¹ Prosecutor v. Perišić, Case No. IT-04-81-A, Appeals Judgment (Int’l Crim. Trib. Former Yugo. Feb. 28, 2013) [hereinafter Appeals Judgment]. Documents of the ICTY cited herein are available at its website, http://www.icty.org.

² Prosecutor v. Perišić, Case No. IT-04-81-T (Sept. 6, 2011) [hereinafter Trial Judgment].

³ Id., paras. 1815, 1820. The 1995 VRS attack on Srebrenica led to the mass murder of some eight thousand Bosniaks, in what Kofi Annan labeled the worst crime to be committed on European soil since World War II. ‘May We All Learn and Act on the Lessons of Srebrenica’, Says Secretary-General, in Message to Anniversary Ceremony, UN Press Release SG/SM/9993 (Nov. 7, 2005), at http://www.un.org/News/Press/docs/2005/sgsm9993.doc.htm. The International Court of Justice later ruled that the attack constituted genocide. Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosn.& Herz.v.Serb.& Montenegro),2007 ICJ Rep. 43, 199, para. 379 (Feb. 26), available at http://www.icj-cij.org. See also The Fall of Srebrenica, Report of the Secretary-General Pursuant to General Assembly Resolution 53/35, UN Doc. A/54/549 (Nov. 15, 1999), available at http://www.un.org/peace/srebrenica.pdf.

⁴ Trial Judgment, para. 1838.

⁵ Id., paras. 1818, 1839.

⁶ During the appeal, Perišić personally addressed the Chamber and asked how, given the dissenting opinion in the trial chamber, his responsibility could have been established beyond a reasonable doubt. Perišić also said that the “world did not prohibit the waging of war” and asked the appeals chamber to consider how his case would affect the chiefs of staff of armies around the world. He emphasized that “[n]ever before was a chief of the General Staff of an army indicted and convicted for crimes that were committed by members of another army in another country.” Transcript of Appeals Hearing 84, 85 (Oct. 30, 2012).

⁷ Appeals Judgment, para. 17 (quoting Trial Judgment, para. 1627).

⁸ Id. (quoting Trial Judgment, para. 126, and citing Prosecutor v. Mrkšsić, Case No. IT-95-13/1-A, Appeals Judgment, para. 159 (May 5, 2009)).

⁹ Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Judgment, para. 229(iii) (July 15, 1999), quoted in Appeals Judgment, para. 26 (emphasis added).

¹⁰ Quoting, in the second instance, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Judgment, para. 109 (Mar. 24, 2000).

¹¹ Referring to the trial records, the dissenting judge felt that Perišić had “facilitated the large-scale crimes of the VRS through the provision of considerable and comprehensive aid” constituting “a prime example of conduct to which aiding and abetting liability should attach.” Appeals Judgment, Partially Dissenting Opinion of Judge Liu, para. 9 [hereinafter Liu Dissent]. Judge Liu persuasively referred to points from the trial judgment, including that Perišić had institutionalized the provision of assistance to the VRS, that he had the power to approve or deny requests, that the assistance “sustained the very life line of the VRS,” that Perišić “did not believe that the VRS had another significant source of assistance,” and that from the early stages of the war Perišić was aware of “the VRS’s propensity to commit criminal acts.” Id., paras. 7, 6 n.24, 8, respectively.

¹² As one commentator observed, members of the Gestapo and the Interahamwe followed the Law at Times over the course of their genocides, whether “dr[iving] on the correct side of the road [or] purchasing] food from local merchants.” James G. Stewart, The ICTY Loses Its Way on Complicity—Part 1, Opinio Juris (Apr. 3, 2013, 9:00 AM).

¹³ Liu Dissent, para. 3 n.9.

¹⁴ During the closing arguments at Perišić’s trial, one judge, Judge Moloto, engaged in an intriguing dialogue with a senior trial attorney from the Office of the Prosecutor. Judge Moloto compared the instances of aiding and abetting charged against Perišić with the operations of NATO commanders in Afghanistan and their continuing to supply the Afghan security forces despite being aware of crimes committed by those forces. But the comparison is only superficially analogous. While the Afghans have indeed committed offenses, these have not come close to the scale of the VRS’s offenses. Moreover, the VRS “wag[ed] a war that encompassed systematic criminal actions against Bosnian Muslim civilians as a military strategy and objective.” Id., para. 4 (quoting Trial Judgment, para. 1621). There is no valid Afghanistan parallel to the VRS siege of Srebrenica over the course of two-plus years, and the subsequent massacre of thousands, which could not have occurred without VJ support. And at no point did Perišić challenge or criticize the VRS or stop supplying it.

¹⁵ Id., para. 3. One commentator, Creighton Law professor Sean Watts, in agreeing with the Perišić decision, labeled the case a question of proof, not of difficulty determining the relevant standard of law. Watts claims that to impute liability to Perišić requires more than is provided for under current International criminal law. To fill this lacuna, Watts suggests that dereliction of duty be adopted as a criminal offense. See U.S. Uniform Code of Military Justice Article 92, which criminalizes dereliction of duty. The U.S. Manual for Courts-Martial (2008 ed.) defines an individual as derelict under Article 92 when he or she “willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably inefficient manner.”

¹⁶ ICTY, Achievements, at http://www.icty.org/sid/324.

¹⁷ Prosecutor v. Gotovina, Case No. IT-06-90-A, Appeals Judgment (Nov. 16, 2012) (acquitting Ante Gotovina and Mladen Markač).

¹⁸ Marija Ristic, Serbia Welcomes Hague Decision to Clear Perisic, Balkan Transitional Justice (Mar. 1, 2013) (quoting Ivica Dačć;), at http://www.balkaninsight.com/en/article/serbia-greets-perisic-s-icty-acquittal. Attention now turns to whether and how the acquittals of Serbians accused of war crimes in Croatia will affect the resolution of the ICJ case between the two countries,Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia).

¹⁹ Prosecutor v. Stanišsić, Case No. IT-03-69-T (May 30, 2013) (acquitting Jovica Stanišsić and Franko Simatovicć).

²⁰ Among these units were Arkan’s Tigers, the Red Berets, and the Skorpions, which committed some of the greatest atrocities in the conflict.

²¹ One expert contended that through recent ICTY cases “[t]he entire doctrine of command responsibility has been ditched” and “[s]o has the liability for aiding and abetting.” Marlise Simons, U.N. Court Acquits 2 Serbs of War Crimes, N.Y. Times, May 31, 2013, at A 4 (quoting Eric Gordy, University College London). For additional criticism of the recent decisions, see Marlise Simons, Judge at War Crimes Tribunal Faults Acquittals of Serb and Croat Commanders, N.Y. Times, June 15, 2013, at A 4.

²² For the trial chamber’s judgments on the merits and on sentencing, see Mariniello, Triestino, Case Report: Prosecutor v. Taylor, in 107 AJIL 424 (2013)CrossRefGoogle Scholar.

²³ ICTY, Achievements, supra note 16.

²⁴ Marko Milanovic, The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic, EJIL: TALK! (Mar. 11, 2013), at http://www.ejiltalk.org.