Why the ICTY’s “Specifically Directed” Requirement Is Justified

A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization, the prosecution must prove that the defendant “specifically directed” his assistance to the organization’s criminal activities; proof that he provided general assistance to the organization is not enough. That “specific direction” requirement doomed the case against Perišić, because the Appeals Chamber concluded that the prosecution has not proved that his assistance to the VRS was specifically directed toward the VRS’s criminal activities.

The “specific direction” requirement has now doomed another ICTY prosecution. Just yesterday, an ICTY Trial Chamber acquitted Jovica Stanišić and Franko Simatović, the former Chief of the Serbian State Security Service and a former employee of the Serbian State Security Service, respectively, and ordered their immediate release. With regard to allegations that the two defendants aided and abetted international crimes committed by units of the Serbian State Security Service, the Trial Chamber concluded that although Stanišić and Simatović had provided assistance to the units in question, the prosecution had failed to prove that their assistance was specifically directed towards those units’ crimes.

Various scholars criticized the “specific direction” requirement following Perišić’s acquittal, most notably — and very intelligently — James Stewart on this blog (see here and here). Jens Ohlin has also just written an excellent post on the requirement in response to the acquittals of Stanišić and Simatović, but he does not specifically argue that the Appeals Chamber should not have adopted it.

Although I do not necessarily endorse how the Chamber applied the requirement in Perišić and Stanišić & Simatović, I believe that the ICTY Appeals Chamber was absolutely correct to endorse the “specific direction” requirement in the context of organizational criminality. I am sympathetic to Stewart’s general point, which to some degree is seconded by Ohlin: whether a defendant specifically directed his assistance toward the commission of an organization’s criminal acts — as opposed to the organization’s activities (criminal and non-criminal) in general — seems relevant to the mens rea of aiding and abetting, not to its actus reus. Indeed, if aiding and abetting required the defendant to intend to facilitate an organization’s criminal acts, specific direction of assistance toward those crimes could be considered as part of mens rea, not actus reus: proof of specific direction would then be powerful, perhaps even dispositive, evidence that the defendant acted with the necessary intent.

The problem is that the mens rea of aiding and abetting does not require proof that the defendant intended to facilitate an organization’s criminal acts. At the ICTY, the Appeals Chamber specifically held in Vasiljević that — in contrast to JCE — the mens rea of aiding and abetting is knowledge, not intent:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…

(d)     In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i)     Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii)     Be made in the knowledge of the intention of the group to commit the crime.

At both the ICTY and the ICC, in short, a defendant acts with the mens rea required for aiding and abetting as long as he provides assistance to an organization knowing that it is committing international crimes. It does not matter whether the organization was also engaged in lawful acts. It does not matter whether the defendant did not specifically direct his assistance to the organization’s unlawful acts. It does not matter whether he did everything he could to prevent his assistance from facilitating the organization’s unlawful acts. The mere fact of knowing assistance is enough.

In the absence of the specific-direction requirement, the expansive mens rea of aiding and abetting puts individuals who interact with organizations engaged in both lawful and unlawful acts in an impossible position. If they are aware of the unlawful acts, they cannot provide the organization with any assistance that might end up facilitating them — even if they do not intend to facilitate those acts, and even if they do everything in their power to prevent their facilitation. Differently put, unless they are willing to take the risk that their assistance to the organization will end up inadvertantly assisting the organization’s unlawful acts, they cannot provide the organization with any assistance at all.

It is tempting, of course, to respond by shrugging one’s shoulders and saying “so what”? Why should individuals be permitted to provide assistance, however innocently, to an organization that they know is engaged in both lawful and unlawful acts? Don’t we want an aiding and abetting doctrine that forces those individuals to withhold their assistance?

In the context of actions committed by Serbian and Bosnian-Serb organizations during the war in the Balkans, probably so. But before we reject the specific-direction requirement entirely, think about recent reports that the British government is strongly considering providing weapons to rebels in Syria — and that the CIA has already facilitated weapons shipments to the rebels from Jordan, Saudi Arabia, and Qatar. There is no question that that much of the fighting being waged by rebel groups in Syria is perfectly lawful under international humanitarian law. But there is also no question — as the Commission of Inquiry on Syria and Human Rights Watch have richly documented — that rebel groups have also committed numerous war crimes and crimes against humanity. Unless they avoid reading every major newspaper in the world, both the British government and the CIA are fully aware that rebel groups in Syria are engaged in both lawful and unlawful activities. As a result, insofar as the British government and the CIA nevertheless provide those groups with weapons, they are legally responsible for aiding and abetting any international crimes that their assistance ends up facilitating — even if they do everything in their power to assist only lawful rebel actions.

Unless, of course, the actus reus of aiding and abetting requires proof that the defendant specifically directed his assistance to an organization’s unlawful acts. If that is the case, as long as the British government and the CIA do everything they can to ensure that their provision of weapons facilitate only lawful rebel actions, they cannot be held legally responsible for any international crimes committed, despite their best efforts, with those weapons.

Let me be clear: I am not in favor of providing Syrian rebels with weapons. But I also do not believe that providing assistance to an organization — whether a rebel group or a state’s military — should be off limits simply because the assistor knows that the organization does not have completely clean hands. In my view, as long as aiding and abetting’s mens rea requires no more than knowledge, the specific-direction requirement is a necessary and useful element of aiding and abetting’s actus reus.