Specific direction

Notion(s)	Filing	Case
Aiding and abetting \| Actus reus \| Specific direction	Appeal Judgement - 23.01.2014	ŠAINOVIĆ et al. (IT-05-87-A)
The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes. 1622. The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[1] In view of the divergence between the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, [with regard to the issue of whether “specific direction” is an element of the actus reus of aiding and abetting liability] the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.[2] In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,[3] the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction. […] 1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundžija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[4] The required mens rea is “the knowledge that these acts assist the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard. 1650. Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8] See also paras 1618-1621, 1623-1648, in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law. show footnotes [1] Aleksovski Appeal Judgement, para. 111. [2] The Appeals Chamber, Judge Tuzmukhamedov dissenting, further considers that the issue at hand concerns the constituent elements of aiding and abetting liability and that its significance warrants the intervention by the Appeals Chamber. In this regard, the Appeals Chamber also recalls that the issue was raised by the parties (Appeal Hearing, 13 Mar 2013, AT. 402-416, 418-420, 440-460). In addition, the Appeals Chamber notes in this context that the Trial Chamber found that Lazarević, as the Priština Corps Commander, was present in Kosovo and regularly inspected his troops in the field throughout the period during which the campaign of forcible displacements was carried out (see Trial Judgement, vol. 3, paras 924-925). However, the Trial Chamber did not find that he was physically present at the crime sites during the commission of the crimes by members of the VJ. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that if it were to adopt the ruling of the Perišić Appeal Judgement requiring “explicit consideration of specific direction” in cases where the aider and abettor is “remote” (see Perišić Appeal Judgement, paras 38-39), it would be necessary to examine whether Lazarević’s assistance was remote as to require explicit consideration of specific direction. This is a matter disputed by the parties (Appeal Hearing, 13 Mar 2013, AT. 402, 418-420, 461-470). Therefore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that the discussion as to whether the Appeals Chamber should follow the Perišić Appeal Judgement with respect to the issue of specific direction cannot be circumvented in determining the outcome of the present case. The Appeals Chamber further considers that even if the application of the ruling of the Perišić Appeal Judgement would not ultimately invalidate the Trial Judgement, it may “hear appeals in which a party has raised a legal issue that would not lead to the invalidation of the trial judgement but that is nevertheless of general significance to the Tribunal’s jurisprudence”, so long as such issues have a nexus with the case at hand (see supra, para. 19), and references therein; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3). [3] See Aleksovski Appeal Judgement, paras 101-106, 111. [4] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, paras 471-481. [5] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, para. 436. [6] Mrkšić and Šljivančanin Appeal Judgement, para. 159. In these circumstances, the Mrkšić and Šljivančanin Appeal Judgement was not required to provide cogent reasons as there was no departure from the prevailing jurisprudence. See also Lukić and Lukić Appeal Judgement, para. 424. [7] The Appeals Chamber notes that during the interval between the rendering of the Mrkšić and Šljivančanin Appeal Judgement and the Perišić Appeal Judgement, three ICTR appeal judgements mention specific direction in passing, but do not consider it to be a required element of this mode of liability. See Ntawukulilyayo Appeal Judgement, paras 214, 216; Rukundo Appeal Judgement, para. 52; Kalimanzira Appeal Judgement, paras 74, 79. See also supra, fn. 5336. Significantly, the Lukić and Lukić Appeal Judgement explicitly states: “In Mrkšić and Šljivančanin, the Appeals Chamber has clarified that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting and finds that there is no ‘cogent reason’ to depart from this jurisprudence” (see Lukić and Lukić Appeal Judgement, para. 424 (internal quotation marks and references omitted, emphasis added)). [8] See also supra, paras 1621-1622. See Aleksovski Appeal Judgement, para. 111. Download full document
