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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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