Introduction

The applicability of the ‘specific direction’ standard, which is used to determine the criminal responsibility of individuals for aiding and abetting crimes, has long been disputed before the ad hoc tribunals of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). However, the International Criminal Court (“ICC”) has not had the opportunity to delve into the application of the standard under the Rome Statute (“the Statute”). Accordingly, this paper shall argue that the standard must be applied under the Statute to allow for a more accurate representation of the ‘purpose’ requirement under Article 25 (3)(c), which deals with the individual criminal responsibility of aiding and abetting. This ‘purpose’ requirement in itself has been a question for contention with the standard being convoluted in itself. 

This paper shall build its argument in two parts; first, in this Part, it will discuss the jurisprudence surrounding the ‘purpose’ and the ‘specific direction’ standard; and second, it shall show how the ‘specific direction’ standard must be applied to the ‘purpose’ requirement under the Statute.

The ‘Specific Direction’ Standard

The ‘specific direction’ standard requires an abettor’s action to be aimed precisely towards assisting the underlying crimes of the principal perpetrator. This standard was first seen in the ICTY Tadić Appeal Judgement where the Court held that the actus reus for criminal liability under aiding and abetting requires that “the aider and abettor carries out acts specifically directed in its manifestation to assist, encourage or lend moral support to the perpetration of a certain specific crime”. This standard can also be seen applied by ICTR in the Ntawukulilyayo and Rukundo Appeal Judgements where it was held that the act must be “specifically aimed” towards the corresponding crimes. Hence, the ‘specific direction’ standard, when compared to the existing actus reus standard applied by the ICC, lays down a more qualitative threshold according to which the actus reus must be judged to establish the criminal liability of an individual for aiding and abetting. While the ad hoc tribunals have had substantial discourse on the same, the ICC has not had the opportunity to opine on the standard since the threshold of aiding and abetting under the ICC is centred around the incorporation of the ‘purpose’ standard under Article 25 (3)(c) into mens rea.

The Current Standard Under Article 25 (3)(C)

As opposed to the ‘specific direction’ standard, the current standard used by the ICC to assess      actus reus in cases of aiding and abetting has had a relatively low threshold, with little attention placed on the actus reus and more scrutiny being placed on mens rea vis-à-vis ‘purpose’. The actus reus debate has been limited to requiring a mere causal link and in some cases raising the threshold to a substantial contribution. These standards look at the act of the individual in isolation, drawing a causal link merely between the conduct of the individual and the consequences, using substantial contribution to ascertain the strength of that link. What this standard fails to consider is the ‘purpose’ of the act and whether it was ‘specifically directed’ towards the commission of any crime. A mere cause and effect standard does not sufficiently encapsulate the unique stance that Article 25 (3)(c) takes through the phrase ‘for the purpose of’.

While the Statute itself places no such limitation on ‘purpose’ being restricted to mens rea, the Court has only, as of now, incorporated the word in ascertaining mens rea. The phrase “for the purpose of” in Article 25(3)(c) implies a requirement that goes beyond that under the lex generalis mens rea standard of Article 30, demanding the abettor act with the purpose of facilitating the crime; since knowledge is not enough for responsibility under Article 25(3)(c). The Court, in Bemba et al., held that the accessory must have lent their assistance with the aim of facilitating the offence, whereby evidence of a motive must be demonstrated. 

The Stance of the Ad Hoc Tribunals

As aforementioned, the standard was first applied in 1999 by the ICTY Appeals Chamber in Tadić. However, this standard was subsequently rejected by the ICTY, holding that “specific direction” is not an essential ingredient to establish the actus reus of aiding and abetting. However, when Perišić came before the Appeals Chamber, the Court adopted the view taken by Tadić and required the acts of the abettor to be ‘specifically directed’ towards assisting, encouraging, or lending moral support to the commission of crimes. 

The discourse has been aptly summarized by the Special Court of Sierra Leone (“SCSL”) in the case of Charles Taylor. The Charles Taylor Trial judgement, adjudged nine months before the Perišić Appeals judgement, held that the actus reus of aiding and abetting ‘does not require “specific direction”.’ However, the authorities on which the Court relied to disregard this standard, namely the Perišić Trial Judgment and the Mrkšić and Šljivančanin Appeal Judgment, were the exact two cases rejected by the Perišić Appeals Chamber. Therefore, when the case of Charles Taylor came before the SCSL Appeals Chamber, the basis for the Trial Chamber’s rejection of the standard stood overruled. This put the Appeals Chamber in a fix since the SCSL statute states that “[t]he judges of the Appeals Chamber of the Special Court for Sierra Leone shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and Rwanda.” However, the SCSL Appeals Chamber chose to uphold its Trial judgement and reject the ‘specific direction’ standard, stating that the SCSL has the final say on customary international law (“CIL”) as it applied to the SCSL. In rejecting the standard, the Tribunal reasoned that there existed no such requirement under CIL, and that the Perišić Appeals Chamber applied the principle without any consideration of CIL, deeming it merely an internally binding precedent. It was also held that there is nothing in the relevant statutes of the ad hoc tribunals to allow for this deviation from CIL to be permissible. Therefore, the SCSL rejected the ‘specific direction’ standard and that remains the position of law today.

With the SCSL rejecting the standard, the position of law before the ICTY remained unsettled. The question was decisively answered by the Appeals Chamber in Šainović. The ‘specific direction’ requirement was expressly overturned, and the Tribunal held that the standard is not an element of aiding and abetting under CIL and consequently not an essential element of establishing actus reus. This is, therefore, the settled position of law before ad hoc tribunals.

Conclusion

To conclude Part I, the standards of aiding and abetting have been extremely varied between the ICC and the ad hoc tribunals. However, it is clear that the tribunals have shown an inclination to reject the ‘specific direction’ standard for actus reus. It will be demonstrated in the forthcoming part as to how the standard can, and must, still be applied to the Rome Statute of the ICC.

You can read Part II here.

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Aryan Deepak Mehta is an Associate Editor at the Jindal Forum for International and Economic Laws. He is currently pursuing his B.A., LL.B. (Hons.) at Jindal Global Law School.

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Image Credits: Rick Bajornas