I hadn’t thought to use this blog to write individual posts on new judgments or decisions in international criminal law but at the instigation of some friends, I’m persuaded to offer some very short reactions to a number of interesting blog posts in the past week on “specific direction.” The posts include commentary by Marko Milanović, Kevin Heller, Dov Jacobs and Jens Ohlin. Despite my initial reticence to re-engage with this topic in the blogosphere, it struck me that offering some thoughts on these ideas would also be an appropriate topic to end the year on and a convenient pretext for me to wish readers happy holidays and a prosperous new year.
By way of background, the latest discussions of “specific direction” in complicity stem from a judgment by the ICTY Appeals Chamber in the Stanišić & Simatović case (hereafter “Stanišić), which again rejected “specific direction” as a relevant aspect of the actus reus for aiding and abetting (see paras 94 – 109). As most readers will know, a differently constituted Appeals Chamber at the ICTY had adopted the controversial “specific direction” standard two years ago in a case called Perišić (paras 17 –74), before the same body (differently constituted) reversed itself in a very detailed judgment called Šainović (paras 1617 – 1651). But as I point out below, the judicial treatment of this question since Perišić is actually a lot thicker than this brief history would suggest: rejection of “specific direction” is far wider.
To review, I was opposed to “specific direction” when it first emerged in Perišić. I have always thought that “specific direction” as announced by the ICTY in that case was a misreading of casual language in Tadić. I won’t rehearse everything I wrote opposing “specific direction” at the time, but I do want to reiterate my empirical findings that the concept had no grounding in customary international law, comparative criminal law or previous discussions of the theory of complicity by leading experts (see here). In addition, I also wrote a blog post on Opinio Juris responding to Kevin Heller’s thoughtful defense of the doctrine. To the extent that experts at the national level have considered this problem, this is the established orthodoxy on the topic.
To complete this (overly) long introduction, I should say that I’ve always insisted that specificity is one of the many difficult questions in the theory of complicity (see here). For this reason, I’m looking forward to reading Sasha Greenawalt’s new draft article on the topic in the new year, which discusses “specific direction” by drawing on much of the voluminous and difficult literature on the theory of complicity (sorry for the delay getting to this Sasha). I very much admire Sasha’s work and I’m very pleased to have colleagues engaging with this thorny literature, especially if they reach different conclusions to mine. As I’ve mentioned public recently, I believe that a major public debate on complicity will be a great benefit to the world, even if no consensus ever emerges about its contours.
With all these preliminaries said and done, I set out below a very short list of thoughts about the most recent emanation of the “specific direction” debate in the blogosphere. I hope some of my reactions are helpful:
- I would like to suggest that our discussion of “specific direction” would be far clearer if we dropped the word “direction” out of “specific direction,” calling this the specificity issue in complicity or some other clearer label depending on what we mean. As I say, “specific direction” was very casual language first employed in Tadić that didn’t really mean terribly much before Perišić (see here). The definition the Perišić court gave the concept really does the specificity problem a disservice – recall that according to the Perišić definition “specific direction” entails: (a) an assessment of whether the recipient of the aid is “an organisation whose sole and exclusive purpose was the commission of crimes” (Perišić Appeal Judgment, para. 52); (b) whether the aider “endorsed a policy of assisting” (Perišić Appeal Judgment, para. 52); and (c) a distinction based on whether the aider is present at the scene of the crime or not (Perišić Appeal Judgment, para. 39, 70). I maintain that these positions are clear misreadings of complicity and that they only detract from: (a) whatever there is that’s genuinely problematic about the specificity problem in complicity; and (b) attempts to account for that residual difficulty in the theory of blame attribution writ large. I also believe that, because advocates seldom define what they mean by the term “specific direction”, we frequently talk past one another.
- My main contribution to the discussions in the blogosphere, however, is to place a far larger number of cases on the table for discussion. In particular, I think it bears noting that many courts have now rejected “specific direction,” such that a differently constituted court in Stanišić could not really have taken us back to Perišić even if it had decided to readopt the controversial concept. The list of cases that have rejected “specific direction” now includes:
- The ICTY Appeals Chamber in Šainović (paras 1617 – 1651);
- The ICTY Appeals Chamber in Popović (para 1758)
- The ICTY Appeals Chamber in Stanišić (paras 94 – 109)
- The ICTR Appeals Chamber in Nyiramasuhuko et al (see para 44 of Judge Agius’s Separate Opinion)
- The Charles Taylor Appeal Judgment (see here, paras 466 – 481).
- The ECCC in Case No 002/01 (see paras 707 – 710)
I got the sense from some of the commentary in the last week or so that the rejection of “specific direction” here again in Stanišić was somehow a farce given the composition of the bench in this case or the lack of reasoning substantiating the position. To my mind, the first of these arguments plays down that a variety of courts, at both trial and appellate levels, have rejected the standard. Thus, the supposition that a differently constituted court would have just reinstated Perišić as a norm in ICL as a field is, I think, unconvincing.
- To expand on this observation, I plot here the number of judges across all courts and tribunals who have voted for and against “specific direction,” from Perisic onwards. By my rough count, at least 20 different judges have had opportunity to pronounce on “specific direction” if one includes the Perišić court and everyone since in the different cases I list in 2 above. Three judges endorsed the concept in Perišić, and now Judge Afande has on entirely different grounds, but that still leaves a full 16 judges who have voted to have it overturned, some multiple times. By the by, this includes Judge Khan in Nyiramasuhuko, which means that even in Stanišić, the Agius/Afande coalition would likely have been inadequate to reinstate the standard had the judicial changes many lament not taken place. Nevertheless, even if Khan had been on the case and helped reinstate “specific direction” in Stanišić, the resulting judgment would still be at sharp odds with the vast majority of judicial thinking on the topic. Four times more judges think it is incorrect than are willing to endorse it.
