April 16, 2016

Colorado lawyer recalls his leading role in an international war crimes trial

By James Castle '81

James Castle '81 Eleven years ago last month my cellphone rang, and I heard a tinny voice reflective of international long distance calls back then. The caller was Sam Lowery, a legal officer with the registrar of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY is a United Nations court of law dealing with war crimes that occurred during the conflicts in the Balkans in the 1990s.

He asked if I would consider appointment as chief counsel for General Momcilo Perisic, chief of staff of the Yugoslavian Army under President Slobodan Milosevic. Perisic had been indicted for war crimes and crimes against humanity for the bombings of the cities of Sarajevo and Zagreb and the mass killings of civilians in Srebrenica. The prosecutor had identified the Perisic prosecution as the second-largest international criminal case in history, because it involved five different countries, three military theaters and events occurring over a three-year period.

This was an unusual call for a lawyer to receive, but Lowery knew of my background in defending state and federal capital cases, and he had heard of my interest in advocating for the rule of law in cases of international justice. Just three months earlier I had been invited and attended a conference in Montreal focusing on the defense of international war crimes cases. The invitation to the Montreal conference had been extended to the presidents of state criminal defense bar associations, and at the time I was serving in such a capacity in Colorado. Mr. Lowery informed me he had listened to comments I made at the conference and had made a mental note to try and tap me to defend one of the cases. He suggested my name and provided biographical information concerning my background to Gen. Perisic and to Gen. Perisic’s current lawyer, who had agreed to temporarily represent him until a more permanent and qualified lawyer could be found. Perisic requested that I consider taking his case, and that choice led to the phone call which would, for a number of years, change my professional and personal life.

The theory of the prosecution was that Perisic, as commander of the Yugoslav forces, had provided material aid to an army in Bosnia, the Bosnian Serb army, which, in turn, had committed the crimes in Sarajevo, Zagreb and Srebrenica. It was a case built on the criminal doctrines of complicity (aiding and abetting) and command responsibility and was one of the last indictments issued by the ICTY. The case promised to be precedent setting, and it had implications far beyond the events in question. My review of the history of international criminal war tribunals revealed that at the end of each court’s tenure, the prosecution sought and obtained precedent-setting expansions in criminal liability. The Perisic case promised to be an attempt at just such an expansion.

Never before in the history of international criminal law had a commander of one country’s armed forces been held criminally responsible for crimes committed by the armed forces of another allied state. The Perisic case represented a prosecutorial request to expand individual criminal responsibility across national borders and to the actions of an allied force.

I had been interested in international criminal tribunals even before receiving the call from Lowery, and that is why I had attended the Montreal conference. I felt these courts were necessary to combat a worldwide atmosphere of impunity that had led to atrocities throughout the globe. Any system of international criminal justice would require a vigorous defense to maintain its legitimacy. The role of the defense lawyer in these cases is twofold — to be the champion of the accused and to be a guarantor of a just system and the rule of law.

Taking an international war crimes case was not an easy mission. It would require great sacrifice by my wife and four children. It would mean splitting time between Denver, the Hague and the Balkans resulting in a one-parent household for much of the time and the potential of uprooting our entire family from our community for the duration of the trial. It also would mean abandoning a law practice that had taken years to build. Most important, the case would bring me face to face with the most unconscionable acts that a human being can do to another.

When Lowery asked me to take the case I seriously considered declining, as my legal education had not focused on international law. But as I dug into the case, I realized that, as a criminal-defense trial attorney, I was intimately familiar with the principles being addressed in the case — issues of mens rea, complicity and responsibility. Academics had handled many of the early cases at the ICTY, but the Perisic case demanded a trial lawyer. No lawyer in the world would be fully qualified to handle the case, but Perisic needed and wanted my help.

Long before, during my career as a criminal defense attorney, I had come to terms with the moral conundrum presented by the horror of criminal acts and my role as a defender. I was comfortable knowing that my work as a defense attorney was essential to the representation of the accused and to the legitimacy of the courts I served. But this time, the commitment exceeded any previous ones. My wife and law partner, Liz Castle, and I had many discussions long into the night before deciding, with great trepidation, that I would take the case.

As lead counsel I was tasked with putting together a team to defend Gen. Perisic. Due to financial constraints we were only able to afford a small team comprising a part-time Serbian co-counsel, one investigator, two paralegals and myself. As we prepared, we struggled with inadequate resources for such a complicated case. The prosecution had been investigating the case for 10 years before the indictment and had a huge head start and access to many attorneys who had practiced at the tribunal for years, scores of support staff and dozens of legal, military, historical and other experts. The lead prosecutor described the case as the most complex in the history of international criminal law, yet we were limited by funding to a team of five. We argued for additional resources and preparatory time and pointed out that there was no true equality between the opposing legal camps. Our arguments were denied, and I was convinced that the claims that justice would prevail were mere empty promises.

