS. MARTIN SALGADO: Good morning, Your Honours. I will be

19 responding to the Defence appeal on superior responsibility and to Your

20 Honours' fifth question.

21 In answer to this question, this is no error. The Chamber

22 correctly found that Perisic had de jure and de facto authority to issue

23 command orders and to discipline the members of the 40th Personnel Centre

24 serving in the SVK.

25 In reaching this conclusion, the Chamber carefully evaluated the

Page 64

1 evidence and looked at it in its proper context. This was a context

2 characterised by a policy of keeping VJ's links to the SVK secret, and by

3 the pursuit of the overlapping goals of the VJ and the SVK.

4 Under the cover of formal assignment to the

5 40th Personnel Centre, VJ troops served in the SVK. The

6 40th Personnel Centre which Perisic created was designed to conceal the

7 links of the VJ to the SVK, not to sever them. It was designed to let

8 the VJ and the SVK pursue their common goals safe from public scrutiny.

9 What the Chamber did was to remove this veil of deception and

10 show Perisic's position of authority and effective control over members

11 of the 40th Personnel Centre.

12 It found that the 40th Personnel Centre members responsible for

13 shelling Zagreb were Perisic's subordinates. This was the right

14 conclusion and Perisic's conviction must stand.

15 Beginning with Perisic's de jure authority, the Chamber

16 unanimously found that Perisic was de jure superior to

17 40th Personnel Centre members, and I refer you to the trial judgement at

18 paragraphs 1665 and 1668.

19 De jure members of the VJ -- sorry, members of the 40th

20 Personnel Centre were VJ members even while they were serving in the SVK.

21 Perisic was the highest military commander in the VJ, and this means that

22 during the entire period relevant to the indictment, Perisic had de jure

23 authority over the 40th Personnel Centre, which was part of the

24 General Staff. De jure, therefore, his powers over the 40th Personnel

25 Centre members were the same as his powers over the rest of the VJ. He

Page 65

1 could order and he could discipline them in the same way.

2 That's his de jure authority. Turning to Perisic's de facto

3 abilities to order and discipline members of the 40th Personnel Centre.

4 The Chamber considered these capacities in context and together with

5 other evidence of effective together.

6 I have already spoken about the context of secrecy and the

7 community of goals. Regarding other evidence, the Chamber correctly used

8 Perisic's de jure authority as evidence going to effective control.

9 The Chamber also considered other powers that Perisic had.

10 Perisic could verify promotions and terminate the service of the members

11 of the 40th Personnel Centre who held all the key positions, key

12 commanding positions, in the SVK. Perisic oversaw their salary and other

13 assistance on which the SVK depended. Perisic also received regular

14 reports from the SVK, which allowed him to issue orders to the 40th

15 Personnel Centre members where necessary.

16 Perisic this these powers throughout, and they all support

17 effective control. These powers also corroborate Perisic's ability to

18 order and discipline members of the 40th Personnel Centre.

19 So for example, the Chamber found that terminating military

20 service was a means of disciplining members of the 40th Personnel Centre.

21 Denying promotion where he disapproved of behaviour was another way for

22 Perisic to impose discipline.

23 Before addressing the specific evidence of de facto ordering and

24 disciplining, I would like to emphasise that we are interested in

25 ability, that's ability to prevent or to punish, ability to order or to

Page 66

1 discipline. While the actual exercise, so the actual issuing of command

2 orders, is relevant to determining ability, it should not be confused

3 with it. As the Trial Chamber found in Popovic, it is ability that

4 evidences superior-subordinate relationship, because to require otherwise

5 would significantly narrow superior responsibilities.

6 Turning to Perisic's ability to issue command orders. Perisic

7 issued command orders before, during, and after the shelling of Zagreb.

8 Again, Your Honours, the number of command orders in evidence needs to be

9 seen in light of the context. Perisic's direct intervention risked

10 exposing the VJ's links to the SVK, something he and the FRY leadership

11 were at pains to keep secret. The number of command orders in evidence

12 is also consistent with Perisic's position at the top of the VJ hierarchy

13 and also needs to be seen in the context of the overlapping goals of the

14 VJ and the SVK. For as long as these goals coincided Perisic did not

15 need to get involved.

