Disarmament Insight


Tuesday, 5 August 2008

Arming War Criminals

After the end of the judicial recess on 18 August, the trial of Charles Ghankay Taylor, former President of the Republic of Liberia, will resume before the Special Court for Sierra Leone (SCSL). Taylor is charged with 11 counts of crimes against humanity, war crimes, and other serious violations of international humanitarian law in connection with his alleged role as backer of the rebel group Revolutionary United Front (RUF) during the armed conflict in Sierra Leone in the late 1990s.

Why is this of interest to a disarmament-related blog? Because the indictment bases Taylor’s individual criminal responsibility not only on his alleged participation in the crimes by planning, instigating and ordering them, but also on the grounds that he allegedly aided and abetted their perpetration by providing financial support, military training, personnel, and arms and ammunition to the RUF. This raises interesting questions about the individual legal responsibility of all persons involved in arms transfers.

In the field of disarmament, a distinction is often made between illegal arms trafficking (that is, violation of the national law of a state) and the legal arms trade (conformity with the national laws, licensing and end-user requirements of all states involved). Cases against arms traffickers in domestic courts are not infrequent, considering that most states feel quite strongly about enforcing their own laws on the import and export of military goods. The “Angolagate” trial starting 6 October in Paris should be interesting in this regard. (See a related DI-blog post here.)

A Dutch court recently heard an appeal in a case that is remarkable in that the accused was not only charged with violating the Dutch regulations banning arms exports to Liberia (2001 Liberian sanctions regulations), but also for violating the laws and practices of war by, among other things, deliberately aiding and abetting in the commission of war crimes through the sale or supply of weapons to Charles Taylor.

The Taylor trial is possibly the first international criminal trial where the supply of arms could constitute a separate legal basis for individual criminal responsibility. As to the question of criminal liability of persons, the distinction between legal and illegal arms trade, as described above, is not central, although any supply of arms to the RUF would have been in breach of the arms embargo imposed by the UN Security Council and national laws enacted pursuant to it.

Rather, what matters for the establishment of individual criminal responsibility under international law are what the supplied arms are used for, and the connection between the supplier and the user. In accordance with the Rome Statute of the International Criminal Court, an arms supplier could be held criminally liable for facilitating the commission of a war crime, by aiding or abetting, including providing the means for its commission. To incur liability, the supplier would have to provide arms intentionally, and in the awareness that in the ordinary course of events, this will facilitate the commission of a war crime. In the Dutch case cited above the accused was acquitted for lack of evidence. This serves to illustrate the difficulty of establishing the intent and knowledge requirements beyond doubt.

As the Canadian Ministry of Foreign Affairs and International Trade has recognized, the issues highlighted by developments like Taylor’s indictment are of interest to other “high government and military officials engaged in the authorization of arms transfers” and will have to be considered at some stage in the process leading to an Arms Trade Treaty. If it compels arms exporting authorities to be more cautious, this is probably a good thing.

Maya Brehm. Maya has joined UNIDIR as a researcher.


Special Court for Sierra Leone: http://www.sc-sl.org/
Rechtbank 's-Gravenhage, LJN: AY5160, 07 June 2006 and Gerechtshof 's-Gravenhage, LJN: BC6068, 10 March 2008, English translations available on http://www.rechtspraak.nl/

Photo credit: United States Agency for International Development, on wikimedia commons