I earlier flagged the release of the Charles Taylor appeals judgment. This post deconstructs the opinion more closely in light of the Perišić precedent and also addresses the question of whether governments seeking to aid armed groups have anything to fear from the opinion’s reasoning on complicity liability.
By way of background, the Special Court for Sierra Leone (SCSL) is a hybrid institution that was established by virtue of an agreement between the United Nations and the government of Sierra Leone to investigate and prosecute those who bear the greatest responsibility for international crimes committed on the territory of Sierra Leone since 1996. The Taylor case itself is notable in that Taylor is not a Sierra Leonean national and appears not to have set foot in Sierra Leone during the indictment period, and yet he was prosecuted for his contributions from Liberia to crimes committed in neighboring Sierra Leone. Liberia was not a party to the SCSL Agreement, although it did not object to the prosecution. Indeed, newly elected President Johnson Sirleaf appealed to Nigeria, where Taylor had taken refuge after stepping down from the presidency, to surrender him to the SCSL. The case is also uniquein that it involves the prosecution of a former head of state, and the concomitant abrogation of any head-of-state immunity. (Taylor was “elected” President of Liberia in 1997; upon indictment in 2003, he went into exile in Nigeria, where he was arrested in 2006). The judgment is thus the first contested conviction by an international court for war crimes and crimes against humanity of a former head of state since Nuremberg. (Other heads of state who have gone to trial are Slobodan Milošević, who died pre-verdict; Jean Kambanda, former Prime Minister of Rwanda who pled guilty to genocide and related offenses; and Karl Dönitz, who served as President of Germany for a spell after Hitler committed suicide and was convicted of crimes against the peace and humanity).
The Prosecutor’s Indictment & Theory of the Case
Taylor was indicted for a range of forms of responsibility: aiding and abetting, planning, ordering, instigating, participating in a common plan, and superior responsibility. The Trial Chamber convicted him of aiding and abetting and of planning crimes, but acquitted him on the other theories of liability. In addition to raising some procedural, legal, evidentiary, and sentencing objections to the prior proceedings, the Prosecutor appealed the failure to find that Taylor also ordered the offenses in question. The Trial Chamber had determined that Taylor’s instructions were advisory in nature and were not always followed; as such, the Prosecution had not proven the causal element for ordering. This appeal by the Prosecution failed on the ground that aiding and abetting and planning liability fully captured Taylor’s culpability.
Central to the Prosecutor’s theory of the case was the so-called Operational Strategy of the Armed Forces Revolutionary Council (AFRC)/Revolutionary United Front (RUF)—the two rebel groups Taylor was accused of supporting. According to this Strategy—which Taylor allegedly helped to develop, fund, and implement—the RUF/AFRC alliance would endeavor to achieve military gains at any cost in order to improve its negotiating stance vis-à-vis the Sierra Leonean government. This strategy included plans to terrorize the civilian population with acts of rape, abduction, forced labor, sexual slavery, and murder. The Prosecutor ultimately proved that Taylor knew of this strategy and of the alliance’s intent to commit crimes from daily briefings he received from his national security adviser; ECOWAS reports; condemnations by the Security Council, which declared the situation in Sierra Leone to be a threat to international peace and security in UNSCR 1132 (Oct. 8, 1997); NGO reports; and other sources attesting to the notoriety of the crimes in question. The evidence also showed that Taylor remained in constant contact with rebel leaders (including during attacks, such as the “Operation No Living Thing” assault on Freetown in 1999) and had great influence over the alliance: the leadership sought his advice and counsel, deferred to him, and followed his instructions. Taylor skirted arms embargoes on both Liberia and Sierra Leone (e.g., UNSCR 1171 (1998)) and provided weapons and ammunition to rebel forces in exchange for diamonds mined by forced laborers in Sierra Leone. These weapons were used against ECOMOG forces during their 1997 intervention to oust the AFRC junta and re-install the elected civilian government. Indeed, once Freetown’s weapons caches were depleted, the rebels increasingly turned to Taylor to supply them with ammunition and other matériel (including non-lethal communications equipment, vehicles, etc.); they eventually became almost entirely reliant on his largesse. The evidence showed that these transactions continued even while Taylor was ostensibly promoting dialogue between the warring parties and accepting praise from the international community for his contributions to peace negotiations.
