Category Archives: perisic

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 II

By Manuel J. VenturaDirector, The Peace and Justice Initiative

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.

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. VenturaDirector, 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))

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Low Morale at the ICTY

I just came across this article on the sensewebsite about the morale of the staff at the ICTY, based on a survey taken among the Associate Legal Officers (ALOs) in June.
This is how the results are summarized :

“The morale of the staff in the Tribunal’s Chambers is at an all-time low. Many of the lawyers feel angry, sad, demoralized, betrayed, frustrated, powerless, undervalued and unappreciated, and also very distrustful of decisions coming from the President’s office. The general feeling seems to be that President and his Office do not care about the Chamber’s staff or the legacy of this institution but only about the completion strategy, the MICT (Mechanism for International Criminal Tribunals, which will carry out the residual tasks of the tribunals for the former Yugoslavia and Rwanda), and their own personal interests.”

This certainly does not draw a happy picture of the atmosphere at the ICTY right now. If true, this is certainly interesting, but ultimately, highlights a number of features of the internal dynamics of the ICTY, and probably other international tribunals, which are not that surprising.
The charges levelled at the Presidency are particularly disturbing and if true, would warrant action far more than the unsubstantiated allegations put forward by Judge Harhoff some months ago, on which I commented on at the time (hereand here).
Of course, one could adopt a demagogic position and minimize the results of this survey. Who cares about well-paid UN staffers in The Hague complaining about their work conditions, when thousands of victims in Yugoslavia are waiting for justice for the uncountable list of crimes committed against them? This would not be an entirely unfair statement to make but would ultimately be missing the point. Indeed, if one is attached to the process of international justice and efficient prosecutions for international crimes, then the institutions set up to meet that goal need to abide by certain minimum standards.
First of all, in this case the first rule of management seems to be ignored by the people at the top: keep your staff happy. There is no way that performance is not affected if the morale is so low. To put it bluntly, why would you bust your ass for an institution that shows so little disregard for you?
More importantly, the survey, beyond illustrating the personal difficulties of the staff, highlights some broader systemic difficulties at the ICTY, which ultimately also affects its performance and output.
For example, it illustrates the difficulties with the fact that there is no formal institutional link between the MICT and the ICTY. Indeed, beyond the fact that this is unfair to the current ICTY staff, I don’t see how hiring totally new people from the outside is a good idea, because this is the best way of losing the institutional memory that would lead to improved practices over the years.
In fact, this question goes well beyond the MICT. As anybody working in this field or The Hague for long enough can see, the turnover at the ICTY is incredibly high, with the result that it is likely that a number of people involved in the drafting of judgments probably never attended a single trial session. How course, one could tell me that as long as the Judges attended, then it is fine, because they are ultimately the ones deciding on the facts and the law. That is theoretically true, but so far removed from the reality of judgment drafting that it makes hardly any sense to approach things in this way. Indeed, there is no way that thousands of pages of judgments are prepared without the staff having some input in the way the evidence is understood and presented. As a result, this turnover means that there is no “case memory”, let alone institutional memory.
Finally, these allegations, beyond affecting the well-being of the ALOs, can, if true, only affect the legitimacy and credibility of the institution. Why, when all institutions in the world are increasingly being made accountable for practices of corruption, nepotism and lack of transparency as conditions for the legitimate exercise of authority, should the UN, and the ICTY in particular be exempt from these minimum principles?
On a final note, one issue raised in the article caught my attention:

Finally, as one of the respondents said, the ‘low morale is not helped by the recent appeal judgments, which are sending the message that no matter how voluminous, detailed or reasoned trial judgments are, they can be overturned in their entirety in a matter of few months, without much regard for the standard of review and in a 50 or so pages which contain very sparse reasoning’.

This is obviously a reference to the Gotovina Appeals Judgment and more generally to the recent acquittals, notably in the Perisic case. I will not restart the debate on the substance or merits of these acquitals, but I find it somewhat disconcerting that standards have been so warped at the ICTY, and in international justice generally, that a short judgment issued in a few months be considered as promoting « low morale ». For me, it is the thousand page judgment which it took years to draft that affect my morale…

Follow up on the reactions to the Harhoff letter

[The first part of this post is here]

The letter by Judge Harhoff alledging that the President of the ICTY, Judge Meron, was acting on orders from the US in recent aquittals, or at least adopting legal positions to support US positions, has received some commentary since it was made public yesterday, from blogs such as this one and EJIL Talk!, but also in the New York Times, where an article reveals that a number of officials and judges at that ICTY share Judge Harhoff’s skepticism and doubts about Judge Meron, to the point where another candidate has come forward to oppose the re-election of the latter at the Presidency. If these claims by the NY Times article are true, it seems that, if anything, Judge Harhoff has opened the floodgates of violating confidential information at the ICTY. Again, I don’t know if this is a good or bad thing, but it finally gives outside observers something concrete to work with.

