The Self-Fragmentation of the ICTY Appeals Chamber

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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.

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  • EJIL Analysis
  • International Criminal Law
  • International Criminal Tribunal for the Former Yugoslavia

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    Comments

    Manuel Ventura says

    January 23, 2014

    Thanks Marko.

    An oversight I know, but that first paragraph should really read "Sainovic et al.", not "Sljivancanin et al."

    Maybe the OTP can submit a Rule 119 motion and argue that the Sainovic et al. ruling constitutes a "new fact" not available to the Prosecution in Perisic. A stretch, I know, but you never know..

    Manuel Ventura says

    January 23, 2014

    Also important, is the following with respect to the ICTY Appeal Chamber's prior reliance in Perisic on Tadic as the source for the requirement of specific direction:
    "The Appeals Chamber, Judge Tuzmukhamedov dissenting, therefore considers that the analysis of the previous case law conducted in the Perišić Appeal Judgement relied on the flawed premise that the Tadić Appeal Judgement established a precedent with respect to specific direction." (para. 1623)

    As I've explained, anyone who reads the relevant paragraph in Tadic would quickly realise that it was never a strong basis for specific direction: http://dovjacobs.com/2014/01/09/guest-post-specific-direction-a-la-perisic-the-taylor-appeal-judgment-and-what-it-could-mean-for-the-icty-appeals-chamber-in-sainovic-et-al-part-ii/

    Marko Milanovic says

    January 23, 2014

    Thanks Manuel, corrected that. I completely agree re Tadic.

    Jordan says

    January 23, 2014

    Finally!

    Jordan says

    January 23, 2014

    However, para. 1649 adds another limitation that is not part of customary international law -- that the facilitation must have a "substantial effect."
    Further, although that para. states that the required mens rea is "knowledge that these acts assist," the Furundzija and Blaskic opinions rightly stressed the knew or was aware that the intended conduct can or will assist test -- Blaskic (para. 50): "aware" "will probably be committed" -- Furundzija (paras. 237, 245-246): "knowledge rather than intent" "aware" conduct "will assist"

    Alex Fielding says

    January 24, 2014

    Fascinating indeed! It seems that Judges Khan and Afande hold the key to the direction the ICTY will take on specific direction (I think they will follow Sainovic but that's just a guess). My point is whether the self-fragmentation was necessary after you read Judge Tuzmukhamedov's dissent

    http://beyondthehague.com/2014/01/24/sainovic-appeal-rejects-specific-direction-but-was-it-necessary/

    Marko Milanovic says

    January 24, 2014

    Hi Alex - it probably wasn't necessary. What clearly happened here is that the AC judges saw a major problem of principle and wanted to clarify the law as they saw it. This is just as in domestic courts - sometimes they will be very strict in matters of judicial economy and be cautious in what they say or what issues they decide, sometimes they are in a more expansive, clarificatory mode.

    Jacob says

    January 24, 2014

    As far as the S&S Appeal Judgement is concerned, the final composition of this Appeals Chamber is far from being carved in stone. The problem is that judges have been replaced by the president rather randomly and the ICTY seems not really concerned with the principle of the right to the lawful judge as a part of the fair trial rights. While I don't want to enter any conspiracy debate, further changes of the S&S Appeals Chamber's composition would leave a sour taste.

    Said says

    January 24, 2014

    What is absolutely fascinating to me is how the "significant issue" of guilt of the defendants in these cases boils down to what might have been considered before as a not so significant issue of whether specific direction is an essential element of the actus reus of aiding and abetting liability or not.

    First, there was Perisic. At the risk of oversimplifying things, I think it is fair to say that two camps formed in the blogosphere, one in favor and the other against the view taken by the majority in Perisic. One might add that there was also a group of neutral third parties who commented on the whole controversy more out of intellectual curiosity and without taking any sides, so to say.

