The acquittal on appeal last Thursday of former head of the Yugoslav army Gen Momcilo Perisic on war crimes charges, greeted with jubilation in Serbia, also marks an important evolution in the jurisprudence of the International Criminal Court.
Coming in the wake of the acquittal of Croatian Gen Ante Gotovina, the UN court in The Hague appears to be redefining war crimes in a narrower way. Specifically, it is requiring that evidence show not only knowledge that serious crimes were being committed by troops under a senior officer’s command, but the latter’s intent to commit crimes. Critics of the court worry that such standards undermine command responsibility principles established in the Nuremberg trials in the aftermath of the second World War.
Judges said Perisic, as the Serbian army’s chief of staff and an aide to Slobodan Milosevic, was only implementing policy set by Milosevic and had provided legitimate military support to the ethnic Serb army of breakaway Republika Srpska (RS) in Bosnia which was involved in war crimes. But they ruled that he had not directed or knowingly assisted in atrocities and said the lower court had erred by not showing that he was “physically present when criminal acts were planned or committed.”
Gotovina had led the operation to retake the Croatian region of Krajina after it was occupied by Serb forces, and his acquittal caused outrage in Serbia which has seen the court as biased. The death of Milosevic during his own trial and Perisic’s acquittal now means that the court has not convicted any Belgrade officials (albeit some from RS) for crimes in Bosnia and Croatia, which claimed tens of thousands of lives in the 1992-95 period.
In acquitting two professional soldiers, the court appears also to be drawing a line between political and military commands and their respective responsibilities. The suggestion is, as one commentator observed, “that at least some professional soldiers did not behave as badly as was commonly thought.”