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

The following blog post summarizes Mugambi Jouet’s article Judging Leaders Who Facilitate Crimes by a Foreign Army: International Courts Differ on a Novel Legal Issue (47 Vand. J. Transnat’l L. 1091 (2014)). Read the full article here.

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. General Perišić, who then was the highest-ranking military officer in Serbia, was responsible for managing Serbia’s provision of considerable military assistance to its Bosnian Serb allies.

The Special Court for Sierra Leone subsequently held that the 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.

The ICTY Appeals Chamber’s controversial holding in Perišić has generated extensive attention in the media and among scholars given the precedent’s potential implications for future conflicts. Yet, commentary has narrowly focused on the Appeals Chamber’s legal reasoning, especially its decision to require evidence that General Perišić’s assistance to the Bosnian Serb army was “specifically directed” to assist crimes, which essentially raised the standard of proof for aiding and abetting. Far less attention has been devoted to how the Appeals Chamber disregarded critical factual evidence when holding that no “link” existed between General Perišić’s operational support and the Bosnian Serb army’s crimes.

The trial record shows that the beleaguered Bosnian Serb army heavily depended on aid from Serbia to conduct its operations, as it had limited weaponry, qualified personnel, and financial resources. General Perišić was well aware of this dependence and pressed for Serbian aid to continue. Slobodan Milošević, then the President of Serbia, agreed that “everything that has been made [in Bosnia] was made thanks to Serbia and the army.” General Ratko Mladić, the Commander of the Bosnian Serb army, admitted that “we would not be able to live” without Serbian support. Radovan Karadžić, the Bosnian Serb leader, concurred that “nothing would happen without Serbia. We do not have those resources and we would not be able to fight.” However, not a single reference to this dependence appears in the appellate judgment acquitting General Perišić.

Most importantly, the strategy and objectives of the Bosnian Serb army entailed systematic attacks on Bosnian Muslim civilians as part of an ethnic cleansing plan. The Bosnian Serb army laid siege to Sarajevo to ultimately separate it into Serb and Muslim sectors. Sniping and shelling Sarajevo civilians advanced this objective by aiming to force Bosnian Muslims to capitulate. The Bosnian Serb army also aimed to eliminate the Muslim enclave of Srebrenica by removing or killing its population. The Trial Chamber therefore found that it was no defense for General Perišić to argue that he merely provided general military assistance since warfare by the Bosnian Serb army was “inextricably linked” with systematic crimes licensed by its leaders, including top officers on Serbia’s payroll. Nevertheless, the appellate judgment acquitting General Perisic made no mention of the Bosnian Serb army’s ethnic cleansing plan or its strategic goals in Sarajevo and Srebrenica.

The article further explores the potential impact of Perišić as a precedent. Certain voices have argued that convicting individuals like General Perišić could 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.

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