Can the ICTY Šainović and Perišić Cases Be Reconciled?
18 Pages Posted: 2 Aug 2014
Date Written: July 1, 2014
In the January 23, 2014 decision of Prosecutor v. Šainovič, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) upheld convictions of six defendants for crimes related to the 1999 ethnic cleansing of Kosovo by Serb forces. The defendants had held high-ranking positions within the army and government ranks; Šainovič himself was one of Milošević’s closest and most trusted associates, the prime minister of Serbia and deputy prime minister of the Former Republic of Yugoslavia (FRY).
This article examines the Šainovič decision within the context of ICTY jurisprudence on liability for aiding and abetting and for participating in a Joint Criminal Enterprise. In particular, Šainovič is distinguished from the aberrant decision of Perišić, in which the appeals chamber found that to establish liability for aiding and abetting, where the acts of the accused are remote from the principal crimes, the assistance must have been specifically directed to furthering the criminal activities. Without this “specific direction”, large-scale assistance to another army’s war efforts would be insufficient to establish individual criminal liability, even where the accused had knowledge of the crimes being perpetrated.
The Šainovič appeals chamber, after undertaking extensive analysis of international jurisprudence and customary international law, rejected the Perišić approach as a divergence from the established standards for aiding and abetting liability recognized internationally. Contrary to the Perišić decision, Šainovič focused on the considerable cooperation between Serb forces operating outside and inside the FRY, and the shared common purpose of the defendants and those perpetrating the crimes. The Šainovič appeals chamber’s efforts to thoroughly examine and clarify the substantive law and create a comprehensive historical record are a welcome contribution to international criminal jurisprudence, and may serve as critically important guidance for future decisions of the ICTY and the International Criminal Court.
Keywords: article 25, control theory, modes of liability, interpretation; aiding and abetting, International Criminal Tribunal for the former Yugoslavia
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