Notion(s)	Filing	Case
Aiding and abetting \| Actus reus \| Specific direction	Appeal Judgement - 28.02.2013	PERIŠIĆ Momčilo (IT-04-81-A)
36. Accordingly, despite the ambiguity of the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber, Judge Liu dissenting, considers that specific direction remains an element of the actus reus of aiding and abetting liability. The Appeals Chamber, Judge Liu dissenting, thus reaffirms that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly.[1] See also paras 26-35, 48. The Appeals Chamber discussed the circumstances in which specific direction must be explicitly considered: 37. At the outset, the Appeals Chamber, Judge Liu dissenting, recalls that the element of specific direction establishes a culpable link between assistance provided by an accused individual and the crimes of principal perpetrators.[2] In many cases, evidence relating to other elements of aiding and abetting liability[3] may be sufficient to demonstrate specific direction and thus the requisite culpable link. 38. In this respect, the Appeals Chamber notes that previous appeal judgements have not conducted extensive analyses of specific direction. The lack of such discussion may be explained by the fact that prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators.[4] Where such proximity is present, specific direction may be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution. For example, an individual accused of aiding and abetting may have been physically present during the preparation or commission of crimes committed by principal perpetrators and made a concurrent substantial contribution.[5] In such a case, the existence of specific direction, which demonstrates the culpable link between the accused aider and abettor’s assistance and the crimes of principal perpetrators, will be self-evident. 39. However, not all cases of aiding and abetting will involve proximity of an accused individual’s relevant acts to crimes committed by principal perpetrators. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction. In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required.[6] 40. The factors indicating that acts of an accused aider and abettor are remote from the crimes of principal perpetrators will depend on the individual circumstances of each case. However, some guidance on this issue is provided by the Appeals Chamber’s jurisprudence. In particular, the Appeals Chamber has previously concluded, in discussing aiding and abetting liability, that significant temporal distance between the actions of an accused individual and the crime he or she allegedly assisted decreases the likelihood of a connection between that crime and the accused individual’s actions.[7] The same rationale applies, by analogy, to other factors separating the acts of an individual accused of aiding and abetting from the crimes he or she is alleged to have facilitated. Such factors may include, but are not limited to, geographic distance. See also paras 42, 70. The Appeals Chamber also discussed types of evidence that may prove specific direction. 44. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. However, the Appeals Chamber recalls again that the Tadić Appeal Judgement indicated that specific direction involves finding a closer link between acts of an accused aider and abettor and crimes committed by principal perpetrators than is necessary to support convictions under JCE.[8] The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that 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.[9] 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. 48. […] [T]he Appeals Chamber acknowledges that specific direction may involve considerations that are closely related to questions of mens rea. Indeed, as discussed below, evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards charged crimes.[10] However, the Appeals Chamber recalls again that the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.[11] By contrast, as set out above, the long-standing jurisprudence of the Tribunal affirms that specific direction is an analytically distinct element of actus reus.[12] 56. The Appeals Chamber notes the Prosecution’s suggestion that the magnitude of VJ aid provided to the VRS is sufficient to prove Perišić’s actus reus with respect to the VRS Crimes in Sarajevo and Srebrenica.