16 And against this backdrop, the command orders in evidence

17 significantly demonstrate Perisic's order to issue them.

18 Before the shelling of Zagreb, we have evidence that Perisic

19 issued two command orders.

20 Exhibit P1800 is a command order issued by Perisic on the

21 authority or instructions of Milosevic, who at the time was the President

22 of Serbia. Now, this makes sense because the order was addressed not

23 just to Celeketic, who was part of the 40th Personnel Centre and who was

24 the SVK Main Staff commander, but it was also addressed to Martic, who

25 was the president of the RSK. The order shows that Perisic was

Page 67

1 considered to have authority over the SVK, and this is corroborated by

2 intercept evidence where both Milosevic and Mikulic, who was the RSK

3 prime minister, expect SVK to follow Perisic. And you can find this

4 evidence cited at paragraph 1727 and footnote 4724 of the trial

5 judgement.

6 Returning to P1800, it was complied with and the compliance

7 report was addressed to Milosevic through Perisic as required by the

8 express terms of the order.

9 The other command order in evidence issued before 2 May 1995 is

10 Exhibit P1925. It was addressed to at least one member of the

11 40th Personnel Centre, and it is clear from its mandatory terms that it

12 was a command order and this order was followed, and we refer you to the

13 evidence we have cited in paragraph 264 of our response brief.

14 During the shelling of Zagreb on 2 May 1995, Perisic ordered

15 Celeketic to stop the shelling. This also shows that Perisic had the

16 ability to issue command orders. Celeketic, however, followed Martic's

17 order and continued to shell Zagreb the next day. Celeketic did

18 eventually comply with Perisic's order demonstrating that he regarded it

19 as binding and for this we have on 3rd May, 1995, Perisic reporting to

20 Milosevic, "Yes, actions stopped. First I forced him to stop and he

21 stopped."

22 In this regard, the Defence argument that parallel chains of

23 command exclude effective control is contradicted by the case law that we

24 have cited in paragraph 269 of our response brief, but its claim that it

25 makes no military sense to have parallel chains of command is

Page 68

1 contradicted by evidence that was heard by the Chamber from expert

2 witness General Melvin, and that's at transcript page 9416, 9444, and

3 2772.

4 After the shelling of Zagreb, Croatia took control over the

5 territory of Western Slavonia. The Defence claims that goals diverged as

6 a result of the Zagreb shelling or during the Zagreb shelling but this is

7 contradicted by evidence that after the shelling Perisic continued

8 approving requests for assistance. And you can find some of that

9 evidence cited at paragraph 1246 of the trial judgement.

10 What happened after the shelling of Zagreb was that Perisic

11 decided to become more involved in controlling the SVK, and this shows

12 that he had the ability all along.

13 JUDGE MERON: Just to remind you, counsel, you have five minutes.

14 MS. MARTIN: Thank you, Your Honour. Celeketic was replaced as

15 commander of the SVK staff and he was replaced at Perisic's behest by

16 another member of the 40th Personnel Centre, Mile Mrksic. The evidence

17 that Mile Mirkovic did not take orders from President Martic but instead

18 from Perisic confirms Perisic's ability to issue command orders.

19 Before and during Operation Storm in August 1995, Perisic issued

20 several command orders to members of the 40th serving as SVK corps

21 commanders. Mandatory language of the orders confirms they are command

22 orders. In particular, during Operation Storm, Perisic ordered to

23 address and if necessary execute "all scaremongers." This shows him

24 intervening at corps level to maintain discipline in the SVK as the SVK

25 approaches defeat. The order also demonstrates Perisic's power to

Page 69

1 discipline to which I turn.

2 Perisic could and did initiate disciplinary and/or criminal

3 proceedings against members of the 40th. He did so when the SVK

4 surrendered and the RSK fell in the hands of the Croatian forces.

5 Importantly, investigations focused on the conduct of the 40th Personnel

6 Centre while they had been serving in the SVK, and by seeking to

7 discipline these officers for their dereliction of military duty while

8 serving in the SVK, Perisic showed his connection to them. And this is

9 the reason proceedings were never formally pursued as they risked

10 exposing the VJ's intervention in the war in Croatia. Instead as

11 punishment, service was terminated.

