The Specific-Direction Smackdown

On Thursday, an ICTY Appeals Chamber released a decision rejecting the specific-direction requirement for aiding and abetting, which until last week was binding precedent at the tribunal. No more. 

This jurisprudential controversy might be the most heated to have hit the tribunal during its entire tenure.  Judges are lining up on each side of the issue.  And one judge (Harhoff) wrote an email to his colleagues last year expressing displeasure with the specific direction standard, resulting in his ultimate disqualification on account of his alleged bias against the defendant.

The specific-direction standard applies in aiding and abetting cases where the defendants are remote officials rendering assistance to groups or organizations engaged in a mix of lawful and unlawful activities.  In February 2013, a different Appeals Chamber in Perišić quashed the defendant’s conviction, arguing that the defendant did not specifically direct his assistance to the illegal activities of the organization.  Perišić was a military official with the Yugoslav army, charged with aiding and abetting for assistance provided to Bosnia Serbs forces who committed atrocities in Bosnia and Croatia.  According to the Appeals Chamber, Perišić could not be convicted of aiding and abetting because there was insufficient proof that Perišić specifically channeled his assistance to the illegal activities of the Bosnian Serb militias.  Instead, he provided general assistance to the groups – assistance that he claimed he had every right to do because he was simply supporting their war effort.

In Stanišić and Simatović, an ICTY Trial Chamber followed the Perišić precedent and acquitted two Serbian intelligence officials on largely the same theory, arguing that there was insufficient proof that the defendants had specifically directed their assistance to the illegal activities of the group, as opposed to their lawful war effort.

Now, this entire line of precedent is called into question with the recent decision last week in Šainović et al., which explicitly declined to follow the Perišić line of cases and therefore concluded that the specific direction standard was flat-out wrong.  The court noted that the Special Court for Sierra Leone rejected the specific direction requirement in its Charles Taylor Judgement.  It also noted (correctly in my view), that the specific direction requirement could not be based on the Tadić judgment (one of the first trials at the ICTY).  First, Tadić was convicted of JCE, not aiding and abetting, so the ICTY’s discussion of aiding and abetting in Tadić was mere dicta.  More importantly (and this is myself speaking now), the Tadić judgment cited no legal authority for the proposition that aiding and abetting requires specific direction.  And finally, it seems just as plausible to me that the stray reference to “specific direction” in Tadić was actually a reference to a heightened mens rea requirement for aiding and abetting.

This sets up a situation where the case law of the ICTY is fragmented and uncertain. One Appeals Chamber in Perišić holds that the specific direction is required, while a different Appeals Chamber in Šainović holds that specific direction is not required.  And there is no procedural mechanism for en banc review of all judges on the ICTY Appeals Chamber.  It would seem that future cases dealing with specific direction will hinge entirely on which Appeals Chamber judges are selected to sit on the case.  That’s much too contingent for my taste.

What’s the solution to the problem?  Should the judges at the ICTY continue their specific-direction smackdown, dueling back and forth with each new case that presents the issue?  I don’t like that result either.  All of this points to a fundamental procedural defect of the ICTY: the inability to seek en banc review of the entire Appeals Chamber.  In fact, I’m surprised this situation has not arisen more often during the history of the ICTY. 

In the past, some scholars have argued that there needs to be a super-appellate body in international criminal law with jurisdiction to hear appeals from multiple tribunals to resolve conflicting holdings on matters of law.  I think that is unnecessary, and the fix with regard to specific direction is far more modest.  Everything would be solved if there was simply a provision to allow en banc review of an Appeals Chamber judgment on matters of specific questions of law.  The full Appeals Chamber could then hold a hearing on that question, seek additional briefing, and issue an en banc judgment. Every judge on the Appeals Chamber should get one vote to decide the fate of specific direction.

Without that procedural mechanism, we are left with the current state of affairs: radical uncertainty regarding the proper scope of aiding and abetting under customary international law.