Sainovic Appeal rejects ‘specific direction’, but was it necessary?

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). Continue reading

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A Proposal to Compensate the Acquitted and Promote Reconciliation in the Balkans

by Alex Fielding, @alexpfielding on twitter

In light of the ongoing Seselj drama following the disqualification of Judge Harhoff for his pro-conviction bias (see my earlier post here and recent developments here) and the controversial acquittals of Momcilo Perisic, Ante Gotovina and Mladen Markac by the ICTY Appeals Chamber, and those of Jovica Stanisic and Franko Simatovic at trial, I keep coming back to the question of compensation for acquitted persons for the years spent in detention. While this may not, on its face, be a popular proposition for human rights activists and a general public whose primary concern is ‘ending impunity’, consider the following figures.

Momcilo Perisic, Photo: ICTY

According to my calculations, Momcilo Perisic, former Chief of the General Staff of the Yugoslav Army, spent approximately 4 years, 5 months and 10 days in detention prior to his acquittal on appeal on 28 February 2013 (note that these figures are NOT including the periods of provisional release from the ICTY’s detention facility in The Hague, which in Perisic’s case amounted to an additional 3.5 years).

Ante Gotovina, former Colonel General of the Croatian Army and Commander of ‘Operation Storm’, spent approximately 6 years, 11 months and 12 days in detention prior to his acquittal on appeal on 16 November 2012.  His co-accused Mladen Markac, former Operational Commander of the Croatian Special Police, spent 5 years, 7 months and 12 days in detention prior to his acquittal on appeal.

Ante Gotovina & Mladen Markac, Photo: Guardian

Ante Gotovina & Mladen Markac, Photo: Guardian

Including time spent on provisional release (I couldn’t find the relevant detention figures that do NOT include provisional release), it took 10 years from the time Jovica Stanisic, former Chief of the Serbian State Security Service, was sent to the ICTY to his acquittal at trial on 30 May 2013.  His co-accused Franko Simatovic, member of the Serbian State Security Service, waited 9 years, 11 months and 19 days for his acquittal at trial. Both men have been released pending the Prosecution’s appeal. They have also submitted arguments on appeal to the effect that the trial judgment was tainted by the bias of one of the sitting judges on the case, Judge Harhoff, but more on this later.

Vojislav Seselj, former President of the Serbian Radical Party, has already spent 10 years, 8 months and 25 days in detention (although 4 years and 9 months were a result of his three convictions for contempt of court) as he awaits a trial judgment that may be fatally flawed. Closing arguments wrapped up in March 2012 and the judgment had been scheduled for delivery on 30 October 2013 but then Judge Harhoff was disqualified for bias on 28 August 2013. Since there was no reserve judge in this case, the acting President of the ICTY Judge Agius controversially appointed Judge Niang to replace Judge Harhoff on 31 October 2013, even though he was not present during the entirety of the trial itself.

Continue reading

Charles Taylor Appeal: Why its rejection of ‘specific direction’ doesn’t matter

by Alex Fielding, @alexpfielding on twitter

The international criminal law world has been eagerly awaiting the Charles Taylor appeal to see whether the controversial ‘specific direction’ standard for aiding and abetting liability from the ICTY’s Perisic Appeal would be followed by the Special Court for Sierra Leone (“SCSL”).  The SCSL Appeals Chamber rejected Taylor’s appeal against a 50-year sentence for aiding and abetting crimes committed by Revolutionary United Front (“RUF”) and Armed Forces Revolutionary Council (“AFRC”) during Sierra Leone’s bloody civil war. The full text of the Taylor Appeal can be found here.

Photo credit: Guardian

Photo credit: Guardian

To recap, Perisic was acquitted because, considering his geographic remoteness from the crimes, his involvement in providing general assistance to the Bosnian Serb army, an organization with lawful and unlawful activities, was not ‘specifically directed’ towards their criminal activities.

For background on the ‘specific direction’ debate, James Stewart has strongly opposed this development here and here, and Kevin Heller provides a counterargument here.

Much has been discussed already in the blogosphere on the Taylor Appeal’s vigorous rejection of Perisic and the ‘specific direction’ requirement (see Kevin Heller on the SCSL’s incoherent and selective analysis of custom re: specific direction and Marko Milanovic’s post here).

Specific direction has been frequently misunderstood.  Continue reading

Judge Harhoff, Specific Direction and the Perisic Acquittal

by Alex Fielding, @alexpfielding on twitter

[Updated on August 12]

Much has been stated, debated, alleged and insinuated about that letter by Judge Harhoff to 56 of his friends and associates about the “tenacious pressure” applied by Judge Meron on his fellow judges for the acquittals in the Ante Gotovina et al and Momcilo Perisic appeals and the alleged political influence of the US and Israeli governments in those acquittals.

Photo courtesy of ICTY website

Photo courtesy of ICTY website

The impropriety of the letter and need for a binding code of conduct for judges and prosecutors (to complement the existing code for Defence Counsel) has been discussed over at the International Criminal Law Bureau blog and Opinio Juris.  A blog post at Balkan Insight also provides a legal analysis of the acquittals in question to argue that it is not so much the law that has changed, but the fact patterns in the recent cases. The New York Times has also reported that Judge Harhoff is not alone in his criticism of Judge Meron and there is a movement afoot amongst ICTY judges to vote in another candidate for ICTY President this fall.

Disclosing confidential information about the deliberations of the Appeals Chamber (of which Judge Harhoff did not take part) and proposing unsubstantiated conspiracy theories is improper, as these blog posts have discussed in detail. The focus of this post, however, is Judge Harhoff’s comments on the Perisic Appeal and his  analysis of aiding and abetting liability (which, incidentally, was decided by a 4-1 majority, not 3-2 as stated in the letter).

Continue reading