by Alex Fielding, @alexpfielding on twitter

In a dramatic turn of events, the ICTY Appeals Chamber in Sainovic et al has, with a 4-1 majority,  “unequivocally rejected” the Perisic Appeal’s finding that specific direction is an element of aiding and abetting liability.

Lukic, Pavkovic, Lazarevic, Sainovic (L to R), photo: bigportal.ba

Specific direction has been subject to a fascinating debate in the blogosphere (see Kevin Heller’s defence of specific direction here, and the critiques by Marko Milanovic here and James Stewart here and here). The key conclusions in Sainovic are as follows:

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.

Marko Milanovic provides an excellent summary on Sainovic and self-fragmentation of the ICTY Appeals Chamber here, to which I would add the following points.

1. Was this ‘self-fragmentation’ necessary?

Had the Majority followed Judge Tuzmukhamedov’s dissenting view, it could have avoided the the problem of fragmentation in the ICTY Appeals Chamber jurisprudence on aiding and abetting liability.  Judge Tuzmukhamedov states that the Perisic specific direction analysis is not relevant since the assistance in question was not, in his view, sufficiently remote based on the evidence presented before the Chamber. The Perisic Appeal held that this remoteness was a precondition (along with assistance to a group engaged in both lawful and unlawful activities) to explicitly assessing specific direction as part of the actus reus of aiding and abetting liability. But insteading of first assessing remoteness, the Majority launches straight into an analysis of the correctness of specific direction. It’s clear that Sainovic Appeals Chamber, like the Taylor Appeals Chamber at the SCSL, felt compelled to “right the wrongs” of Perisic, stating at footnote 5320 that the ‘significance of the issue at hand warrants the intervention of the Appeals Chamber’ even if applying Perisic ‘would not ultimately invalidate the Trial Judgement’.  Why not avoid the fragmentation issue, and allow the Perisic specific direction requirement to continue to apply when a) general assistance is given to a group engaged in lawful and unlawful activities, and b) the aider and abettor is remote from the scene of the crime? I am reminded of Lord Rolfe’s famous legal maxim from Winterbottom v. Wright that hard cases make bad law, as it seems that hard facts (and a lack of judicial restraint) have led to fragmented law.

2. Why is the Appeals Chamber relying on the Taylor Appeal at all?

In a related point, I don’t see why the Appeals Chamber in Sainovic relied on the Taylor Appeal.  As I’ve argued before, the Taylor Appeal’s findings on Perisic’s specific direction requirement should not have precedential value. The Perisic specific direction analysis only arises when general assistance is given to groups with both lawful and unlawful activities (eg. Bosnian Serbs) and the aider and abettor is remote from the scene of the crime. In Taylor, all the military operations of the RUF/AFRC that Taylor assisted during the indictment period were deemed to be ‘inextricably linked’ to the crimes – there were no lawful activities undertaken during the indictment period. Since there were only unlawful activities, any assistance given to those activities was criminal. I therefore argue that everything the Taylor Appeal says on specific direction is merely obiter dicta, which the Sainovic Appeals Chamber ignores by simply tacking on the Taylor Appeal’s specific direction findings to its references.

3. What happened to Judge Ramaroson’s view that specific direction is part of the mens rea of aiding and abetting liability?

It’s interesting that Judge Ramaroson went from saying that specific direction is an element of the mens rea of A/A liability in Perisic, to joining the Majority decision in Sainovic which unequivocally states that specific direction is not an element of A/A liability, either for the actus reus (“practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”) or mens rea (“knowledge that these acts assist the commission of the offense”). I couldn’t find any discussion of specific direction in the mens rea analysis,  or whether it is considered to be implicit in the knowledge standard (eg. knowledge of assistance going to ‘specific’ crimes committed), but you would think Judge Ramaroson would insist on including specific direction as part of the mens rea analysis (or file a separate opinion to this effect).

As Marko notes, the drama will continue to unfold with the upcoming Stanisic and Simatovic Appeal (with a newly constituted bench), following their acquittal that was directly based on the fact that the Perisic specific direction requirement was not met. It seems that the law on specific direction depends primarily on the composition of the Appeals Chamber.  But should the Stanisic and Simatovic Appeals Chamber (and subsequent chambers) endorse Sainovic, I see the Perisic Appeal’s findings on specific direction fading away over time.  Whether that’s the right direction for international criminal law will continue to be subject to debate.