[13] However, the Appeals Chamber observes that while the Trial Chamber considered evidence regarding volume of assistance in making findings on substantial contribution,[14] this analysis does not necessarily demonstrate specific direction, and thus such evidence does not automatically establish a sufficient link between aid provided by an accused aider and abettor and the commission of crimes by principal perpetrators.[15] In the circumstances of this case, indicia demonstrating the magnitude of VJ aid to the VRS serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[16] 68. […] [T]he Appeals Chamber, Judge Liu dissenting, recalls that evidence regarding knowledge of crimes, alone, does not establish specific direction, which is a distinct element of actus reus, separate from mens rea.[17] Indicia demonstrating that Perišić knew of the VRS Crimes in Sarajevo and Srebrenica may serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[18] 72. […] [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.[19] The Appeals Chamber underscores, however, that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts. If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces.[20] Similarly, aid from one military force specifically directed towards crimes committed by another force can also trigger aiding and abetting liability. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability. […] See also paras 46-47, 49-55, 57-67. show footnotes [1] See Blagojević and Jokić Appeal Judgement, para. 189. See also Tadić Appeal Judgment, para. 229. The Appeals Chamber recalls that specific direction may be addressed implicitly in the context of analysing substantial contribution. See Blagojević and Jokić Appeal Judgement, para. 189. [2] See [Perišić Appeal Judgement], paras 26-27; Blagojević and Jokić Appeal Judgement, para. 189; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, paras 48-52. The Appeals Chamber recalls that proof of specific direction does not require that relevant acts are the proximate cause of a charged crime: it is well-settled in the Tribunal’s and ICTR’s jurisprudence that it is not necessary to prove a causal nexus between an aider and abettor and the actions of principal perpetrators. See Mrkšić and [ljivančanin Appeal Judgement, para. 81; Blaškić Appeal Judgment, para. 48; Rukundo Appeal Judgement, paras 50-52. [3] These other elements of aiding and abetting liability are substantial contribution, knowledge that aid provided assists in the commission of relevant crimes, and awareness of the essential elements of these crimes. See Lukić and Lukić Appeal Judgement, paras 422, 428. [4] See Lukić and Lukić Appeal Judgement, paras 437-451 (Sredoje Lukić provided practical assistance through his armed presence during the commission of cruel treatment and inhumane acts against unarmed Muslim civilians and was present during the forced transfer of unarmed civilians to a house that was subsequently locked and set on fire); Mrkšić and [ljivančanin Appeal Judgement, paras 5, 104, 193, p. 169 ([ljivančanin witnessed and failed to prevent torture of prisoners of war he was responsible for); Limaj et al. Trial Judgement, paras 631-632, 656, 658; Limaj et al. Appeal Judgement, paras 122-123 (Bala was present during the torture and cruel treatment of civilians at a prison camp); Blagojević and Jokić Appeal Judgement, paras 3-4, 69, 75, 79, 112, 125-135, 150-157, 164-175, 180, 196-200 (Blagojević, a colonel in the Bratunac Brigade, was present at Brigade headquarters and allowed the Brigade’s resources and personnel to be used in committing murder, persecutions, mistreatment, and forcible transfer of Muslim men detained in Bratunac; Jokić, a major in the Zvornik Brigade, committed Brigade resources to dig mass graves and otherwise facilitate murder, extermination, and persecutions at nearby sites); Brđanin Appeal Judgement, paras 2, 227-228, 311-320, 344-351 (as President of the Autonomous Region of Krajina Crisis Staff, Brđanin aided the commission of crimes by Bosnian Serb forces in the region under his authority); Simić Appeal Judgement, paras 3, 114-118, 132-137, 148-159, 182-191 (Simić assisted persecutions of non-Serb civilians in Bosanski [amac municipality, where he was the highest ranking civilian official); Naletilić and Martinović Appeal Judgement, paras 489-538 (Martinović assisted the murder of a detainee by encouraging the detainee’s mistreatment, preventing the detainee from returning from Martinović’s unit to prison, actively covering up the detainee’s disappearance, and giving direct orders to his soldiers regarding disposal of the detainee’s corpse); Kvočka et al. Appeal Judgement, paras 562-564 (Žigić led a prisoner to a room in which he was tortured); Krstić Appeal