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

Abstract

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.