As the International Criminal Tribunal for the former Yugoslavia enters its golden years, sharp differences of opinion have arisen amongst the judges, manifested both in judgments. Some rather unhappy extramural commentary by one judge that that seems to have been provoked by some of this tension led to his removal and created a major problem for the completion of a major trial.
Now we have the unprecedented situation where differently constituted forms of the Appeals Chamber issue opinions on an important matter of law that are radically different. Eleven months ago, in Perisić, to much controversy, an Appeals Chamber presided by Judge Meron and consisting of judges Agius, Liu, Ramaroson and Vaz held that ‘specific direction’ was an element of aiding and abetting. In other words, it was not enough for an accused to provide assistance to others who were perpetrating international crimes with knowledge that they were doing so. The assistance needed to be specifically directed to the perpetration of the offence. Judge Liu dissented, and discontent with the ruling was also expressed in a subsequent decision by a member of a Trial Chamber.
Last week, in Šainović et al., the Appeals Chamber, presided by Judge Liu and consisting of judges Güney, Pocar, Ramaroson and Tuzmukhamedov, held that last year’s decision was erroneous. It said that ‘specific direction’ was not an element of liability based upon aiding and abetting. Judge Tuzmukhamedov did not endorse the majority view, stating that it was unnecessary to resolve the issue and expressing concern about the instability in the case law that would result. He wrote:
45. While it is within the Appeals Chamber’s discretion to consider legal matters of general importance to the Tribunal’s case law, I think that this exceptional measure should not be resorted to here. It may not be possible to completely avoid disagreement between differently constituted benches of the Appeals Chamber over certain legal or factual issues, especially in the absence of a higher unified instance. However, it would be prudent to exercise some restraint in addressing such rifts in the jurisprudence of a respectable and authoritative judicial institution so as to preserve as much as possible, judicial harmony in the case law that impacts the development of international criminal law and international humanitarian law, as well as legal certainty, stability and predictability, in particular, for the benefit of the parties to proceedings before the Tribunal.
The analysis of the Appeals Chamber in the two conflicting decisions is quite different in terms of the focus. In Perisić, the Appeals Chamber concentrated on the case law of the Appeals Chambers of the Tribunals, explaining that the significance of ‘specific direction’ had been present since the earliest rulings but that it had not been consistently expressed. Thus, the decision sought to provide coherence in the Court’s case law. In Šainović et al., the Appeals Chamber looked largely at the case law of the post-Second World War period for authority, devoting a great deal of attention to the rulings of British military tribunals. It also considered the issue from the standpoint of comparative criminal law, claiming this is justified by ‘the doctrine of general principles of law recognised by nations’ (para. 1643, a curious phrase).
Between Perisić and Šainović et al., one of the more interesting manifestations of the debate about ‘specific direction’ appeared in a judgment of the Supreme Court of Canada, issued in July 2013. Ezokola v. Minister was a refugee case that concerned the degree of involvement in atrocities of an asylum seeker who had been a diplomat for the Democratic Republic of the Congo. The Court noted Perisic, and although it did not endorse the judgment explicitly it held that an overly broad notion of aiding and abetting liability could have perverse consequences in terms of fulfilling the principles of the Refugee Convention, which denies its benefits where there are ‘serious reasons’ to believe that the applicant has committed war crimes or crimes against humanity.
But the most dramatic reaction to Perisić was by the Appeals Chamber of the Special Court for Sierra Leone in the Charles Taylor appeal. It dismissed the ruling of the Appeals Chamber as unconvincing. Arguably, had it followed Perisić, Taylor would quite probably have been acquitted. In Šainović et al., the Appeals Chamber makes only very summary reference to the judgment of the Appeals Chamber of the Special Court for Sierra Leone in Taylor.