Judgement, paras 61-62, 135-144 (Krstić permitted troops and other resources under his control to assist in killings of Bosnian Muslims); Vasiljević Appeal Judgement, paras 134-135, 143, 147 (Vasiljević personally guarded seven Muslim men and prevented them from escaping); Furundžija Appeal Judgement, paras 124-127 (Furundžija assisted criminal acts through his presence and personal interrogation of prisoners); Aleksovski Appeal Judgement, paras 36, 165-173 (Aleksovski, a prison warden, assisted in the mistreatment of detainees in and around his prison facility). See also Ntawukulilyayo Appeal Judgement, paras 208-217, 226-229, 243, 246 (Ntawukulilyayo assisted criminal acts by personally encouraging refugees to seek shelter at Kabuye Hill and then transporting soldiers to help kill these refugees); Kalimanzira Appeal Judgement, paras 81, 126, 243 (Kalimanzira encouraged refugees to seek shelter at Kabuye Hill and subsequently accompanied armed individuals who killed some of these refugees); Renzaho Appeal Judgement, paras 2, 68, 75, 84-85, 93, 99-100, 104, 108, 253-255, 336-338, 622 (in his capacity as Prefect of Kigali-Ville, Renzaho aided various crimes in Kigali including murder by, inter alia, facilitating weapons distribution and supporting roadblocks); Rukundo Appeal Judgement, paras 3, 39, 51-54, 92, 115, 176-177, 218, 269-270 (Rukundo assisted the killings of Tutsis by, inter alia, identifying victims to principal perpetrators who then committed genocide and extermination); Karera Appeal Judgement, paras 298, 322-323 (Karera, while at a roadblock, instructed principal perpetrators that a man he identified as a Tutsi be detained and taken away; the man was subsequently murdered); Seromba Appeal Judgement, paras 77, 183-185, 206, 240 (Seromba assisted the murder of Tutsis by expelling them from his parish); Nahimana et al. Appeal Judgement, paras 668-672, 965-968 (Ngeze set up, manned, and supervised roadblocks, assisting in identification of Tutsi civilians who were then killed); Muhimana Appeal Judgement, paras 148, 165-177, 185-192 (Muhimana personally encouraged principal perpetrators to rape Tutsi women); Ndindabahizi Appeal Judgement, para. 4, p. 48 (Ndindabahizi transported attackers to a crime site and distributed weapons used to kill Tutsis); Gacumbitsi Trial Judgement, paras 286-287, 314; Gacumbitsi Appeal Judgement, paras 83-98, 123-125, 207 (Gacumbitsi personally encouraged principal perpetrators to massacre Tutsis and expelled two Tutsi tenants who were subsequently killed); Semanza Appeal Judgement, paras 263-279, 310 (Semanza was present during, participated in, and directed others to participate in mass killings of Tutsis); Ntakirutimana and Ntakirutimana Appeal Judgement, paras 524-537, p. 187 (Elizaphan and Gérard Ntakirutimana assisted attacks on Tutsis by, inter alia, providing transport to attackers and shooting weapons); Rutaganda Appeal Judgement, paras 294-295, 308-341 (Rutaganda aided killings of Tutsis by, inter alia, distributing weapons to principal perpetrators); Kayishema and Ruzindana Appeal Judgement, paras 188-190, 201-202, 242-247, 251-262, 372 (Ruzindana and Kayishema were present at massacres of Tutsis which they, inter alia, orchestrated and directed). [5] See, e.g., Lukić and Lukić Appeal Judgement, paras 419-461; Kvočka et al. Appeal Judgement, paras 563-564; Furundžija Appeal Judgement, paras 124-127. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202. [6] The Appeals Chamber underscores that the requirement of explicit consideration of specific direction does not foreclose the possibility of convictions in cases of remoteness, but only means that such convictions require explicit discussion of how evidence on the record proves specific direction. Cf. Mrkšić and [ljivančanin Appeal Judgement, para. 81 (finding that in the context of the actus reus of aiding and abetting, substantial contribution may be geographically and temporally separated from crimes of principal perpetrators). [7] See Kupreškić et al. Appeal Judgement, paras 275-277 (finding that a six-month delay between an appellant being observed unloading weapons and a subsequent attack reduced the likelihood that these weapons were directed towards assisting in this attack). [8] See [Perišić Appeal Judgement], paras 26-27. [9] Cf. Trial of Bruno Tesch and Two Others (The Zyklon B Case), British Military Court Hamburg 1946, in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals 93-102 (1947) (finding two defendants guilty of assisting killings of concentration camp detainees by providing poison gas, despite arguments that the gas was to be