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Guest Post: The ICTY Loses its Way on Complicity – Part 2

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law. In my earlier post, I voiced grave concerns with the ICTY’s recent decision on complicity in a case called Prosecutor v Momčilo Perišić (see here). In my earlier posting, I provided background to this seminal case and criticized the new notion of “specific direction” as an actus reus element of complicity. In this second posting, I discuss how the concerns that animated the Appeals Chamber are better considered within the confines of the mental element required for complicity. Some of the judges in Perišić share this intuition—in their Separate Opinion, Judges Agius and Meron indicate that they might be willing to consider “specific direction” as a component of mens rea if they were entitled to rewrite tribunal jurisprudence (Appeal Judgment, Meron and Agius Separate Opinion, para. 3). For myself, I doubt whether the rewrite required would be anywhere as far-reaching as that they have adopted, especially when the extant law governing the mental element of complicity already contemplates these issues. International criminal courts and tribunals apply varying mental elements for complicity, including purpose, knowledge and recklessness (see here, pp. 36-47). In the Perišić case, the Appeals Chamber’s recourse to the “specifically directed” standard as an actus reus appears to be a reaction to the notion of reckless complicity i.e. awareness of a probability that assistance will lead to crimes. As such, its embrace of the “specific direction” standard as part of the actus reus could be read as a pragmatic attempt at restraining the scope of an over-inclusive mental element. Nonetheless, if elevating the mental element through the back door like this is the desired effect, it is arbitrary, unprincipled and unnecessary when more moderate interpretations of existing doctrine better account for the underlying concerns. There are several better routes.

Guest Post: The ICTY Loses its Way on Complicity – Part 1

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.] The International Criminal Tribunal for the former Yugoslavia (ICTY) is undoubtedly one of the most important institutions in the history of international law, not only for its catalytic effect in generating trials for international crimes before both international and domestic courts but also for breathing new life into both international humanitarian and criminal law. Yet, the ICTY Appeals Chamber recently rendered a judgment on the law of complicity in Prosecutor v Momčilo Perišić (see here), that could undo much of its legacy. In this first of two posts, I will set out the background to this case and consider the problem of “specific direction” as an element of the actus reus, which the Appeals Chamber has newly adopted. In a second post, I will focus on the mental element of complicity, showing how a more traditional approach to mens rea can address the underlying concerns without so seriously disrupting the law of complicity. Two weeks ago, I attended a roundtable dedicated to the law of complicity at the University of San Diego.  Over the course of two days, a dozen of the best criminal theorists in the English-speaking world came together to debate four competing accounts of complicity.  On the flight home, however, I was more than slightly surprised to learn that the ICTY had just announced a new understanding of the doctrine that is without equivalent in any national law, very different from the Tribunal’s earlier jurisprudence and at odds with the views of all experts congregated at the roundtable I had just attended. Indeed, the new understanding of complicity that the ICTY adopts in Perišić appears inconsistent with foundational principles of criminal law in ways that seriously compromise the doctrine.  Below, I explain why this new position is so troublesome, before I go on to suggest a safer path the Appeals Chamber could have followed. Momčilo Perišić was the Chief of the General Staff of the Yugoslav Army (VJ), making him the highest ranking officer in that army. Between August 1993 and November 1995, he provided extensive military and logistical aid to the Army of Republika Srpska (VRS), lead by the infamous Radovan Karadžić and Ratko Mladić. At trial, Perišić was convicted of aiding and abetting international crimes perpetrated by the VRS, most notably for crimes associated with the sniping campaign used to terrorize civilians within Sarajevo and for the terrible bloodletting at Srebrenica. Perišić unquestionably provided the VRS with large quantities of weapons, seconded officers involved in these crimes to the VRS (Mladić included), and supported the VRS in a host of other ways. Was all this support innocuous assistance of a general type or criminal complicity in the international crimes undertaken by the VRS?