Judging leaders who facilitate crimes by a foreign army: international courts differ on a novel legal issue.

• Author: Jouet, Mugambi

Abstract

In one of the most significant cases in the history of international criminal law, Prosecutor v. Perisic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) effectively addressed an issue of first impression: may a military or political leader be convicted for knowingly facilitating crimes by another state's army? The influential tribunal answered this question in the negative--knowledge that the recipients of military assistance are perpetrating crimes is essentially irrelevant absent evidence that the facilitator specifically intended that crimes occur. The ICTY Appeals Chamber thus acquitted Serbian General Momcilo Perisic, who had been convicted at trial of knowingly aiding and abetting atrocities by the Bosnian Serb army in Sarajevo and Srebrenica between 1993 and 1995. The record suggests that certain judges were concerned that convicting individuals like Perisic could potentially disrupt international relations by casting too wide a net for convicting leaders whose provision of military aid facilitates crimes by a foreign army.

The Special Court for Sierra Leone subsequently held that the controversial Perisic precedent did not comport with customary international law, and therefore affirmed the conviction of Charles Taylor, the former Liberian President, for knowingly assisting atrocities by rebel forces during the Sierra Leone Civil War. In an even more striking development, a different ICTY appellate panel thereafter reversed the Perisic legal standard on the ground that it neither comported with ICTY jurisprudence nor customary international law. This Article analyzes this historic turn of events and explores the appropriate legal standard to convict leaders who enable atrocities by a foreign army.

Table of Contents I. Introduction II. The Landmark Perisic Trial III. How The ICTY Appeals Chamber Set a Troubling Precedent in Perisic A. Ignoring Critical Evidence B. Raising the Legal Standard for Conviction C. Would the Perisic Standard Foster Impunity? IV. Implications for International Relations V. Conclusion I. Introduction

Two international courts have effectively addressed an issue of first impression: whether military or political leaders may be convicted for knowingly facilitating crimes by foreign armed forces not under their direct control. Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) examined this intricate question in the cases of prominent defendants accused of aiding and abetting atrocities--Momcilo Perisic, a Serbian General, and Charles Taylor, the former Liberian President.

Prosecutor v. Perisic (1) and Prosecutor v. Taylor (2) are among the most significant cases in the history of international criminal law not only because they raised novel legal issues, concerned mass atrocities, and involved high-profile defendants. These cases also stand out because both international courts impliedly, and at times overtly, weighed how international relations could be affected by a precedent under which a top official is convicted for providing military assistance to a foreign military force responsible for war crimes. Yet, the courts initially reached vastly different conclusions.

In Perisic, the ICTY Appeals Chamber deemed that a facilitator's knowledge that the recipients of military assistance are perpetrating crimes is essentially irrelevant, absent proof that the facilitator's actions were "specifically directed" to assist crimes (3)--a requirement tantamount to proof that the facilitator specifically intended the crimes to occur. The Appeals Chamber consequently acquitted General Perisic, who had been sentenced to twenty-seven years in prison at trial for knowingly aiding and abetting crimes perpetrated by the Bosnian Serb army against Bosnian Muslims in Sarajevo and Srebrenica during the Bosnian War (1992-95). (4) General Perisic was responsible for managing Serbia's provision of considerable military assistance to its Bosnian Serb allies during most of the war. (5) The ICTY Trial Chamber had found that General Perisic had facilitated the Bosnian Serb army's military operations despite knowing that they encompassed systematic attacks on Muslim civilians. (6) The Appeals Chamber nonetheless proceeded to acquit him on the ground that the hitherto obscure element of "specific direction" was not established, thereby significantly raising the legal standard to convict a prominent official of knowingly facilitating atrocities. (7)

Conversely, in Taylor, the SCSL explicitly refused to follow the precedent set by the ICTY Appeals Chamber in Perisic by emphasizing that proof of "specific direction" is not required under customary international law, as it is sufficient that the facilitator provided substantial assistance with the knowledge that the recipient armed forces were committing crimes. (8) The SCSL hence affirmed the conviction and fifty-year sentence of Charles Taylor, who had been convicted at trial of aiding and abetting crimes by rebel forces in Sierra Leone's civil war, which coerced child soldiers and murdered, raped, mutilated, and amputated civilians on a vast scale. (9) Taylor thus became the first former head of state convicted by a modern international court.