The SCSL Appeals Chamber largely affirmed the judgment of the Trial Chamber on accomplice liability. The opinion encompasses several key holdings, enumerated below.
- The actus reus of aiding and abetting liability consists of the provision of assistance (even so-called neutral assistance in contradistinction to assistance that is inherently criminal) that has a “substantial effect” on the commission of the crimes, although this assistance need not rise to the level of a “but for” contribution. Strict causation is thus not an element of aiding and abetting.
- Forms of moral support and encouragement are actionable in addition to more practical or tangible forms of assistance. In addition, such assistance may be provided at all stages of the crime, including planning, preparation and execution.
- To gain a conviction, customary international law (CIL) does not require the prosecution to prove that the defendant provided “specific direction” aimed at the commission of particular crimes or to the direct perpetrators.
- It is not the case that the provision of any form of assistance to parties engaged in an armed conflict will inevitably give rise to aiding and abetting liability if crimes are committed, as Taylor argued they inevitably are in war.
- The Appeals Chamber let stand the Trial Chamber’s finding that it was sufficient that Taylor’s assistance contributed to the implementation of the rebels’ Operational Strategy and their ability/capacity to commit crimes; it is not necessary to demonstrate a direct nexus between the assistance provided and a particular crime committed by a particular principal. The critical relationship is that between the defendant and the crime—not that between the defendant and the physical actor, who may be unknown to the aider and abettor.
- It is of no moment that the acts of an aider or abettor acts at a time and place removed from the actual crime if the substantial effect of his or her conduct is proven.
- Satisfying the mens rea of aiding and abetting liability requires adequate proof that the defendant was aware of the consequences of his conduct, but not proof that he necessarily intended, willed, or desired those consequences.
- In addition to proof of actual knowledge, it is sufficient to prove that the accused was aware of “the substantial likelihood that” his or her act or conduct “would assist the commission of a crime.”
- The Rome Statute’s formulation of aiding and abetting (requiring proof that the defendant acted “for the purpose of facilitating the commission of such a crime”) did not impact the analysis, because the treaty does not “represent or purport to represent a complete statement of personal culpability under customary international law.” Furthermore, the Appeals Chamber noted that the ICC had not yet had the opportunity to extensively apply Article 25, and so it would be premature to “guess” how this provision will ultimately be interpreted, especially in light of Article 30(2), which suggests a knowledge-based standard might suffice.
- Knowledge of the mere probability of crimes is insufficient; rather, the defendant must have an awareness of the substantial likelihood that crimes would be committed.
The Perišić Precedent
In its ruling on specific direction (which is filed under actus reus, although there is some question in the jurisprudence as to whether it should be considered a feature of a defendant’s mens rea), the SCSL rather blithely distinguished the ICTY’s ruling in the Perišić case involving the Chief of the General Staff of the Yugoslav Army who was charged with assisting crimes committed in Bosnia by the Bosnian Serb army. In the SCSL’s estimation, the ICTY did not discuss CIL, or undertake an empirical CIL analysis, in Perišić but rather identified “specific direction” as a factor unique to “internally binding” ICTY precedent that was raised primarily in a discussion about the difference between liability as an accomplice and as a participant in a joint criminal enterprise. As such, the Special Court determined that there were no compelling reasons to follow the ruling in the Taylor case.
In Perišić, three judges of the ICTY Appeals Chamber—riffing off the dissent of Trial Judge Moloto (South Africa), who raised a NATO analogy during oral argument—made a distinction between the provision of aid toward the commission of crimes and aid toward the war effort more generally. It reversed the conviction of the defendant in light of the more generalized nature of the assistance he provided—all of which (e.g., personnel, military equipment, weapons, logistical support, and training) was compatible with lawful military operations—and the fact that Perišić was geographically remote from the crimes in question. Thus:
in 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.
