Rehabilitating Judge Ramaroson in the Perisic/Sainovic controversy

In the context of writing a commentary on the whole Perisic/Taylor/Sainovic controversy, I had to reread all the judgments and separate/dissenting opinions. I’ll let you discover my views when the commentary is published, but wanted to share one thought with you here.

I’m the first one to criticize international judges (some might even say exaggeratedly) when I find their legal reasoning unconvincing, so it is only fair to occasionally point out when they are being the target of somewhat unfair attacks.

I think this is the case of Judge Ramaroson. You may recall that she was part of the majority both in Perisic and Sainovic, which has led to some criticism from commentators and observers.

For example, William Schabas has argued that:

Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart.

Along the same lines, Alex Fielding has observed the following:

It’s interesting that Judge Ramaroson went from saying that specific direction is an element of the mens rea of A/A liability in Perisic, to joining the Majority decision in Sainovic which unequivocally states that specific direction is not an element of A/A liability, either for the actus reus (“practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”) or mens rea (“knowledge that these acts assist the commission of the offense”). I couldn’t find any discussion of specific direction in the mens rea analysis,  or whether it is considered to be implicit in the knowledge standard (eg. knowledge of assistance going to ‘specific’ crimes committed), but you would think Judge Ramaroson would insist on including specific direction as part of the mens rea analysis (or file a separate opinion to this effect).

In fact, I think both comments are somewhat unfair, especially the first one. If you read Ramaroson’s separate opinion in Perisic, it is clear that she dissented from the majority on the inclusion of “specific direction” as an element of the actus reus of aiding and abetting. It is only a “separate” opinion rather than a “dissenting” opinion because she agreed with the final result, i.e, the acquittal of Perisic. This raises the question of whether judges, in order to constitute a majority, should only agree on the outcome (as is traditionally the case) or also on the legal reasoning. I would argue that it should be both, if not it is not really a majority. Indeed, can 2 people who think the universe is expanding, one because of the big bang theory and the other because God decided so, really be said to “agree”? In any case, that is a different issue, and it unfair to say that Judge Ramaroson “disagrees with herself”, as claimed by William Schabas.

As to Alex Fielding’s comment, I would have two comments. First of all, Ramaroson’s separate opinion, while indeed linking (correctly in my view) “specific direction” to the mens rea of aiding and abetting, never explicitly says it should be an element of the mode of liability as such. Second of all, Judge Ramaroson considers that the “specific direction” question is mostly relevant in cases of remoteness of the accused from the crimes. However, as noted by the judges themselves in Sainovic (footnote 5320), no such issue of remoteness arose from the facts of the case, so it is not necessarily that surprising that no mention of “specific direction” was including in the mens discussion, nor that Judge Ramaroson did not include a separate opinion on this point.

2 responses to “Rehabilitating Judge Ramaroson in the Perisic/Sainovic controversy

  1. Dear Prof. Jacobs,

    Thanks for this interesting post. Just to share with you my reading of this issue, I am convinced that Judge Ramaroson never considered ‘specific direction’ as an element of aiding and abetting liability, not even as a part of the mens rea.
    I think she just wanted to say that, if we really have to debate about specific direction, this debate would logically belong to considerations of mens rea, not to considerations of actus reus – and this because the very idea of ‘direction’ points to the state of mind of the accused, not to the objective character of his/her conduct.
    She admits that the debate on specific direction might make sense in the case of ‘remote’ defendants. But then she says that the applicable law on aiding and abetting resolves the problem of remoteness in other ways, never contemplating this ‘specific direction’ requirement in either the objective or the subjective element.
    In footnote 33 to her separate opinion, indeed, she explains that “La mens rea comprend deux volets, à savoir la connaissance par l’accusé des crimes commis par les auteurs principaux (ou de la probabilité qu’ils se commettent) et la connaissance que les actes de l’accusé assistent la commission des crimes”. This looks like an explanation of the classical knowledge standard that the ICTY has adopted in previous cases, which – to the best of my knowledge – is not the same as ‘specific direction’.
    Is this your reading as well? I hope my point is clear. If not, I am happy clarify it.

    • Thank you Antonio for your thoughts on this. I’m glad you agree with me and think you’re absolutely right in relation your interpretation of Ramaroson’s separate opinion.

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