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Tuesday, January 28, 2014

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.

Thursday, January 23, 2014

The Syria Report

A British law firm has released a new report detailing horrific violations of international humanitarian law that it attributes to the Syria regime. The report was released by the Carter-Ruck Firm, whose work was financed by the Government of Qatar.  The evidence in the report, mostly photographic, was smuggled out of Syria by a government defector.

The law firm employed three well-known international criminal lawyers to research and author the report:

  1. David Crane is the former chief prosecutor of the Special Court for Sierra Leone, and is now a law professor at Syracuse University in Syracuse, NY.  Crane was responsible for the indictment of Liberian President Charles Taylor, although the trial was conducted after Crane left the tribunal.  
  2. Geoffrey Nice worked for the Office of the Prosecutor at the ICTY.  In that capacity he served as trial attorney in the prosecution of Slobodan Milosevic.  He generated substantial controversy when he openly criticized his former boss, Chief Prosecutor Carla del Ponte, for her handling of confidential Serbian government documents that were made available to ICTY prosecutors preparing the Milosevic case but which were shielded from other cases, including the Bosnia v. Serbia genocide case heard by the International Court of Justice.  
  3. The third author of the report is lawyer Desmond de Silva, another former chief prosecutor at the Special Court for Sierra Leone. 


Apparently, the law firm selected these individuals as authors because they wanted individuals who could personally attest that this evidence was of the type and magnitude that could be presented to an international tribunal that could serve as the basis for prosecuting top Syrian officials.

The material in the report was provided by an individual known by the pseudonym “Caesar”.  The report itself does not include the bulk of the photographs – only a small number are included as examples so that the readers can get a sense of them.  However, the authors of the report reviewed the photographs in conjunction with forensic specialists who examined them and rendered evidentiary conclusions about them.

Specifically, the report concludes that the photographs represent evidence of systematic torture on a mass scale, including starvation as a means of torture.  According to the forensic examiners, a large number of the photographs show bodies that are severely emaciated.  A significant number of bodies also showed ligature marks consistent with strangulation.  Although wartime injuries, even those arising from lawful killings, are likely to be gruesome in nature, the report concludes that the type of injuries seen in the photographs suggest torture during interrogation in a way that could constitute war crimes and crimes against humanity.

Is there direct evidence that the crimes in question were committed by Syria government officials?  The source, Caesar, did not witness any torture nor did he witness the killings of the individuals.  He simply photographed the bodies after the individuals were already deceased.  However, the report infers that the large number of bodies in the position of Syria officials is only possible if the government was the agent responsible for the crimes. 

Why would the Syrian government order the creation of the photographs?  In a world of international scrutiny, this makes little sense.  The report provides a speculative answer.  First, perhaps the photographs were required as evidence in order to allow doctors to issue false death certificates that would conceal the true nature of the deaths. Second, perhaps the photographs were created in order to document, to those higher in the chain of command, that their orders regarding the detention and torture program were in fact carried out. 

What happens next?  It is unlikely that Syria will be referred by the Security Council to the International Criminal Court, since Russia and China would likely veto such a move, at least while the conflict is on-going.  An after-the-war referral might be a different situation, and perhaps Russia and China could be convinced to abstain in the same manner that the US abstained from the Darfur referral.

Perhaps the more likely situation is for the rebels to gain enough territorial control that the world community (minus China and Russia) feels comfortable recognizing the rebels as the legitimate government of Syria.  At that point, the rebels-qua-government could attempt to ratify the Rome Statute and self-refer the situation to the ICC Prosecutor for investigation, although there would inevitably be complex questions regarding whether this new, hypothetical Syrian government could grant the court jurisdiction over crimes committed before Syria ratified the Statute. 

However, it seems clear that a new Syrian government could grant the court retroactive jurisdiction by making an official declaration pursuant to articles 11(2) and 12(3) of the Rome Statute.