By most measures, the International Criminal Tribunal for the Former Yugoslavia is the gold standard for international justice.
With 69 convictions, it has brought to justice many of the people behind the ethnic cleansing of the 1990s Balkan wars — the worst atrocities in Europe since World War II. Some three million people were forcibly displaced across the region and well over 100,000 killed in Bosnia alone, including nearly 8,000 murdered in the genocide centered on the town of Srebrenica that began 18 years ago Thursday.
But as the tribunal winds down, it has suddenly established a precedent that, unless changed, could cripple future efforts to prosecute senior officials responsible for human rights crimes.
Senior officials usually work through others to commit atrocities. When they act through their formal subordinates or by explicit agreement with others, their criminal liability is fairly straightforward. But many leaders are too savvy to expose themselves in this way. Instead, they use irregular forces — the janjaweed in Darfur, the shabiha in Syria, paramilitary forces in Bosnia — without formal ties or explicit understandings. The challenge facing tribunals is to determine when support for such forces amounts to responsibility for “aiding and abetting” their crimes.
Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had a substantial likelihood of aiding a crime and that the aid had a substantial effect. In its waning days, however, the tribunal has seized on cursory references in earlier cases to require a third element — that the accused “specifically directed” the crime.
This makes little practical sense. Officials who want to facilitate mass atrocities are rarely so dumb as to give explicit orders. Rather, they tend to proceed by indirection, giving aid to a criminal enterprise that is already in motion.
The tribunal had previously mentioned a specific-direction requirement only in a series of cases in which the doctrine made little difference to the outcome. The suspects had been at or near the scene, so the purpose of their aid was obvious.
But in the case of the former Yugoslav military chief of staff, Momcilo Perisic — the first aiding-and-abetting case to reach the appellate stage involving an official operating at a distance from atrocities — the tribunal relied on the doctrine to acquit him.
What was the tribunal thinking? Some have alleged nefarious influence on the tribunal’s chief judge, Theodor Meron. But I have known Judge Meron for more than two decades and have always found him to be a man of integrity and principle.
I have not discussed the merits of the case with him or any other judge, so I can only surmise the rationale for the tribunal’s ruling. I suspect one factor was fear of creating a precedent that could lead to unfair accomplice liability for anyone who supports a party to a conflict that then commits human rights crimes.
That is a legitimate concern, but it should be sufficient to prove that the provider of aid knew of the substantial likelihood that the forces receiving it would devote it to criminal activity. If that assistance substantially advanced those crimes, the provider deserves criminal liability.
The tribunal acquitted Perisic because, apart from committing atrocities, the Bosnian Serb forces that he aided were engaged in a military effort that was presumed legitimate. Without evidence that Perisic specifically directed that aid be used for atrocities, the tribunal concluded that he could have intended the aid for only the war effort.
But the Bosnian Serb war effort was built on systematic atrocities, as Human Rights Watch and the tribunal itself have found. Since there was no evidence that Perisic gave a specific direction that the arms not be used for atrocities, anyone supplying arms would have known that they would aid atrocities.
The danger of the Perisic precedent is not merely theoretical. It could affect a separate tribunal that is considering whether to uphold the conviction of former President Charles Taylor of Liberia, who was convicted of aiding and abetting atrocities by Sierra Leone rebels. And the ruling undermines the ability of international criminal law to deter other leaders from similar murderous assistance — so long as they refrain from specifically directing the crimes that they assist. Russia’s and Iran’s assistance to Syria comes to mind.
The Yugoslav tribunal still has an opportunity to correct this damaging new doctrine. A separate panel of tribunal judges is considering a case against other officials charged with aiding and abetting atrocities from a distance. The tribunal should affirm — as other panels have done — that the accused does not have to give specific directions to commit crimes to be held criminally liable for aiding and abetting.
Kenneth Roth is executive director of Human Rights Watch.