ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)

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Today the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia quashed the acquittal at trial of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police during the Milosevic regime, for crimes committed in Bosnia and Croatia. This is a big deal – S&S is the only remaining case tying the leadership of Serbia with crimes committed by Bosnian and Croatian Serbs. The trial judgment (itself delivered by a majority) was quashed on two grounds: that the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, in particular because it could not analyse their mens rea without determining the actus reus of the JCE, and because it committed an error of law regarding the actus reus of aiding and abetting liability. (Appeals judgment here, press release and summary here.)

This latter point is one that will be familiar to our readers, as it is the (final?) nail in the coffin for the whole specific direction saga that we extensively covered on the blog (see here and here). As I explained in my earlier post, the ICTY Appeals Chamber went through an episode of self-fragmentation, with the Sainovic AC overruling the Perisic AC’s finding that specific direction was an element of the actus reus of aiding and abetting. As I also explained in that post, the outcome of S&S with respect to the specific direction point would essentially be determined by the composition of the Appeals Chamber in that case. That’s exactly what happened, with the S&S AC upholding the Sainovic rejection of specific direction by 3 votes to 2. The three votes in the majority were all judges who formed the Sainovic AC majority (Pocar, Liu, Ramaroson), while of the two judges in dissent one (Agius) was in the Perisic majority and the other (Afande) was not involved in the prior cases, and was hence the only unknown quantity.

What’s particularly interesting is that (since my earlier post and before the appeals hearing) Judge Khan, who had been assigned to the S&S AC and was also not involved in the prior cases, was replaced by then-President Meron with Judge Ramaroson. Had this not happened, or had Judge Khan been replaced with a different judge, the 3 to 2 decision on specific direction could well have gone the other way, with the Tribunal having yet another go at self-fragmentation. Happily (for me at least) that was not the case, but this unfortunately exposes some of the arbitrariness inherent in judicial decision-making in borderline cases. Also noteworthy is an order by now-President Agius dated 18 November 2015, i.e. from last month, confirming the composition of the S&S AC. I honestly have no idea why that order was even being considered, bearing in mind that the impending delivery of the appeals judgment would have been completely derailed with a change in composition (which again could also have affected the result), and I invite more knowledgeable readers for any further information on this. [UPDATE: I’ve been told that on his assumption of the presidency Judge Agius had to make orders on the composition of the AC bench in each ongoing case.]

This is likely the last time the ICTY will say anything on the specific direction point, with the Perisic judgment now being a distinct outlier (and Perisic himself being very lucky to get acquitted). But the big deal here is also in the remedy – by 4 to 1 (and with serious reservations from Judge Agius) the AC considered that it could not itself conduct a de novo review of the trial record, and ordered a full retrial on all counts. This is especially important for the JCE count, where the prosecution will get to do a proper do-over and S&S may well get convicted. The retrial itself will be conducted by the Residual Mechanism – and it’s perfectly possible that the judges of the Mechanism will come back to the specific direction point yet again.

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    Comments

    Rosco says

    December 15, 2015

    Thanks Marko,

    One question - why was it an error of the Trial Chamber to apply the Perisic standard on specific direction at the time? Wasnt it at the time the law and binding on the Trial Chamber? I get that it was subsequently changed, but how could the Trial Chamber know this?

    Rosco

    Thomas says

    December 15, 2015

    Interestingly enough it will be Meron as president of the MICT who will decide the composition of the retrial chamber

    Andrea says

    December 16, 2015

    Marko,

    Thank you for your post. I am not convinced that the Sainovic Appeal Judgment caused ‘self-fragmentation’. I believe that the ICTY jurisprudence was already divided on the point (as the Perisic Appeals Chamber was relying on a dictum in Tadic, not on its ratio decidendi as it should have done and other Appeals Chambers, in fact, ignored Tadic on aiding and abetting) and that the Sainovic Appeal Judgment tried to limit fragmentation by also turning to customary international law. This aspect, however, is not dealt with in your post of today so I shall not say more on this.
    I am not persuaded when you say that ‘it is perfectly possible that the judges of the Mechanism will come back to the specific direction point yet again’. I think it is unlikely in the sense of reverting to it even though some judges may certainly return to the issue in separate opinions. The difference between the Perisic and Sainovic appeal judgments is not only the different composition and different reading of the ICTY case-law, but, more fundamentally, the reliance by the latter on customary international law, which as L. Sadat noticed in the AJIL was based on an amply detailed analysis.
    Both the ICTY Appeals Chamber in Sainovic and the SCSL Appeals Chamber in Taylor agreed that ‘specific direction’ is not required under customary international law. This view was later adhered to by both the Popovic and Stanisic Appeal Judgments. So if a future MICT Chamber wants to depart from this jurisprudence, it should consider all this. That Chamber must say that either the analysis of customary international law conducted by the two mentioned Appeals Chambers is flawed, or that the ICTY can adopt a normative standard, which has no basis in customary international law and in its Statute, but eventually only in its own case law. And it has further to demonstrate that the Sainovic and Taylor Appeals Chamber judgments were wrong in reading the jurisprudence of the ICTY as not supporting ‘specific direction’ as both Chambers did. Moreover, a departure from a precedent (Sainovic and the recent judgments) must be justified for cogent reasons in the interests of justice as per Aleksovski. On this basis, I think that it is not simply a matter of changing judges. It is a matter of demonstrating that all the most recent international jurisprudence was both legally flawed and unjust. Therefore, I would submit that reverting to specific direction may be, at this stage, quite a challenge for any Chamber.

    Guest says

    January 11, 2016

    To respond to Andrea - and Marko - about the possibility of the new MICT trial chamber to come back to the "specific direction" doctrine, see paragraphs 128 and 131 (disposition) of the appeal judgment:

    para. 128:
    "if the new trial chamber were to examine the responsibility of Stanisic and Simatovic for aiding and abetting the crimes, the Appeals Chamber ... instructs it to apply the correct law on aiding and abetting liability as affirmed herein, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime;"

    para. 131 (disposition):
    "ORDERS ... the trial chamber composed for retrial, should it consider aiding and abetting liability, to apply the correct law on aiding and abetting liability as affirmed herein, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime;"