On February 28, 2013, the appeals chamber of the International Criminal Court for the Former Yugoslavia, by a 4 to 1 majority, reversed the trial chamber’s convictions of General Momčilo Perišić, the former commander of the Yugoslav army during the Bosnian war. The former general was acquitted on all counts.
In its decision, the appeals chamber revisited the elements of the actus reus for aiding and abetting, finding that an aider or abettor must specifically direct his conduct to the crime committed by the perpetrator.
This decision not only seeks to settle inconsistent and contradictory case law from the ICTY—it could also affect the jurisprudence of the Special Court for Sierra Leone (SCSL) and the appeal of the conviction of Charles Taylor.
Perišić was the Yugoslav Army’s most senior officer, and a member of the high command of the Yugoslav People’s Army. At trial, he was convicted of aiding and abetting crimes committed by the Bosnian Serb Army (Army of the Republika Srpska or “VRS”) in Sarajevo and Srebrenica, Bosnia and Herzegovina, on the grounds that he facilitated the provision of military and logistical assistance from the Yugoslav People’s Army to the VRS. He was also found criminally responsible for his failure to punish Yugoslav Army soldiers for crimes they committed in Zagreb, Croatia while they were seconded to the VRS. He was sentenced to 27 years in prison.
This case is significant because Perišić had been the only Serbian military commander convicted by the ICTY for crimes committed by the VRS in Bosnia.
It is also significant because the appeals chamber attempts to settle the law on the actus reus (guilty action) of aiding and abetting at ICTY. The trial chamber had found that the actus reus of aiding and abetting did not require proof that Perišić’s conduct was specifically directed to assist, encourage or lend moral support to the perpetration of the crimes of the principal perpetrators. Instead, the Trial Chamber had held that the only requirement was that Perišić’s conduct had a substantial effect on the crimes perpetrated by the VRS at Srebrenica and Sarajevo. The trial chamber relied on the appeals chamber’s earlier judgment in Prosecutor v. Mrkšić and Šljivančanin, in which the appeals chamber expressly “confirmed that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting.”
This time, the appeals chamber held that this was incorrect. It went back to its original formulation of the actus reus of aiding and abetting from its decision in Prosecutor v. Tadić, which required that the accused’s conduct be specifically directed at the perpetration of the principal perpetrators’ crimes. The appeals chamber considered that where an accused aider and abettor is physically present at the crime scene, specific direction “will be self-evident”, but where the putative aider and abettor’s conduct is geographically, temporally, or otherwise remote from the crimes of the principal perpetrators explicit consideration of specific direction is required.
In support of the “specific direction” requirement, the appeals chamber looked at 34 cases involving aiding and abetting liability decided at the ICTY and ICTR appeals chambers, and concluded that “no judgment of the appeals chamber has found cogent reasons to depart from” the Tadić formulation. But the 34 cases show that the court has not consistently treated “specific direction” as a requirement. Of the 34 cases, only 14 followed verbatim the Tadić formulation of the elements of aiding and abetting, five used an alternative formulation that the appeals chamber considered equivalent to Tadić, 14 made no reference to the requirement for specific direction or an equivalent. Problematically, the appeals chamber primarily examined how these cases articulated the “specific direction” element in the frequently pro forma recitations of the applicable law, but it did not look at how the law was applied in each case.
To address the contradictory Mrkšić and Šljivančanin judgment, the Perišić appeals chamber downplayed its significance on the grounds that the relevant language was mentioned briefly in a discussion of the elements of the mens rea (guilty intention) rather than actus reus of aiding and abetting. The appeals chamber further reasoned that if it had intended to depart from settled law it would have provided a reasoned opinion for overturning precedent.
The appeals chamber then conducted a de novo review of the evidence to determine whether Perišić’s conduct was specifically directed to assist Bosnian Serb crimes in Sarajevo and Srebrenica. It found that the evidence at trial did not prove this beyond a reasonable doubt. Significantly, the appeals chamber considered that aid for the VRS war effort could be distinguished from aid for its criminal activities, and that it was reasonable to infer that Perišić’s role in directing “large-scale military assistance to the general VRS war effort” was not specifically directed to the VRS’s crimes.
The significance of the Perišić judgment may be felt beyond the ICTY—particularly in the appeal of the Charles Taylor Trial Judgment before the Special Court for Sierra Leone (“SCSL”). Taylor was convicted of 11 counts of aiding and abetting war crimes and crimes against humanity for his role in Sierra Leone’s civil war. In setting out the elements of aiding and abetting, the SCSL trial chamber expressly held that the “actus reus of aiding and abetting does not require ‘specific direction’.” It cited the Perišić trial judgment, and referenced the Mrkšić and Šljivančanin appeal judgment. The two trial chambers at the SCSL appear to split on this issue, and the other trial chamber in the CDF and RUF cases that, relying on ICTY jurisprudence, had found that the accused must have “specifically directed [their conduct] to assist, encourage or lend moral support to the preparation of a certain specific crime.”
The SCSL appeals chamber has not directly ruled on whether “specific direction” is required for aiding and abetting liability, although a holding in the CDF appeal suggests it would support the requirement. It may now have the opportunity to address the issue head-on in Taylor’s appeal: Taylor raises the issue on appeal, though it in the context of the mens rea for aiding and abetting.
Even if the SCSL appeals chamber finds legal error, it may nonetheless uphold Taylor’s convictions. The trial chamber found that since 1997 the RUF’s modus operando involved a campaign of terror against the civilian population throughout Sierra Leone, entailing the commission of numerous crimes. Taylor was found to have known of this since 1997, knowingly continued to support their effort, and his support was found to have substantially contributed to the RUF/AFRC crimes. The Perišić appeal judgment—decided after the Taylor appeal was filed—will no doubt factor into the SCSL appeals chamber’s assessment.