Specific Direction Again

by Jens David Ohlin

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.

http://opiniojuris.org/2015/12/17/specific-direction-again/

9 Responses

  1. Dear Jens,

    Two things: you write “There is no analysis of how to understand precedent when there are contrary Appeals Chamber holdings” – yes, but at the time of the trial judgement there were no contrary AC holdings. Sainovic came later. So, the really interesting question is: how can it possibly be an error if the TC follows as per Aleksovski the law at the time (ie Perisic)?

    On your question about presence of S&S – I think there were arrest warrants issued a few days prior to the Judgement, see ICTY website

  2. One question about jurisdiction: Clearly the MICT is competent for the retrial. Does anyone any explanation why the AC (a) never mentions that the retrial will be conducted by the MICT, and (b) even suggests a possibility that it be remanded to the S&S ICTY TC (but only doesnt do so because two of its Judges have left)? The latter point seems squarely contrary to the transitional arrangements…

  3. Has the ICTY said that the trial will be conducted by the Mechanism? Or are people just assuming this?

  4. As for contrary precedents, the issue I was referring to was not the TC’s handling of divergent precedents, but rather the AC’s handling of divergent precedents.

  5. Thanks Jens. Yes, although the AC should have analysed whether the TC committed an error as opposed to analysing case-law which came about after the TJ. I maintain that there is no error if you follow the binding law at the time and if law changes after the Judgement.

    As for MICT: There is an initial appearance scheduled for today, so yes the MICT has said so. Also, it is very clear from the transitional arrangements as Dylan says

  6. I actually think the most interesting passage of the judgment, which also sheds light on how the AC approached the issue of divergent precedents, is the following:

    In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatovic, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law, as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.

    In substance, the AC in this composition states that the “divergent” precedent did not properly exist, because it violated the requirement for the ICTY to apply custom. So, in essence, the TC was entitled (required?) to depart from it. Interesting!

    Another point worth noting: while the ICC could in theory be considered a better system due to the composition of the Appeals Chamber, the fact that the ICC AC changes some or all of its judges every 3 years does not really provide good prospects for consistency there, either…

  7. Hi Guy

    Yes good point, except Perisic analysed all prior precedent and concluded X (whether incorrectly or not). In that sense, it clarified the case law on that point. As per the Aleksovski rule, the TC was required to follow it. There was no divergent precedent at that point. The TC had no choice but to act as it did.

  8. Dear John,

    I am very sympathetic to the TC in that case, and the fact that they were required to follow the precedent – I am just saying that this new AC seems to be saying that the Perisic precedent did not exist.

    Note that in Sainovic the same judges said that ‘the interpretation given in the Perisic Appeal Judgement would appear to be at odds’ with previous case-law, and this led the new Appeals Chamber to the ‘compelling conclusion that “specific direction” is not an element of aiding and abetting’, and confirming the legal standard ‘constantly and consistently applied’ prior to Perisic. Also, in Sainovic, the judges never used the expression ‘cogent reasons to depart’ to explain why they were not following Perisic.

    It is as if the newly composed AC wants to erase the memory of Perisic rather than explicitly departing from it.

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