Guest Post: What the ICTY appeal judgment in Perišić means for the SCSL Appeals Chamber in Taylor

By Manuel J. Ventura

Director, The Peace and Justice Initiative

I’d like to begin by thanking Dov for giving up the space on his blog to allow me to post the following thoughts on the Perišić appeal judgment as it relates to Charles Taylor’s pending appeal at the Special Court for Sierra Leone.

During the closing trial arguments in the Perišić case, the following memorable in-court exchange was recorded between Presiding Judge Moloto and Senior Trial Attorney (now Co-Investigating Judge at the ECCC) Harmon. It is quoted at length because it goes to the very heart of why the Appeals Chamber overturned the convictions of Perišić – the highest ranking Yugoslav military officer during the time of his indictment – for aiding and abetting crimes committed by the VRS (Bosnian Serb Army) through the provision of substantial military support and assistance:

Judge Moloto: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or commander of the assisting army is guilty of aiding and abetting those crimes?
Mr. Harmon: Your Honour, General Perišić provided assistance knowing that that assistance was going to assist the VRS [Bosnian Serbs] and it was likely that that assistance would be used in the commission of crimes.
Judge Moloto: Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged to have been committed, and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places?
Mr. Harmon: Your Honour, you are asking me obviously, an explosive political question.
Judge Moloto: No, no. It’s a legal question.
Mr. Harmon: I would like to answer your question. The objectives, as I understand, of the NATO forces isn’t to ethnically cleanse parts of Afghanistan. It is to be engaged in a military campaign against the Taliban. It is --
Judge Moloto: Mr. Perišić is not charged with ethnic[] cleansing. He is charged with murders. That’s why I’m making the distinction between the actual crimes that are charged in the indictment. […]
[snip]
Judge Moloto: […] [M]y question still stands, […] – what is the authority for that proposition and I’m saying can you comment on the – on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.

Mr. Harmon: I draw the distinction as I say, as follows, Your Honour, the first situation is it’s a war, it’s a war in Bosnia and it was a war in and it is an on-going war in Afghanistan. Where I make my distinction is the purpose in objectives. The objectives of Bosnian Serbs, in part of strategic objective number 1, was to ethnically cleanse, if you will, that is a much broader term, it was to separate the Serbs from the non-Serbs. That act gave rise to conduct, long-standing conduct that lasted throughout the war of the VRS taking populations of Muslims and Croats and removing them from their homes by force. That was no mystery. General Perišić was aware, as we say in our brief, was fully aware of the conduct of the Bosnian Serbs, and with the knowledge of that conduct he provided them with assistance that enabled them to continue to conduct the war, continue to commit crimes, and that assistance that he provided had a substantial effect on the commission of those crimes. So I make a distinction between the Afghan war, where there is not the stated purpose which is to remove and ethnically cleanse. I also make one other observation about the Afghan war. In the Afghan war, and I’ll take the United States as an example, because I’m familiar with the United States’ participation in part in that. When there were crimes that were committed by American soldiers, those crimes were prosecuted in the United States and people are serving life prison sentences as a result of those crimes committed against Afghan civilians. In this situation, there were no prosecutions whatsoever, either in the VRS or in the Federal Republic of the Yugoslavia for war crimes.
[snip]
Judge Moloto: You see, unfortunately, we don’t seem to be on the same wavelength. […] [T]he point I’m asking simply is because the armies, the commanders of the remaining NATO countries that are participating in Afghanistan are aware of the fact that crimes have been committed, crimes against humanity have been committed, and yet those commanders are still continuing to participate in that war, are they then guilty of those crimes that are being committed? That’s just – you either say they are not guilty or they are guilty. If anybody is guilty of those crimes, then they are equally guilty with those people of those crimes, because they are aware of those crimes being committed and yet they are continuing to participate in that war.
Mr. Harmon: I draw a distinction, Your Honours, between continuing to participate in the war. The position we assert here is identical to the situation in your hypothetical situation.
[snip]
Judge Moloto: And, therefore, if it is identical, then you are saying, yes, they ought to be guilty if anybody else is guilty.
Mr. Harmon: Your Honour, I don’t want to go that far. I’m saying that the situation is identical in terms of the framework of our case.
Judge Moloto: I won’t force you to go any further than that.

(The full exchange is available on the ICTY’s YouTube channel: http://www.youtube.com/watch?v=6Cfbt_mQ-rw (beginning at 8:43))

In the end, Perišić was convicted of aiding and abetting crimes committed by the VRS (Bosnian Serb Army) – held to be a separate army from that of Yugoslavia – because his provision of substantial military and logistical support was made with the knowledge of their pattern of criminal behaviour and the likelihood of further crimes being committed. (Perišić was also convicted, as a superior, for crimes committed by the SVK (Croatian Serb Army), but this post will not delve on these convictions (which were also overturned on appeal)). Judge Moloto dissented, for essentially the reasons that are apparent in the above exchange. In his view, the majority’s decision outlawed the waging of war: the mere provision of assistance to another army’s war effort was too remote from the crimes committed during such a conflict to qualify as aiding an abetting (Perišić, Trial Judgment – Dissenting Opinion of Judge Moloto, para. 3).