12 The Defence argues that Perisic only took these disciplinary

13 measures after the fall of the RSK when in their argument new command and

14 control relationships came about. But they do not substantiate this

15 argument with any evidence. In fact, during this entire time, there was

16 no systemic change in Perisic's powers over the members of the

17 40th Personnel Centre. He did not acquire more powers after the shelling

18 of Zagreb or after the fall of the RSK. Throughout, he was Chief of the

19 General Staff. The other indicators of the effective control continued

20 the same. His authorities and effective control continued the same and

21 it included his power to issue command orders and to discipline. Perisic

22 does not show an error in the finding that he chose not to exercise these

23 powers rather than he could not do so.

24 The Chamber saw through the facade the 40th Personnel Centre and

25 analysed the reality of Perisic's relationship to its members, and for

Page 74

1 helped some of the non-Serbs who were in detention despite the fact that

2 he was one of the persons who created conditions for those people to be

3 detained.

4 In Dragomir Milosevic case, you, the Appeals Chamber, following

5 the findings of the Trial Chamber, you found him guilty of having

6 commit -- in order for the crimes to be committed, and then on the other

7 hand his participation in peace negotiations you took into account as a

8 mitigating circumstance. In that sense, I think that this is a major

9 error that the majority disregarded the fact that Perisic contributed to

10 the saving of more than 700 members of the ABH through his intervention

11 with Mr. Milosevic, and this should have been evaluated as a significant

12 mitigating circumstance.

13 Now I'm going to give the floor to my colleague Mr. Bourgon.

14 MR. BOURGON: Good morning again, Mr. President. I will address

15 question 5 and the arguments raised by the Prosecution in this respect.

16 Let me begin very quickly, Mr. President, by addressing the

17 argument that was not touched on by the Prosecution when they spoke about

18 Celeketic. I said in my address to you this morning that Perisic, when

19 Celeketic refused to follow his advice to stop the shelling because he

20 disagreed, if he had had the authority over members of the 40th Personnel

21 Centre, he could have gone to the Orkan crew and say, Stop it. That's

22 what a commander does when a commander has control over an entity

23 composed almost entirely where all the key officers are from the

24 40th Personnel Centre.

25 The majority did not look at this issue at all. The majority

Page 75

1 failed to note that Perisic did not do that. And that is very important,

2 Mr. President. Why is it so important? Well simply because Perisic did

3 not do that for two reasons: One, he respected the chain of command of

4 the SVK; and, two, he knew that he did not have the authority to bypass

5 Celeketic. That's the key indicator of effective control.

6 Now, when Milosevic spoke to Perisic, he never suggested to

7 Celeketic, Hey, Momo, go straight to the 40 -- to the Orkan crew and tell

8 them to stop. He never said that. Milosevic also understood that there

9 was no such thing as authority of Perisic over the 40th Personnel Centre.

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 A few quick words on de jure. The Prosecution referred to this

19 this morning and I would like to come back because they referred to what

20 I call is the circular argument, the circular argument which I referred

21 to which is what the majority did. The majority said the perpetrators

22 are members of the 40th Personnel Centre. Check. Good. The

23 40th Personnel Centre members are part of -- are the VJ. I'll give that

24 to them. Check. That's good.

25 Mr. Perisic is the highest military officer in the VJ. I'll give

Page 76

1 it to them. Check.

2 But the question is: So what? How does that establish any type

3 of de jure relationship? What the Prosecution failed to do and what the

4 majority also committed -- where the majority committed the error is by

5 failing to take into account that once the members of the VJ were

6 transferred to the 40th Personnel Centre, they moved into the SVK chain

7 of command. If you move into the SVK chain of command, where is Perisic

8 in the SVK chain of command? He's not there. In the SVK chain of

9 command you have Martic, Celeketic, Orkan crew and all these other

10 people, nobody else. Perisic is not in that chain of command. And the

11 Prosecution did not -- neither address the instructions, that's P734 or

12 P1082.

13 Now, I say Prosecution, but I could also say majority, because

14 the majority did not take this evidence into account in deciding that

15 there was a de jure relationship.

