In my previous post, I discussed some problems with the factual situation between the VRS and the VJ, how it relates to Šainović et al., as well the application of specific direction as mandated by the Perišić Appeal Judgment. However, much of that discussion is only relevant if one concedes that specific direction is an element of aiding and abetting in the first place. And this leads us to the Taylor Appeal Judgment, which was criticised by Marko Milanovic and Kevin Jon Heller as being unpersuasive when it held that:
The Perišić Appeals Chamber did not assert that “specific direction” is an element under customary international law. Its analysis was limited to its prior holdings and the holdings of the ICTR Appeals Chamber, which is the same body. Rather than determining whether “specific direction” is an element under customary international law, the Perišić Appeals Chamber specifically and only inquired whether the ICTY Appeals Chamber had previously departed from its prior holding that “specific direction” is an element of the actus reus of aiding and abetting liability. In the absence of any discussion of customary international law, it is presumed that the ICTY Appeals Chamber in Perišić was only identifying and applying internally binding precedent. (Taylor Appeal Judgment, para. 476)
I do not share in the criticism. When one studies the precedents carefully, I think the above is a fair description.
In Perišić, the Appeals Chamber’s principal source for ‘specific direction’ is the Tadić Appeal Judgement (Perišić Appeal Judgement, paras 26-27), and as it pointed out:
[t]o date, no judgement of the Appeals Chamber has found cogent reasons to depart from the definition of aiding and abetting liability adopted in the Tadić Appeal Judgement. Moreover, many subsequent Tribunal and ICTR appeal judgments explicitly referred to “specific direction” in enumerating the elements of aiding and abetting, often repeating verbatim the Tadić Appeal Judgement’s relevant holding. (Perišić Appeal Judgement, para. 28)
In other words, the defining precedent is Tadić, and all Perišić was doing was bringing subsequent holdings that had departed from Tadić back into line. So let us turn to Tadić – the source for specific direction. This is what it had to say:
The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. (Tadić Appeals Judgement, para. 229(iii))
A perceptive reader would wonder what common purpose is doing in a discussion about aiding and abetting. It is present because Tadić was not discussing aiding and abetting at all. If one reads the above paragraph in context it becomes obvious that all it was purporting to do was contrast the requirements of aiding and abetting with joint criminal enterprise (JCE). In other words, it was obiter, not actually a legal holding – ratio – that was applied in that case.
But did it at least purport to be a declaration of customary international law? Well, the above paragraph in Tadić is not accompanied by a single footnote. Not one. Thus, there is not one single external source for the requirement of specific direction in Tadić. And yet, this is the source upon which Perišić relied (together with subsequent ICTY/ICTR cases that merely repeated Tadić or trace back to Tadić and one faint footnote reference to the Zyklon B Case), resulting in a not guilty verdict. While Perišić did recognise that Tadić was merely distinguishing between JCE and aiding and abetting (Perišić Appeal Judgement, para. 27), it failed to appreciate or even recognize that specific direction there was not based on any other source other than Tadić itself – and as we have seen it was not at issue or contested in that case.
In such circumstances – that is, in the absence of a detailed discussion on the requirement (or not) of specific direction for the actus reus of aiding and abetting under customary international law – is it really that radical to state that the ICTY Appeals Chamber was only applying its own precedents or its own ‘internal holdings’ as the SCSL Appeals Chamber put it? I do not think so. This is further exacerbated by the fact that neither the ICTY nor the ICTR have ever explicitly said that specific direction is actually an actus reus element under customary international law. Not even in Perišić was this done. It simply pointed to its prior case law stemming from Tadić. In fact, the most detailed study of the elements of aiding and abetting under custom was carried out in Furundžija (Furundžija Trial Judgement, paras 190-249) and there, no specific direction requirement was identified.
