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Monday, March 11, 2013

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

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. […]
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.
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.
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: (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…


  1. Excellent post -- and thanks for reprinting the memorable exchange, which I had not seen.

    I would suggest that the Taylor AC could follow Perisic AC and yet easily affirm all of Taylor's convictions. The VRS was under the overall control of Serbia, thus internationalizing the conflict between Serbia and Bosnia. That's critical, because it meant that -- at least in theory -- VRS forces had the right to participate in hostilities. (The basis for finding that the VRS engaged in "both lawful and unlawful activities.") The RUF and AFRC, by contrast, were never under the overall control of Liberia; that's evident from the Taylor judgment. As a result, Taylor's support did not internationalize the conflict and neither the RUF nor the AFRC had any right whatsoever to participate in hostilities against the Sierra Leonean government. In the Sierra Leone conflict, in other words, it is not the case that "both lawful and unlawful activities" took place; all of the RUF/AFRC's activities were unlawful. So the Perisic AC "specific direction" requirement does not apply.

    1. You assert that the VRS was under the overall control of Serbia - a pretty standard position since Tadic. However, both the Persic Trial Chamber and the Perisic Appeals Chamber - those in a position to have seen more facts relevant to that determination than any court before them - disagreed with that fact. They found that the VRS constituted a “separate and independent” military entity, and that Perisic, the highest officer in the highly regimented VJ, did not exercise command and control over VRS officers. See Perišić Trial Judgment, para. 1778; Perišić Appeal Judgment, para. 46. That does quite a bit to undermine the theory that the VRS was under the "overall control" of Serbia. This is the heart of the conflict between the discrepant standards applicable to states and individuals under international law. How can the individual in charge of implementing a State's policy by providing the very things that provide "control" - officers and aid - be found to have lacked control, while the State is still found to have been in control?

  2. Kevin, thanks for the kind words.

    Two things. First, the ICTY's holding that the VRS engaged in lawful and unlawful activities was based on their combat operations - jus in bello - it was not based upon their right to engage in armed conflict. While it is true that the SCSL did not make any findings on whether Liberia exercised "overall control" over the RUF and the AFRC, it's fairly safe to say they didn't do so because they didn't have to: as we know they have no jurisdiction over grave breaches of the Geneva Conventions (and the OTP had not indicted Taylor as such, obviously). You can't latch onto the lack of a particular legal finding that the court didn't have to make...

    Second, if we take your view Kevin, that because non-state armed groups have no right to engage in armed conflict against the state and that therefore all their military operations are by definition unlawful, then what's the point of having rules to regulate their conduct? Why do we insist that they follow IHL if all their activities are going to be unlawful anyway? You would be entirely right in the sense of domestic law of course, but that's not what the SCSL will look at. Their findings on lawful/unlawful activities will concentrate on jus in bello, not their right to engage in armed conflict or not. If this wasn't the case then the SCSL would basically be a rubber stamp. As soon as its shown that a non-state armed group took up arms against Sierra Leone then everything that occurs as a result is illegal (at international law) - whether IHL was followed or not. That can't be right. As I'm sure you're aware Kevin, that type of argument was attempted in Alstötter, to which the court replied:

    If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality.

    True, that involved an international armed conflict, but I would say that it also applies by analogy to the theory you're espousing here.

    What I think is most interesting however, is at what point does an armed group become, because of their multiple jus in bello violations, a criminal organisation for international criminal law purposes? I mean, if the VRS' actions in and around Sarajevo, for example, were not enough, what is? Do 60% of their military operations have to be unlawful? Or 70%? Or 80%? What about the RUF and the AFRC? After all, they were notorious for their use of shocking violence and terror. One other option that the Appeals Chamber could use is to hold that the RUF and the AFRC were criminal organisations because of the sheer savagery of their military operations. I don't think the Trial Chamber made such a finding. If the Appeals Chamber does that, then the "specific direction" analysis would be a lot easier.

  3. Your points are well taken, but explain one thing to me: which actions of the RUF and AFRC that Taylor supported during the war in Sierra Leone were lawful? We would obviously agree that killing civilians was both unlawful and a war crime. But what about killing government soldiers? That might not have been a war crime, but was it lawful? I don't understand the argument. How can one side's soldiers killing the other sides' soldiers be lawful outside of international armed conflict, in which both sides have combatant's privilege?

    Our disagreement, I think, turns on this: you are viewing "unlawful" solely through the prism of war crimes -- if it's not a war crime, it's a "lawful" activity. I am viewing "unlawful" as including any act that would be criminal under either international law or domestic law. I have no idea which of us is correct!

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  5. Kevin, I think you're right on the money. But again, "unlawful" cannot be as wide as you're suggesting in the present context for the reasons I've explained - it's just too easy! Whether they should be as narrow as I suggest of course is also up for debate (it's just too hard!?)

    Thing is, I'm not entirely convinced that the initiation of non-international armed conflict is, strictly speaking, unlawful at international law per se. Everyone agrees that the use of force is illegal at international law between states. But is it also illegal between a non-state armed group and a state? Killing government soldiers is of course illegal under domestic law, but does international law have anything to say about it in a jus ad bellum context (with the (now mostly historical) exception of wars of national liberation)? I'm not sure that such actions would be "unlawful" at international law outside the context of IHL/international criminal law.

    (Of course, I don't say this to encourage such actions, merely to point out that what is illegal at domestic law is not necessarily illegal at (or regulated by) international law)

    Let's hope the appeal judgment doesn't take as long as the trial judgment!

  6. I do not know the reason the persecution did not mentioned that the leader of RUF Foday Sankor accompany Mr. Taylor to Liberia initially when the war in Liberia began. Could this be a reciprocity arrangement on the part of both men. Would this be illegal?

  7. Good post. Just to add, Article 20(3) of the SCSL Statute explicitly requires the Appeals Chamber to look to the case-law of the ICTR/ICTY:

    3. The judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda. In the interpretation and application of the laws of Sierra Leone, they shall be guided by the decisions of the Supreme Court of Sierra Leone.

  8. Well, that was fast. It appears that specific direction has already reappeared at the ICTY. In the Šainović et al. appeals hearing of 13 March, the issue was argued out (during the appeal of Lazarević) in detail with the Prosecution inviting the Appeals Chamber to overturn their specific direction holding in Perišić on four grounds: 1) a specific direction element is not found in customary international law; 2) the Perišić appeal judgment incorrectly interpreted ICTY jurisprudence; 3) a specific direction element introduces uncertainties and difficulties in practice; and 4) it undermines respect for IHL and is against the interests of international justice.

    The relevant part of the transcript can be found here: (pp. 440-461).

    Having read the transcript, I think the third and fourth grounds were the strongest. It will be interesting to see what the Appeals Chamber makes of it!