16 I move on, Mr. President, to the fact that at page 55, lines 6 to

17 9, the Prosecution said this morning that there was something, that the

18 actual exercise of authority was relevant but that what really mattered

19 is ability. Well, they're right. I'll give -- that's a correct

20 argument. But the problem is the actual exercise is of the highest

21 relevance, and here you have no evidence that there were command orders

22 issued by Perisic before or during the shelling of Zagreb and that

23 Perisic did not initiate any -- any disciplinary proceedings before or

24 during the shelling of Zagreb. Now, if you don't have this, you have to

25 supplement this with something else in order to come with a finding that

Page 77

1 the only reasonable conclusion is that Perisic could do those things, but

2 there is no -- that evidence is not there. There's a couple of

3 assumptions. One of these assumptions is the fact that the goals

4 diverge, and because he did not need to do so.

5 Well, that's a nice theory but it's not proof. The Prosecution

6 said this morning in its address the difficulty is it's not because

7 Perisic -- Perisic continued to give support even though after the

8 shelling of Zagreb continued. Again, I say so what?

9 I'm told to conclude, Mr. President, so I will conclude

10 immediately. I'm not going to come back on the orders issued by -- by

11 Perisic. That's 1800 or 1925. They do not establish any type of

12 command. What the Trial Chamber -- what the Appeals Chamber must look

13 for is to evaluate in the context the type of relationship that Perisic

14 had with the SVK. Did he exercise command over the SVK which comprised

15 mainly of 40th Personnel Centre officer? That's why I referred the

16 Appeals Chamber to Blaskic and to Hadzihasanovic. Again, the Prosecution

17 argument fails to address this issue, because when you compare the two,

18 you can come to only one conclusion, Mr. President, and that is that the

19 majority erred in finding that there was something called a superior to

20 subordinate relationship between Perisic and Celeketic.

21 And lastly I'll conclude simply by saying that the element or

22 criteria advanced by Judge Moloto which we took in our brief and we took

23 in our reply again was not addressed. When two people believe or act --

24 unless they believe and they act as though they are in such a

25 relationship, they are not in such a relationship, Mr. President. If I

Page 78

1 say I have to force someone to do something, I'm certainly not into an

2 effective control relationship.

3 Thank you, Mr. President. Mr. Gregor Guy-Smith will pick up from

4 here.

5 JUDGE MERON: Mr. Guy-Smith.

6 MR. GUY-SMITH: The response to the question: Could he stop the

7 aid being sent through his country? The answer is -- is very clear. The

8 answer is no. It's an unqualified no and the Prosecution should have

9 answered the question [indiscernible]. And the reason is very simple.

10 He's not the president of the country. He was not the SDC. He was not

11 involved in the Ministry of Defence. And what you -- your question deals

12 with an entire state and the way that a state behaves. He is one

13 component part of the state, but he is not the state which is why it is

14 so important to take a look at and recognise the importance of personal

15 culpability.

16 I want to ask -- I want to ask a question where -- where do we

17 think we're going right now? Where do we think the law right now is

18 going? Because in terms of the hypothetical that you put forth,

19 Your Honour, the answer is really very clear. We see case after case

20 after case around the world right now where you have what you call rebel

21 movements, self-determination movements that fall precisely into your

22 fact pattern where crimes are being committed as we see them being

23 committed. So each and every nation state that gives assistance to those

24 rebels or to the other side is guilty of aiding and abetting.

25 Now, do we think there's going to be prosecutions throughout the

Page 79

1 world for the United States and its personnel or for the United Kingdom

2 or for France or for NATO? I think not. And the problem that's going to

3 occur and it's going to occur very, very rapidly will be that there will

4 be a rise of impunity, because there will be a recognition that there was

5 not equal treatment under the law, because certain states or certain

6 people we prosecuted and others will not. The more powerful will not.

7 And if there's any doubt about what the view is, what's being pedalled

8 right now, I suggest to you that we listen to the following and the

9 following comes from a conference on the 20th of August, 2012.

10 [Video-clip played]

11 "Moderator: For students to take. So the next question is what

12 was the most important legal precedent set by your Tribunal this year and

13 explain why and what you think the precedent means for the greater

14 development of international criminal law. We'll begin again with Serge.