    Then came Taylor. Very much to the satisfaction of those against the "specific direction is an essential element of actus reus of aiding and abetting liability and everything that goes with it" theory because now they had the authority they could rely on. The opposite camp dismissed it, among other things, as having no precedent value.

    And now comes Sainovic et al. causing a divide in the ICTY Appeals Chamber. It was okay, and quite understandable for that matter, for the blogosphere to be divided on this issue, but the division within the ICTY Appeals Chamber actually deciding these cases is apparently not so okay, especially in relation to cases to be decided in the future, some of them in the very near future.

    This most recent development adds more fuel to the debate and I can already see many commentators revisiting this issue and arguing more or less convincingly who got it wrong and who got it right, going back to what they wrote before in these never-ending exercises of self-vindication.

    But the point of it all, in my humble opinion, is that even if you were to ask these judges themselves if they could have anticipated that the whole issue of guilt or innocence of the defendants in these cases of monumental significance (I really mean that they are of monumental significance and that we all should be reminded of that once in a while) would depend on their take on the specific direction issue, I think they themselves would have dismissed it as too outlandish.

    Jordan says

    January 24, 2014

    What is shocking is that the judges who "made up" the now recognizably wrong test were supposed to be identifying and clarifying customary international law, using judicial caution before coming out with a severely limiting new precept of "specific direction" and pretending that there was a basis for such a severe limitation of responsibility in generally shared patterns of practice and generally shared patterns of opinio juris by the time of the alleged criminal conduct. There appears to be no such patterns for support of CIL, no such patterns as a matter of generally extant domestic law in states of the world with respect to accomplice responsibillity.
    Perhaps part of the problem is that some judges had little or no experience with criminal law practice or judging prior to becoming a judge on the ICTY (or on the ICTR).

    - says

    January 25, 2014

    Great post, thank you. However, I am not entirely convinced by your argument on the fragmentation of the law, at least not in the future, and that "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."

    According to the Aleksovski doctrine (which the Appeals Chamber applied in the Sainovic et al. appeal judgment and which has never been departed from), "in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice." "The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts." (see Aleksovski appeal judgment, 24 March 2000, paras 107-111).

    The Appeals Chamber is thus bound to follow the Sainovic et al. appeal judgment in future cases. I do not see the Appeals Chamber in a future case deciding to depart from the Sainovic et al. appeal judgment as this will require explaining how "specific direction" is an element of aiding and abetting under customary international law and demonstrating how the Sainovic et al. appeal judgment was wrong on this point. In my view, this is unlikely to happen. In my view, the specific-direction saga is over.

    Mike Baresic says

    January 25, 2014

    This post takes an indirect swipe at the Gotovina Appeals Judgment, referring to it as "(in)famous." For a detailed law review analysis of why the majority was right in Gotovina, and how the minority got it wrong, see Georgetown Professor Gary Solis's article, "The Gotovina Acquittal: A Sound Appellate Course Correction," here: http://ilawyerblog.com/wp-content/uploads/2013/09/Gary-D.-Solis-Article-Gotovina-Acquittal.pdf

    Mike Baresic says

    January 25, 2014

    I should also add this: Meron will have the last word because he is presiding over the Prlic case, which according to the ICTY's completion strategy will be the ICTY's last appeals judgment, to be delivered in 2017. Prlic will also address specific direction, so whatever happens in Stanisic/Simatovic will be reviewed by Meron in Prlic.

    Of course, specific direction may also be addressed in Mladic, Karadzic or Hadzic in appeals before the Residual Mechanism, where once again Meron is President and will likely have final say, and where most of the judges who overturned specific direction (Pocar, Guney, Ramaroson) are not judges and will therefore not have the ability to influence the outcome.

    Meron and Agius, who were in the majority in Perisic, are judges on the Mechanism and are likely to sit on any appeal from Karadzic, Mladic or Hadzic. They would need one more judge to join them.

    All of these scenarios demonstrate why the Sainovic Appeals Chamber opened up a Pandora's Box by not following the doctrine of stare decisis.

