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

by Kevin Jon Heller

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 the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

The Rome Statute also adopts a mens rea of knowledge for aiding and abetting — at least in the context of organizational crimes. Here is Art. 25(3)(d) (emphasis mine):

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.

http://opiniojuris.org/2013/06/02/why-the-ictys-specifically-directed-requirement-is-justified/

16 Responses

  1. Hi Kevin,
     
    Even though I am very much opposed to the Perisic acquittal – and even more so to that of Stanisic and Simatovic, two utter villains if there ever were any – I accept your point that there is a purpose served by the specific direction standard, namely drawing a line between culpable and non-culpable assistance to a crime. This is precisely why the Appeals Chamber did what it did, looking at Libya, Sirya etc, and its reasoning will have consequences even outside the ICTY – note the pending Charles Taylor appeal. But even if we disregard the conceptual objections made by James etc, the specific direction standard is in my view manifestly incapable of drawing that line in a non-arbitrary way.
    What Perisic, and especially Stanisic and Simatovic did, was not some generalized aid to a war effort, knowing that there’s a risk that some crimes might happen. This wasn’t your Syria or Libya. Rather, they provided vast amounts of aid to an entity which had a systematic policy of committing crimes against international law. Ethnic cleansing was not just an unfortunate risk or possibility in Bosnia and Croatia, it was the whole point of the war effort. This was especially true in the initial stages of the conflict. Without the massive amounts of aid, assistance and coordination (at the very least) that was provided by the Serbian leadership to the Bosnian and Croatian Serbs, it would have been impossible to commit ethnic cleansing on the immense scale that provoked the creation of the ICTY in the first place.
    So, in short, I find the Appeals Chamber’s approach profoundly unsatisfactory. If what Stanisic and Simatovic in particular did was not criminal, then I really don’t know what is. And I am even more unsettled by thinking of what the consequences of such reasoning would have been in the Milosevic case, had that come to final judgment.
    NB: We’ve had an interesting discussion of this on EJIL Talk, and I particularly commend to readers the comment by Manuel Ventura, who in a separate post provides some very interesting details of the oral argument in Perisic: http://www.ejiltalk.org/the-limits-of-aiding-and-abetting-liability-the-icty-appeals-chamber-acquits-momcilo-perisic/
     

  2. Marko,

    I happily defer to your understanding of the ICTY cases — that’s why I specifically disclaimed any desire to affirm how the various chambers applied the specific-direction test. My goal, as you recognize, was simply to point out that there are situations in which the requirement might make sense. You are absolutely right that when an organization is primarily, if not exclusively, engaged in unlawful acts, the test seems particularly unsatisfactory.

  3. Great Post/discussion.
     
    Stare Decisis rears its ugly head!  Kevin’s diagnosis, which in principle seems correct to me, is that the ICTY wanted to tighten up the aiding and abetting standard so that it doesn’t capture non-culpable defendants.  The reason that they couldn’t make amendments with the mens rea standard is because they are stuck with the precedents, which Kevin rightly quotes above, which state that aiding and abetting requires only knowledge.  Not wanting to disturb this precedent, they tighten up the standard by tinkering with the actus reus, and imposing what sounds like a mens rea requirement on the actus reus side.
     
    Now, I may be partial to the common law approach, but wouldn’t it be simpler, and more transparent, if they had simply changed the aiding and abetting mens rea requirement to purpose, as many U.S. jurisdictions require, and then we could have a lower form of liability (or a separate offense) for criminal facilitation (which requires only knowledge but which triggers a much lower sentence).  Of course, I suppose they are stuck with the raw materials of the ICTY Statute, but I suspect that my proposed solution might be consistent with the ICTY Statute.
     

  4. Jens,

    Not surprisingly, I wholeheartedly agree.

  5. Dear Kevin,
     
    Thanks for the post. However, your analysis has a weakness, in my view: the ICTY AC in Perisic shamelessly modified its own legal standard on the applicable actus reus, since specific direction was found not to be an element of the actus reus of aiding and abetting in the previous Appeal Judgement in Mrksic (para. 159). 
    So, they might as well chosen to modify the mens rea, at least it would not have created the problems that Marko is referring to. They could have done it for cogent reasons as the ICTY Appeals Chamber has already done twice. Or, at the very least, they could have better clarified when specific direction should apply and what the test means in practice – is it something to be used when the perpetrator is far away from the aider and abettor? In other words, rather than a standard, is specific direction an element guiding the judges in making inferences when looking at circumstantial evidence (since these kinds of findings are always based on inferences)?
     