used for lawful purposes, after reviewing evidence that defendants arranged for S.S. units to be trained in using this gas to kill humans in confined spaces). [10] See [Perišić Appeal Judgement], paras 68-69, 71. [11] Mrkšić and [ljivančanin Appeal Judgement, para. 159. See also Orić Appeal Judgement, para. 43; Blaškić Appeal Judgement, para. 49. [12] See [Perišić Appeal Judgement], paras 25-36. Judge Liu dissents from the analysis in this sentence. [13] See [Perišić Appeal Judgement], para. 24. [14] See [Perišić] Trial Judgement, paras 1580-1627. [15] See [Perišić Appeal Judgement], paras 37-40. [16] See Krajišnik Appeal Judgement, para. 202; Stakić Appeal Judgement, para. 219. [17] See [Perišić Appeal Judgement], paras 37, 48. The Appeals Chamber, Judge Liu dissenting, recalls that specific direction establishes a culpable link between an accused aider and abettor and relevant crimes. See [Perišić Appeal Judgement], para. 37. [18] See Krajišnik Appeal Judgement, para. 202; Stakić Appeal Judgement, para. 219. [19] Cf. [Perišić Appeal Judgement], para. 53. Judge Liu dissents with respect to the specific direction requirement. [20] Relevant forms of liability, in addition to aiding and abetting, could include JCE and superior responsibility. Download full document		ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s)	Filing	Case
Aiding and abetting \| Actus reus \| Specific direction	Appeal Judgement - 04.12.2012	LUKIĆ & LUKIĆ (IT-98-32/1-A)
424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence. show footnotes [1] Blagojević and Jokić Appeal Judgement, para. 127; Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, paras 45-46; Vasiljević Appeal Judgement, para. 102; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, para. 210; Ntagerura et al. Appeal Judgement, para. 370; Muvunyi I Appeal Judgement, para. 79; Seromba Appeal Judgement, para. 139. [2] Blagojević and Jokić Appeal Judgement, para. 189. [3] Blagojević and Jokić Appeal Judgement, para. 189. [4] Mrkšić and [ljivančanin Appeal Judgement, para. 159, confirming Blagojević and Jokić Appeal Judgement, para. 189. [5] Aleksovski Appeal Judgement, para. 107. Download full document
Notion(s)	Filing	Case
Aiding and abetting \| Actus reus \| Specific direction	Appeal Judgement - 09.12.2015	STANIŠIĆ & SIMATOVIĆ (IT-03-69-A)
104. Turning to the question of specific direction, the Appeals Chamber recalls that, in the Šainović et al. Appeal Judgement, which was issued subsequent to the Perišić Appeal Judgement, it clarified that specific direction is not an element of aiding and abetting liability.[1] In arriving at this conclusion, it carefully reviewed the jurisprudence of the Tribunal and the ICTR in this regard[2] and re-examined the elements of aiding and abetting liability under customary international law.[3] The Appeals Chamber then observed that, neither in the jurisprudence of the Tribunal and the ICTR nor under customary international law, had specific direction been considered to be an element of aiding and abetting liability.[4] As a result, it rejected the approach adopted in the Perišić Appeal Judgement, which required specific direction as an element of the actus reus of aiding and abetting,[5] and held that this approach was “in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law”.[6] The Appeals Chamber re-affirmed that, “under customary international law, the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’” and that “[t]he required mens rea is ‘the knowledge that these acts assist the commission of the offense’.”[7] 105. Subsequently, in the Popović et al. Appeal Judgement, the Appeals Chamber re-affirmed that “‘specific direction’ is not an element of aiding and abetting liability under customary international law”.[8] 106. Accordingly, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, finds that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. This also means that the Trial Chamber erred in law in making a finding on a substantial effect of the contributory acts contingent upon establishing specific direction, by holding that, when assessing whether the acts carried out by the aider and abettor have a substantial effect on the perpetration of a crime, the Trial Chamber must find that they are specifically directed to assist that crime.[9] […] 128. Finally, Judge Afanđe dissenting, if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[10] In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law,[11] as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.[12] Accordingly, the Appeals Chamber dismisses Simatović’s argument in this respect.