More Misdirection on Specific Direction

by Kevin Jon Heller

Another person who should know better has misrepresented the ICTY’s specific-direction requirement: Owen Bowcott, a legal correspondent for the Guardian. Here is the sub-headline of his new article on the impact of the Perisic judgment:

Legal experts say proof that accused ‘specifically directed’ atrocities now required after tribunal acquits Serbian commanders.

And here is the first paragraph of the article:

Generals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they “specifically directed” atrocities, say some international lawyers and senior judges.

That is not what the specific-direction requirement requires. As I have pointed out before, Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Compounding the mistake, Bowcott later quotes Judge Harhoff on the mens rea of aiding and abetting (emphasis mine):

You would think,” Harhoff speculated, “that the military establishment in leading states [such as USA and Israel] felt that the courts in practice were getting too close to the military commanders’ responsibilities … in other words: the court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.”

But military commanders are paid to ensure that crimes are not committed, Harhoff said. Had US or Israeli officials exerted any political pressure on the court? “Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.”

Judge Harhoff is fundamentally mistaken. Perisic simply clarified aiding and abetting’s actus reus by (re-)adopting the specific direction requirement; it did not in any way modify the ICTY’s long-standing adoption of knowledge as aiding and abetting’s mens rea. Indeed, the Appeals Chamber specifically noted (para. 48) that “the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.” (Alex Fielding also points out Judge Harhoff’s error here.)

Why did a knowledgeable legal correspondent like Bowcott make such a basic mistake regarding the specific-direction requirement? Unfortunately, because — despite the article’s sub-headline — he seems to have limited his research to Judge Harhoff’s letter and Ken Roth’s recent editorial in the New York Times, which also misdescribes the requirement. Bowcott quotes Roth’s editorial in the final paragraph of his article — a vivid reminder of how inaccurate information spreads.

I hope that Bowcott will correct his article. Being a journalist is difficult, particularly when one’s beat requires knowledge of a vast swath of international jurisprudence. Mistakes happen. The beauty of internet journalism, however, is that it is easily corrected. (I’m still waiting for FP.com to correct Elias Groll’s butchering of the mens rea required for espionage…)

If Bowcott issues a correction, I’ll update this post.

http://opiniojuris.org/2013/08/13/yet-more-specific-direction-misdirection/

14 Responses

  1. Absolutely correct.  Very frustrating that people keep getting this wrong.  Also, why does everyone ignore that the specific direction component appeared way back in the Tadic case?

  2. Also, I think if the prosecution were able to prove someone specifically directed others to commit a crime (rather than as KJH correctly points out, directed their assistance toward commission of a crime), they would charge it as ordering or instigating, not as aiding and abetting. It would be senseless for the AC to make the elements for one mode of liability identical to those for another, more serious mode.

  3. Marko,

    Exactly. And that’s what is so dangerous about articles like this — they are likely to convince non-experts that unless a high-ranking commander orders or instigates a crime, he cannot be convicted of it. And that’s obviously not the case.

  4. Kevin, 
    You note, “As I have pointed out before, Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.” 
    Quick question: Based on above, can NATO be held accountable for “specifically directing assistance towards the commission of crime” as committed by the anti-Gaddafi militias in Libya given that such assistance had a prima facie and “substantial effect on the crime’s commission” ?
     

  5. LO,

    It’s impossible to make a definitive judgment without knowing all the facts, but there is no question the specific-direction would make holding NATO accountable much more difficult. It would not be enough simply to show NATO provided assistance that ended up having a substantial effect on a crime committed by the rebels; you would also have to show that NATO directed the assistance toward the crime, not simply directed it toward the rebels’ war effort in general. That’s the whole point of the specific-direction requirement.

  6. @Libyan Observer…
    Although the question is not directed to me, but let me try to respond…
    Your question deals with the responsibility of NATO as an international organization, an aspect which international criminal law, as applied by ICTY, hasn’t conclusively addressed. Therefore I think  the current ICTY standard of specific direction is inapplicable.
    The closest international law evidence that addresses such question is the 2011 ILC Draft on the subject. Article 14 of such draft says:
    “Article 14
    Aid or assistance in the commission of an internationally wrongful act
    An international organization which aids or assists a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for doing so if:
    (a) the former organization does so with knowledge of the circumstances of the internationally wrongful act; and
    (b) the act would be internationally wrongful if committed by that organization.”
    Wording-wise, it seems to represent the same principle as the specific direction standard here… However, it says nothing about helping rebels-the passage only recognizes “state” and “international organization” as its subjects.
     

  7. @LO…
    My point being, if the concern behind your question is to see how far we’re at right now from being able to hold NATO responsible…
    The answer is… Still very far. We still have to face the substantive issue concerning the development of international law on IO’s responsibility…
    And we haven’t even talked about procedural issues yet  (i.e. Juridically competent forum to entertain the case, etc.)!

