Seriously, Read the Damn Perisic Judgment

by Kevin Jon Heller

I get that many people don’t like the specific-direction requirement. I understand the anger that the Perisic, Stanisic, and Simatovic acquittals have generated. I’ve even explained why, though I think the Appeals Chamber was correct to reinvigorate the specific-direction requirement in Perisic, I would have preferred a different doctrinal mechanism.

But I am really, really tired of people — journalists, human-rights activists, scholars — who cannot be bothered to actually read the Perisic judgment. I’ve blogged about basic errors before. (See here and here.) But this two-part series (here and here) on Judge Harhoff takes the cake. Consider the following quotes from the articles (emphasis mine):

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime. [Note: Stewart understands the requirement. The journalist here doesn't understand Stewart.]

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone’s civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority’s conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

Six quotes — each completely and utterly wrong. As I have pointed out before (many times…),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. Ordering and aiding and abetting are completely different modes of participation. 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.

Again, I have no problem with criticizing the specific-direction requirement. But people need to criticize what the Appeals Chamber actually held in Perisic. If you can’t be bothered to read the judgment, you have no business writing about it.

http://opiniojuris.org/2013/12/06/seriously-read-damn-perisic-opinion/

7 Responses

  1. In ordinary parlance, ‘specific direction’ would generally be taken to mean an order or instruction. If the Tribunal is going to use such poorly worded jargon, it can expect to have its decisions misinterpreted by the law public.

  2. Law is not ordinary parlance. Would you say the same thing about a journalist who didn’t bother to learn a medical term, or a chemical term, or a physics term?

  3. No I wouldn’t. Although many legal (and medical and scientific) terms prima facie have a technical meaning, that is not obvious in the case of ‘specifically direct’, for the reasons given.
    Nor does the fact that ‘[l]aw is not ordinary parlance’ grant some licence to dish out jurisprudence which is incomprehensible to the layperson. Part and parcel of criminal trials, at least in common law countries, is reducing complex facts and concepts to language that can be understood by the non-legally trained. International courts are free from the discipline that a jury imposes on the needless use of jargon, and it shows.
     

  4. Agree with Rob.  Moreover, customary international law does NOT require “substantial effect.” 

  5. With tribunal judgments into 4 digits page-wise, no wonder less and less people bother to navigate.

  6. Response…
    Mixing up mens rea and actus reus requirements, as the Perisic Chamber, not very helpful either.
    I also consider that Jon’s comments have gone beyond snark into the land of vitriol. Inappropriate for one who argued that Perisic was innocent and Taylor guilty although the manner in which each aided and abetted the principle perpetrators was exactly the same.

  7. Response…
    Mixing up mens rea and actus reus requirements, as the Perisic Chamber, not very helpful either.
    I also consider that Kevin’s comments have gone beyond snark into the land of vitriol. Inappropriate for one who argued that Perisic was innocent and Taylor guilty although the manner in which each aided and abetted the principle perpetrators was exactly the same.

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