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

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.

A. Case-Law in International Criminal Law Does Not Support “Specific Direction”

The first empirical survey analyses aiding and abetting by incident in all international courts and tribunals. The dataset, which represents two years worth of work, is presently undergoing a sustained process of final review, which will take several months further. I have, however, made a provisional version of this dataset available online here, together with a description of the methodology my research team adopted. Below, I detail a summary of our findings based on this dataset.

1. About a third of incidents of aiding and abetting in the case-law of international courts and tribunals mention the words “specific direction” or “specifically directed” 

Of the 362 incidents we have coded, 33% mention “specific direction” or “specifically directed” in passing by citing the language in Tadić. We have inflated these figures, since a single mention of these two words at the beginning of a judgment is considered a reference for all incidents of aiding and abetting in the subsequent factual analysis, even if this test is never applied to incidents individually after the first casual reference.

As noted below, however, these references are very casual and, most frequently, not mentioned again anywhere in the judgment.

2.   To the best of our knowledge, there is only one reference to “specific direction” prior to the Tadić Judgment

In order to constitute a rule of customary international law, there would have to be “virtually uniform” state practice confirming the existence of “specific direction” as an element of aiding and abetting.

To the best of our knowledge, however, there is only one vague reference to the term “specific direction” in case law dealing with aiding and abetting prior to the Tadić Appeal Judgment in 1999. In the Justice Trial of Joself Altstotter and others, Hebert Klemm was charged with aiding and abetting two counts in the indictment: crimes against humanity and war crimes. The United States Military Tribunal at Nuremberg found that Klemm had:

specifically directed the witness Mitzsche to obtain reports. His own testimony shows that he knew of the failure to take effective action in the case cited, and it is the judgment of the Tribunal that he knowingly was connected with the part of the Ministry of Justice in the suppression of the punishment of those persons who participated in the murder of Allied airmen. (p. 1099 my emphasis)

Given this very limited and vague support for this notion, there is no evidence of “virtually uniform” state practice prior to the Tadić Appeal Judgment.

3.   Even when mentioned in the legal section of a judgment, “specific direction” is almost never applied to the facts of a case.

 Of the 362 incidents of aiding and abetting in international criminal law that we have coded, “specific direction” is only applied as a substantive test to the facts of a case in 2% of incidents. Therefore, incidents where “specific direction” plays no part in aiding and abetting cases before international tribunals outweigh incidents where it does by a ratio of 50:1. While the Appeals Chamber in Perišić gives the impression that “specific direction” enjoys a sound basis in practice, this survey confirms the opposite.

4.   In the vast majority of incidents, “specific direction” is either not mentioned at all, or only mentioned in a single sentence without elaboration.

The survey shows that in over 98% of aiding and abetting incidents in international criminal law, “specific direction” is either not mentioned at all in relevant decisions, or it is mentioned in only a single casual sentence without later application.

This again contradicts the assertion that the doctrine enjoys a solid grounding in customary international law or international case law. On the contrary, only a few courts have thought it necessary to take their casual reference to the language in Tadić seriously as a legal test.

5. To the best of our knowledge, there are no acquittals on any incident based on “specific direction” prior to Perišić before any court, national or international.

 Our research suggests that before Perišić, no defendant was acquitted of any incident for failing to “specifically direct” assistance towards an international crime. This finding conforms with the thesis that “specific direction” was casual language adopted first in Tadić without support in customary international law. To some extent, a portion of subsequent cases rote cited this language, but very few ever applied it in practice. Those that did entered convictions.

 6. The law governing aiding and abetting does not apply different standards where defendants assist “criminal organizations.”

 Although the issue is unclear in Perišić, some have interpreted the judgment as creating a new standard of aiding and abetting that distinguishes between aid provided to “criminal organizations” and assistance to other groups and individuals.

We find no support for that distinction in the dataset:

• Of the 362 incidents we have coded, 12% mention “criminal organization” somewhere else in the same judgments;
• Of the 362 incidents we have coded, “criminal organization” is mentioned with respect to aiding and abetting in 0% of incidents.

Therefore, there is literally no support for treating criminal organizations differently for the purposes of aiding and abetting within international criminal law.

B. Academic Scholarship on Aiding and Abetting Never Discusses “Specific Direction”

In a second empirical study, my research team has also analyzed discussions of complicity and aiding and abetting in leading scholarly publications in French and English. We have done so at three levels: (a) criminal law textbooks from thirty-one (31) national systems; (b) twenty (20) treatises on international criminal law; and (c) one hundred and forty six (146) articles on complicity. This list is far from comprehensive, but it does provide further grounds for reflection about “specific direction” that are worthy of presentation now. I intend to continue this collection into the future, so if you can add contributions, corrections or additions, I would be grateful for the input. Thus far, I conclude as follows:

7. To the best of my knowledge, national textbooks on criminal law do not mention “specific direction” as an element of accomplice liability

If “specific direction” is a legitimate interpretation of aiding and abetting, one would expect to find some support for the concept in national criminal law. However, the textbooks on national criminal law that my research team consulted suggest otherwise. For a bibliography of these textbooks, see here.

Of these texts, the following is true:

• Of the 31 textbooks on national criminal law we have coded, 10% or less mention “specific direction” in passing in some context;
• Of these 31 textbooks, “specific direction” is mentioned in relation to aiding and abetting in 0% of cases.

Thus, the topic is not discussed with reference to aiding and abetting at all. When international courts usually emulate national law governing “modes of liability,” the absence of any reference to “specific direction” in the context of complicity is telling.

8. All leading treatises on international criminal law, including those dedicated to “modes of liability” like aiding and abetting, do not mention “specific direction” in more than a sentence

If “specific direction” were settled practice in international criminal law, one would expect scholars to have debated it extensively. “Modes of liability”, after all, are one of the most discussed topics in the discipline, with numerous articles appearing within the discipline each year.

“Specific direction” also has major implications in connected fields, including business and human rights and Alien Tort litigation. There is, however, no detailed discussion of the concept in leading treatises on international criminal law.

 From the leading treatises that we consulted, a bibliography of which can be found here, I conclude that:

• Of the 20 treatises, 35% mention “specific direction” anywhere on any subject;
• Of the 20 treatises, 30% or less mention “specific direction” casually in relation to aiding and abetting, by citing the language in Tadić;
• Of the 20 treatises, “specific direction” is discussed in relation to aiding and abetting in more than a single sentence in 0% of the texts.

Again, the absence of any scholarly debate about the topic militates against the notion that this is established law.

9. None of the articles on the theory of complicity address “specific direction” in more than a sentence

 Discussions of international “modes of liability” frequently draw on leading scholarship from criminal theory. In the context of complicity, this literature is extensive. Nonetheless, there is no scholarly treatment of “specific direction” as an aspect of aiding and abetting, further suggesting that the idea was newly created by the ICTY in the Perišić Appeals Judgment after only a very little prior practice.

From this literature, a full bibliography for which is accessible online here, we conclude that:

• Of the 146 articles, chapters and books we have coded, 8% or less mention “specific direction” in any context;
• Of the 146 articles, chapters and books we have coded, “specific direction” is casually mentioned in relation to aiding and abetting in 6% of all texts;
• Of the 146 articles and chapters, “specific direction” is discussed in relation to aiding and abetting in more than a single sentence in 0% of all texts;

Like the judgments we reviewed, academics too appear to have uncritically cited the language in Tadić. Nonetheless, for practitioners and scholars alike, the test remains highly unprecedented.