15 "Serge Brammertz: Thank you. I would like to say a few words

16 about the Perisic judgement from September last year. Perisic, he was

17 the Chief of Staff of the Yugoslav army, and as such providing logistical

18 support to the Serbian Army in Bosnia. So he was prosecuted for aiding

19 and abetting crimes committed in -- on the territory of Bosnia, crimes

20 for which many people have been convicted already in the past by the

21 Tribunal. The Trial Chamber has considered him and found him guilty for

22 aiding and abetting those crimes, a number of crimes, murder, inhumane

23 acts, persecution, attacks on civilians, aiding and abetting. Those

24 crimes committed as said by the army in Bosnia. He was, however,

25 acquitted for aiding and abetting the crime of extermination in

Page 80

1 Srebrenica because the Trial Chamber was of the opinion that the mens rea

2 was not there at that level, that he was fully aware there was a policy

3 of committing crimes but not to the level of extermination or genocide.

4 He was also convicted for -- as a superior for having failed to punish

5 those responsible for crimes committed by the shelling of Sarajevo. It

6 was an important judgement. Twenty-seven years was the sentence. Why is

7 it important? Because it is partially precedent, I think so, which shows

8 that providing assistance to a party in the conflict, by knowing that

9 this party is implementing a policy in which crimes are committed, that

10 this person can be prosecuted for aiding and abetting crimes, and we

11 speak here about logistical support in the sense of paying salaries out

12 of Belgrade, providing fuel for -- for tanks, by providing training, and

13 we're even not speaking about weapon in this -- in this case because the

14 Trial Chamber was of the opinion that the evidence was -- was clear that

15 also weapon had been provided by the Chief of Staff of people under a

16 specific responsibility, but that there was no factual link established

17 during the trial between the weapons which had been delivered and the

18 crimes committed in a number of municipalities. So I think it is an

19 important development in this sense that aiding and abetting is receiving,

20 I think, a larger interpretation. Of course, we have to wait for --

21 for an appeals decision but I think it's a quite interesting development."

22 MR. GUY-SMITH: Following along with what Mr. Brammertz the

23 Prosecutor said and going back to your hypothetical, Your Honour, we'll

24 have the following situation: None of the weapons whatsoever are supplied

25 by country A. They supply everything else. Same fact pattern. Country A

Page 81

1 is guilty of aiding and abetting. Without a doubt. Salaries, fuel.

2 Now, the fact of the matter is here, because the case is, and I

3 return to this, a circumstantial case against Mr. Perisic, obviously the

4 only reasonable inference to be drawn is -- is what's necessary for

5 purposes of the finding of guilt. And I said that badly, and I think you

6 know exactly what I meant. There can only be one inference, and it can

7 be only the reasonable inference, and here there are alternable

8 reasonable inferences, and I'll cite you to the record because in the

9 record it is very clear with regard to the issue of fuel which

10 Mr. Brammertz talks about at paragraphs 168, 169, 170, there's clear

11 indication that the VRS was getting fuel from other places. With regard

12 to the issue of salaries was discussed beforehand. VRS members, the core

13 VRS members, stayed when they weren't being paid. They didn't leave.

14 They continued to remain active without the benefit of those salaries.

15 So if you don't have salaries and you don't have fuel as -- as

16 being attributed to General Perisic, what you really are left with is

17 what I said at the -- at the end of my first presentation, which is you

18 have speculation. You may not like the way it feels, you may think that

19 maybe something should be different, but that's not what we do in a court

20 of law. In a court of law is we prove beyond a reasonable doubt by facts

21 not by speculation. And the Prosecution in effect in their argument has

22 conceded that the case against General Perisic was not proved.

23 I despise war. I do not believe there is an individual in this

24 courtroom that likes it, but the fact of the matter is wars are waged and

25 horrible things occur. And increasingly with the way the world is

Page 82

1 developing, we have knowledge of those horrible things occurring.

2 Now, if this court wishes to make the determination that war

3 should cease, and I'm not talking about the crime of aggression, but that

4 war should be criminalised, then do so. Then do so. But please,

5 remember, that when he was a general, when he was supporting his country,

6 when he was concerned about doing his job, that was not the law.