[13] show footnotes [1] Šainović et al. Appeal Judgement, para. 1649. [2] Šainović et al. Appeal Judgement, paras 1623-1625, referring to Tadić Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 163, Gotovina and Markač Appeal Judgement, para. 127, Brđanin Appeal Judgement, para. 151, Krstić Appeal Judgement, para. 137, Čelebići Appeal Judgement, para. 352, Blaškić Appeal Judgement, paras 45-46 (quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249), Krnojelac Appeal Judgement, paras 33, 37, Kvočka et al. Appeal Judgement, paras 89-90, Blagojević and Jokić Appeal Judgement, paras 127, 186, 189, 191, 193-194, Simić Appeal Judgement, para. 85, Orić Appeal Judgement, para. 43, Vasiljević Appeal Judgement, paras 102, 134-135, Kupreškić et al. Appeal Judgement, paras 254, 283, Karera Appeal Judgement, para. 321, Nahimana et al. Appeal Judgement, paras 482, 672, Kalimanzira Appeal Judgement, para. 74, Ntawukulilyayo Appeal Judgement, paras 214, 216, Rukundo Appeal Judgement, para. 52, Muvunyi I Appeal Judgement, para. 79, Seromba Appeal Judgement, para. 139, Muhimana Appeal Judgement, para. 189, Ntagerura et al. Appeal Judgement, para. 370, Ntakirutimana Appeal Judgement, para. 530. See also Šainović et al. Appeal Judgement, paras 1619, 1650, referring to Mrkšić and [ljivančanin Appeal Judgement, para. 159, Lukić and Lukić Appeal Judgement, para. 424. See further Šainović et al. Appeal Judgement, para. 1622. [3] Šainović et al. Appeal Judgement, paras 1626-1648. The Appeals Chamber examined the jurisprudence derived from cases which dealt with crimes committed during the Second World War and found that, in none of these relevant cases, was “specific direction” required as a distinct element. See Šainović et al. Appeal Judgement, paras 1627-1642. The Appeals Chamber also reviewed national law and held that requiring specific direction for aiding and abetting liability is not a general, uniform practice in national jurisdictions. See Šainović et al. Appeal Judgement, paras 1643-1646. Finally, the Appeals Chamber examined international instruments (the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 and the ICC Statute) and found no support for the proposition that specific direction is an element of aiding and abetting liability under customary international law. See Šainović et al. Appeal Judgement, paras 1647-1648. See also Šainović et al. Appeal Judgement, para. 1622. [4] Šainović et al. Appeal Judgement, paras 1623-1625, 1649. [5] Perišić Appeal Judgement, para. 36. [6] Šainović et al. Appeal Judgement, para. 1650. [7] Šainović et al. Appeal Judgement, para. 1649, quoting Blaškić Appeal Judgement, para. 46, in turn quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. Accordingly, the Appeals Chamber confirmed that “the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability”. See Šainović et al. Appeal Judgement, para. 1650 (internal references omitted). [8] Popović et al. Appeal Judgement, para. 1758, quoting [ainović et al. Appeal Judgement, para. 1649. See also Popović et al. Appeal Judgement, paras 1764, 1783. [9] Trial Judgement, para. 1264. In this regard, the Appeals Chamber notes that the Trial Chamber took a slightly different approach from the Perišić Appeal Judgement, which considered substantial contribution by an aider and abettor to be a requirement independent from, and in addition to, specific direction, and stated that substantial contribution may be one of the factors for determining whether specific direction is established. See Perišić Appeal Judgement, paras 38-39. In the present case, the Prosecution asserts that, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting, the Trial Chamber misapplied the legal test for aiding and abetting as set out in the Perišić Appeal Judgement, by making a finding of substantial contribution contingent upon establishing specific direction. See Prosecution Appeal Brief [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A, Prosecution Appeal Brief, 11 September 2013 (confidential; public redacted version filed on 25 September 2013)], para. 161. See also Prosecution Appeal Brief, paras 154-155. Given that the Appeals Chamber has found that specific direction is not an element of aiding and abetting liability, the Prosecution’s argument is moot to the extent that it concerns the Trial Chamber’s misapplication of the legal test as set out in the Perišić Appeal Judgement. [10] See supra, paras 104-106. [11] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81. [12] See supra, paras 104-105. [13] See supra, para. 119. Download full document		ICTR Statute Article 6(1) ICTY Statute Article 7(1)