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“Specific Direction” is Unprecedented: Results from Two Empirical Studies

Published on September 4, 2013        Author: 

Dr James G. Stewart is an Assistant Professor at the University of British Columbia Law School. He has degrees in law from Victoria University of Wellington, the Université de Gèneve and Columbia Law School, in New York. He has previously worked for judges of the ICTY Appeals Chamber, the Office of the Prosecutors at the ICTR in Arusha and later at the ICTY in The Hague.

Over the past months, I have written a range of blogs explaining my normative disagreement with the controversial new standard of aiding and abetting announced by the ICTY in the Perišić Appeals Judgment, which purports to add “specific direction” to the actus reus of aiding and abetting.

In this final blog on the issue, I deal with the question of whether “specific direction” has any foundation in customary international law, but a complete list of my criticisms of this standard from a conceptual perspective, together with a short summary of each, is available online here. Instead of revisiting these conceptual criticisms, I here summarize two multi-year empirical studies into (a) all aiding and abetting incidents in the history of international criminal law; and (b) academic scholarship on complicity at national, international and theoretical levels.

I start by setting out the findings of the first study of aiding and abetting incidents in the case law of international criminal courts and tribunals, before I conclude by addressing the academic literature. In both of these areas, I have presented the material very succinctly for ease of digestion and debate. I have also included links to both datasets. As I hope will become quickly apparent, “specific direction” has no basis in customary international law or scholarly thought.

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