In a recent op-ed in the New York Times, Human Rights Watch Executive Director Kenneth Roth stated that since Momčilo Perišić’s judgement last February, aiding-and-abetting liability required three elements. Beside the knowledge of the accused that his conduct has a substantial likelihood of aiding a crime and that the aid has a substantial effect, he said that the accused must now have “specifically directed” the crime.
For him, the Perišić ruling has undermined the ability of international criminal law to deter officials from murderous assistance so long as they refrain from specifically directing the crime they assist.
For Professor Kevin Jon Heller, these statements conflate aiding and abetting with ordering and instigating, which respectively require instructing and prompting a person to commit a crime.
Aiding and abetting, he says, does not require instruction or prompting by the perpetrator but simply that he provides assistance to another person knowing that this person will use the assistance to commit a crime.
For him, “Perišić does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime.” Professor Heller adds that a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it, so that the prosecution must simply prove that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the commission of that crime.
For Kenneth Roth’s op-ed, click here.
For Kevin Jon Heller’s comment, click here.