On 28 February 2012, the Appeals Chamber, in effect, sided with Judge Moloto. It did so on the basis that ‘specific direction’ is an element aiding and abetting and must be explicitly established, particularly where the accused is geographically distant (like Perišić was) from the perpetration of crimes (Perišić, Appeal Judgment, para. 75). In the words of the Appeals Chamber:

[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary. (Perišić, Appeal Judgment, para. 44)

The contrary position had been taken by the Perišić Trial Chamber on the basis of the ICTY Appeals Chamber’s judgment in Mrkšić and Šljivančanin, which was found to have not said what it clearly did: that specific direction was not an element of the actus reus of aiding and abetting (Mrkšić and Šljivančanin, Appeal Judgment, para. 159). This was found to be the case because Mrkšić and Šljivančanin had only said this in passing, in a section dealing with mens rea, was not relevant to their holdings in that case, did not explicitly acknowledge departure from prior precedent (which had in fact, said the opposite), and had only cited to one previous judgment (which it had misread) (Perišić, Appeal Judgment, para. 35).

That specific direction was not an element of the actus reus of aiding and abetting had been crucial for Perišić’s conviction. It meant that the Trial Chamber did not need to show that, alongside his substantial assistance to the VRS, his knowledge of their criminal acts and the likelihood of the further commission of crimes, his actions were designed to specifically aid them. It must be emphasised here that the VRS was not found to be a criminal organization – it conducted its military campaign using both lawful and unlawful means.

The Perišić Appeals Chamber could not find, among the various factual findings of the Trial Chamber, that the military aid and logistical support had been specifically directed towards the VRS’ criminal actions rather than simply supporting them in the armed conflict. Thus, Perišić’s knowledge of the VRS’ criminal behaviour was rendered moot. His convictions for aiding and abetting were overturned.

In other words, what would have distinguished Judge Moloto’s Afghanistan hypothetical was that NATO’s support of the war effort was not specifically directed to the commission of crimes (either in Guantanamo, Bagram or Kabul). Such support alone therefore did not render NATO military commanders criminally liable – as aiders or abettors – for the (alleged) crimes committed therein.

What does this have to do with Charles Taylor at the SCSL?

The answer, is that it has everything to do with Taylor. This is because half of all his convictions (Taylor, Trial Judgment, para. 6994(a)) were for aiding and abetting the various crimes committed by Revolutionary United Front (RUF) and the Armed Revolutionary Council (AFRC) in Sierra Leone through his provision of arms and ammunition, military personnel, operational support and moral support (Taylor, Trial Judgment, paras. 6910-6915, 6918-6924, 6927-6937, 6940-6946). Like Perišić, Taylor, as President of Liberia, was geographically distant from the crimes on the ground (he claimed during the trial that he had never set foot in Sierra Leone). How did the SCSL Trial Chamber deal with aiding and abetting, specifically, the issue of specific direction? According to the Chamber:

The actus reus of aiding and abetting does not require “specific direction”. (Taylor, Trial Judgment, para. 484)

The accompanying footnote (Taylor, Trial Judgment, fn. 1141) refers only to the trial judgment in Perišić and the appeals judgment in Mrkšić and Šljivančanin, both of which have now been destroyed by the Perišić Appeals Chamber. Curiously, (but understandably) there is no mention of the Taylor trial judgment in the Perišić appeals judgment.

Thus, the Taylor Trial Chamber, like the Perišić Trial Chamber, did not need to show (and did not in fact show in the section assessing his aiding and abetting liability – see Taylor, Trial Judgment, paras. 6910-6915, 6918-6924, 6927-6937, 6940-6946) that Taylor’s aid was specifically directed towards the crimes of the RUF and the AFRC, but it did so on the basis of (now) erroneous ICTY jurisprudence.

So where does this leave half of Taylor’s convictions on appeal?

As a result of the Perišić appeal judgment there are now only two realistic possible outcomes with respect to specific direction (if the factual findings are left largely undisturbed): 1) the Taylor Appeals Chamber concurs with the Perišić Appeals Chamber, or 2) the Taylor Appeals Chamber picks a fight with the Perišić Appeals Chamber.

With respect to the first option, it is critical for the Taylor Appeals Chamber to find that Taylor gave more than just general support to the RUF and the AFRC. Such assistance must have been specifically directed to the relevant crimes. And this must be found in amongst the longest judgment in international criminal law history. If it cannot be found, then it is game over. Taylor must be acquitted of all his aiding and abetting convictions.

With respect to the second option, the Taylor Appeals Chamber is of course not bound by the decisions of the ICTY, and can in fact find support in the separate and dissenting opinions of the Perišić appeal judgment (see in particular Perišić, Appeal Judgment – Partially Dissenting Opinion of Judge Liu, paras 2-3 and Separate Opinion of Judge Ramaroson, paras 2-6 (in French) (both opining that specific direction is not an essential element of the actus reus of aiding and abetting). But should the SCSL go down this path and split with the ICTY, it would mean yet more (!) fragmentation in international law and it would (re)invite the problems that Judge Moloto alluded to in his exchange with Prosecutor Harmon.

In the alternative, it could side with Judges Meron and Agius, who suggested that specific direction should be an element of the mens rea of aiding and abetting, not the actus reus (see in particular Perišić, Appeal Judgment – Joint Separate Opinion of Judges Meron and Agius, paras 2-4). Nevertheless, even they conceded that specific direction could reasonably be assessed in the actus reus context and refused to depart from previous jurisprudence.

Of course, the ‘wild card’ option would be to order a retrial, but that is unlikely given where the SCSL is in its lifespan.

Will half of Charles Taylor’s convictions be overturned on appeal because of the Perišić appeal judgment? Time will tell…