There was of course a conflicting line of jurisprudence at the ICTY, one that explicitly stated that specific direction was not an actus reus requirement for aiding and abetting. This is found most clearly in Mrkšić and Šljivančanin and Lukić and Lukić:
In addition, the Appeals Chamber has confirmed that “specific direction” is not an essential ingredient of the actus reus of aiding and abetting. (Mrkšić and Šljivančanin Appeal Judgement, para. 159)
In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting” and finds that there is no “cogent reason” to depart from this jurisprudence. (Lukić and Lukić Appeal Judgement, para. 424)
So what were the reasons for Perišić departing from this jurisprudence? Here is the operative paragraph:
The Mrkšič and Šljivančanin Appeal Judgement’s passing reference to specific direction does not amount to such “careful consideration”. Had the Appeals Chamber found cogent reasons to depart from its relevant precedent, and intended to do so, it would have performed a clear, detailed analysis of the issue, discussing both past jurisprudence and the authorities supporting an alternative approach. Instead, the relevant reference to specific direction: was made in a section and paragraph dealing with mens rea rather than actus reus; was limited to a single sentence not relevant to the Appeals Chamber’s holding; did not explicitly acknowledge a departure from prior precedent; and, most tellingly, cited to only one previous appeal judgement, which in fact confirmed that specific direction does constitute an element of aiding and abetting liability. These indicia suggest that the formula “not an essential ingredient” was an attempt to summarise, in passing, the Blagojević and Jokić Appeal Judgement’s holding that specific direction can often be demonstrated implicitly through analysis of substantial contribution, rather than abjure previous jurisprudence establishing that specific direction is an element of aiding and abetting liability. (Perišić Appeal Judgement, para. 34)
To summarize: (1) Mrkšić and Šljivančanin had rejected specific direction only in passing without careful consideration; (2) in a section dealing with mens rea not actus reus; (3) was not relevant to legal issues before it; (4) did not explicitly acknowledge departure from prior precedent which had said the opposite; and (5) only cited one previous judgement it had apparently misread.
Lost on the ICTY Appeals Chamber was that these exact points are equally applicable to Tadić – specific direction’s source. The requirement of specific direction there (1) had only been said in passing without careful consideration; (2) in a section dealing with JCE (unlike Mrkšić and Šljivančanin which was actually an aiding and abetting (by omission) case); (3) was not relevant to the legal issues before it (again, the issue in Tadić was JCE not aiding and abetting); and (4) did not explicitly acknowledge any prior precedent because (5) it cited no prior jurisprudence to support its view. This was an inherently inconsistent approach to two conflicting lines of jurisprudence. If anything, by the Appeals Chamber’s own reasoning, Mrkšić and Šljivančanin was more on point than Tadić. What was called for was instead a detailed analysis to definitely resolve the issue one way or the other. The Perišić Appeal Judgement should have undertaking this analysis. It did not do so. Instead, it relied on ICTY/ICTR precedent that traces back to Tadić that cited to quite literally nothing. This task was left to and taken up by the SCSL Appeals Chamber in Taylor and although their analysis can be criticized, one must recognize that at least they attempted to justify their legal position on far more than the thin air that is Tadić.
But, says Kevin Jon Heller here and here, this is all irrelevant, as specific direction need not have a customary law basis since it only serves to narrow criminal responsibility rather than expand it. In his view only in the latter is nullum crimen engaged – the reason why the ICTY was mandated to apply customary international law. However, this view misses an important and very basic point. As he acknowledges, the mandate of the ICTY is to apply custom, and while it is true that nullum crimen is not engaged when criminal liability is contracted rather than expanded, it is also true that in not applying custom the ICTY is not applying the law it was specifically mandated and empowered by the UN Security Council to apply. If specific direction is not custom, then it is still applying something, but it cannot be called customary international law. In other words, it went beyond applying its governing law, and into a realm that is was not expressly empowered to go. In short, if specific direction is not customary, then it acted ultra vires and that is as problematic as a nullum crimen violation. It is not simply a bad policy decision that only engages ‘criminal law theory’. Of course, if the ICTY Appeals Chamber believes that it can apply a substantive mode of liability with elements that are not found in customary international law then it was their prerogative to explain clearly why this is so and from where they find their power to do so. As such, it is completely relevant and important that the ICTY find a customary basis for the requirement of specific direction, and hence why James Stewart’s important post on this issue is probative and instructive.