In a striking turn of events, a different panel of judges on the ICTY Appeals Chamber subsequently reversed the legal standard set in Perisic less than a year earlier. That decision in Prosecutor v. Sainovic et al.--otherwise known as the Milutinovic case (10)--held that the Perisic appellate judgment deviated from both ICTY jurisprudence and customary international law. The Sainovic panel therefore pointedly announced that it "unequivocally rejectjed]" the Perisic standard since "specific direction" is not a requisite element of aiding and abetting, (11) thereby siding with the SCSL's holding in Taylor, (12) Given the extraordinary developments precipitated by the ICTY Appeals Chamber's highly controversial decision in Perisic, this Article will particularly focus on how this decision set an extremely high legal standard to convict a top official for facilitating atrocities from a remote location.

Commentary on the Appeals Chamber's contentious holding in Perisic has focused on its legal reasoning, especially its decision to deviate from prior jurisprudence and customary international law by demanding proof of "specific direction." (13) Far less attention has been devoted to how the Appeals Chamber disregarded critical factual evidence when holding that no "link" existed between General Perisic's actions and war crimes. (14) As we will see, its judgment made no reference to how the beleaguered Bosnian Serb army heavily depended on Serbian support to conduct its operations, which encompassed systematic attacks on civilians pursuant to an ethnic cleansing plan.

Unlike General Perisic, who was technically accused of supporting the army of a foreign state, the Bosnian Serb Republic (Republika Srpska), Charles Taylor was accused of buttressing rebel forces in Sierra Leone's civil war. (15) But the issues in these two cases were so closely related that many experts considered Perisic the death knell of criminal responsibility for the likes of Taylor. (16) While Taylor was convicted at trial for having knowingly aided and abetted atrocities in the Sierra Leone Civil War, he would plausibly have been acquitted on appeal if the SCSL had not explicitly declined to follow the legal standard set in Perisic.

This Article will accordingly explore the impact that Perisic might have on international relations if other courts opt to follow this precedent, such as by considering the political repercussions of their decisions. The record suggests that several judges at the ICTY were concerned that convicting individuals like General Perisic could potentially disrupt international relations by casting too wide a net for convicting leaders who knowingly facilitate the crimes of a foreign army by providing substantial operational support. We will therefore examine whether requiring additional proof that a defendant's actions were "specifically directed" to assist crimes would be reasonable under these circumstances or create an unprecedented hurdle for convicting leaders who enable atrocities by a foreign army.

2. THE LANDMARK PERISIC TRIAL

   As the highest-ranking military officer in Serbia during most of the Bosnian War, (17) General Perisic was responsible for managing Serbia's provision of considerable military assistance to its Bosnian Serb allies. Given that Slobodan Milosevic died in 2006 while facing trial, General Perisic's case came closest to determining the responsibility of Serbian leadership for war crimes. Unlike defendants in other ICTY aiding and abetting cases, General Perisic mainly acted from Belgrade, a relatively distant location from the crime scenes.

   General Perisic was subordinate to the Supreme Defense Council of the Federal Republic of Yugoslavia (FRY), whose most influential member was Milosevic, then the President of Serbia. (18) Yugoslavia was by then a largely Serbian entity due to the secession of Slovenia, Macedonia, Croatia, and Bosnia. Ethnic strife was especially severe in Bosnia, which was divided between Bosnian Muslim, Bosnian Serb, and Bosnian Croat factions. General Perisic was responsible for overseeing the extensive military assistance provided by the Army of Yugoslavia (Vojska Jugoslavije or VJ) to the Bosnian Serb military force, the Army of Republika Srpska (Vojska Republike Srpske or VRS). (19) However, General "Perisic's role went beyond administering the logistical assistance process," as he "recurrently encouraged the [Supreme Defense Council] to maintain this assistance." (20)

   Yugoslavia already provided logistical assistance to the Bosnian Serb army prior to General Perisic's appointment, (21) yet logistical assistance became more structured during his tenure. (22) General Perisic...