Custom at the ICTY
My points were in response to the comments that Kevin had previously made with respect to specific direction in aiding and abetting: that it did not have to be based on custom. Adopting this view, however, raises a question: if not custom, then what does it have to be based on? Kevin is silent on this question. As far as I could gather, Kevin’s view meant that there is nothing other than nullem crimen preventing the ICTY from adding any element(s) it desired to any mode of liability (like specific direction in aiding and abetting) – just so long as criminal liability is contracted rather than expanded beyond custom.
My view is that the ICTY’s mandate itself prevents this from happening by providing the parameters by which the ICTY operates, that is, the identification and application of customary international law. I do not dispute that the ICTY has applied and can apply other sources of law other than custom like general principles, but in determining the elements of a mode of liability this should occur when custom fails to provide an answer to a given question so as to avoid a non liquet situation. Is aiding and abetting a situation where custom fails to answer whether it recognises specific direction or not? I think not. As one can see from the Taylor Appeal Judgment there is plenty out there from where one can derive custom. Thus, specific direction should have a customary basis.
Nevertheless, I made the point that the ICTY could maintain specific direction if it wanted and not base it on custom, but in doing so it had to explain on what basis they were so doing:
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.
What I had in mind was the ICTY Appeals Chamber continuing to rely on Tadić for specific direction. As I explained in my prior posts, in Perišić the ICTY relied on a precedent (Tadić) that was based on nothing. I repeat: not a single source was cited in Tadić for the requirement of specific direction (see Tadić Appeal Judgement, para. 229(iii)). The ICTY repeating this in subsequent cases does not really make the situation any better. In a substantive law context, where the freedom or incarceration of an individual is so directly at stake, the ICTY should not continue to rely – as the defining precedent – on one of its own cases that is based on no source of law. If it does this, then an argument can be made that it is acting ultra vires. After all, from where does the ICTY have the power to rely on nothing as a source of law when determining the elements of a mode of liability?
In other words, if specific direction is not based on custom then the ICTY should admit this openly and explain why they are applying it anyway. If in this process they point to and rely on Tadić (and subsequent cases that trace back to Tadić) for specific direction then it should be explained what source of law is being applied – because Tadić relied on none. But if after undertaking the proper analysis it is found that custom demands specific direction, then so be it. The arguments would then move to whether the ICTY correctly assessed the relevant material in making that determination. This is what was sorely missing in Perišić.
Custom at the STL
I think the issue can be boiled down to this: whether one can utilise as state practice definitions of crimes or modes of liability that deviate beyond custom. Kevin’s thoughts are technical and frankly a little difficult to understand at times, so I hope I have understood them well.
Kevin is against utilising definitions that include additional elements than that under custom because without them, they would no longer be the relevant crime (or mode of liability): a domestic definition of terrorism that includes an ideological or political purpose is no longer terrorism under domestic law without this element. Therefore a customary definition of terrorism that does not include an ideological or political purpose cannot include any practice of states that do include an ideological or political purpose. Similarly, a domestic definition of aiding and abetting that includes specific direction cannot be aiding and abetting at domestic law without this element. Thus, a customary definition of aiding and abetting without specific direction cannot include any practice of states that do include specific direction.
His points are well taken. However, I wonder whether domestic practice needs to affix a specific label to particular actions in order to count as state practice for international law purposes. This is what Kevin places emphasis on: if a state does not affix the label of ‘aiding and abetting’ to the same elements than that under custom then that state practice should be excluded. But I’m not sure that that is the end of the story. Just because states recognise a certain mode of liability with particular elements at domestic law, does not automatically mean that they do not simultaneously recognise a customary definition with less elements under international law (which would not be recognised under their existing domestic definition). States could very well be comfortable with and accept two aiding and abetting definitions – one that applies at domestic law and another that applies at international law. If this is the case, then it matters not that domestic law is more expansive, just as long as the definition at international law includes enough of the same elements.
But even if I am wrong (or rather, the STL is wrong), Kevin’s post does little to address my actual concerns about specific direction – the main issue in my posts. As one of its principal defenders, I had hoped that Kevin would share his thoughts on the problematic nature of specific direction that I outlined in my posts – the fact that it is based on no sources, how it would work in practice in the real world in a real set of facts, inter alia. Let’s hope that the ICTY Appeals Chamber, if it does not reject specific direction outright, gives us more answers in the Šainović et al. Appeal Judgement.