7 General Perisic should be acquitted of all counts.

8 JUDGE MERON: Thank you, Mr. Guy-Smith. I take it the Defence has

9 completed its presentation, and I would ask Mr. Perisic whether he would

10 like to use his ten minutes to make a personal statement. I see the

11 answer has already been provided. So, Mr. Perisic, you have ten minutes.

12 THE APPELLANT: [Interpretation] Yes, I do wish to do so.

13 Your Honours, thanks to you, this is my last opportunity to

14 address you. I was pondering what could I say to you out of the scope of

15 the Defence case presented that would enable you to additionally assess

16 me as a person and as a general who performed certain duties. When this

17 trial started on the 3rd of October, 2008, I addressed the Trial Chamber,

18 and inter alia I said and I quote:

19 "I deeply regret the victims of crimes committed in the territory of the

20 former Yugoslavia, and I sincerely sympathise with their families. Any

21 loss of life is an irreparable loss for society and a life taken through

22 crime is the worst of all losses. I believe that all those who committed

23 crimes will be prosecuted and appropriately punished. I wish that war

24 crimes will never be repeated again. As a professional officer, I hate war,

25 because I'm aware that any war, particularly the ethnic, religious, and

Page 83

1 civil war that took place in the territory of Yugoslavia was something that

2 was the worst thing that could happen to all the peoples of the region."

3 This is my deep conviction, and that's why I wanted to repeat it.

4 I believe that in this case you are facing numerous challenges

5 not only with respect to my responsibility but also to the fairness of

6 the sentence pronounced, the sentence of 27 years' of imprisonment and

7 the impact that it has on the credibility of this court. I'm not a

8 lawyer. I never had a desire or the need to engage in law, but

9 nevertheless, I can conclude that the judgement and the verdict does not

10 reflect what I heard in the course of this trial.

11 During the 40 years in military, I could not but develop deep

12 respect for the law and its significance. The experience that I gained

13 in the military makes it even more difficult for me to understand the

14 judgement. I cannot understand the decision made by the majority of the

15 Trial Chamber, and therefore I'm asking how can something be established

16 beyond a reasonable doubt if the Presiding Judge has doubts? By sheer

17 logic, something like that is untenable, because it is impossible.

18 I am a Serb by ethnicity. I am a professional soldier who served

19 throughout Yugoslavia during his career. I was the chief of the

20 VJ General Staff during a long period that encompassed some troubled

21 years of the conflict. I had been told that due to my nationality and

22 the position that I held, it would be nearly impossible to expect that my

23 trial was going to be objective, unbiased, free of prejudices, and views

24 taken in advance. Despite of that, immediately upon the receipt of the

25 indictment, I publicly declared my trust in this court, which was carried

Page 84

1 by the media and which was admitted into evidence as part of the Defence

2 case. I came to the Tribunal voluntarily two days before the indictment

3 was published, which is a unique case of the respect for the Tribunal.

4 In spite of everything negative that has been happening to me to

5 this will date I sincerely hope that you are above this and that you are

6 going to judge me objectively and impartially.

7 My case is unique in the world. Never before was a chief of the General

8 Staff of an army indicted and convicted for crimes that were committed

9 by members of another army in another country. You are the Judges who

10 are going to render a decision in accordance with your conscience and

11 your sense for justice, but you have to do some soul searching if the

12 decision that you make should have far reaching consequences to any Chief

13 of General Staff of any army including NATO and other alliances as well

14 as the policies pursued by other countries that are assisting wars

15 currently being prosecuted in Afghanistan, Libya, Syria, Sudan, Yemen and

16 elsewhere where crimes were committed and are still being committed.

17 My direct superior, the president of the FRY and the President of the

18 Supreme Defence Council, Zoran Lilic, who issued orders to me to provide

19 assistance to the VRA and the SVK was neither indicted nor convicted.

20 General Celeketic, for whom the Court has established that he was

21 responsible for the crimes resulting from the shelling of Zagreb was

22 neither indicted nor convicted. Instead, I am convicted for his crimes.

23 You know very well that the decision to provide assistance to the

24 VRS and SVK was taken as a political and state decision long before I was

25 assigned to the position of the Chief of General Staff of the VJ.

