More Misdirection on Specific Direction

Another person who should know better has misrepresented the ICTY’s specific-direction requirement: Owen Bowcott, a legal correspondent for the Guardian. Here is the sub-headline of his new article on the impact of the Perisic judgment:

Legal experts say proof that accused ‘specifically directed’ atrocities now required after tribunal acquits Serbian commanders.

And here is the first paragraph of the article:

Generals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they “specifically directed” atrocities, say some international lawyers and senior judges.

That is not what the specific-direction requirement requires. As I have pointed out before, 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. That is a fundamental difference — 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.

Compounding the mistake, Bowcott later quotes Judge Harhoff on the mens rea of aiding and abetting (emphasis mine):

You would think,” Harhoff speculated, “that the military establishment in leading states [such as USA and Israel] felt that the courts in practice were getting too close to the military commanders’ responsibilities … in other words: the court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.”

But military commanders are paid to ensure that crimes are not committed, Harhoff said. Had US or Israeli officials exerted any political pressure on the court? “Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.”

Judge Harhoff is fundamentally mistaken. Perisic simply clarified aiding and abetting’s actus reus by (re-)adopting the specific direction requirement; it did not in any way modify the ICTY’s long-standing adoption of knowledge as aiding and abetting’s mens rea. Indeed, the Appeals Chamber specifically noted (para. 48) that “the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.” (Alex Fielding also points out Judge Harhoff’s error here.)

Why did a knowledgeable legal correspondent like Bowcott make such a basic mistake regarding the specific-direction requirement? Unfortunately, because — despite the article’s sub-headline — he seems to have limited his research to Judge Harhoff’s letter and Ken Roth’s recent editorial in the New York Times, which also misdescribes the requirement. Bowcott quotes Roth’s editorial in the final paragraph of his article — a vivid reminder of how inaccurate information spreads.

I hope that Bowcott will correct his article. Being a journalist is difficult, particularly when one’s beat requires knowledge of a vast swath of international jurisprudence. Mistakes happen. The beauty of internet journalism, however, is that it is easily corrected. (I’m still waiting for FP.com to correct Elias Groll’s butchering of the mens rea required for espionage…)

If Bowcott issues a correction, I’ll update this post.