Guest Post: Specific direction à la Perišić, the Taylor Appeal Judgment and what it could mean for the ICTY Appeals Chamber in Šainović et al. – Part I

By Manuel J. Ventura, Director, The Peace and Justice Initiative

Back in March, I blogged here about the effect that the Perišić Appeal Judgment of the ICTY could have had on the SCSL Appeals Chamber in Taylor, particularly its holding that the actus reus of aiding and abetting required specific direction to the charged crime(s). I pointed out that the factual circumstances of both cases were, from a legal perspective, identical. I then predicted that the SCSL Appeals Chamber would have two options: (1) agree with the ICTY Appeals Chamber on specific direction and then try to salvage the Taylor Trial Judgment or be forced to find Taylor not guilty for aiding and abetting, or (2) pick a fight with the ICTY Appeals Chamber, reject its specific rejection holding and consequently affirm Taylor’s convictions. The SCSL Appeals Chamber handed down its judgment in September 2013, prompting the blogosphere to light up with commentary from Kevin Jon Heller here, here and here, Marko Milanovic, Beth van Schaack here and here , Dov Jacobs here and here, James Stewart here, here and here , and Alex Fielding. In a series of two posts, I aim to take a step back and bring to light some issues that have not yet been part of the discussion and highlight the problematic nature of specific direction in practice. In this first post, I will look at the factual situation of the relationship between the Bosnian Serb Army (VRS) and the Yugoslav Army (VJ), how this relates to the upcoming ICTY Šainović et al. appeal and the practical issue of remoteness/proximity for aiding and abetting as per Perišić. In a second post, I will look at the discussion of precedent in Perišić and the question of customary law vis-à-vis specific direction and the Taylor Appeal Judgment, together with the practical difficulties with Perišić on the nature of the organisation and its application by the SCSL Appeals Chamber in Taylor.

As is well known by now, the SCSL Appeals Chamber’s judgment in Taylor delivered a stunning rebuke to the ICTY. Opting for option (2) above, it held that ‘specific direction’ was not an actus reus (or mens rea) requirement under customary international law. Such a rejection of substantive ICTY jurisprudence – especially in such a high profile case – does not happen often, if at all. Of course disagreements on the law in an international criminal law context have arisen every now and again, the most well-known of which all seem to revolve around Tadić: JCE III and its rejection by the ECCC, overall control and its rejection by the ICJ (on the ICC’s adoption of overall control see my book chapter here), compétence de la compétence/legality of creation and its rejection by the STL (see my article with Mariya Nikolova here). But all of these disagreements have been academic without too much of a visible effect on the accused. Not so in Taylor and Perišić. Never before had the stakes been so high, where the imprisonment or freedom of an individual been so directly at stake. Never had so much rested on so little.

Yet despite all the attention and analysis, commentators have not noticed inconsistent ICTY holdings on the relationship between the Yugoslav Army (VJ) and the Bosnian Serb Army (VRS) in the war in Bosnia and Herzegovina and the effect this could have had on Perišić. This was, after all, what the Perišić case was about, namely the criminal responsibility of the highest ranking military officer in the VJ for having provided the VRS with the tools that the Prosecution alleged facilitated the execution of crimes by its members. The Perišić Trial Chamber, after analysing the evidence before it, concluded that the VJ and the VRS were two independent and separate armies:

[The evidence] suggest[s] cooperation between the VRS [Bosnian Serb Army] and the VJ [Yugoslav Army] as separate and independent military entities, rather than the subordination of the VRS to the VJ within a single military structure. (Perišić Trial Judgement, para. 1772 (emphasis added))

The Perišić Appeals Chamber upheld this finding:

[T]he Trial Chamber did not find the VRS de jure or de facto subordinated to the VJ. In particular, the Trial Chamber found that the VRS had a separate command structure[.] […] The Appeals Chamber, having considered this evidence in its totality, agrees with the Trial Chamber’s determination that the evidence on the record suggests that “the VRS and the VJ [were] separate and independent military entities”. (Perišić Appeal Judgement, para. 46 (emphasis added))

