Chicago Journal of International Law


The question of whether international criminal law sweeps too wide in a globalized world is dramatized in the context of accomplice liability, where aiding and abetting may embrace many forms of culpable activity--including even "encouragement". To the extent that modern industrialized states legitimize the United Nations, their defense industries and goods exporters would likely prefer culpability standards excluding their activity altogether from the universe of complicity (in crimes against humanity, genocide, and the like). Until recently, there was little doubt that international criminal tribunals operating under the aegis of the UN had yielded no such bright line formulations. Provided they knew their assistance would be used ultimately to commit crimes against civilians, all purveyors whose assistance contributed meaningfully can be convicted as accomplices. Nevertheless, 2013 witnessed a phenomenon in the jurisprudence of one such tribunal that reflected the implicit pull these arguments possess. Adopting the dictum of its predecessor appellate court, the International Criminal Tribunal for the Former Yugoslavia (ICTY) derived from customary international law a culpability formulation for the actus reus of aiding and abetting: that the accused's acts of assistance be "specifically directed" to facilitate commission of one of the crimes punishable under the ICTY Statute. As the phrase connotes, and as subsequent interpretations crystallized it, specific direction limits what forms of activity can be criminal--yet with a peculiar limiting principle in cases where the accused operated geographically near to the principal. This Comment will argue that specific direction is inconsistent with ICTY precedent and customary international law, that it calls for assumptions at odds with governing treaties, and that its potential normative merits cannot mitigate these critiques.