Yesterday an ICTY Trial Chamber issued acquittals on all charges against Stanisic and Simatovic and ordered their release from the UN detention facility. Stanisic and Simatovic were government officials in Serbia accused, inter alia, of aiding and abetting crimes committed by Bosnian Serb forces operating in Bosnia. Amongst other allegations, the prosecution alleged that the officials provided assistance to paramilitary organizations, such as Arkan’s Tigers, that perpetrated war crimes and crimes against humanity against civilian populations.
These acquittals are significant. To date, no officials of the Serbian government have been convicted for involvement in atrocities committed in Bosnia. (Milosevic died before a judgment could be rendered in his case. And Karadzic and Mladic were ethnic Serb officials in Bosnia – not Serbia proper.)
There are several reasons for this result. But in a sense, the result is not surprising at all because the writing was on the wall after Perisic was acquitted in a very similar case a few months ago. In Perisic, the ICTY advanced a relatively novel theory regarding defendants accused of aiding and betting organizations that perpetrate international crimes. The tribunal concluded that in cases where the organization is engaged in a mix of lawful and unlawful activities, the prosecution must prove that the defendant “specifically directed” his assistance to the criminal behavior, as opposed to the lawful activities of the organization.
Strangely, though, the tribunal concluded that the “specifically directed” requirement was not a mens rea requirement (something that would have been similar to the “purpose” requirement for aiding and abetting that criminal law students know well) but rather an actus reus requirement. In short, the prosecution had better draw a straight line from the defendant’s conduct to the criminal behavior, rather than rest on a circumstantial case of general assistance to an organization that then engages in criminal behavior, even if the defendant has the intent to facilitate the criminal conduct.
In the case of Serbia, the “specifically directed” requirement is probably designed to resolve the Serbian defense that its officials were merely supporting a war effort among ethnic Serbs in Bosnia, and that the Serbian officials had no involvement in the atrocities committed by ethnic Serbs in Bosnia.
In order to make this common sense argument work, however, you need to add another piece of the puzzle. Why wasn’t the war effort itself illegal? For some observers, the Serbian state was engaged in naked aggression, either directly or via proxies in Bosnia that violated basic principles of international law. Putting aside for a moment whether this claim is factually accurate or not, its substance simply does not fall within the jurisdiction of the ICTY, which has no authority to engage broader issues of jus ad bellum. Indeed, the result in both Perisic and Stanisic and Simatovic can be traced back to the conscious decision after Nuremberg to turn away from questions of jus ad bellum (aggression, crimes against peace, etc.) and focus exclusively on jus in bello violations and crimes against humanity. Consequently the ICTY has no jurisdiction over aggression and the ICC’s jurisdiction over aggression (post-Kampala) is best described as hypothetical, not actual. This has real consequences when a defendant can fall back on the argument that it was assisting a “lawful” war effort and had no intention to provide assistance to the jus in bello violations that were merely the means to achieving that war effort.
There is a second issue here and it is one that the ICTY has not sufficiently addressed. How does complicity work in the organizational context? If an organization engages in a mix of illegal and “legal” activities, when does assistance to that organization trigger liability? Such questions do not often arise in domestic criminal law, since criminal organizations (like the Mafia) are usually understood to be criminal through and through. Since they do not have a legitimate purpose, the Perisic issue does not arise. I have been searching for a good comparison in another area of domestic law where the mixed nature of an organization is relevant in this way. I haven’t found one yet.
As a final point, I take no position on the factual findings reached by the ICTY Trial Chamber. Could they have found Stanisic and Simatovic guilty even under the new standard of “specifically directed”? Indeed, isn’t there an argument here that the whole point of funding covert paramilitary units, such as Arkan’s Tigers, whose fighters were paid with per diem dispersements that came directly from Belgrade, is to facilitate ethnic cleansing of the disputed territory by conducting a reign of terror against the civilian population? If the point was simply to support a lawful military operation, why not just send the regular Serbian Army? There might be inferences to be drawn here, but apparently the ICTY Trial Chamber was unwilling to make them or felt they were not warranted based on the trial record. I will leave an assessment of that decision to the Appeals Chamber.