Specific Direction Again

As already noted by others (including Kevin Heller, Marko Milanovic, and Dov Jacobs), the ICTY Appeals Chamber has overturned the acquittals of Jovica Stanisic and Franko Simatovic and remanded their case back to the Trial Chamber for the holding of a second trial. I want to discuss two issues pertaining to this decision.

The first pertains to the Specific Direction requirement for remote aiding and abetting of an organization that commits international crimes (yes, Specific Direction, again). There has been a long-standing dispute within the ICTY over aiding and abetting liability and whether Specific Direction is required by customary international law. The Perisic case said it was required, but then a differently composed Appeals Chamber disagreed in Sainovic. Now, finally, the Appeals Chamber has stated once again that the Specific Direction requirement is illusory (and hence the do-over for the Stanisic and Simatovic trial).

The unfortunate thing about the Appeals Chamber decision from Tuesday is how little we get in terms of actual legal rationale for the decision. Although the decision is almost 100 pages, only a few pages deal with specific direction. Of those, most are a summary of the positions of the parties in the case regarding specific direction. As for the court’s analysis, it is limited to one paragraph. And the argument in the paragraph itself does not touch the substance of the legal issue at all, and merely states that a previous appeals chamber had rejected the specific direction requirement, so the requirement does not apply. There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings, and even more distressingly no discussion of the underlying merits of the specific direction question, i.e. actual reasons why specific direction is not a part of the customary international law of aiding and abetting. All of this is left to the dissenting opinions. The court spends almost as much time and space devoted to the pressing legal issue of whether the defendant’s arguments should be rejected because the prosecution complained that the defendants failed to submit photocopies of the law review articles that they cited in their brief.

These facts highlight something that Heller, Milanovic, and Jacobs have already noted: The result was preordained from the beginning, given the composition of the Appeals Chamber and the number of judges who had previously (in the minority) opined that specific direction was not a formal requirement of customary international law. Incidentally, my complaint here is more about the lack of substantive engagement with the underlying issue, and not the result. Although I continue to think about the issue, I have been somewhat skeptical of specific direction for two reasons. First, the requirement seems to me a heightened mens rea standard akin to purpose, and not an actus reus requirement. Second, even if it is a heightened mens rea standard, it seems to me to be a house of cards built upon a strained reading of three words that were originally drafted, as dicta, in the original Tadic opinion, and which do not support the specific direction requirement. That being said, I do concede that there is evidence on both sides of the knowledge vs. purpose debate for aiding and betting under international law.

The second issue is that this case highlights, once again, a substantial defect in the ICTY’s procedural framework: the lack of an en banc hearing mechanism for the Appeals Chamber. Either all judges of the Appeals Chamber should hear all appeals (rather than use panels), or if panels are used, there should be an opportunity, in rare circumstances, to petition the Appeals Chamber for a second appeal to the entire Appeals Chamber sitting en banc. This would ensure that the decisions of the case are not based on the vagaries of the panel’s composition, which seems both arbitrary and unstable.  Future ad hoc tribunals (if there are any), should avoid this structural mechanism.

One final point: Stanisic and Simatovic attended the hearing in person, and therefore were detained and placed in custody in The Hague. I find this surprising (their voluntary appearance, not their detention). Anyone have any information on this decision? If they had stayed in Serbia, would they have voluntarily complied with the new arrest order or would they have run?  Would the government in Serbia have been willing and/or able to arrest them quickly if necessary?  Of course, these are all hypothetical and somewhat moot questions at this point.