But, in relation to the substance, none of the comments I’ve read so far actually bring me any closer to knowing what went on. I’m seeing language typical of conspiracy theories: “hopefully we’ll get evidence, and if there is no evidence, that means that someone is hiding things from us”. It’s a win-win situation for the conspirationists, because evidence either way can be construed as evidence of the existence of the conspiration. Also typical, is that there is a subtle shift of the burden of proof, as if those who don’t buy into the conspiracy have to bring elements to disprove it. That’s not how things should work. How do you prove that a spaceship did not land somewhere in the desert in the 1960s, leading to unhealthy experiments on alien beings?

In light of this, the only reasonable thing to do would be to just stop speculating until something concrete, other than a mere moral bias on the part of the critics (often relying on a somewhat simplistic, if not plainly wrong, analysis of the preceding case law), is revealed.

This being said, and because the temptation is just too big not to continue to debate pointlessly about this issue, I want to just share three thoughts that came up from reading the NY Times article.

First of all, there is the idea that there is a shift towards more deference to the military in the interpretation of the law in recent decisions. That might be true, but I would say that the anomaly was the previous shift away from that. For many years now, Human Rights activists have managed to convince way too many  people that International Humanitarian Law was merely a wartime branch of human rights law aimed only at protecting civilians, to the exclusion of any other consideration. But that was never true. IHL has always been a balance between the protection of non-combattants and military necessity. Forgetting the second branch of the balance has led to what Darryl Robinson has perfectly and brilliantly described as the identity crisis of international criminal law. In my view, it is therefore those who orchestrated that shift that had a political agenda, rather than those who would be returning this law to the traditional balance at the heart of IHL.

Second of all, there is this double idea that things didn’t go well in Simatovic, because Judge Picard was not given enough time to write her dissent and because Orie was alledgedly also under influence. These are two different things. The first one is testimony, if true, of the fact that the ICTY has been under pressure, notably from the Security Council, for some years now to wind down its activities through the implementation of a rigorous completion strategy. And commentators have not generally been complaining about that. On the contrary, the ICTY has been regularly faulted for taking way too long to go through the trial process and the judgment drafting. It might be unfair that some judges today have to speed things up because previous generations of their colleagues were moving along at a leasurely pace, but I don’t see the link with the issue at hand. As for Judge Orie, it should be pointed out that he appended to the Simatovic Judgment a rather surprising separate opinion that responds directly to Judge Picard’s dissent and defends the majority judgment. I find this practice a little puzzling, but, beyond that, if Judge Orie was really under external pressure, why would he do that? It is one thing to give in to the pressure in the majority judgment, it is another entirely to go out on a limb to actually write a separate opinion with his sole name on it to defend the majority. This seems to indicate that, whatever one thinks of the majority Judgement, Judge Orie sincerely believes in it.

Finally, I am once again appalled at the narrative being constructed at the moment of the ICTY being a lenient court letting “murderers” get away. That is simply not true. On a long term perspective, the ICTY case law has developed principles that cast the net very wide, rather than very narrowly, through, for example, Joint Criminal Entreprise, command responsibility, or the adoption of rules of evidence that would make any national criminal lawyer laugh and cringe at the same time. Even in the short term,   nobody seems to recall that just a few weeks ago, the ICTY found 6 defendants guilty in the Prlic case, with a strong dissent from the Presiding Judge on the lack of evidence of a Joint Criminal Entreprise. Why is nobody talking about that?

At the end of the day, if we strip away the argumentative niceties and the unsubstantiated conspiracy theories, there remains a rather mundane, but fundamental dimension on international criminal justice: its bias towards convictions and the blatant disrespect for the rights of the defense and the principle of legality. When I hear certain people talk about international criminal justice, I sometimes wonder why they bother advocating for international criminal courts at all, when they seem intimately convinced that all defendants that will appear before them are necessarily guilty. I would have more respect for these activists if they stopped pretending to have a liberal agenda and clearly stated that we should dispense with the whole masquerade that are international trials to directly go to the sentencing phase, where the bad guys will finally get what they deserve.

Guest Post: What the ICTY appeal judgment in Perišić means for the SCSL Appeals Chamber in Taylor

I’d like to begin by thanking Dov for giving up the space on his blog to allow me to post the following thoughts on the Perišić appeal judgment as it relates to Charles Taylor’s pending appeal at the Special Court for Sierra Leone.

