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The Specific Direction Requirement for Aiding and Abetting: A Call for Revisiting Comparative Criminal Law

Marina Aksenova

Keywords: Aiding and Abetting; Specific Direction; Comparative Criminal Law; Sources of Law; General War Effort

The ‘specific direction’ saga has been dominating the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia for nearly two years, and the end is yet to be seen. The story centres on the correct interpretation of liability for aiding and abetting, while, at the same time, exposing broader concerns of international criminal law. The saga started with unexpected acquittals of defendants in the Perišić, Stanišić, and Simatović cases due to a lack of specific direction in their aid and assistance towards specific offences. More specifically, the Tribunal found that the traditional test—the provision of aid with the awareness that it would have a substantial effect on the crimes committed in the context of war—was insufficient to create individual criminal responsibility in these cases. The response to this new and heightened interpretation of aiding and abetting followed quickly, as the Šainović et al appeal judgment rejected the novel requirement. After this judgment, the prosecution filed a motion to reconsider the acquittal in Perišić, which the Appeals Chamber denied. In sum, these developments diluted and mischaracterised the standard of aiding and abetting. Accordingly, this article has two purposes. First, it demonstrates that the innovative element of the specific direction lacks a proper foundation in international law. Second, the article discusses several conceptual difficulties with the specific direction requirement, some of which go beyond the issues of accomplice liability. This article concludes by finding that comparative criminal law is essential to resolving the legal conundrum that this standard causes.

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