My Talk in London Defending the Specific-Direction Requirement

by Kevin Jon Heller

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY’s recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi’s ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House’s Elizabeth Wilmshurst was the moderator. I don’t believe the symposium was recorded, so I thought I would post the detailed outline of my remarks. My talk was, not surprisingly, a defence of Perisic‘s specific-direction requirement; it developed and systematized the thoughts I’ve articulated in a series of posts here on Opinio Juris. I was particularly keen to explain why criticizing the requirement for lacking a foundation in customary international law — as the SCSL did in Taylor — fundamentally misunderstands the difference between criminal-law doctrines that expand criminal responsibility (which must have a customary foundation, because of the nullum crimen principle) and those that narrow it (which do not have to have a customary foundation, because they do not implicate nullem crimen).

The outline of my remarks can be found here. As always, reader comments most welcome!

4 Responses

  1. Dear Kevin

    Many thanks for your post. I was wondering whether you could expand on the following point a little:

    “the ICTY does not need to find a customary basis for a doctrine that narrows, rather than expands, a D’s criminal responsibility. […] Now, to be clear, the irrelevance of custom does not mean that the majority should have adopted the requirement. It simply means that the issue is one of criminal-law theory, not customary international law.”

    What is the authority for this argument? Does the doctrine not need to find a basis in one of the sources of ICL? If your argument is correct, why have other academics such as James Stewart taken the time to analyse whether the doctrine has a customary basis?

    Thanks in advance.

  2. B,

    Step back for a minute from judicial decision-making. Let’s assume it’s 1993, the Security Council is drafting the ICTY Statute, and crimes against humanity still require a nexus to armed conflict under customary international law. I hope we would agree that although the SC could criminalize peacetime crimes against humanity prospectively, it could not criminalize them retrospectively — doing so would violate the nullum crimen principle, because it would expand criminal responsibility beyond customary international law. Such retrospective application of nexus-less crimes against humanity would hold individuals responsible for acts that were not criminal at the time they were committed. 

    Now let’s turn it around. Assume it’s 1993 again and customary international law has, in fact, evolved to the point where crimes against humanity can be committed during peacetime. If the ICTY nevertheless required such crimes to have a nexus to armed conflict, would you demand to know the customary basis for that rule? I hope not — the SC might be making a bad choice, but it would not be violating the nullum crimen principle. It would simply be failing to criminalize all of the acts customary international law permitted it to criminalize.

    I think the situation is exactly the same for the judges at the ICTY, which the SC has instructed to respect the nullum crimen principle by only adopting doctrines that are indisputably part of customary international law. When the judges adopt a doctrine that expands criminal responsibility beyond custom, they run afoul of the nullum crimen principle — they hold individuals responsible for acts that were not criminal at the time they were committed. But when the judges adopt a doctrine that narrows criminal responsibility beyond custom — when, in other words, they fail to criminalize everything custom permits them to criminalize — they do not run afoul of nullum crimen. So although they may be making a bad choice, they cannot be criticized for adopting a doctrine that lacks a customary basis. Again, the SC imposed the customary international law restriction for one reason, and one reason only: to prevent violations of the nullum crimen principle.

    To be sure, the SC could have instructed the judges to criminalize every act capable of being criminalized under customary international law, regardless of reason. It could have, in other words, made clear that it did not want the judges to limit criminal responsibility beyond custom in any way, even if they thought doing so was required by fairness or due process or anything else. In that case, the judges would have to find a customary basis for every doctrine they adopt, responsibility-expanding or responsibility-narrowing. But, again, that is not what the SC did.

    All of this is relevant to the specific-direction requirement. There is nothing wrong with criticizing that requirement from the standpoint of criminal-law theory. But it is fundamentally mistaken to criticize the requirement for lacking a basis in customary international law, because it narrows, not expands, criminal responsibility beyond custom. The requirement thus does not run afoul of the nullum crimen principle or the SC’s instruction to the judges.

    As for James Stewart — in my view, he simply does not understand the role that custom plays at the ICTY.


  3. Many thanks for your response.

    So, according to your argument, in theory at least, judges at the ICTY can determine the ambit of a mode of liability under customary international law and are then free to modify it in any way providing that such modification narrows criminal responsibility.

    Is there no countervailing consideration or principle which places a limit on such absolute judicial discretion to narrow responsibility? What if the judges at the ICTY had given extremely restrictive interpretations to all modes of liability such that all defendants escaped criminal liability, would this have been permissible and in line with the intention of the Security Council?

    Thanks again in advance.

  4. B,

    Yes, exactly — as a matter of custom. It is certainly possible that the judges could frustrate the will of the Security Council by adopting overly narrow interpretations of basic principles of ICL. In that case, the SC would have an obvious response: modify the ICTY Statute. As long as it stayed within custom, there would be no problem with such modifications. The SC could even do what I acknowledged above: impose a customary international law requirement on all principles, custom-expanding or custom-narrowing. It obviously hasn’t, although the ICTY has often adopted principles that narrow custom. And that’s probably because the judges have not adopted the kind of extremely restrictive interpretations you mention.

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