When the International Criminal Tribunal for the former Yugoslavia was established in 1993, the rationale for providing an Appeals Chamber was to ensure respect for the right to appeal from a criminal conviction, set out in article 14(5) of the International Covenant on Civil and Political Rights. Here is paragraph 114 of the Secretary-General’s report, which provided the explanation for the provisions of the Statute of the Tribunal that was subsequently adopted by the Security Council:
The Secretary-General is of the view that the right of appeal should be provided for under the Statute. Such a right is a fundamental element of individual civil and political rights and has, inter alia, been incorporated in the International Covenant on Civil and Political Rights. For this reason, the Secretary-General has proposed that there should be an Appeals Chamber.
But a year later, when the International Criminal Tribunal for Rwanda was created, the Security Council provided for a common membership of the Appeals Chamber of the two Tribunals, essentially making it a unified Appeals Chamber in fact if not in name. One of the reasons was to ensure consistent case law, it being assumed that the Trial Chambers of both Tribunals would follow precedents set by the Appeals Chambers.
Still later, when the United Nations was considering establishment of the Special Court for Sierra Leone, there was discussion about whether to follow the earlier approach and subject it as well to the Appeals Chamber of the ad hoc Tribunals. The Secretary-General wrote that ‘[w]hile in theory the establishment of an overarching Appeals Chamber as the ultimate authority in matters of interpretation and application of international humanitarian law offers a guarantee of developing a coherent body of law, in practice, the same result may be achieved by linking the jurisprudence of the Special Court to that of the International tribunals, without imposing on the shared Appeals Chamber the financial and administrative constraints of a formal institutional link’. The result was a provision in the Statute of the Special Court for Sierra Leone requiring that the Appeals Chamber of that institution should be ‘guided’ by the decisions of the Appeals Chambers of the ad hoc Tribunals, a provision that it essentially disregarded in the Charles Taylor appeal.
One thing is certain. The desire of the Secretary-General for ‘developing a coherent body of law’ is far from being fulfilled, at least in this area of the law. As mentioned above, the scope of aiding and abetting has ramifications that go well beyond the frame of the international criminal tribunals. These issues are very relevant in refugee determinations, not to mention litigation involving liability under legislation like the Alien Tort Claims Act. Moreover, the International Court of Justice has also implied, in the 2007 Bosnia v. Serbia judgment, that the pronouncements of the international criminal tribunals on matters within their expertise constitute authoritative statements of the law. But with such a fragmented message, where is the authority?
There is a tendency to view the holdings of the Appeals Chambers of the international criminal tribunals – including the International Criminal Court – as being more authoritative and compelling. We make the analogy with the prestigious status of higher courts and tribunals within the national system. One important difference with national systems, however, is that appointment to the supreme, appeals and constitutional courts is reserved to the most distinguished jurists, generally those who are older and more experienced and who have convinced those who make the appointments of their abilities, knowledge, fairness and good judgment. At the international criminal tribunals, the distribution of judges amongst the chambers is a matter for them to decide internally. It is an opaque process without apparent legal rules or expectations. This is not to suggest that the judges of the Appeals Chambers are not fine jurists. But then, so are the judges of the Trial Chambers. The notion of hierarchy that features in national systems is not present in the same way as it is in national courts.
The situation at the international criminal tribunals is rather more like what we find at the European Court of Human Rights, where cases are usually decided by a Chamber of seven judges and a Grand Chamber of 17 judges. What makes the Grand Chamber more authoritative? Only that it is larger. A nine-judge majority of a Grand Chamber trumps a unanimous seven-judge Chamber. It’s all about the numbers rather than the quality of the rulings. Of course, that’s not exactly the problem with ‘specific direction’ where it looks like the judges of the Tribunals are split roughly 50/50.
Two years ago, there was a fine conference held in The Hague that confirmed the ‘legacy’ of the International Criminal Tribunal for the former Yugoslavia. Its record was impressive, its accomplishments numerous, its jurisprudence compelling. The judges and the others who worked within the Tribunal seemed proud of what had been achieved. All that was needed was to wrap up the remaining cases. There was a sense of a job well done.
Who would have then expected the chaos that seems to have taken over. What new surprises await us at this troubled institution?