During the closing trial arguments in the Perišić case, the following memorable in-court exchange was recorded between Presiding Judge Moloto and Senior Trial Attorney (now Co-Investigating Judge at the ECCC) Harmon. It is quoted at length because it goes to the very heart of why the Appeals Chamber overturned the convictions of Perišić – the highest ranking Yugoslav military officer during the time of his indictment – for aiding and abetting crimes committed by the VRS (Bosnian Serb Army) through the provision of substantial military support and assistance:

Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
Judge Moloto: No, no. It’s a legal question.
Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is —
Judge Moloto: Mr. Perišić is not charged with ethnic[] cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
Judge Moloto: […] [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.

Mr. Harmon: I draw the distinction as I say, as follows, Your Honour, the first situation is it’s a war, it’s a war in Bosnia and it was a war in and it is an on-going war in Afghanistan. Where I make my distinction is the purpose in objectives. The objectives of Bosnian Serbs, in part of strategic objective number 1, was to ethnically cleanse, if you will, that is a much broader term, it was to separate the Serbs from the non-Serbs. That act gave rise to conduct, long-standing conduct that lasted throughout the war of the VRS taking populations of Muslims and Croats and removing them from their homes by force. That was no mystery. General Perišić was aware, as we say in our brief, was fully aware of the conduct of the Bosnian Serbs, and with the knowledge of that conduct he provided them with assistance that enabled them to continue to conduct the war, continue to commit crimes, and that assistance that he provided had a substantial effect on the commission of those crimes. So I make a distinction between the Afghan war, where there is not the stated purpose which is to remove and ethnically cleanse. I also make one other observation about the Afghan war. In the Afghan war, and I’ll take the United States as an example, because I’m familiar with the United States’ participation in part in that. When there were crimes that were committed by American soldiers, those crimes were prosecuted in the United States and people are serving life prison sentences as a result of those crimes committed against Afghan civilians. In this situation, there were no prosecutions whatsoever, either in the VRS or in the Federal Republic of the Yugoslavia for war crimes.
Judge Moloto: You see, unfortunately, we don’t seem to be on the same wavelength. […] [T]he point I’m asking simply is because the armies, the commanders of the remaining NATO countries that are participating in Afghanistan are aware of the fact that crimes have been committed, crimes against humanity have been committed, and yet those commanders are still continuing to participate in that war, are they then guilty of those crimes that are being committed? That’s just – you either say they are not guilty or they are guilty. If anybody is guilty of those crimes, then they are equally guilty with those people of those crimes, because they are aware of those crimes being committed and yet they are continuing to participate in that war.
Mr. Harmon: I draw a distinction, Your Honours, between continuing to participate in the war. The position we assert here is identical to the situation in your hypothetical situation.
Judge Moloto: And, therefore, if it is identical, then you are saying, yes, they ought to be guilty if anybody else is guilty.
Mr. Harmon: Your Honour, I don’t want to go that far. I’m saying that the situation is identical in terms of the framework of our case.
Judge Moloto: I won’t force you to go any further than that.

(The full exchange is available on the ICTY’s YouTube channel: at 8:43))

In the end, Perišić was convicted of aiding and abetting crimes committed by the VRS (Bosnian Serb Army) – held to be a separate army from that of Yugoslavia – because his provision of substantial military and logistical support was made with the knowledge of their pattern of criminal behaviour and the likelihood of further crimes being committed. (Perišić was also convicted, as a superior, for crimes committed by the SVK (Croatian Serb Army), but this post will not delve on these convictions (which were also overturned on appeal)). Judge Moloto dissented, for essentially the reasons that are apparent in the above exchange. In his view, the majority’s decision outlawed the waging of war: the mere provision of assistance to another army’s war effort was too remote from the crimes committed during such a conflict to qualify as aiding an abetting (Perišić, Trial Judgment – Dissenting Opinion of Judge Moloto, para. 3).

On 28 February 2012, the Appeals Chamber, in effect, sided with Judge Moloto. It did so on the basis that ‘specific direction’ is an element aiding and abetting and must be explicitly established, particularly where the accused is geographically distant (like Perišić was) from the perpetration of crimes (Perišić, Appeal Judgment, para. 75). In the words of the Appeals Chamber:

[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary. (Perišić, Appeal Judgment, para. 44)
The contrary position had been taken by the Perišić Trial Chamber on the basis of the ICTY Appeals Chamber’s judgment in Mrkšić and Šljivančanin, which was found to have not said what it clearly did: that specific direction was not an element of the actus reus of aiding and abetting (Mrkšić and Šljivančanin, Appeal Judgment, para. 159). This was found to be the case because Mrkšić and Šljivančanin had only said this in passing, in a section dealing with mens rea, was not relevant to their holdings in that case, did not explicitly acknowledge departure from prior precedent (which had in fact, said the opposite), and had only cited to one previous judgment (which it had misread) (Perišić, Appeal Judgment, para. 35).

