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.