Judging Leaders Who Facilitate Crimes by a Foreign Army: International Courts Differ on a Novel Lega

In one of the most significant cases in the history of international criminal law, Prosecutor v. Perišić, 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 Momčilo Perišić, 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 Perišić 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 Perišić 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 Perišić 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.