- Looking through these more recent cases post Perišić, I read one additional judgment (not in my list in 2 above) that I think warrants mention. The ICTR’s Ngirabatware Appeals Judgment was presided over by Judge Meron and included Judge Liu, but it also involved three other judges who were entirely new to the issue. Logically, counsel for the defense argued, drawing on Perišić, that “the Trial Chamber erred in failing to determine whether the ‘specific direction’ requirement of aiding and abetting had been satisfied in his case.” (see para 145). The Appeals Chamber unanimously rejected this argument, despite their finding that “the Interahamwe used at least some of the weapons Ngirabatware distributed […] during the attacks and killings” (see para. 148) (my emphasis). Again, I’m not sure what “specific direction” means in its best light, but if it operates to deny complicity where conduct has a dual use, then surely Ngirabatware’s conduct was not “specifically directed” and he should have been acquitted. I suspect that people may argue about this given Ngirabatware’s intentions (separate from “specific direction”), but I wanted to highlight the case to suggest that even the minority of judges who advocate for this controversial standard in complicity are less than clear about when it applies and how.
- On the issue of substantive reasoning, I don’t necessarily share the concern about the absence of deep reasoning in the Stanišić Judgment. I take this position because the prior decision in Šainović was surely amongst the most meticulously researched judgments in the history of this discipline, drawing on the criminal law of an enormous number of states (see Šainović Appeal Judgment, paras 1617 – 1651). I’d written a doctorate that addressed the comparative law and theory of accomplice liability in ICL, then four years of further research on the topic thereafter, but still there were many sources in this judgment I’d never even heard of before. I can’t imagine what it took to acquire and analyse all these legal materials in such a short period of time, but however one views “specific direction” as a normative concept, I think we have to acknowledge that this depth of research and justification goes far beyond what criminal courts normally offer. In fact, to the best of my knowledge, it is without parallel on any other issue in ICL before or since. Accordingly, I didn’t see terribly much reason for the Stanišić Appeal Judgment to reinvent the wheel on this; it had been fully addressed previously. To be clear, no court has offered a compelling theoretical explanation of this problem, but I believe that task falls to academics.
- This brings me to Judge Afande’s apparent endorsement of “specific direction” by way of dissent in Stanišić, wherein he is the first and only judge to defend the concept since Perišić (Judge Tuzmukhamedov questioned the need to address it on the facts in Šainović but he did not opine on the propriety of the doctrine itself and Judge Agius has included a paragraph in two judgments maintaining his earlier reasoning without further argument). Although I respect Judge Afande’s attempt at finding a third way through a difficult legal problem and competing dissenting positions, it strikes me that: (a) the account he offers is no longer speaking about “specific direction” as espoused by Perišić (see my point 1 above); (b) his methods for this novel third way are at times highly suspect, like the use of dictionary definitions to cut through all previous debates; and (c) the resulting position is hard to reconcile with any of the different schools of thinking about blame attribution in the theory of complicity (see here). Perhaps others will defend Afande’s reasoning, but personally, I have some difficulty imagining that it will prove adequately convincing to bring so many judges around to readopting “specific direction” given the widespread judicial disagreement with it now. My guess is that only the in-depth work of scholars will be able to do that at this point, to the extent that they are able to establish that the problem of specificity (or whatever more accurate label we can attribute to the problem) cannot be accommodated anywhere else in conventional theories of blame attribution.
- Finally, a brief word about the changes to the composition of the bench in Stanišić. As my colleagues have pointed out, two of the judges were replaced with others before the Stanišić appeal hearing. I know very little about this backstory and have consistently steered clear of the various political controversies surrounding “specific direction”, but I confess that I don’t fully understand the complaint that the composition made the decision predictable or arbitrary. Judge Meron, himself an advocate of “specific direction,” appointed one judge for and another against “specific direction.” I see no scandal. The orders doing so were perfectly hum-drum, speaking about “the appeal management and case distribution needs of the Tribunal.” Isn’t this entirely normal and very banal? As we now know, it’s unlikely to have changed anything in the concrete case (Khan appears to be against “specific direction”) or the field as a whole (the vast majority of ICL judges clearly oppose “specific direction.”) As for predictability, I’m not sure what the problem with that is either. Many would argue that predictability is highly desirable in a criminal trial. Moreover, judges the world over almost always come with a known set of legal commitments. Think of the US Supreme Court. The parallel isn’t entirely direct, but I wanted to raise these points because I’m not convinced that this situation at the ICTY is quite as bad, surprising or irregular as some of the previous commentators have suggested. To my mind, the only thing that would be objectionably arbitrary is if, by chance, the very few international judges prepared to endorse “specific direction” again found themselves on a single appellate bench.
In any event, I hope some of the foregoing is helpful. I’ve written this uncomfortably quickly, so I hope readers will correct my errors, if there are any. Once again, I encourage scholars of all stripes to engage with this issue and the very many other difficult problems in the theory of complicity. As I mention, I believe they are part of an important struggle to lead ethically decent lives in a world that is at once highly inter-connected and very dysfunctional.
Happy holidays to one and all.