According to the Perišić Appeal Judgment, in a setting where an army (such as the VRS) carries out both legal and illegal military actions (that is, military action that constitute international crimes), it becomes important to distinguish between the assistance/support rendered by the assisting party (the VJ with Perišić as its commanding officer) to the legal as opposed to illegal acts, and hence the requirement of ‘specific direction’ for the actus reus. This was particularly important, it held, when the accused was remote from the crimes on the ground. I will return to these issues in more detail in my next post, but for present purposes it must be noted that most commentators have simply referred to Perišić’s geographic distance from the crimes in Bosnia and Herzegovina in the specific direction context. But consider the following:

In particular, the Appeals Chamber has previously concluded, in discussing aiding and abetting liability, that significant temporal distance between the actions of an accused individual and the crime he or she allegedly assisted decreases the likelihood of a connection between that crime and the accused individual’s actions. The same rationale applies, by analogy, to other factors separating the acts of an individual accused of aiding and abetting from the crimes he or she is alleged to have facilitated. Such factors may include, but are not limited to, geographic distance. (Perišić Appeal Judgement, para. 40 (emphasis added))

In Perišić’s case, the Appeals Chamber actually emphasised two factors that made up his remoteness from the crimes and hence the emphasis on specific direction: (1) Perišić was geographically distant from the crimes (he was stationed in Serbia as opposed to Bosnia and Herzegovina); and (2) Perišić was a member of a different organisation (the VJ) than the perpetrators (the VRS) (Perišić Appeal Judgement, para. 42)

However, the case against Perišić consisted of Article 3 (violations of the laws and customs of war) (and Article 5) offences and as a result, as opposed to Article 2 crimes (grave breaches of the Geneva Conventions (1949) which can only occur in an international armed conflict), the case did not require the classification of the armed conflict. It was therefore insulated to some extent from the factual findings of other Chambers on the issue. And this is where things get interesting. In the ICTY’s Tadić case, the accused was charged with Article 2 (together with Article 3 and 5) crimes, and this therefore necessitated the existence of an international armed conflict. The ICTY Appeals Chamber in that case determined that the Bosnian Serbs’/VRS’ actions could be attributed to Yugoslavia by means of an ‘overall control’ test, repudiating the ICJ’s Nicaragua test of ‘effective control’ and thus rendering the conflict international in nature. The factual findings of Tadić however, must be contrasted to what was held in Perišić above:

[A]fter [19 May 1992] the VJ continued to control the Bosnian Serb Army in Bosnia and Herzegovina, that is the VRS. The VJ controlled the political and military objectives, as well as the military operations, of the VRS. […] What emerges from the facts […] is that the VRS and the VJ did not, after May 1992, comprise two separate armies in any genuine sense. […] [T]he relationship between the VJ and VRS cannot be characterised as one of merely coordinating political and military activities. […] [T]he link between the VJ and VRS clearly went far beyond mere coordination or cooperation between allies and in effect, the renamed Bosnian Serb army still comprised one army under the command of the General Staff of the VJ in Belgrade. (Tadić Appeal Judgement, paras 150, 151, 152 (emphasis added))

Is it possible for Perišić and Tadić to be both simultaneously correct? The answer is clearly no. They are inherently contradictory findings on what should have been the same factual scenario. Either Perišić or Tadić is correct, but they cannot both be right, unless perhaps the Bench in Tadić had evidence before them that the Bench in Perišić did not. True it is that both cases did not have the same objectives in mind when making their factual determinations. Overall control/classification of an armed conflict and specific direction/aiding and abetting are not the same thing, but factual findings are factual findings. They may have different effects depending on the applicable law, but they should not be dependent or governed by the legal tests applied – the law should not determine the facts. Similarly, there is also jurisprudence to the effect that different Trial Chambers can make different findings of facts on the same incident (see Lukić and Lukić Appeal Judgement, paras 260-261), but in this instance they are relevant for application of the legal principles for which the cases stand. It could even have been determinative. In Perišić it was one of two factors that contributed to the remoteness of the accused from the crimes on the ground. So if Tadić is in fact right, then Perišić was more proximate to the crimes (in an operational sense) than both the Trial and Appeals Chambers gave him credit for, which could have affected the application of specific direction. The issue then becomes whether geographical distance alone – when you are a high ranking member of the same organisation – is enough to engage specific direction.

