More SCSL Hypocrisy Concerning Customary International Law

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber’s judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR) despite the principle having no basis in custom whatsoever.

In this brief post, I want to note that the SCSL’s hypocrisy toward custom extends to its analysis of Taylor’s disproportionate sentence. The judgment focuses on the principle that conviction as an accessory “generally warrants a lesser sentence than that to be imposed for more direct forms of participation.” That principle has been consistently applied by the ICTY and ICTR, leading to significant differences in sentences at both tribunals. (I mention the relevant studies in my article.) It was also honored, though clearly in the breach, by the Trial Chamber in Taylor. The Appeals Chamber, however, categorically rejects the principle — once again, as with specific direction, on the ground that it lacks an adequate foundation in customary international law:

667. The Appeals Chamber has considered the ICTY/ICTR jurisprudence cited by the Defence and adopted by the Trial Chamber, which is based on the holding of the ICTY Appeals Chamber in Vasiljević. This Appeals Chamber does not consider that holding persuasive. A number of the national laws relied on in the Vasiljević Appeal Judgment do not support the principle that aiding and abetting as a form of criminal participation warrants a lesser punishment, but only establish that an accused‘s minor participation in the commission of the crime may be a mitigating circumstance…. This Appeals Chamber notes that the Vasiljević Appeals Chamber did not declare its holding reflective of customary international law, nor did it pronounce it a general principle of law.

The Appeals Chamber is probably correct that the principle lacks an adequate customary foundation. Its analysis of whether it qualifies as a general principle of criminal law, however, is more questionable. The Appeals Chamber dismisses that possibility by citing common-law systems that do not formally distinguish between principals and accessories, making both potentially subject to the same punishment. (Most civil-law systems do formally distinguish between them in terms of sentence.) But the Appeals Chamber studiously avoids inquiring whether, in practice, common-law systems nevertheless generally sentence accessories more leniently than principals. My guess is that nearly all of them do.

My point here, though, is not to defend the principal/accessory distinction as a general principle of criminal law. Instead, it’s to note that, in terms of custom, the Appeals Chamber’s approach to sentencing is no less hypocritical than its approach to substantive criminal law. Contrast what it says about the principal/accessory distinction with what it says about extraterritoriality as an aggravating factor, which the defence (correctly) alleged in its appeal brief lacks any foundation whatsoever in customary international law (and has never been applied by any international tribunal):

The Appeals Chamber considers that it was unnecessary for the Trial Chamber to refer to public international law in order to take into consideration the extraterritorial nature and consequences of Taylor‘s acts and conduct. The Appeals Chamber accepts the Trial Chamber‘s finding that the extraterritorial nature and consequences of Taylor‘s acts and conduct are directly related to Taylor and the gravity of his culpable conduct, justifying holding him responsible.

Shorter Appeals Chamber: an aggravating factor that increases Taylor’s sentence does not have to have a customary foundation, as long as it’s “directly related” to his culpability, but a sentencing principle that decreases Taylor’s sentence does have to have a customary foundation, even if it is also “directly related” to his culpability.

Such is the Appeals Chamber’s understanding of customary international law. It’s only important when a principle might work in the defendant’s favor. As long as a principle harms the defendant, custom is irrelevant.

Welcome to nullum crimen sine lege through the SCSL looking glass.