Part II of a two-part post on the Appeals Chamber judgment in the Taylor case; the first post is available here.
(ii) Disagreements on the elements of aiding and abetting liability
Between the release of the two Taylor judgments, the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its Appeals Judgment in the Perišić case. The Perišić Trial Judgment had been an important authority in the Taylor Trial Judgment, as the Taylor Trial Chamber had cited it as one of its main authorities for the elements of aiding and abetting liability. However, the Perišić Appeals Chamber overturned the Perišić Trial Judgment, and articulated a new legal standard for aiding and abetting in its Appeals Judgment. Thus, many questioned whether the Taylor Appeals Chamber would follow this new legal standard for aiding and abetting. A standard under which Perišić was acquitted, and under which Taylor’s conviction might also have been overturned.
The Perišić Appeals Judgment added ‘specific direction’ as a third element of the actus reus (physical element) of aiding and abetting. Hence, the new Perišić standard establishes a higher threshold or degree of involvement for aiding and abetting, as the accused’s assistance now has to be shown to have been directed specifically at the commission of a crime (and not simply be a more general form of contribution).
The elements of aiding and abetting had been another central appeals ground for the Taylor defence; with the defence arguing that the Trial Chamber’s interpretation of aiding and abetting was so overly broad that an alleged aider could easily fulfill them unconsciously (p. 49898 of Appeal Transcript). The defence argued that the Trial Chamber had breached the principle of personal culpability because it had essentially criminalized any contribution made to a party during and armed conflict (Taylor Appeal Brief para. 446-449). In my mind, this again goes back to the problem of evidence. While none of the parties disputed the fact that Taylor had provided general assistance to the RUF/AFRC, it was much harder to find concrete proof that Taylor had provided assistance towards the commission of specific crimes.
In the end, the Taylor Appeals Chamber rejected the new Perišić standard, and concluded that its own independent review of post-WWII jurisprudence showed that specific direction is not an element of aiding and abetting under customary international law (Appeals Judgment para. 474). So we now find ourselves in a position where Appeals Chambers at the SCSL and ICTY have, within a 7 month time frame, issued very different opinions on the elements of aiding and abetting under customary international law. This perhaps being an indication of how subjective the exercise of determining customary international law can be in practice. The ICC is not bound by case law from the ad hoc or hybrid tribunals, and it will be interesting to see how the ICC consolidates conflicting jurisprudence from the various temporary courts.
(iii) The Charles Taylor judgment, political selectivity or a brave new doctrine in international criminal justice?
As we have seen, Taylor (as a head of state) has not been convicted of crimes committed within his own territory. Rather he now stands convicted of having planned and aided the commission of crimes in a neighboring country, by virtue of having provided substantial assistance to a rebel group. This is certainly a novel conviction, and a precedence that is seen by many as highly problematic.
On the one hand we can argue that the Charles Taylor case can be seen as a brave new doctrine in international criminal justice, allowing for heads of states to be punished for their criminal involvement in other countries. However, the likelihood of the Taylor doctrine being used to indict senior political leaders from powerful States – for their involvement in the commission of crimes in foreign countries – is arguably slim.