Ken Roth Conflates Aiding/Abetting with Ordering and Instigation

I am a huge fan of Human Rights Watch’s Ken Roth, but his description of the specific-direction requirement in yesterday’s New York Times is not simply misleading, it’s flat-out wrong. Here are the relevant paragraphs of his op-ed (emphasis mine):

Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had a substantial likelihood of aiding a crime and that the aid had a substantial effect. In its waning days, however, the tribunal has seized on cursory references in earlier cases to require a third element — that the accused “specifically directed” the crime.

This makes little practical sense. Officials who want to facilitate mass atrocities are rarely so dumb as to give explicit orders. Rather, they tend to proceed by indirection, giving aid to a criminal enterprise that is already in motion.

[snip]

The danger of the Perisic precedent is not merely theoretical. It could affect a separate tribunal that is considering whether to uphold the conviction of former President Charles Taylor of Liberia, who was convicted of aiding and abetting atrocities by Sierra Leone rebels. And the ruling undermines the ability of international criminal law to deter other leaders from similar murderous assistance — so long as they refrain from specifically directing the crimes that they assist. Russia’s and Iran’s assistance to Syria comes to mind.

The Yugoslav tribunal still has an opportunity to correct this damaging new doctrine. A separate panel of tribunal judges is considering a case against other officials charged with aiding and abetting atrocities from a distance. The tribunal should affirm — as other panels have done — that the accused does not have to give specific directions to commit crimes to be held criminally liable for aiding and abetting.

These statements fundamentally conflate aiding-and-abetting with two very different modes of participation: ordering and instigating. A perpetrator is guilty of ordering a crime when he instructs another person to commit that crime either intending it to be committed or knowing that there is a substantial likelihood it will be committed. A perpetrator is guilty of instigating a crime when he prompts another person to commit that crime either intending it to be committed or knowing that there is a substantial likelihood it will be committed. (The difference between the two is the status of the perpetrator: to be guilty of ordering, a perpetrator must have either informal or formal authority over the person he instructs to commit a crime). Aiding and abetting, by contrast, requires neither instruction nor prompting by the perpetrator. It simply requires a perpetrator provide assistance to another person knowing that the person will use the assistance to commit a crime.

I have no idea why Ken claims that the Appeals Chamber’s adoption of the “specific direction” requirement in Perisic requires a perpetrator to “give specific directions” to another person in order to be guilty of aiding and abetting a crime. It does nothing of the kind. Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of actus reus — 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.

Reasonable people can disagree about the wisdom of the specific-direction requirement. Productive debate is impossible, however, when critics of the requirement claim that Perisic fundamentally transformed the nature of aiding and abetting. It did not.