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Monday, March 11, 2013

Guest Post: What the ICTY appeal judgment in Perišić means for the SCSL Appeals Chamber in Taylor

I’d like to begin by thanking Dov for giving up the space on his blog to allow me to post the following thoughts on the Perišić appeal judgment as it relates to Charles Taylor’s pending appeal at the Special Court for Sierra Leone.

During the closing trial arguments in the Perišić case, the following memorable in-court exchange was recorded between Presiding Judge Moloto and Senior Trial Attorney (now Co-Investigating Judge at the ECCC) Harmon. It is quoted at length because it goes to the very heart of why the Appeals Chamber overturned the convictions of Perišić – the highest ranking Yugoslav military officer during the time of his indictment – for aiding and abetting crimes committed by the VRS (Bosnian Serb Army) through the provision of substantial military support and assistance:

Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
Judge Moloto: No, no. It’s a legal question.
Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is --
Judge Moloto: Mr. Perišić is not charged with ethnic[] cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
Judge Moloto: […] [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.