That specific direction was not an element of the actus reus of aiding and abetting had been crucial for Perišić’s conviction. It meant that the Trial Chamber did not need to show that, alongside his substantial assistance to the VRS, his knowledge of their criminal acts and the likelihood of the further commission of crimes, his actions were designed to specifically aid them. It must be emphasised here that the VRS was not found to be a criminal organization – it conducted its military campaign using both lawful and unlawful means.

The Perišić Appeals Chamber could not find, among the various factual findings of the Trial Chamber, that the military aid and logistical support had been specifically directed towards the VRS’ criminal actions rather than simply supporting them in the armed conflict. Thus, Perišić’s knowledge of the VRS’ criminal behaviour was rendered moot. His convictions for aiding and abetting were overturned.

In other words, what would have distinguished Judge Moloto’s Afghanistan hypothetical was that NATO’s support of the war effort was not specifically directed to the commission of crimes (either in Guantanamo, Bagram or Kabul). Such support alone therefore did not render NATO military commanders criminally liable – as aiders or abettors – for the (alleged) crimes committed therein.

What does this have to do with Charles Taylor at the SCSL?

The answer, is that it has everything to do with Taylor. This is because half of all his convictions (Taylor, Trial Judgment, para. 6994(a)) were for aiding and abetting the various crimes committed by Revolutionary United Front (RUF) and the Armed Revolutionary Council (AFRC) in Sierra Leone through his provision of arms and ammunition, military personnel, operational support and moral support (Taylor, Trial Judgment, paras. 6910-6915, 6918-6924, 6927-6937, 6940-6946). Like Perišić, Taylor, as President of Liberia, was geographically distant from the crimes on the ground (he claimed during the trial that he had never set foot in Sierra Leone). How did the SCSL Trial Chamber deal with aiding and abetting, specifically, the issue of specific direction? According to the Chamber:

The actus reus of aiding and abetting does not require “specific direction”. (Taylor, Trial Judgment, para. 484)

The accompanying footnote (Taylor, Trial Judgment, fn. 1141) refers only to the trial judgment in Perišić and the appeals judgment in Mrkšić and Šljivančanin, both of which have now been destroyed by the PerišićAppeals Chamber. Curiously, (but understandably) there is no mention of the Taylor trial judgment in the Perišić appeals judgment.

Thus, the Taylor Trial Chamber, like the Perišić Trial Chamber, did not need to show (and did not in fact show in the section assessing his aiding and abetting liability – see Taylor, Trial Judgment, paras. 6910-6915, 6918-6924, 6927-6937, 6940-6946) that Taylor’s aid was specifically directed towards the crimes of the RUF and the AFRC, but it did so on the basis of (now) erroneous ICTY jurisprudence.

So where does this leave half of Taylor’s convictions on appeal?

As a result of the Perišić appeal judgment there are now only two realistic possible outcomes with respect to specific direction (if the factual findings are left largely undisturbed): 1) the Taylor Appeals Chamber concurs with the Perišić Appeals Chamber, or 2) the Taylor Appeals Chamber picks a fight with the Perišić Appeals Chamber.

With respect to the first option, it is critical for the TaylorAppeals Chamber to find that Taylor gave more than just general support to the RUF and the AFRC. Such assistance must have been specifically directed to the relevant crimes. And this must be found in amongst the longest judgment in international criminal law history. If it cannot be found, then it is game over. Taylor must be acquitted of all his aiding and abetting convictions.

With respect to the second option, the Taylor Appeals Chamber is of course not bound by the decisions of the ICTY, and can in fact find support in the separate and dissenting opinions of the Perišić appeal judgment (see in particular Perišić, Appeal Judgment – Partially Dissenting Opinion of Judge Liu, paras 2-3 and Separate Opinion of Judge Ramaroson, paras 2-6(in French) (both opining that specific direction is not an essential element of the actus reus of aiding and abetting). But should the SCSL go down this path and split with the ICTY, it would mean yet more (!) fragmentation in international law and it would (re)invite the problems that Judge Moloto alluded to in his exchange with Prosecutor Harmon.

In the alternative, it could side with Judges Meron and Agius, who suggested that specific direction should be an element of the mens reaof aiding and abetting, not the actus reus (see in particular Perišić, Appeal Judgment – Joint Separate Opinion of Judges Meron and Agius, paras 2-4). Nevertheless, even they conceded that specific direction could reasonably be assessed in the actus reus context and refused to depart from previous jurisprudence.

Of course, the ‘wild card’ option would be to order a retrial, but that is unlikely given where the SCSL is in its lifespan.

Will half of Charles Taylor’s convictions be overturned on appeal because of the Perišić appeal judgment? Time will tell…