‘Specific Direction’ and the Fragmentation of International Jurisprudence on Aiding and Abetting: Perišić and Beyond

in International Criminal Law Review
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In 2011, the International Criminal Tribunal for the former Yugoslavia (icty) sentenced Momčilo Perišić, the former chief of the Yugoslav Army General Staff, to 27 years’ imprisonment for, inter alia, aiding and abetting crimes committed by the Bosnian Serb Army (vrs). Two years later, the icty Appeals Chamber (Judge Liu dissenting) acquitted Perišić, finding no evidence that his assistance to the vrs was ‘specifically directed’ towards the latter’s criminal activities. This article offers a comprehensive, critical analysis of the Perišić Appeals Judgement and fundamentally problematizes the strong emphasis that it places on ‘specific direction’. Arguing that the Judgement represents a significant departure from the icty’s jurisprudence on aiding and abetting liability, it further submits – through an analysis of two recent post-Perišić appellate judgements, namely Taylor (2013) and Šainović et al. (2014) – that the Perišić Appeals Judgement and its elevation of specific direction have fragmented international jurisprudence on aiding and abetting.

‘Specific Direction’ and the Fragmentation of International Jurisprudence on Aiding and Abetting: Perišić and Beyond

in International Criminal Law Review

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References

66

Ramaroson Separate Opinionsupra note 35 para. 7.

68

Liu Partial Dissentsupra note 28 para. 5.

71

Liu Partial Dissentsupra note 28 para. 9.

77

Ramaroson Separate Opinionsupra note 35 para. 2. Author’s translation from French.

97

Liu Partial Dissentsupra note 28 para. 2. See also Ramaroson Separate Opinion supra note 35 para. 4.

155

 See Van Sliedgretsupra note 131. It is interesting to note in this regard that Article 25(3)(c) of the Rome Statute uses a purpose-based standard when discussing individual criminal liability. It states specifically that an individual who commits a crime will be held liable and punished if “For the purpose of facilitating the commission of such a crime [he] aids abets or otherwise assists in its commission or its attempted commission including providing the means for its commission”.

160

Ramaroson Separate Opinionsupra note 35 para. 7.

163

Liu Partial Dissentsupra note 28 n 7 p. 2.

171

Tolbertsupra note 133.

198

Tuzmukhamedov Dissenting Opinionsupra note 191 n 97 pp.773–774.

201

Tuzmukhamedov Dissenting Opinionsupra note 191 para. 40.

204

Tuzmukhamedov Dissenting Opinionsupra note 191 para. 48.

209

Milanovićsupra note 132.

210

 See Clarksupra note 1.

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