According to the Appeals Chamber, this element of specific direction “demonstrates the culpable link between the accused aider and abettor’s assistance and the crimes of the principal perpetrators” and may be “self-evident” or “implicit” when the individual is in close proximity to the crimes. It was dispositive to the Appeals Chamber that the Bosnian Serb Army did not have as its sole and exclusive purpose the commission of international crimes. Nor did the evidence suggest that Yugoslavia had a policy to direct aid toward Bosnian Serb criminal activities in particular; rather, its aid was geared toward contributing to the general war effort. The high volume of aid provided was not enough to demonstrate specific direction, the Chamber determined that it could provide circumstantial evidence toward such a finding. Nor was there evidence that Perišić redirected aid aimed at the war effort toward the commission of Bosnian Serb crimes. Even his actual knowledge that crimes were being committed by the Bosnian Serbs, especially in Sarajevo, did not establish specific direction. In sum:
[A]ssistance from one army to another army’s war efforts is insufficient, in itself, to trigger individual criminal liability for individual aid providers absent proof that the relevant assistance was specifically directed towards criminal activities.
Two dissenters—Judges Liu Daqun (China) and Arlette Ramaroson (Madagascar)—argued that specific direction is not, and has never been, an element of aiding and abetting liability.
Foreign Assistance to Armed Groups
As the quote above reveals, the legal implications flowing from states assisting armed actors in remote conflicts was explicit in the positions and arguments of the parties in both Perišić and Taylor.
In Taylor, the Defense argued that:
States have the right to supply materiel to parties to an armed conflict even if there is evidence that those parties are engaged in the regular commission of crimes.
The Prosecution countered that States do not:
assert a prerogative to aid and abet armed groups knowing that the group uses an operational strategy of terror against the civilian population, to aid and abet atrocities and to assist the commission of crimes against humanity and war crimes.
The Taylor Appeals Chamber sided with the Prosecution in rejecting the defendant’s claim that states claim such a prerogative. In so ruling, the Chamber cited the United States’ Leahy Law (which actually appears in different incarnations in the Foreign Assistance Act of 1961 and the annual DoD Appropriations Act when directed at the Departments of State and Defense, respectively) as an example of an effort to prevent such assistance from going to rights abusers. Quoting from the original text of the Foreign Assistance Act, the Chamber noted that the U.S.:
prohibits funding to governments and foreign military units if they are ‘engaged in a consistent pattern of gross violations of internationally recognised human rights’ or have ‘committed a gross violation of human rights, unless all necessary corrective steps have been taken.
Some exceptions apply, for example if “such country is taking effective steps to bring the responsible members of the security forces unit to justice” or if the Secretary of Defense waives the restrictions in the face of “extraordinary circumstances.”
Likewise, it cited the recently adopted Arms Trade Treaty, as evidence of emerging opinio juris and state practice. The ATT provides at Article 6(3) that:
A State Party shall not authorize any transfer of conventional arms covered under Article 2(1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
The Appeals Chamber noted that assistance to armed groups who commit isolated criminal acts can be distinguished from assistance to armed groups engaged in a campaign of abuses against a civilian population:
Where the crime is an isolated act, the very fungibility of the means may establish that the accused is not sufficiently connected to the commission of the crime. Similarly, on the facts of a case, an accused‘s contribution to the causal stream leading to the commission of the crime may be insignificant or insubstantial, precluding a finding that his acts and conduct had a substantial effect on the crimes. In terms of the effect of an accused’s acts and conduct on the commission of the crime through his assistance to a group or organisation, there is a readily apparent difference between an isolated crime and a crime committed in furtherance of a widespread and systematic attack on the civilian population. The jurisprudence provides further guidance, but it is the differences between the facts of given cases that are decisive.
Implications of the Taylor Ruling
In light of these key holdings, what might policymakers have to fear from this judgment and its reasoning? And what limiting principles can be identified in the opinion?
