Manuel Ventura, the director of the Peace and Justice Initiative, has published two excellent posts at Spreading the Jam (here and here) that criticize the specific-direction requirement — and my defence of it. I cannot possibly address all of the points that Manuel makes, but I do want to respond to his understanding of the role that customary international law plays at the ICTY and his defence of the Special Tribunal for Lebanon’s (STL) analysis of the general definition of terrorism under customary international law.
Custom at the ICTY
As Manuel notes, the Special Court for Sierra Leone (SCSL) rejected Perisic‘s specific-direction requirement because it concluded that the requirement lacked an adequate foundation in customary international law. I criticized the SCSL’s position in a recent post, pointing out that the ICTY did not need to find a customary foundation for the specific-direction requirement:
Ad hoc tribunals are limited to applying customary international law because of the nullem crimen sine lege principle: relying on non-customary principles to convict a defendant would convict a defendant of acts that were not criminal at the time they were committed. The specific-direction requirement, however does not expand criminal liability beyond custom; it narrows it. There is thus no reason why the requirement has to have a customary foundation.
Manuel takes issue with my argument in an interesting way — by insisting that the ICTY can only apply legal principles that have a customary foundation, because customary international law is the only source of law that the Tribunal is empowered to apply:
But, says Kevin Jon Heller here and here, this is all irrelevant, as specific direction need not have a customary law basis since it only serves to narrow criminal responsibility rather than expand it. In his view only in the latter is nullum crimen engaged – the reason why the ICTY was mandated to apply customary international law. However, this view misses an important and very basic point. As he acknowledges, the mandate of the ICTY is to apply custom, and while it is true that nullum crimen is not engaged when criminal liability is contracted rather than expanded, it is also true that in not applying custom the ICTY is not applying the law it was specifically mandated and empowered by the UN Security Council to apply. If specific direction is not custom, then it is still applying something, but it cannot be called customary international law. In other words, it went beyond applying its governing law, and into a realm that is was not expressly empowered to go. In short, if specific direction is not customary, then it acted ultra vires and that is as problematic as a nullum crimen violation. It is not simply a bad policy decision that only engages ‘criminal law theory’.
There are two basic problems with Manuel’s argument. First, it is based on a misunderstanding of the ICTY’s mandate. Manuel claims that the Tribunal is empowered to apply one source of law and only one source of law: custom. But the Secretary-General’s report on SC Res. 808 does not say that. Here is the relevant paragraph about custom (para. 34)…