Nevertheless, I think that Kevin is perhaps on stronger ground when it comes to the SCSL Appeal Chamber’s brushing aside of seemingly conflicting national jurisprudence on aiding and abetting. Here is the relevant paragraph:
Domestic law, even if consistent and continuous in all States, is not necessarily indicative of customary international law. This is particularly true in defining legal elements and determining forms of criminal participation in domestic jurisdictions, which may base their concepts of criminality on differing values and principles. Therefore, the reliance by the Defence on examples of domestic jurisdictions requiring or applying a “purpose” standard to an accused’s mental state regarding the consequence of his acts or conduct is misplaced. (Taylor Appeal Judgment, para. 429)
Space and time do not permit me to go into all the intricacies of state’s domestic views on aiding and abetting (nor do I know enough about them), but contrary to Kevin, I happen to think that the STL Appeal Chamber’s approach to customary formation – poorly understood by academia – could actually be of assistance. As I have argued here, the STL’s approach (in defining terrorism at international law) was to take various national definitions on terrorism and identify common elements among them – in substance, not form (replicating a similar approach as the (then) UK House of Lords in R v. Jones when it rejected the proposition that aggression was not sufficiently defined because at the time – like terrorism today – its constitutive elements had not been comprehensively set out in a treaty). Having undertaken that review, the STL Appeals Chamber held that there was indeed a certain level of commonality, but this did not extend to an ideological or political motive element where state practice was divided (STL Applicable Law Decision, para. 106). Its solution? Hold that custom had emerged only with respect to the elements that were common among the practice of states. States with an ideological or political motive in their national definitions simply have a narrower understanding of the crime for the purposes of domestic law (just like many states define other international crimes differently at domestic law as compared to international law) or they could be seen as persistent objectors. Now it is true that the STL’s identification of these common elements has been criticised, notably by Ben Saul (some of whose points I address here), but I have not really seen challenges to this approach to customary law formation.
Coming back to aiding and abetting, could this methodology not also be applied to various domestic definitions of aiding and abetting? In other words, if the practice of states are generally consistent (‘generally consistent’ comes from the ICJ in Nicaragua, Merits, para. 186, cited approvingly by the STL Appeals Chamber, where it rejected the notion that state practice must be absolutely rigorous) in substance with respect to aiding and abetting but for specific direction, one could argue that customary international law is actually consistent except when it comes to a specific direction element. All other things being equal, states that include some form of specific direction requirement (either in the actus reus or mens rea) simply have a different domestic understanding of aiding and abetting that goes one step beyond that under customary international law, or they are persistent objectors. In other words, state practice could actually support a customary definition that does not include specific direction. But of course before we can definitively say this a careful study of the various domestic definitions of aiding and abetting would be called for.
Aside from this, there are other practical difficulties with specific direction. A towering factor in Perišić’s decision to include (or uphold) specific direction was its concern about aiding and abetting an organisation that carries out both legal and illegal (criminal) actions. This was the case with the VRS. Although some of its members were undoubtedly responsible for the commission of crimes, there were also others that did not and presumably respected IHL. That is, it was not a criminal organisation. In such circumstances there was a need, according to Perišić, to distinguish between support directed towards the commission of crimes and those that were not (Perišić Appeal Judgement, para. 53). This sounds reasonable, but in practice it runs into problems.
In an armed conflict scenario are you ever likely to have anything other than mixed groups? In their activities, do militaries commit crimes (under international law) 100% of the time? Likewise, do non-state armed groups act lawfully 100% of the time? I’m not sure that either is an accurate depiction of reality, as James Stewart has also noted. The point is this: as soon as a group carries out at least some actions – however small in number – that are consistent with IHL, even in a vast and endless sea of criminality, then they should fall into the category of the VRS in Perišić – a mixed organisation, where specific direction becomes relevant.
If one disagrees with this view – that isolated legal actions should not mask a group characterised by criminality – then the question becomes, how many lawful actions must be carried out in order for it to become a mixed organisation? 1%, 5%, 15%, or 30% of their operations? Or conversely, how many criminal actions must be carried out by the organisation in order for it to be deemed criminal? 70%, 85%, 95%, or 99% of their operations? No one knows the answers to these questions, but they inevitably arise as a direct result of Perišić’s reasoning. There is also another aspect to this: it potential (and unfairly) equates organisations that sit on opposite ends of the criminal spectrum. As far as the actus reus is concerned, a military organisation that carries out criminal actions 95% of the time is no different to an organisation that carries out criminal actions only 5% of the time – since in both cases the organisations are mixed. One can see glimpses of this in the NATO/US analogy raised by Judge Moloto during the final oral arguments in the Perišić trial as I outlined here.
