Legal regulation of the arms trade has been slow to evolve despite the promotion after World War I of the idea that, for the sake of peace, arms exports should be limited and despite the condemnation on moral grounds of private arms traders who helped to rouse conflict. Article 26 of the United Nations Charter tasked the Security Council with initiating plans for the establishment of a system to regulate armaments in order to promote peace and security and to restrict the diversion of the world’s resources to military expenditure. The extent of this “diversion” of resources is reflected in the estimate that the total value of the global arms trade in 2013 was at least $85 billion. The United Nations’ efforts, which included the public Register of Conventional Arms and a program of action relating to the illicit trade in small arms, culminated in the adoption of the long-awaited Arms Trade Treaty (ATT) on April 2, 2013, which enters into force on December 24, 2014.
1 Sophocles, Antigone 317 (F. Storr trans., 1912).
2 “The legitimate arms trade is big business. Its total annual value is estimated at about 85 billion dollars. of course, when we consider that a great deal of transactions is not captured in published reports, it is very likely that the actual value is considerably higher.” Angela Kane, UN High Representative for Disarmament Affairs, Remarks on the Arms Trade Treaty, Presentation During International Law Week (Oct. 24, 2013), available at http://www.un.org/disarmament/HomePage/HR/Statements.shtml; see also Holtom, Paul, International Arms Transfers: Overview, in Stockholm International Peace Research Institute [Sipri] Yearbook 2013 : Armaments, Disarmament, and International Security 241, 242 (2013), available at http://www.sipri.org/yearbook/2013/05 (estimating that the global arms trade was worth $43 billion in 2011).
3 The system by which governments can report to the UN Register of Conventional Arms was set up in 1991 and is based on the idea of “transparency in armaments.” See United Nations Office for Disarmament Affairs, UN Register of Conventional Arms (2014), at http://www.un.org/disarmament/convarms/Register.
4 See UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, UN Doc. A/CONF.192/15 (2001) (providing a framework for activities to counter the illicit trade in such arms); see also United Nations Programme of Action (2014), at http://www.poa-iss.org/poa/poa.aspx (establishing a framework for activities to counter the illicit trade in small arms and light weapons).
5 Arms Trade Treaty, opened for signature June 3, 2013, 52 ILM 988 (2013) (enters into force Dec. 24, 2014), available at https://unoda-web.s3.amazonaws.com/wp-content/uploads/2013/06/English7.pdf [hereinafter ATT]. The treaty was adopted by a majority vote in the General Assembly of 154 states in favor, 3 states against (North Korea, Iran, and Syria), and 23 abstentions (including China and Russia). Draft Decision, Annex, Arms Trade Treaty, UN Doc.A/CONF.217/2013/L.3 (Apr. 2, 2013).
6 ATT, supra note 5, pmbl., paras. 4, 10.
7 Id., Art. 1. Conventional arms classically means all arms exclusive of biological, chemical, and nuclear weapons, but the scope of the ATT is narrower (Art. 2). See abo Geneva Academy of International Humanitarian Law & Human Rights, the Draft Arms Trade Treaty 20 (2012) (Academy Briefing No. 2), available at http://www.geneva-academy.ch/academy-publications/academy-briefings.
8 ATT, supra note 5, Art. 5.
8 Sipri Yearbook, supra note 2; see also Susan Marks & Andrew Clapham, International Human Rights Lexicon 11 (2005) (noting that the five permanent members of the UN Security Council “are also the world’s five leading exporters of small arms and other conventional weapons”).
10 Prosecutor v. Perišić, Case No. IT-04-81-T, Trial Judgment, para. 6. (Int’l Crim. Trib. Yugo., Sept. 6, 2011) [hereinafter Perišić Trial Judgment]. Documents of the ICTY cited herein are available on its website, http://www.icty.org; see also Sadat, Leila Nadya, Can the ICTY SŠainović and Perišić Cases Be Reconciled?, 108 AJIL 475 (2014).
11 Perišić Trial Judgment, Supra note 10, para. 3; Prosecutor v. Perišić, Case No. IT-04-81-A, Appeals Judgment, para. 49 (Feb. 28, 2013) [hereinafter Perišić Appeals Judgment].
