Category Archives: perisic

ICTY orders retrial of acquitted defendants in unconvincing Judgment

Yesterday, the ICTY Appeals Chamber rendered its Judgment in the Stanisic and Simatovic case. Both defendants had been acquitted of all charges in the Trial Judgment (part 1 and part 2). They were acquitted under JCE liability because their mens rea to contribute to The JCE was not established beyond reasonable doubt. They were also acquitted for aiding and abetting liability because their acts were not specifically directed at the commission of crimes. This is explained by the fact that the Trial judgment came out in the period of time between the Perisic appeal Judgment which got the ball roling on the need for the “specific direction” requirement in aiding and abetting liability and the Sainovic Appeal Judgment which promptly batted the requirement out of the park.

The Appeals Judgment quashes both acquittals and orders a retrial. While I can imagine that attention will naturally focus on the aiding and abetting part of the Judgment, given all the heated debates on the “specific direction” requirement (see Marko Milanovic here and Kevin Jon Heller here), the Judgment actually delivers some other interesting gems.

  • The flawed reasoning on JCE

The reason for quashing the JCE acquittal is somewhat puzzling to me. Indeed, the Appeals Chamber doesn’t seem to have any quarrel with the factual assessment done by the Trial Chamber in determining the absence of the required mens rea of the accused. For the AC, the problem lies with the fact that the TC should not have entered findings on the mens rea of the accused on the basis of the « alleged JCE » as argued by the Prosecutor, but first entered findings on the actual elements of the JCE. Here is the relevant passage (par. 82):

The Trial Chamber was therefore required to examine whether Stanisic’s and Simatovic’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanisic’s and Simatovic’s words in the context of “that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanisic’s and Simatovic’s mens rea for JCE liability could be inferred from the circumstances.

There is both a legal and a logical problem with this reasoning.

Legally speaking, there is not one footnote in support of this affirmation. This beats even Perisic and its reliance on a single sentence from the Tadic Judgment to justify the specific direction requirement. In fact, in his dissenting opinion, Judge Afande provides several examples of TCs proceeding in this manner.

Logically speaking, I have a problem with the underlying idea. Indeed, what the AC is essentially saying is that a TC must make findings about all elements on a mode of liability before pronouncing itself on one of them. I’m not sure this makes sense. Imagine the following scenario. A man is accused of selling a car to a group of people allegedly sharing a criminal intent to rob a bank. However, his lawyer proves that this man had no knowledge of or intent to contribute to any criminal activity when he sold the car. This should be case closed, right? who cares whether the group of people exist, or if they actually did share a criminal purpose. Not according to the AC which would still require that the judge establish whether there is a group of people and whether that group of people is acting with a criminal purpose. That is not really efficient practice in my view. If we push the logic, and take an even simpler example, it means that if a man is accused of killing his wife in Paris with a gun and he has an alibi that puts him in New York at the time of the alleged crime, a Judge would still have to determine that the wife has indeed been killed by gunshot, even though there is no chance that the accused was involved in the crime, alleged or actual.

More importantly perhaps, there is an underlying implicit view of the role of the Judge in the criminal proceedings. What the majority of the AC are saying is that the Judge is expected to determine the existence of a common criminal purpose (including its scope and its members) based on the evidence adduced by the Prosecutor. This finds support in the OTP appeal arguments (par. 62) : «In the view of the Prosecution, without making findings on the existence of a common criminal purpose, its scope, members who shared it, and the conduct which contributed to it, and without a reasoned opinion on these essential elements, the Trial Chamber could not correctly decide on Stanisic’s and Simatovic’ s shared intent to further the common criminal purpose».

However, technically, there isn’t « a » common criminal purpose, there is « the » common criminal purpose alleged by the Prosecutor. He has the burden of proof, and he constructs the indictment. The only role of the Judge is to determined whether the allegations are proven beyond reasonable doubt, not whether the evidence brought by the prosecutor proves something, whatever it is. From this point of view, the TC was not incorrect in taking as a starting point the common criminal purpose that the Prosecutor alleged, with an alleged scope and composition. In other words, the Judges already knew the scope and composition of the common criminal purpose : the one put forward by the Prosecutor. That is the one that was relevant for the charges brought against the Accused. Maybe the evidence shows several other common criminal purposes, with different scopes and compositions, but that is in my view not in the least bit relevant if the Prosecutor did not plead them. I insist : he has the burden of proof and the judges are not there to subsitute their own legal understanding of the facts and evidence to fit their own personal common criminal purpose.

  • The order for retrial

Concerning the order of a retrial, it is quite a massive decision to decide to start from scratch such a long process. It also conveniently gives work to the MICT for a few years.