  6. Guy,

    It’s a bit chicken and the egg. Mrksic AJ might have rejected the specific-direction requirement, but Tadic AJ and Vasiljevic AJ both adopted it. So in a sense Perisic is a return to the Appeals Chamber’s original position. At least with regard to mens rea, the Appeals Chamber has always had a consistent position. So although changing the mens rea might have been analytically more satisfying, it also would also have been jurisprudentially problematic.

  7. Good post Kevin – and thanks Marko for alluding to my Perišić/Taylor post over at Spreading the Jam. I should point out to readers that the issue of specific direction for aiding and abetting has already been (re)argued before the ICTY Appeals Chamber in the Šainović et al. case back in March. The transcript of the oral argument can be found here:  http://www.icty.org/x/cases/milutinovic/trans/en/130313IT.htm (pp. 440-461).
    There, ICTY OTP Appeals Division made 4 arguments against specific direction: 1) it is not found in customary international law; 2) the Perišić appeal judgment incorrectly interpreted ICTY jurisprudence; 3) a specific direction element introduces uncertainties and difficulties in practice; and 4) it undermines respect for IHL and is against the interests of international justice. What makes the arguments interesting is that the OTP took no prisoners in making their submissions (no pun intended). Quite fun to read!

  8. I agree with Manuel. So far, I have seen nothing said in favour of this concept by way of reference to actual state practice and opinio juris. Correct me if I’m wrong, but the whole “specific direction” criterion only goes back as far as Tadic 1999 decision, and as I’ve observed before, that decision is about JCE doctrine – what it says about aiding and abetting is little more than an appendix with no analysis of customary law to support it. As far as I can tell, it is simply a limitation conjured out of thin air by the Appeals Chamber for the wholly teleological reasons discussed above.

  9. I am somewhat surprised by some of the comments to Kevin’s post.  One of the key checks on judicial overreach is that the law will (theoretically) be applied to the powerful as well as powerless.  If the  aiding and abetting standard is so open-ended that it criminalizes conduct that many nations, and not just “rogue” nations, frequently engage in, should a court simply ignore this because defendants from the United States, Britain, etc. are unlikely to be charged with aiding and abetting war crimes? One might not like the solution crafted by the Appeals Chamber but to suggest that teleological considerations should not factor into a international criminal trial strikes me as unrealistic and perhaps even undesirable.   
     

  10. I think the methodological points raised in the comments are very interesting — and very difficult. As Jens points out in the post to which I link, the issue of aiding and abetting organizations engaged in both lawful and unlawful acts rarely arises at the national level, so there is unlikely to be relevant opinio juris and state practice. Perhaps that means the ICTY is required to apply “regular” aiding and abetting principles, but I don’t think it’s that simple. After all, the specific-direction requirement does not expand criminal responsibility, which would create retroactivity problems; it narrows it. Surely, if judicial creativity (or gap-filling) is at all defensible, it is defensible in the context of doctrines that protect defendants instead of harm them.

  11. Kevin,
    I’m not so sure that the scenario of an organisation engaged in lawful and unlawful activities is so rare as Jens (on his blog) and you (implicitly) suggest. I can name 2 very recent examples:
    1) Liberty Financial: a money transfer service that catered to unlawful as well as lawful transactions (http://www.nytimes.com/2013/05/29/nyregion/liberty-reserve-operators-accused-of-money-laundering.html?pagewanted=all&_r=1&)
    2) Megaupload: an online storage service that stored and shared legal as well as illegal content (material protected by copyright law) (http://www.nytimes.com/2012/01/20/technology/indictment-charges-megaupload-site-with-piracy.html)
    Another example that comes to mind are the various Miami banks of the 1970s-1980s that popped up to essentially launder the money of the local drug dealer market but which also dealt with perfectly legitimate clients.
    True, the charges (for the first two cases at least) are not aiding and abetting, but they are nonetheless analogous to the scenario we are discussing here. I wonder whether investors of such enterprises could be charged under domestic law (or maybe have already been in other cases?) with aiding and abetting unlawful activities….