12 Perišić Trial Judgment, supra note 10, para. 205; see also Perišić Appeals Judgment, supra note 11, para. 49.
13 Prosecutor v. Perišić, Case No. IT-04-81-PT, Revised Second Amended Indictment, paras. 8, 9 (Feb. 5,2008).
14 Perišić Appeals Judgment, supra note 11, para. 73.
15 Prosecutor v. Stanišsicć, Case No. IT-03-69-T, Trial Judgment (May 30, 2013) [hereinafter Stanišić Trial Judgment].
16 Id., Dissenting Opinion of Judge Picard, para. 2406.
17 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Judgment, para. 540 (Sept. 26, 2013) [hereinafter Taylor Appeals Judgment]. Documents of the SCSL cited herein are available on its website, http://www.rscsl.org.
18 Prosecutor v. Šainović, Case No. IT-05-87-A, Appeals Judgment (Jan. 23, 2014) [hereinafter Šainović Appeals Judgment].
19 Helmut Philipp Aust, Complicity and the Law of State Responsibility 210 (2011). Writing in the 1980s, John Quigley noted: “The issue of complicity has gained increasing attention in recent years.” John Quigley, United States Complicity in Israel’s Violations of Palestinian Rights, 1984 Palestine Y.B. Int’l L. 95, 95.
20 Marks & Clapham, supra note 9, at 11. ATT Article 2(2) indicates that “transfer” includes export, import, transit, transshipment, and brokering.
21 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 207.
22 Convention Relative to the Protection of Civilian Persons in Time of War, Art. 1, Aug. 12, 1949, 75 UNTS 287. It has been noted that “Article 1 common to the Geneva Conventions of 1949 is generally seen as placing an obligation on all states to ensure that violations of international humanitarian law are not facilitated by their arms exports.” Bromley, Mark, The Review of the EU Common Position on Arms Exports: Prospects for Strengthened Controls, 7 Eu Non-Proliferation Papers 5 (Jan. 2012), available at http://www.sipri.org/research/armaments/transfers/controlling/research/disarmament/eu-consortium/publications/publications/non-proliferation-paper-7 ; see also UN Econ. & Soc. Council, Subcomm’n on the Promotion and Protection of Human Rights Decision 2001/120, the Question of the Trade, Carrying and Use of Small Arms and Light Weapons in the Context of Human Rights and Humanitarian Norms, UN Doc. E/CN.4/Sub.2/2002/39, para. 74(May 30, 2002) (prepared by Barbara Frey).
23 The list of examples of jus cogens is not fixed, however. Malcolm Shaw notes that “the rise of individual responsibility directly for international crimes marks a further step in the development of jus cogens rules.” Malcolm N. Shaw, International Law 126 (6th ed. 2008); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, paras. 157–59 (July 9).
24 Ian Brownlie, Principles of Public International Law 250 (7th ed. 2008).
25 Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials, Economic Community of West African States, Art. 6(3)(b) (June 14, 2006), available at http://www.poa-iss.org/RegionalOrganizations/ECOWAS/ECOWAS%20Convention%202006.pdf.
26 Draft Framework Convention on International Arms Transfers, Art. 3 (2001), available at http://www.seesac.org/sasp2/english/publications/2/4_1_Framework.pdf (prepared under the auspices of a group of Nobel Peace Prize laureates and convened by former Costa Rican president Oscar Arias); see also Int’l Comm. of the Red Cross, Arms Transfer Decisions, Applying International Humanitarian Law Criteria: Practical Guide (2007), available at http://www.icrc.org/eng/assets/files/other/icrc_002_0916.pdf.
27 Marks & Clapham, supra note 9, at 13; see also Boivin, Alexandra, Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons, 87 Int’l Rev. Red Cross 467, 493 (2005).
28 United Nations Conference on the Arms Trade Treaty, July 2–27, 2012, Draft of the Arms Trade Treaty, Art. 3(3), UN Doc. A/CONF.217/CRP.1 (Aug. 1, 2012) (emphasis added), available at http://www.un.org/disarmament/ATT/documents.