Page 85

1 As chief of the General Staff I participated in the decision

2 taken by the SDC and the government of the FRY which pertained to the

3 assistance in waging a war not for the commission of crimes as concluded

4 by the majority. Your Honours, I defended my state and its citizens

5 professionally and honourably from being pulled into the war. I proposed

6 and implemented certain measures in a timely and responsible manner

7 pursuant to the decisions of the Supreme Defence Council for the purpose

8 of preventing the spill-out of war from Croatia and Bosnia-Herzegovina to

9 the territory of the FRY. Before taking over as Chief of General Staff,

10 the FRY and the SFRY before it were in war -- were at war with Croatia

11 and Bosnia-Herzegovina. And after I was replaced by Chief of the

12 General Staff the FRY waged war with NATO and the Kosovo Liberation Army.

13 I'm proud that the FRY and its army while I was Chief of the

14 General Staff did not participate in war for more than 50 years. Every

15 officer, especially a general, has the duty to envisage and foresee the

16 developments in the environment and their consequences on the security of

17 its area of responsibility and to propose and take preventive measures

18 for its protection. In my case, that area of responsibility was the

19 Federal Republic of Yugoslavia.

20 There is nothing pleasant about war for a normal person. Very

21 often there is no choice, and even if there is some, every activity leads

22 to grave consequences. This is well known to all armies, to all state

23 policies, and despite everything, however hard and distasteful it sounds,

24 the world did not prohibit the waging of war or rendering assistance to

25 others at war. Essentially everyone in this courtroom, everyone who

Page 86

1 follows these proceedings and millions of others are fully aware that

2 assistance to the waging of war is given every day depending on the

3 interests and policies of various states.

4 For example, France and the US were involved in armed conflicts

5 and extended support to forces in conflict thousands of kilometres away

6 from their territories in order to protect their own interests. They did

7 not have to suffer any consequences for it.

8 This is quite different from the situation I was in, because

9 assistance to Republika Srpska and its army and the Republic of Serbian

10 Krajina and its army was extended in order to protect the territory of

11 our own state, of my own state, the FRY, from the conflict that were

12 taking place at its footstep.

13 What would you have expected me to do as Chief of General Staff

14 of the VJ? What did the majority of the Trial Chamber which convicted me

15 expected me to do as Chief of General Staff of the VJ when there was a

16 war raging around us and threatening to spill over into the FRY?

17 As a professional soldier heading a military structure that

18 implemented the decisions of the SDC and the FRY government, my actions

19 during my entire military service, including the period for which I was

20 indicted, were aimed at preventing the expansion of war and based on

21 domestic and international law.

22 I express my deep regret for all the victims of the conflict in

23 the former Yugoslavia. I feel for the pain and suffering of all the

24 citizens of the states where there is a war going on. I would be

25 happiest if all wars stopped in the world this moment, but it seems that

Page 87

1 despite my wishes, this is not going to happen.

2 If the majority of the Trial Chamber believed that with my

3 conviction all wars would stop, they should have said so, but they noted

4 instead that although war results in devastation and suffering, it is not

5 a crime, but it still convicted me very dramatically for it.

6 Your Honours, while Judge Moloto, the Presiding Judge of the Trial

7 Chamber, analysing the situation in which I was believed that I should go

8 home, two other Judges decided that I should be in prison for 27 years.

9 Something like this is hard not only to understand but to live with. Does

10 it not contain in itself the confirmation of the existence of a reasonable

11 doubt? I believe that you, Your Honours, will repair this injustice.

12 Thank you for allowing me to address you and your attention.

13 JUDGE MERON: Thank you, Mr. Perisic for your personal statement.

14 Before we conclude, I would like to thank the parties for their

15 arguments today and for their significant preparatory work over the

16 course of this appeal. I with like to thank my colleagues on the Bench,

17 but we are most extremely grateful for the hard work and dedication of

18 the interpreters and translators, the court reporters, the staff of court

19 management support services, and the information technology support teams.

20 The high quality of their work allows us to proceed with our cases fairly

21 and expeditiously, and this would not be possible without their commitment.

22 The hearing is now concluded, and the judgement of the

23 Appeals Chamber will be delivered in due course.

24 --- Whereupon the Appeals Hearing adjourned

25 at 12.27 a.m.