  8. Incidentally, Marko’s forthcoming book chapter on the Milosevic trial should be required reading for anyone interested in the boundaries of aiding and abetting.
    As to Ganda’s point, any criminal allegations would presumably focus on individual decision makers responsible for NATO’s actions rather than on NATO as an organization.

  9. Thanks Kevin and Ganda for the clarification.

  10. Response…
    The discussion above about “specific direction” is purely semantic. I agree that the specific direction requirement in Perisic does not arise in the context of a discussion of mens rea. But in practical terms, it is very difficult to imagine a situation in which an individual “specifically direct[s] his assistance towards a crime” without intending the commission of the crime. Thus in practical terms, the Appeals Chamber did adjust the mens rea requirement for aiding and abetting to one that would be required for conviction as a principal perpetrator. This is simply not what aiding and abetting has traditionally been about.

  11. Charles,

    I completely agree, but I think your comment misses an important point. We are not worried only about situations in which a person does specifically direct assistance; we are also worried about situations in which he does not — where he intended to promote only the lawful activities of an organization he knew was also engaged in unlawful activities. That is where the specific-direction requirement is useful and in my view desirable, given that the mens rea of aiding and abetting is simply knowledge. It is perfectly reasonable to argue that such people should simply not engage with such organizations. But that does not mean the specific-direction requirement does not have an independent function.

  12. Response…
    Kevin,
    Perhaps I have misunderstood your point. In my view, it will almost always be impossible to prove that an aider and abettor specifically directed his assistance towards the commission of a crime. It will be impossible to prove because it is rarely the case. Generally assistance is directed for purposes of a particular political outcome, and the aider and abettor simply does not care on way or another whether crimes are committed to get there (I would put both Perisic and Taylor in this category). You refer to a third scenario, and I agree a very possible one, in which assistance which is specifically intended to promote lawful activities also assists unlawful activities, and the aider knows that the assistance is being used for both the lawful and unlawful activities. And I agree that even in this scenario the aider should simply not engage in such activities, or that he must be required by law to take all reasonable steps to ensure that the assistance provided does not result in the unlawful activities the aider is aware of. However, it seems to me that Perisic absolves all those in the second and third scenarios, and only holds liable those providing assistance in the extremely rare first scenario.

  13. All,
     
    While I agree with Kevin’s sense that there is some degree of incongruence between these articles and the language of the Perišić Appeals Judgment, I share the concern expressed in the articles for future complicity cases and wanted to substantiate one reason why. I believe that “specific direction” contradicts important earlier precedents and is more onerous than the “purpose” standard.
     
    Take the Zyklon B case at Nuremberg. In that case, officers of a company named Tesch and Stabenow were convicted for supplying the gas Zyklon B to the S.S., knowing it would be used in Auschwitz to kill people. But this “specific direction” standard would probably lead to the opposite result.
     
    As I mention in my first blog about this topic, I do not think it possible to know what “specific direction” actually means as an aspect of the actus reus of aiding and abetting. I genuinely believe it cannot mean anything intelligible. Consequently, I do not think we should be too hard on journalists, if we can’t define the concept either.
     
    In any event, let’s assume that specific direction exonerates someone who provides assistance that can be used for dual purposes, only one of which is an international crime. (Please note, I have struggled at length to think of a way of reconciling this definition with a defensible notion of actus reus, but failed. If others have not, I would be grateful for their thoughts).
     
    Assuming, however, this is what “specific direction” it meant to mean, it leads to the acquittal of corporate officers in the Zyklon B case since officers of the company were actually supplying Zyklon B to the S.S. for two uses: (a) to exterminate insects and germs within labor and concentration camps (a massive sanitary problem); and (b) to gas Jews.
     
    Given these two uses for their merchandise, I take it that the company’s assistance was not “specifically directed” at the international crimes that took place at Auschwitz. If this reading is correct (it is hard to say, due to the inherent ambiguities I mention), this new standard not only leads to deeply counterintuitive results, it undoes much established case-law.
     
    Moreover, this new standard is even higher than “purpose”. As is well known, the ICC followed the US Model Penal Code on complicity (a strange choice, given that, to the best of my knowledge, only 2 out of 194 states do). As a result, the mental element of aiding and abetting in the ICC statute requires that the aider and abettor assisted with “purpose” to facilitate the crime.
     
    The thing is, if we modulate the facts in the Zyklon B case slightly, so that the corporate officers didn’t just know about use of the chemicals on people at Auschwitz, they positively wanted to kill these people, then “specific direction” still exonerates them. They had the purpose to destroy the people, provided the chemicals that did so, but are acquitted based on the second use for sanitary purposes. Thus “specific direction” is MORE onerous that even the “purpose” standard. To my mind, this is patently absurd.
     
    In sum, whatever these author’s infidelities to the wording of the Perišić Appeals Judgment, I think their confusion is entirely understandable, when that decision itself defies sensible reading. More broadly, I too am concerned that intuitions are being used to create an entirely new notion of complicity that has no precedence in any other system, without adequately considering the very important downstream consequences.

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