After three intense years we filed our pretrial brief in 2008. In essence, this was our opening statement. Contrary to what is common in the United States, defense attorneys at the ICTY almost always waived this initial opportunity — to keep their options open as the evidence at trial developed. I had been taught that waiving an opening statement is rarely recommended. If you do, you’re surrendering the first opportunity to state your case and begin the process of persuasion. I followed my training and instincts instead of the tribunal’s custom and filed the pretrial brief.

Our pretrial brief argued that for Perisic to be found criminally responsible, the aid he provided must have been specifically directed in order to contribute directly and substantially to the perpetration of the war crimes and crimes against humanity with which he was charged.

Historically, ethnic Serbs in the region had been the victims of approximately 500,000 civilian deaths in World War I. During World War II, ethnic Serbs civilians were again targeted for extermination. The United States Holocaust Memorial Museum has estimated that Ustaša authorities murdered between 320,000 and 340,000 ethnic Serbs between 1941 and 1945, while Yad Vashem, the Israeli Holocaust Museum, estimated 500,00 ethnic civilian Serbs were murdered. We argued that the intent of the Yugoslav Serbs, including Perisic, was to provide aid to the ethnic Serbs in Bosnia in order to prevent yet a third instance of mass killings against ethnic Serbs. We further argued that Perisic should not be held legally accountable for the aid he provided if such aid was instead used in part to commit criminal acts. In other words, we argued that if the aid was provided with the intent of allowing for self-defense, that the providers of that aid should not be held legally responsible if the aid was instead used for criminal purposes.

We also argued that Perisic should not be held personally responsible as a commander of the allied force, as he did not have specific control over the allied forces. Although our sole focus was representing the interests of Gen. Perisic, one can imagine the unintended implications of the case to the U.S. and other nations’ interests.

Gen. Momcilo Perisic
Gen. Momcilo Perisic, who had been sentenced to 27 years in 2011 after being convicted of crimes including murder, inhumane acts and persecution, was ordered freed in 2013.

As the trial and appeals dragged on for years, defense-team members came and went. I withdrew from the case in 2009. In 2011, Perisic was acquitted of command responsibility but convicted of aiding and abetting by a three-judge panel and sentenced to 27 years in jail. In essence, the trial court had accepted our arguments about command responsibility but rejected our arguments concerning aiding and abetting. But in 2013, six years after our team’s opening salvo was volleyed, the appellate chamber of the ICTY agreed with the position argued in our pretrial brief — that the aid provided by Perisic was not specifically directed in order to contribute directly and substantially to the perpetration of the war crimes. Perisic was acquitted by the appellate chamber of all charges and went home to his family, disproving my dire prediction of injustice and unfairness.

At times while working on the case, and prior to its eventual resolution, I believed the legal system that had been constructed for the ICTY was unfair and would result in merely victor’s justice. (Victor’s justice occurs when the prevailing nation in a war applies criminal penalties only to the defeated.) I was viewing the international criminal justice system through the lens of an American lawyer and contrasting it to the U.S system of justice developed over many decades and which is considered by many people to be the fairest justice system ever created. In tempering my criticism of the ICTY I had to remember that even our criminal justice system is still far from perfect, as we still have racial disparity in the arrest and treatment of defendants, wrongful convictions, capital punishment and the highest incarceration rate in the world. The result is the U.S. incarcerates more black males each year than we send to college. I had to remind myself of the adage, “People who live in glass houses shouldn't throw stones.”

After the Perisic case was resolved and after time passed for reflection and contemplation, I concluded that although the international criminal justice system was in its relative infancy, it was actually quite advanced in achieving fair results. It was far from perfect, but it was a much better alternative to the atmosphere of impunity that it replaced. In the end, I gained greater respect for the defense, judiciary, prosecution and the registry for their efforts in achieving justice. I was humbled to have played a small part in the history of international criminal justice.

As a result of my involvement in the Perisic case, my view of many things has been altered. My frustration with our U.S. system of justice has been tempered after hearing the stories of judicial systems in other cases. The photos submitted as exhibits created indelible images that will forever be imprinted on my soul. The incredibly sad stories of the victims of war have increased my sensitivity to those who are soldiers and those who are inadvertently caught up in war. I also now have a much more nuanced view of how military aid can be used to commit atrocities.

I have no current plans to take on another international criminal case, as my wife and I are in the midst of paying for college educations for our children. We have nine more years of tuition bills ahead of us. Perhaps after that personal trial is over, I will again be pulled back into the international arena for one more big fight.

 

James Castle '81 is a partner in Castle & Castle PC, a Denver law firm that focuses exclusively on the defense of the criminally accused. He has been designated as “learned counsel” by the U.S. courts to handle capital cases and has received the highest possible honor by the Colorado Criminal Defense Bar, the Denver Bar Association and the Colorado Catholic Lawyer’s Guild. His offices are at 1544 Race Street in Denver, CO, and his email address is jcastlelaw@gmail.com.

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