    Manuel Ventura says

    January 25, 2014

    Mike, can you please read Tadić Appeal Judgement para. 229(iii) and surrounding context (the ground zero for specific direction in Perišić) and tell us why you think that should be considered binding precedent. Because I can't for the life of me understand why anyone - after reading the above para. in Tadić - would defend specific direction as being firmly based in law when it is in fact based on absolutely nothing.

    Mike Baresic says

    January 25, 2014

    Manuel, I'm not wading into the merits of the specific direction standard. Furthermore, I was not simply suggesting that Tadic was binding precedent, but more importantly that Perisic is binding precedent. If you go to Perisic you will see that Judge Liu in his dissent argued the very points that he now argues in Sainovic concerning the lack of legal foundation for the specific direction standard. See in particular paragraphs 2-3 of Judge Liu's dissent in Perisic. Obviously, Judge Liu was unable to persuade the majority of his position and he was outvoted 4-1. Judge Liu's protests about specific direction were thus rejected.

    I don't think any court is well served when a Judge who is outvoted in one case turns around eleven months later and overturns that precedent simply because he was on a panel with 3 different judges who agree with his position. The doctrine of stare decisis exists precisely to avoid such situations. The Judges on the Sainovic Appeals Chamber may all disagree with their colleagues in Perisic, but what they have done is introduced uncertainty into the law, and part of the objective of the highest appeals courts in any judicial system is to introduce certainty and unanimity for lower courts. If you were a judge or a party in Karadzic, Mladic, Hadzic or Seselj, would you know now whether specific direction is an element of aiding and abetting? Or do you have to calculate based on whether you think Judge Meron or Judge Liu will be in the Appeals Chamber in the Residual Mechanism reviewing your case?

    I am not here to defend or attack the specific direction standard. My only concern is that the Sainovic Appeals Chamber's overturning of Perisic, based on the very same arguments of Judge Liu rejected by the Perisic Majority only eleven months ago, has created a sort of legal "free for all" where the final word on specific direction will not be had until many years from now when the Residual Mechanism finishes its appeals.

    And one other point: I don't think Judge Meron regrets withdrawing from the Stanisic/Simatovic Appeals Chamber, as Marko suggests. I think he made a very strategic move in deciding that he will address "specific direction" only in the last of the appeals cases, so as to have final word on the subject.

    Marko Milanovic says

    January 25, 2014

    Mike, a couple of points:

    First, while I would agree that the Sainovic AC can be criticized for departing from Perisic if it was not necessary for it do so on the facts of the case (as argued by Judge Tuzmukhamedov in his dissent), it is simply legally incorrect that the AC violated any kind of formal stare decisis rule. That common law doctrine is not part of the ICTY's case law - rather, the pertinent standard, as pointed out in one of the comments above, was articulated in Aleksovski. The AC is free to depart from its previous rulings for cogent reasons and in the interests of justice. (This obviously means that another AC could depart from Sainovic - whether that will happen remains to be seen).

    Second, whether it was wise of it to do so is a different matter. While it overruled what is in my view a deeply troubling standard, it also created potential for arbitrariness. There I completely agree with you.

    Third, I very much doubt that either Meron or any of the other judges have some grand strategy in mind on who will have the last word. The persuasiveness of the specific direction standard outside the ICTY has already been fatally undermined by Taylor and Sainovic. Whether the Residual Mechanism in some final pronouncement approves of it will be entirely immaterial for other courts and tribunals. In other words, those courts may well adopt specific direction, but that won't be because the RM had the final word.

    Within the ICTY, on the other hand, the specific direction standard will play a decisive role in only a very small number of remaining cases, the only certain one being Stanisic and Simatovic. In the other cases (as was indeed the case in Sainovic) the primary theory of the prosecution is joint criminal enterprise, and aiding and abetting liability is a sideshow on which very little will depend. Mladic and Karadzic will either be convicted on JCE, or they won't be convicted at all (not that I have any doubts on that score). Sainovic and Simatovic are also the only FRY/Serbian officials that can now possibly be convicted for crimes in Bosnia and Croatia, and in that sense the stakes are quite high in that case.

