Today the ICTY Appeals Chamber (thankfully) affirmed the convictions of high-ranking Serbian leaders for crimes in Kosovo in Sainovic et al, even though it somewhat reduced the sentences. The judg(e)ment is gigantic, especially for an appeals decision, at 800 pages+, and obviously I haven’t read it. But buried in all that is one very important development in the whole ‘specific direction’ saga – by 4 votes to 1, the Chamber decided that the Appeals Chamber in Perisic was wrong in holding that specific direction was an essential element of the actus reus of aiding and abetting liability. The Chamber discussed the issue extensively at more than 20 pages, starting at p. 643, and here are the choice concluding paragraphs:
1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundzija Trial Judgement and confirmed by the Blaskic Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The required mens rea is “the knowledge that these acts assist the commission of the offense”. The Appeals Chamber reaffirms the position taken by the Blaskic Appeal Judgement in this regard.
1650. Accordingly, the Appeals Chamber confirms that the Mrksic and Sljivancanin and Lukic and Lukic Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.
In so holding, the Chamber did not rely just on the ICTY’s prior case law, but also on the recent Taylor judgment of the SCSL, which had also rejected specific direction. Note also how the Chamber did not mince words – it came to a ‘compelling conclusion’ to ‘unequivocally reject’ Perisic as wrongly decided. In his dissent, Judge Tuzmukhamedov is of the view that it is unnecessary on the facts of the case to get into the specific direction issue, and that Chamber should not have done so, especially in order to avoid a conflict with a prior decision of the Appeals Chamber. He however takes no position on the specific direction issue itself.
This is absolutely fascinating. While I personally very much welcome the overruling of Perisic, I don’t think there’s ever been a case in which the different benches of the Appeals Chamber were so directly at odds with one another. And unless I’m wrong there’s no formal way of resolving that conflict, e.g. some form of en banc review. Under those circumstances, the case law of the ICTY remains in a state of flux and fragmentation on the specific direction issue – so much so that the guilt or innocence of specific accused will very much depend on which judges get assigned to their Appeals Chamber.
There are a couple of pending cases where that issue might arise, and one in which it will certainly arise – Stanisic and Simatovic, the two Serbian secret police chiefs who are acquitted by their Trial Chamber on the basis of specific direction. And while Perisic was lucky enough to get away, at this point nobody knows what will happen to S&S. While I go get my crystal ball out of the drawer and dust it off, let us compare the compositions of the Appeals Chamber benches in Perisic and Sainovic. (Y – judges voted that specific direction was an element of aiding and abetting; N – judge voted no; X – judge expressed no view):
Perisic: Meron (Y); Agius (Y); Liu (N); Ramaroson (N for actus reus, but relevant for the requisite mens rea, which Perisic did not have); Vaz (Y)
Sainovic: Liu (N); Guney (N); Pocar (N); Ramaroson (N); Tuzmukhamedov (X)
Note that judges Liu and Ramaroson sat on both Chambers, and that both now took the opportunity to say that Perisic was wrongly decided. Pocar and Guney now add their voices to the ‘no’ view (note also that Meron, Agius, Pocar, and Guney (in)famously sat together on the Gotovina Appeals Chamber). As for the Stanisic and Simatovic Appeals Chamber, it was originally supposed to be Meron, Agius, Pocar, Liu, Khan, but without giving any reasons President Meron had replaced himself with Judge Afande on 16 December 2013. (I imagine this is something he will now regret). On the S&S bench we will thus have three judges who already expressed their opinion on specific direction – Agius (Y), Pocar (N), Liu (N), and two judges who remain undecided (Khan, Afande), but who will obviously have the deciding impact. God help us – expect some fireworks.