On the other hand, labelling an entire military organisation as ‘criminal’ begins to dangerously enter guilt by association territory and away from individual criminal responsibility. This is all but inevitable when one starts to speak in group criminality terms. True, this is what the International Military Tribunal did at Nuremberg, but (1) such a power was explicitly included in their mandate, and (2) it has never been replicated since at international law. Readers might be interested to note that domestic jurisdictions have also toyed with the idea, particularly in my own country of Australia with respect to outlaw motorcycle gangs, with mixed results: ‘criminal organisation’ laws were struck down by the High Court of Australia in Totani and Wainohu but upheld in Pompano. For a country without explicit constitutional human rights protections, that says a lot.
Alex Fielding has highlighted the importance of this for specific direction purposes by positing that everything about specific direction in the Taylor Appeal Judgement is obiter because the SCSL Trial Chamber had found that the RUF/AFRC’s operations were characterised by a campaign of crimes committed against the civilian population which were inherently linked to the strategy and objectives of their military operations (Taylor Trial Judgment, para. 6905 – which the Taylor Appeal Judgment upheld by reference at para. 399). They were not engaged in lawful and unlawful activities like the VRS in Perišić. Therefore, since the RUF/AFRC was not a mixed organisation there was no need to go down the specific direction road. Here is the important quote (emphasis added):
The Trial Chamber therefore considers that any assistance towards these military operations of the RUF and RUF/AFRC constitutes direct assistance to the commission of crimes by these groups. (Taylor Trial Judgment, para. 6905)
If indeed the SCSL Trial Chamber considered that the RUF/AFRC did not engage in lawful and unlawful activities (that is, they were purely criminal in nature), then should not the above sentence have read ‘any assistance towards the military operations the RUF and RUF/AFRC’ or ‘any assistance towards any military operation the RUF and RUF/AFRC’? Why include the word qualifier ‘these’? In my view, para. 6905 can also be read to mean that only assistance towards the military acts of the RUF/AFRC that aligned with the campaign of crimes against civilians was to be understood as direct assistance to the crimes. Coupled with the SCSL Appeals Chamber’s explicit rejection of the characterisation of the RUF/AFRC as a criminal organisation, it makes the rest of his post stand on an unsteady footing.
As I alluded previously, Perišić and Taylor are not the last words on specific direction. The issue has also squarely arisen in the Šainović et al. appeal. So where do all of these discussions leave the ICTY Appeals Chamber? Provided they do not distinguish Lazarević’s position on the facts as I posited in my last post, they can choose to stick to Tadić and the line of precedent that includes specific direction, but in doing so it is imperative that they find a customary basis for it after a thorough review and analysis of relevant jurisprudence – jurisprudence that does not trace back to Tadić. It is up to the ICTY Appeals Chamber to prove the SCSL Appeals Chamber wrong. But if they simply rely on Tadić in the same manner as the Perišić Appeal Judgement, then there is a good case that they are acting ultra vires by applying a mode of liability that is not reflective of customary international law as per their mandate. On the other hand, they may end up agreeing with Taylor and reject specific direction in aiding and abetting, upholding the conviction of Lazarević. It would not be the first time that the Appeals Chamber has reversed course on its previous decisions, but it would be the first time that in doing so, a former accused – Perišić – has been wrongly found not guilty. One wonders how ICTY Outreach would explain such an outcome to populations of the region.
Having said all of this, what are the accused supposed to make of the situation? What does Taylor make of this in his cell in the United Kingdom and Perišić in his freedom in Serbia? In my view, a divergence such as this one gives the distinct impression that liberty at international criminal law is akin to a game of Russian roulette. If one strips away the law, expensive lawyers, robes and latinisms and reduce the split between Perišić and Taylor to its core you end up with the following conclusion: find yourself at the ICTY you will be found not guilty, but find yourself at the SCSL and you will be found guilty on essentially the same facts under exactly the same mode of liability. It is really not that much different from Perišić and Taylor flipping a coin. International criminal law should not be reduced to a mere game of chance. It is hard to conclude that justice has been done in these circumstances: either the victims have been shortchanged in Perišić or Taylor is spending far more time in jail than he should.
The ball is now plainly in the ICTY Appeal Chamber’s court. What it will do is anyone’s guess. But luckily, we will not have to wait too long to find out. As this Scheduling Order indicates, the Šainović et al. Appeal Judgement is due to be handed down on 23 January 2014. No doubt the blogosphere will soon light up again.