Enter Šainović et al. (formerly Milutinović et al.), currently before the ICTY Appeals Chamber. At trial, aiding and abetting convictions were entered for Ojdanić (the highest ranking member of the VJ and the direct successor to Perišić) and Lazarević (Commander of the Priština Corps of the VJ), for crimes carried out on the ground in Kosovo by VJ members during 1999. Contrast this to Taylor for example, where the accused was not convicted of aiding and abetting the acts of his own entourage, but rather the acts and conduct of the separate RUF/AFRC. On appeal (but without Ojdanić – he withdrew his appeal), Lazarević has rightly raised specific direction in an attempt to overturn his aiding and abetting convictions. Given the factual scenario, the ICTY Appeals Chamber faces the question of whether holding a high rank within the same organisation makes the accused proximate enough to the crimes so as to negate any possible geographic distance. Or perhaps not. It must be noted that Lazarević was in Kosovo during the commission of crimes in 1999 as the Commander of the Priština Corps of the VJ. He was not, like Perišić and Taylor, in an entirely different country. One can argue therefore that he was sufficiently geographically proximate to the crimes so that specific direction does not become such an issue. As such, the Šainović et al. Appeals Chamber may choose to dodge the issue of specific direction altogether by holding that the facts of the case did not necessarily merit its express consideration, since the trial judgment did not do so itself (see Milutinović et al. Trial Judgement, Vol. 3, paras. 620, 921).

But this also reveals one of the practical problems with Perišić: where does one draw lines with its remoteness requirement? How geographically distant would Lazarević have to be from the crimes for specific direction to be more of an issue? 5 kilometres? 15 kilometres? 50 kilometres? 100 kilometres? 500 kilometres? The reality is that, in the armed forces of states at least, high ranking military commanders are rarely directly on the frontline; there is always some geographic distance from crimes committed by front line soldiers. Thus Lazarević, although being stationed in Kosovo as Commander of the Priština Corp, was not at all times in close proximity to frontline soldiers who physically committed crimes. After all, there were crime bases all over Kosovo during 1999 and Lazarević was not in a position to be standing next to his troops at all times while they were being committed. This is even more apparent with Ojdanić, who was in a different position to Lazarević: he was stationed away from Kosovo at head of the VJ in Belgrade. There was thus more geographic distance between him and the crimes than Lazarević. But was it distant enough? No one knows, because as it stands we have no sure way of telling – Perišić does not really provide answers to these finer questions and in any event Ojdanić has withdrawn his appeal.

There is also something to be said in this discussion about Perišić’s holding that specific direction can be ‘implicitly’ established beyond reasonable doubt where the accused is proximate to the crimes on the ground, and offering this as an explanation as to why previous cases had not always conducted such an analysis (Perišić Appeal Judgement, paras 36, 38). However, even if an accused is proximate (which, as we have seen above in a geographic context, is not so easy to identify), judges should still have to be satisfied that all the elements for a mode of liability have been established and not just presume their existence. After all, the liberty of an individual is on the line. To illustrate, suppose that a future post-Perišić trial bench (assuming Perišić remains ICTY law) enters an aiding and abetting conviction stating that they were satisfied that specific direction had been established simply because the accused was proximate to the crime base. Thus, they did not need to explicitly consider or discuss specific direction, because in the words of Perišić, it was ‘self-evident’ (Perišić Appeal Judgement, para. 38). Is such reasoning convincing? I do not think so. One cannot – and should not – just assume an element is fulfilled simply because an accused is proximate. An accused close to a crime base or within the same organisation as the physical perpetrators could just as easily provide assistance for non­criminal purposes as an accused that is remote. In other words, if specific direction is going to be an actus reus element for aiding and abetting, then it has to be equally applied to all accused. As it stands, the Perišić Appeal Judgment does not go in this direction. Instead, as the ICTY OTP Appeals Division rightly posited during the Šainović et al. appeal hearing (at p. 454), Perišić appears to state different and unequal standards for the same mode of liability, depending on remoteness/proximity alone: if the accused is close to the crime(s) specific direction need not be expressly considered and can be ‘implied’, but if the accused is remote from the crime(s) only then does specific direction need to be expressly considered and demonstrated.