  12. I don’t argue with the proposition that teleological consideration should “factor” into an international criminal trial. But, to be clear, I do not think that be a source of law, or override the law as a court finds it.
    To treat them otherwise cannot, in my view, be more or less justified depending on which side is apparently favoured. Perhaps in some countries where war crimes are tried by military jury, there remains an overriding prerogative of mercy (I am conjecturing), but that is not my understanding of how the ICTY functions. If it is thought that what Mr Perisic did was not too terribly bad, that could properly have been reflected in exercising the sentencing discretion.
    Finally, I don’t believe it is necessary to put forward any additional rules to meet the public policy concerns raised – the mens rea element is sufficient. With respect, I do not agree that 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
    Or that
    If they are aware of the unlawful acts, they cannot provide the organization with any assistance that might end up facilitating them
    As Ambos explains in his recent Treatise on ICL (452), an accomplice actually has to be aware that their assistance actually has or will have a direct and substantial effect on commission of the crime charged. That standard is, in my view, sufficient to exclude criminal responsibility in the situations quoted above, where the person giving assistance is really no more than reckless. Perhaps Prof Ambos will have to amend his Treatise, because ‘specific direction’ barely garners a mention, which says a lot about the Appeals Chamber’s view that it has been applied consistently (for all of 14 years).
    Although state practice is difficult to find, it seems to me that Ambos’ summary is fully consonant with the way that assistance to organisations engaged in lawful and unlawful activities was dealt with in the Nuremberg Flick Case - what mattered was not that assistance was provided directly to Himmler’s criminal programs, but the knowledge that those programs would (as distinct from ‘might’) be the benefactors of the funds put at Himmler’s disposal.
    Apart from, there are also the British military cases, in which it was often said that a person could be ‘concerned in’ a violation of LoW if there was actual ‘participation in the act’ (aiding) or failing that, ‘acting in concert’ (common purpose). That, it seems to me, is where the sparse comments in Tadic come from – but how they translate into his rule about ‘specific direction’ I do not know.

  13. Perhaps a notion of specific knowledge rather than intent serves to both avoid an unlimited responsibility of those who innocently contribute to lawful operations of actors while at the same time sanctioning those contributions made in the knowledge of their possible use to perpetrate violations. This would be consistent with international criminal law norms and the practical needs

  14. Response…
    Very dismaying is ¶2309 in the Stanisic/Simatovic Trial Chamber decision:”The majority, Judge Picard dissenting, considers Stanisic’s reference to killings and his remark that “we’ll exterminate them completely” to be too vague to be construed as support for the allegation that Stanisic shared the intent to further the alleged common criminal purpose.”One wants to ask which part of “we’ll exterminate them completely” didn’t the TC majority understand?

  15. If taken to the logical conclusion, an expansive view of aid to organisations committing both legal and illegal acts would also criminalise a large portion of the actions of the Red Cross. After all, medical care of the wounded and non-combatants can be construed as aid to an organisation engaging in illegal acts: if such humanitarian help would not be given, the organisation in question would need to use more resources on these tasks. Yet, it is clear that humanitarian concerns must override any questions of aiding and abetting.
    In addition, if taken to the logical extreme, any country with military cooperation with the USA during the unfolding of the prisoner torture scandal would have been committing aiding and abetting: helping the US Army in some legal task, while it was clear from the media reporting that some other parts of the said organisation were still engaging in torture of prisoners. This would put some officers in most militaries of the world in the risk of prosecution.

  16. While I am completely unfamiliar with the Stanisic and Simatovic case, I think it’s unfair to the Trial Chamber majority to read the “exterminate” quote in paragraph 2309 of the trial judgment out of context. The preceding paragraphs give the quote quite a different flavour.

    Also, the Trial Judges had to respect the precedents of the Appeals Chamber. The two Judges of the majority also sat on the Gotovina et al. trial where they were faced with a prima facie incriminating statement made by General Gotovina. In the oral summary of its judgment, the Trial Chamber in that case stated:

    “In assessing whether there was a joint criminal enterprise, the Chamber carefully considered the discussions at the Brioni meeting of 31 July 1995, a few days before the launching of Operation Storm. At this meeting President Tudjman met with high-ranking military officials to discuss the military operation. The Chamber found that the participants at this meeting also discussed the importance of the Krajina Serbs leaving as a result and part of the imminent attack. Responding to a statement by President Tudjman to this effect, Mr Gotovina stated [and I quote] ‘A large number of civilians are already evacuating Knin and heading towards Banja Luka and Belgrade. That means that if we continue this pressure, probably for some time to come, there won’t be so many civilians just those who have to stay, who have no possibility of leaving.’ [end of quote]”.

    This quote came from the so-called “Brioni Transcript”. The Appeals Chamber in the Gotovina case found that “it was not reasonable to find that the only possible interpretation of the Brioni Transcript involved a JCE to forcibly deport Serb civilians” (paragraph 93 of the appeal judgment). The Appeals Chamber set a demanding precedent for interpreting such prima facie incriminating statements.

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