Farewell ‘Specific Direction’: Aiding and Abetting War Crimes and Crimes Against Humanity in Perišić, Taylor, Šainović et al., and US Alien Tort Statute Jurisprudence
Stuart Casey-Maslen (ed.), The War Report: Armed Conflict in 2013 (Oxford, Oxford University Press, 2014), pp. 511-553
36 Pages Posted: 13 May 2014 Last revised: 16 Dec 2014
Date Written: May 1, 2014
In Perišić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that aiding and abetting liability required, in the actus reus, that the accused not only substantially contributed to the commission of crimes, but that, in addition, because of Perišić’s remoteness, the accused’s actions needed to be specifically directed towards such crimes (together with the mens rea). This, inter alia, led to the complete acquittal of Perišić. That controversial holding set off a chain of legal events that practitioners and academics have dubbed the ‘specific direction saga’ that ran its course through the Special Court for Sierra Leone (SCSL) and the ICTY, resulting in specific direction’s repudiation by the Taylor and Šainović et al. Appeal Judgments respectively. This chapter presents in some detail the analysis of each of these judgments on the matter and offers a critique of the legal analysis and practical problems underpinning specific direction à la Perišić. In addition, the author highlights that specific direction (as ‘purpose’ in the mens rea) at international law had already been litigated in the United States (US) in Alien Tort Statute cases prior to Perišić, resulting in a similar domestic schism that remains unresolved to this day. However, the analyses of US courts remained underappreciated and/or unacknowledged by the aforementioned judgments of the SCSL and the ICTY, notwithstanding the fact that they were directly on point. The author concludes that specific direction’s rejection was correct and that given the weight of the authorities, it is highly unlikely that specific direction will ever again be part of the substantive law of the ad hoc tribunals.
Keywords: Perišić, ICTY, Taylor, SCSL, Šainović, international criminal law, war cimes, crimes against humanity, accesorial liability, aiding and abetting, actus reus, specific direction, Alien Tort Statute, mens rea, purpose
JEL Classification: K13, K14, K29, K33, K42
Suggested Citation: Suggested Citation