    Mike Baresic says

    January 25, 2014

    Marko, quick response:

    My point was not that Sainovic AC violated the doctrine of stare decisis, but rather that the ICTY should follow stare decisis precisely for reasons such as this. As you know, even in common law systems that follow stare decisis, prior precedent can be overturned, but there should be great deference to prior holdings.

    Moreover, even under the Aleksovski standard, I fail to see what "cogent reasons" exist for overturning the Perisic Majority's rejection of Judge Liu's arguments (contained first in his Perisic dissent and now in his Sainovic Majority), given that the arguments raised by Judge Liu in Sainovic to overturn specific direction were already rejected by the Majority in Sainovic (which rejected Judge Liu's dissent that raises the very issues now used by the Majority in Sainovic). Unless a "cogent reason" is that you now have three judges that agree with you whereas eleven months ago you had four judges that disagreed with you.

    I'm not sure that reasoning passes even the Aleksovski standard. In my view, a "cogent reason" for overturning precedent must be some new factual or legal argument not previously considered by the Appeals Chamber and which warrants overturning the precedent. It cannot simply be as happened in Sainovic: if the Appeals Chamber panel now happens to be stacked with judges who agree with a position of yours that the AC previously considered and rejected, this is a "cogent reason" to overturn precedent.

    Mike Baresic says

    January 25, 2014

    Sorry, I made an error in my prior post (I wish we had the ability to go back and edit comments: "given that the arguments raised by Judge Liu in Sainovic to overturn specific direction were already rejected by the Majority in PERISIC (which rejected Judge Liu’s dissent that raises the very issues now used by the Majority in Sainovic).

    Manuel Ventura says

    January 26, 2014

    Mike, you can't just ignore previous cases when they don't fit your narrative. The fact of the matter is that Perišić relied primarily on Tadić (and other ICTR/ICTY cases that merely repeated or trace back to Tadić) as the source for the requirement of specific direction. You question what the "cogent reasons" were for departing from Perišić. I say it is the fact that specific direction was not based on any source of law whatsoever. Go read the Tadić reference I mentioned. It is not merely that a differently constituted bench disagreed with a prior AC bench. It is more that the Perišić AC bench - for whatever reason - chose to ignore that which was obvious to anyone who bothered to trace their reasoning back to its origins. Specific direction was never based on any analysis that led down the specific direction road. Yes, Judge Liu pointed this out in his dissent (albeit in a footnote) and yes he didn't command a majority. But so what? That doesn't change the fact that he was right and that the Perišić majority never engaged or explained why they were nonetheless relying on Tadić - notwithstanding the points made by Judge Liu. So, in a way, the majority in Perišić never truly engaged with those legal argument - at least not on paper.

    Now, your decry the Šainović AC bench for introducing uncertainty into law. But what about Perišić for introducing a legal concept that had no basis in law whatsoever (and that kicked off this entire debate)? You can't just ignore that. In my view, the Šainović AC should be commended - not criticised - for having the guts to admit that a previous AC got it wrong by actually undertaking the analysis that the Perišić AC should have done.

    But again Mike, I challenge you to explain why specific direction was soundly based in law. If you're serious about your stare decisis point, you just can't ignore Tadić. Any precedent is only as good as the legal reasoning that leads to its conclusions. Unfortunately, Tadić never intended to be a legal holding at all - it was merely obiter (comparing JCE to aiding and abetting). No analysis of the issue was undertaken. Ever. And if Tadić falls, then so does all the case law that merely repeated and/or cited back to it - inevitably including Perišić.

