Open Questions Regarding Aiding and Abetting Liability in International Criminal Law: A Case Study of icty and ictr Jurisprudence

In: International Criminal Law Review

This article explores icty and ictr jurisprudence on central aspects of aiding and abetting liability, in particular with respect to holding high-ranking military and political figures accountable for international crimes in which they were not directly involved. A close look is taken at the Tribunals’ interpretation – both in law and fact – of the actus reus of aiding and abetting (specifically substantial contribution, encouragement and moral support as well as the temporary alignment between an act of assistance and knowledge that it will contribute to crimes), mens rea (including the threshold of intent, requisite specificity of knowledge regarding crimes and a comparison with relevant case law on superior responsibility) and, finally, the controversial notion of specific direction. It is suggested that the icty and ictr have at times over-expanded criminal liability.