Essentially, the AC considers that it would be too difficult and too much work to go through the whole case record to make the necessary missing findings that it considered were not made by the TC. In that respect, I note an interesting argument raised by Judge Agius in his separate and partly dissenting opinion.  He considers that the Majority should have done a review of the evidence in order to assess whether the error of law that they identified in fact had an impact on the outcome of the trial judgment in order to invalidate it (par. 10): « I respectfully believe that it is most unfortunate that the Majority neither attempts to conduct a review, nor offers any explanation as to how the Trial Chamber’s error invalidated its findings with respect to Stanisic’s and Simatovic’s mens rea ». This is for me a convincing argument. The Appeals process is not complete until it is determined that, but for the error of law, the Judgment would have been different. However, rather surprisingly, Judge Agius then goes on the actually follow the Majority in ordering the retrial for the following reasons : «At this stage of the Tribunal’s mandate, and with one member of this Bench only mandated to serve until the end of the year, I am fully aware that there is no time for the Appeals Chamber to conduct the exercise of review itself even if I were to convince my Colleagues that such an exercise was a preferable and appropriate exercise of the Appeals Chamber’s powers. I also find myself in the absolute minority on this issue- It is for these reasons, after having given due consideration to matters such as fairness to the accused, the interest of justice, the circumstances of the case in hand, and considerations of public interest, that I join the Majority in ordering a retrial in this case».

This reasoning is particularly unconvincing. Once it is established that doing the review was a legal obligation on the part of the AC in order to invalidate the decision, then the failure to do so is illegal (and not « unfortunate » as noted by Judge Agius). End of discussion. If Judge Agius truly believes that, then the fact that the mandate of one judge is ending is irrelevant. That is a human ressources argument that has no place in a legal argument. Even less convincing is that fact that he is in the minority. Following that logic, there would never be any dissenting opinions!

  • The new death of “specific direction”?

Finally, in relation to «specific direction», there isn’t in fact much to say. Given the composition of the bench, there was little doubt that there would be majority to follow Sainovic rather than Perisic (see Marko and Kevin on the process that led to the composition of this bench). And unsurprisingly, Judge Agius dissented. I won’t go into the debate on the requirement here, but two points can be made in relation to the Judgment.

First of all, it is interesting to note the very pragmatic approach of Judge Afande in his dissent. He essentially does not take sides on the debate on whether « specific direction » is a legal requirement of aiding and abetting liability (whether as part of the actus reus or the mens rea). Rather, he puts forward a pragmatic and practical argument, similar to the one found in Perisic : there are factual situations where, in the absence of a discussion of « specific direction », it is impossible for a Judge to determine that the only reasonable inference of the facts is that the accused had the requisite mens rea or actus reus to aid and abet the commission of the crimes charges. It is a case-specific evaluation that depends on the facts. While this reasoning does not « solve » the legal question that plagued the Perisic and Sainovic Judgments, it does explain why I believe that the discussion on «specific direction» is not as dead as some would like it to be. As ICL has a tendency to cast the net of responsibility in always a wider range, there will always factual scenarios which create unease with finding criminal responsibility among some Judges and these Judges will always need to resort to arguments (call it «specific direction» or something else) to keep ICL in check.

Second of all, in the particular circumstances of this case one can note that the AC casually discards the lex mitior argument presented by Simatovic who considered that if there was going to be a retrial on aiding and abetting liability, the most favorable law should apply, i.e the version with «specific direction». The Appeals Chamber answers that because «specific direction» was never a part of aiding and abetting liability, there was no more favorable law to apply. On a basic level I understand the position of the AC, once you accept the legal analysis on specific direction. However, the problem I have is on the finding of the error of law in the first place. When the TC issued its Judgment, it was applying the law as it was bound to apply it, that is the one stated by Appeals Chamber of ICTY, the highest Chamber of the tribunal. For all intents and purposes, «specific direction» was part of aiding and abetting liability in the period of time between Perisic and Sainovic so there was no error of law at the time of the Judgment. In the same way that the OTP could not obtain the reconsideration of the Perisic Judgment after Sainovic came out, I think that Stanisic and Simatovic should have remained acquitted on that count.

In conclusion, this AC Judgment is not extraordinarily convincing, especially on JCE. I hope the international community of commentators and general media reacts as strongly as it did on the Perisic Judgment. Sadly, I doubt it, because the bad guys are back in jail, so everything is back to normal…

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.

Perisic Prosecution Motion for Reconsideration Denied

I commented some weeks ago on the ludicrous motion for reconsideration in the Perisic case. I’m happy to say that the Appeals Chamber has rejected the motion.

Two brief points of note: 1) The Appeals Chamber confirms the case law on the absence of reconsideration powers as settled in Zigic. 2) The Appeals Chamber rightly pointed out  “that victims’ interest in the success of the Motion does not constitute a legal basis which would justify granting the Motion”. This is entirely correct, and the OTP had conflated in its motion the general moral interest of victims (which is certainly real) and the legal interest of victims in the particular procedure (which most certainly does not exist at the ICTY).

To be somewhat fair to the OTP, I cannot imagine that they actually thought this would succeed. This was a “hey, we tried” kind of move, which was bound to fail legally, but possibly makes the OTP look good in certain quarters.

The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.

In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.

The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.

Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:

Reconsideration is the only option for the Appeals Chamber to rectify the manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perisic decision.

This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.

It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).

This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.

Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.

More on this most certainly in the Katanga Judgment to be released on Friday

Guest Post: Thoughts on Kevin Jon Heller’s two thoughts of my critique of specific direction

By Manuel J. VenturaDirector, The Peace and Justice Initiative

Kevin Jon Heller takes issue with two points I made in my prior posts on specific direction here and here. I respond in kind.

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.

Concluding thoughts

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.