    Mike Baresic says

    January 27, 2014

    Manuel, I think my point was clear. I think Sainovic will come to be known as the case that essentially destroyed stare decisis (or the Aleksovski standard) in international criminal justice at least as much as it is for overturning Perisic. We shall see in the coming years whether I am right by how the Appeals Chamber deals with specific direction in subsequent cases and whether the Appeals Chamber feels bound by Sainovic, or Perisic, or any other prior holding.

    I also disagree with Marko concerning Meron. I doubt very much that he and Agius will let their legacy at the ICTY be that they let a war criminal (Perisic) go free because of their sloppy legal work, and therefore I suspect that they will be addressing (and re-introducing) specific direction in future cases.

    Manuel Ventura says

    January 28, 2014

    We shall see indeed Mike! Let's hope the Stanišić and Simatović appeal judgment doesn't take too long to come out. If they side with Šainovic et al. that will truly mark the end of specific direction in my view. But if they want to disagree with Šainovic et al., then they will have to explain why. Having said that, when you compare the reasoning of Perišić to Šainovic et al., I think the latter is a no-brainer. But who knows!

    Mike Baresic says

    January 28, 2014

    Thanks Manuel. It has been brought to my attention by a friend that the Appeals Chamber has already had to deal with the issue of stare decisis (or Aleksovski) in the Oric Appeals Judgement. There, this issue arose as to whether the Appeals Chamber should overturn the Appeals Chamber's prior ruling in Hadzihasanovic that a military commander could not be held liable on a theory of command responsibility if the crime was committed by the subordinate prior to the Accused having taken over command of the subordinate.

    Judge Shahabuddeen had dissented in Hadzihasnovic and now found himself in the Oric Appeals Chamber, with the ability to form a majority that would overturn the Hadzihasanovic precedent (similar to how Judge Liu found himself able to support his Perisic dissent by forming a majority in Sainovic).

    Ultimately Judge Shahabuddeen decided not to vote to overturn Hadzihasanovic, for reasons that he articulated far better than I. Judge Shahabuddeen's words in Oric should be re-read by all who wish to consider the dangers posed by Judge Liu's majority in the Sainovic Appeals Chamber Judgement:

    ***14. A decision to reverse turns upon more than theoretical correctness; it turns upon larger
    principles concerning the maintenance of the jurisprudence, judicial security and predictability.
    Included in those principles is, I believe, a practice for a judge to observe restraint in upholding his
    own dissent. Thus, in Queensland v. The Commonwealth15 Gibbs and Stephen, JJ., declined to form,
    on the basis of their previous dissents, a majority with a newly composed bench of the High Court
    of Australia. I do not assert that a dissenting judge can never form part of a subsequent majority
    upholding his earlier dissent, but I think that the preferred lesson of the cases is that he is expected
    to do so with economy.16
    15. Since I was one of the two dissenting judges in the earlier case (the other has since demitted
    office in the ICTY), I consider that, in the circumstances of the present case, a reversal should await
    such time when a more solid majority shares the views of those two judges. Meanwhile, the
    decision in Hadžihasanović continues to stand as part of the law of the Tribunal. ****

    It is not my intention to continue the debate, but I thought Judge Shahabuddeen's opinion was exceptionally relevant to the current discussion and might be of use to others who will be writing about the Sainovic Judgement in the coming days and months.

    Manuel Ventura says

    February 3, 2014

    Hold the presses: http://www.icty.org/sid/11447

    I think this is indeed a Rule 119 motion of the kind I suggested above. We might get some clarity on this sooner than we think!

    Manuel Ventura says

    February 3, 2014

    ... or not? The motion itself isn't available yet.

    Stan says

    February 4, 2014

    Thanks Marko. One question to you and others:
    If the appeals chamber takes the issue seriously in s&s how can it overturn the judgement if it is so inclined? The law as it stood at the time of the s&s judgement was perisic. Irrespective of what one thinks of specific direction the trial chamber was bound by aleksovski to follow perisic. How could the appeals chamber now say that was an error of law? Arent appeals meant to just verify whether the trial judgement AT THE TIME was correctly reasoned as opposed to just deciding afresh?