Today the Appeals Chamber of the Special Court for Sierra Leone unanimously upheld the conviction of Charles Taylor, the former President of Liberia, and affirmed the Trial Chamber’s sentence of 50 years imprisonment. The judgment is available here; a short press release here. The judgment is very long and will take some time to digest. Symbolically and politically it is of course of immense importance.
Legally, however, the most interesting aspect of the judgment is the SCSL’s refusal to follow the ICTY Appeals Chamber’s holding in Perisic that the actus reus of aiding and abetting liability requires the assistance to be ‘specifically directed’ towards the commission of crimes. Readers will recall that Perisic was acquitted despite knowing that the aid he was providing to the Bosnian Serbs will help them in the commission of crimes against international law, since the ICTY Appeals Chamber found that the aid was given to the war effort as a whole, rather than to the commission of the crimes as such. For more background, see my previous post on Perisic and James Stewart’s very important post on specific direction.
In my view, this is a very welcome development, and the specific direction standard was rightly discarded. Note, however, how this creates a direct conflict of jurisprudence between two ad hoc international criminal tribunals. The fragmentation of international criminal law is well and truly upon us. Whether this will induce the ICTY Appeals Chamber to change its mind on the matter, and which side will be taken by other international tribunals dealing with similar factual patterns, remains to be seen.
The SCSL Appeals Chamber deals with the elements of aiding and abetting liability from p. 156 onwards. The really interesting bits start from p. 209/para. 452. The Appeals Chamber dismissed the defence argument that states have frequently engaged in providing arms and other assistance to rebel armed groups, even when knowing that these groups may commit serious crimes, essentially by holding that states have not expressed an opinio juris that assistance under such conditions would be lawful. When it comes to specific direction, the Appeals Chamber begins its discussion by noting that:
472. In applying the Statute and customary international law, the Appeals Chamber is guided by the decisions of the ICTY and ICTR Appeals Chamber. The Chamber looks as well to the decisions of the Appeals Chamber of the ECCC and STL and other sources of authority. The Appeals Chamber, however, is the final arbiter of the law for this Court, and the decisions of other courts are only persuasive, not binding, authority. The Appeals Chamber recognises and respects that the ICTY Appeals Chamber is the final arbiter of the law for that Court.
This is essentially restating the decentralized nature of the international judicial system: we’re our own masters, while paying due respect to the ICTY. The Chamber then find that:
476. 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.
This I must say is not particularly persuasive. It is as a formal matter highly dubious that ‘internally binding precedent’ rather than precedent attempting to establish the content of custom can be a source of substantive international criminal law binding on individuals. It is also quite dubious that this is what the Perisic Appeals Chamber thought it was doing. But this is a way for the SCSL to refuse following the ICTY without saying that the ICTY got the analysis of custom wrong. Rather, in the SCSL’s view (para. 477): ‘the ICTY Appeals Chamber‘s jurisprudence does not contain a clear, detailed analysis of the authorities supporting the conclusion that specific direction is an element of the actus reus of aiding and abetting liability under customary international law.’ The SCSL Appeals Chamber thus concluded that it was not persuaded by the analysis of the Perisic Chamber (para. 478-478). Moreover:
480. Although the Perišić Appeal Judgment introduces novel elements in its articulation of specific direction, which may perhaps be developed in time, this Appeals Chamber is not persuaded that there is good reason to depart from settled principles of law at this time. As the Appeals Chamber has concluded, the requirement that the accused‘s acts and conduct have a substantial effect on the commission of the crime ensures that there is a sufficient causal link between the accused and the commission of the crime. The Appeals Chamber has further concluded that this requirement is sufficient to ensure that the innocent are not unjustly held liable for the acts of others. Accordingly, the Appeals Chamber does not agree with the Perišić Appeals Chamber‘s treatment of the accused‘s physical proximity to the crime as a decisive consideration distinguishing between culpable and innocent conduct. This Appeals Chamber has previously held, consistent with the holdings of all other appellate chambers, that “acts of aiding and abetting can be made at a time and place removed from the actual crime.” Whether the accused is geographically close to the scene of the crime may be relevant depending on the facts of the case, particularly where that presence is alleged to have contributed to the commission of the crime, but it is not a legal requirement. While an accused may be physically distant from the commission of the crime, he may in fact be in proximity to and interact with those ordering and directing the commission of crimes.
The ‘specific direction’ standard was accordingly rejected. While the decision on this point was unanimous, Judge Fisher, whom Judge Winter joined, filed a concurring opinion rejecting the standard even more forcefully. Thus, in response to the defence argument that without such a standard aiding and abetting liability would be overbroad and would criminalize the conduct of states assisting rebel movements in other countries, she held that (para. 717): ‘suggesting that the Judges of this Court would be open to the argument that we should change the law or fashion our decisions in the interests of officials of States that provide support for this or any international criminal court is an affront to international criminal law and the judges who serve it.’