Antigone: Say, will thou aid me and abet? Decide.
Ismene: In what bold venture? What is in thy thought? (1)
Legal regulation of the arms trade has been slow to evolve despite the promotion after World War I of the idea that, for the sake of peace, arms exports should be limited and despite the condemnation on moral grounds of private arms traders who helped to rouse conflict. Article 26 of the United Nations Charter tasked the Security Council with initiating plans for the establishment of a system to regulate armaments in order to promote peace and security and to restrict the diversion of the world's resources to military expenditure. The extent of this "diversion" of resources is reflected in the estimate that the total value of the global arms trade in 2013 was at least $85 billion. (2) The United Nations' efforts, which included the public Register of Conventional Arms (3) and a program of action relating to the illicit trade in small arms, (4) culminated in the adoption of the long-awaited Arms Trade Treaty (ATT) on April 2, 2013, which enters into force on December 24, 2014. (5)
The preamble to the ATT recognizes both "the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms" and the fact that "civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict and armed violence." (6) The ATT has the dual objective of regulating the international trade, and eradicating the illicit trade, in conventional arms. (7) It is aimed at contributing to international and regional peace, security, and stability; reducing human suffering; and promoting cooperation, transparency, and responsible action by state parties. To achieve these goals, state parties are required to establish and maintain national control systems to implement the ATT provisions. (8) The heart of the treaty is contained in Articles 6 and 7, which not only set out rules on when the transfer of arms is prohibited or subject to a risk assessment but also establish the conditions for state responsibility, including state responsibility for participation in international crimes. These provisions may be of greatest concern to the big arms suppliers, such as the United States, Russia, Germany, France, and China, that together in the period 2008-12 accounted for a 75 percent share of total arms exports. (9)
The law on state responsibility for aiding or assisting in the commission of acts defined by customary and/or treaty law as international crimes--as it may be deemed to apply in the context of the ATT--remains underdeveloped. Contrastingly, the issue of the individual criminal responsibility of high-ranking state officials for aiding and abetting international crimes through arms transfers has been addressed in a series of recent cases. Momcilo Perisic was charged before the International Criminal Tribunal for the Former Yugoslavia (ICTY) with providing "personnel and logistical assistance to the Army of the Republika Srpska (VRS), contributing substantially and materially to their capacity to commit crimes." (10) Perisic was chief of the general staff of the Yugoslav Army (VJ) from 1993 to 1998, a position that made him the most senior officer there. (11) As such, he was directly subordinate to the president of the Federal Republic of Yugoslavia (FRY), as well as to the FRY Supreme Defense Council through which the president commanded the army. (12) He allegedly knew that his assistance, which continued largely uninterrupted during his tenure as chief of the general staff, was being used in significant part for criminal conduct. (13) The ICTY trial chamber convicted Perisic of aiding and abetting crimes, ranging from murder and attacks on civilians as war crimes, to persecutions on political, racial, or religious grounds as crimes against humanity, committed by members of the VRS in Sarajevo and Srebrenica. The ICTY appeals chamber overturned the conviction, adopting an interpretation of aiding and abetting liability that placed emphasis on a requirement that the assistance provided had to be "specifically directed" towards criminal conduct. (14)
The controversial acquittal of Perisic was closely followed by the acquittals of Jovica Stanisic and his co-accused Franko Simatovic by the ICTY trial chamber. (15) In her dissent in the latter case, Judge Michele Picard warned of reaching a "dark place in international law" if current legal trends in the interpretation of aiding and abetting international crimes persisted. (16) The painstaking work of the ICTY in establishing principles of individual criminal responsibility, which would reach those who supported criminal activity from a leadership position, was apparently beginning to unravel. These decisions affected the then-pending appeal decision in the case of former Liberian president Charles Taylor before the Special Court for Sierra Leone (SCSL), but Taylor's convictions on the basis of aiding and abetting were ultimately upheld without a showing of "specific direction" being required. (17) In early 2014, a differently constituted ICTY appeals chamber in Sainovic disagreed with the law applied in Perisic and concurred in essence with Taylor. (18)
The challenge raised by Perisic in an era of "growing awareness of States of the problem of complicity" (19) has a relevance and impact beyond the clashing ICTY appeals chambers. The recent jurisprudence highlights the issue of how best to identify and apply specific legal criteria for determining responsibility when the transfer of arms could be both lawful, in the sense of legitimate support for a war effort, and unlawful, in the sense of being used to commit international crimes, depending on the circumstances. This article supports the viewpoint expressed in the Taylor and Sainovic cases that the "specific direction" requirement is not an essential element of aiding and abetting liability, either by reference to customary international law or the prior ICTY jurisprudence related to individual criminal responsibility. While Perisic concerned a special situation of very remote assistance, it did not warrant a reinterpretation of the established elements of aiding and abetting as those elements adequately take account of factual circumstances such as remoteness and proximity. It will be argued, however, that the conceptual journey undertaken in Perisic has potential relevance to the developing law on state responsibility for aiding or assisting international crimes via arms transfers as expressed in the ATT.
The basic idea behind the requirement of "specific direction," which is formulated as part of the conduct element (actus reus), is that if there are two possible uses of the weapons provided--a lawful use and an unlawful use--it must be clearly established that the weapons were meant for the unlawful use. The causative link between the supply of weapons and their use for unlawful purposes is a key concern for states that provide military assistance in many different contexts, such assistance often being aimed at countering systematic crimes committed during a conflict. The requirement of "specific direction" permits a shift in emphasis from the state's intent, which is notoriously difficult to establish, towards the actual or possible use of the weapons. Thus, even if Perisic was incorrect in requiring separate proof of "specific direction" in the context of individual criminal responsibility, the standard presented in that case may provide an appropriate statement of the law on aiding or assisting for the purposes of state responsibility in the context of arms transfers. This assessment is reached following an analysis of ATT Article 6(3) and Article 7 set against the framework of the customary international law on aid or assistance, a consideration of the duality of responsibility at the level of states and individuals and corresponding issues of attribution, and a discussion of the "specific direction" conundrum in the jurisprudence of the ICTY and SCSL.
THE PROHIBITIONS IN ARTICLE 6 OF THE ARMS TRADE TREATY
The ATT describes three contexts in which arms transfers by a state are absolutely prohibited. The first two concern situations where such transfers would be contrary to binding Security Council decisions, such as arms embargoes (Article 6(1)), or would directly violate a state's existing treaty obligations, such as those relating to the illicit trafficking in arms (Article 6(2)). The third context is described in Article 6(3) as follows:
A State Party shall not authorize any transfer of conventional arms covered [under the ATT], if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party. Article 6(3) thus formulates a substantive (primary) rule that prohibits the transfer of conventional arms in specific circumstances. "Transfer" is broader than simply commercial sales and includes all exchanges, even in the context of aid programs or military alliances. (20) The provision is primarily aimed at preventing the occurrence of the listed international crimes and helps to reinforce well-established norms of international conventional and customary law. For example, under Article 1 of the 1948 Genocide Convention, states agree to prevent and punish genocide. (21) States are also obligated to "respect and to ensure respect" for the provisions of the 1949 Geneva Conventions. (22) Genocide, crimes against humanity, and grave breaches of the 1949 Geneva Conventions are generally considered to form part of the jus cogens. (23) That an ordinarily lawful act, such as an arms transfer, might become unlawful if certain conditions...