- The Taylor opinion confirms that individuals geographically remote from the battlefield can still aid and abet crimes. However, their knowledge of, and their actions’ “substantial effect on” crimes must still be shown.
- Forms of aid and assistance that are not inherently criminal can lead to liability. No doubt, however, as a practical matter and given the “substantial effect” requirement, liability will be more likely as the type of aid moves along the continuum from humanitarian aid to dual use equipment to lethal aid to illicit forms of assistance (for example, the provision of unlawful weapons or their building blocks, such as the precursors of chemical weapons).
- The assistance provided need not be essential to the causal chain leading to the crime, but the aid itself must have a substantial effect on the crime.
- Even if the donor desperately does not want abuses to happen, knowledge that they will (or that there is a substantial likelihood that they will) is sufficient to ascribe liability. Knowledge of general risk or even probability of crimes is not sufficient; rather, an individual must be aware that the aid provided will assist in the commission of crimes (or will do so in all substantial likelihood).
- The requirement of a showing of “substantial effect” sets a relatively high threshold. That said, the provision of weaponry that would otherwise not be available to armed actors might be deemed to have such an effect if the recipients commit crimes employing such weapons. Just because the recipient commits abuses is not enough to ascribe liability to the donor however. The latter must know that his or her assistance will make a substantial contribution to these abuses.
- As the amount of aid increases, so too does the risk of liability.
- A finding that an accused had the requisite knowledge is more likely where crimes are widespread, notorious, systematic, or the subject of extensive reporting as opposed to sporadic or concealed. Liability is less likely if the recipient group has a lawful agenda or purpose, even while its members may at times commit crimes; by contrast, if the group’s agenda is inherently or indelibly criminal, liability is likely.
- Liability will flow to the donor in situations in which the recipient is acting pursuant to a known plan or policy to commit abuses, as with the RUF/AFRC’s Operational Strategy. Absent such a policy, it is not enough that abuses happened in wartime. Some degree of foresight is necessary.
It should be noted that the above analysis concerns the attribution of individual criminal liability. A whole different doctrinal field is relevant to the question of state (civil) responsibility, as discussed in a string of cases exemplified by Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) before the International Court of Justice as well as the International Law Commissions Draft Articles on Responsibility of States for for Internationally Wrongful Acts. The latter, for example, sets a fairly high bar to ascribe state responsibility for the acts of non-state actors. In particular, Article 8 dictates that:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.
Article 8 reflects the ICJ’s holding in Nicaragua, wherein the Court found that
[D]espite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf.
Clearly, these factors of instruction, direction, and control set a higher proof bar than Taylor and comes closer to Perišić’s concept of specific direction.
A Challenge to Perišić
In a subsequent appeal in the Nikola Sainović et al. case, the ICTY Prosecutor invited a differently-constituted Appeals Chamber—now presided over by none other than Judge Liu—to overturn Perišić. In support, the Prosecution cited four grounds:
- The Perišić appeal judgement created a new specific direction element for aiding and abetting that is not found in customary international law.
- The judgement incorrectly interpreted prior otherwise consistent Appeals Chamber jurisprudence.
- It introduces vague concepts that lead to considerable uncertainties and difficulties in practice.
- It undermines the respect for international humanitarian law and is against the interests of international justice.
An empirical study by Professor James Stewart (not to be confused with ICC Deputy Prosecutor James Stewart) confirms that “specific direction” is not an element of the offense under CIL. The study reveals that the term goes largely unmentioned in the scholarship and case law; when it does appear, it is only by way of a frequent-quoted passage from Tadić that rarely generates substantive analysis; and the concept has not yielded any significant acquittals beyond that of Perišić himself, one of the highest ranking defendants to appear before the ICTY. As this appeal progresses, it is worth recalling that a weak form of stare decisis operates in international criminal law; for example, the Appeals Chamber in Aleksovski indicated that it can depart from a prior decision for only “cogent reasons.” Stay tuned!