29 Rome Statute of the International Criminal Court, Art. 25(3), July 17, 1998, UN Doc. A/CONF.183/9 (emphasis added).
30 Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10, Confirmation of Charges, para. 274 (Dec. 16, 2011); see also Cryer, Robert, Friman, Håkan, Robinson, Darryl & Wilmshurst, Elizabeth, An Introduction to International Criminal Law and Procedure 377 (2d ed. 2010) (“It will certainly make prosecuting those who sell arms or other war matériel which is used for international crimes difficult to prosecute. Even if an arms dealer knew weapons that he sold to a country were destined to be used for the commission of international crimes, liability would not arise if the sole purpose for selling them was making a profit.”); Ventura, Manuel J., Farewell ‘Specific Direction’: Aiding and Abetting War Crimes and Crimes Against Humanity in Perišić, Taylor, Šainović, et al., and US Alien Tort Statute Jurisprudence , in The War Report: Armed Conflict in 2013, at 511 (Casey-Maslen, Stuart ed., 2014).
31 The Russian version of the ATT uses a concept of “certain” or “reliable” knowledge, while the Chinese version uses a concept of “to come to know” or “to have knowledge.”
32 The rule thus articulated is “Every State’s obligation [is] not to allow knowingly its territory to be used for acts contrary to the rights of other States.” Corfu Channel (UK v. Alb.), 1949 ICJ REP. 4, 22 (Apr. 9).
33 Int’l Comm. of the Red Cross, Legal Fact Sheet: Highlights of the Arms Trade Treaty Adopted 2 April 2013 (Apr. 4, 2013), available at http://www.icrc.org/eng/resources/documents/legal-fact-sheet/arms-trade-treaty-summary.htm.
34 ATT, supra note 5, Art. 7(1).
35 Id., Art. 7(3) (emphasis added).
36 Id., Art. 7(4).
37 Council of the European Union, Code of Conduct on Arms Exports, Criterion Two, Doc. No. 8675/2/98 REV 2 (1998) (emphasis added), available at http://ec.europa.eu/external_relations/cfsp/sanctions/codeofconduct.pdf (noting that internal repression includes torture and other major violations of human rights). Similar language regarding a “clear risk” that weapons “might” be used to violate or suppress human rights or have other serious consequences is used in Organization for Security & Co-operation in Europe, OSCE Document on Small Arms and Light Weapons, FSC Doc/1/00/Rev.1, at 4–5 (Nov. 24, 2000), available at http://www.osce.org/fsc/20783.
38 Council Common Position (EU) No. 2008/944/CFSP of 8 December 2008, 2008 OJ. (L 335) 99, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:335:0099:0103:EN:PDF (defining common rules governing control of exports of military technology and equipment).
39 Id., Art. 2(2)(c).
40 Council of the European Union, User’s Guide to Council Common Position 2008/944/CFSP (Apr. 29, 2009), available at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%209241%202009%20INIT (defining common rules governing the control of exports of military technology and equipment).
41 Id., para. 3.2.12.
42 Fifteenth Annual Report According to Article 8(2) of Council Common Position 2008/944/CFSP, Defining Common Rules Governing Control of Exports of Military Technology and Equipment, 2014 O.J. (C 18) 1.
43 An analogy has been proposed between ATT Article 7 and the investigative obligations entailed by the duty of nonrefoulement in refugee law. Marks & Clapham, supra note 9, at 13.
44 James Crawford, the International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 13 (2002).
45 Boivin, supra note 27, at 488.
46 See Articles on Responsibility of States for Internationally Wrongful Acts, Art. 47, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) [hereinafter ASR].
47 Id., Art. 37, cmt. 3.
48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 ICJ Rep. 43, para. 420 (Feb. 26) [hereinafter Application of the Genocide Convention]; see also Nolte, Georg & Aust, Helmut Philipp, Equivocal Helpers—Complicit States, Mixed Messages and International Law, 58 Int’l & Comp. L.Q. 1, 7–10 (2009).
49 Crawford, James, Brownlie’s Principles of Public International Law 555 (8th ed. 2012).
50 Application of the Genocide Convention, supra note 48, para. 420.
51 James Crawford, State Responsibility: the General Part 49 (2013).
52 Application of the Genocide Convention, supra note 48, para. 419 (noting that the term complicity as such “is not a notion which exists in the current terminology of the law of international responsibility”).
53 AUST, supra note 19, at 239.
54 Crawford, supra note 44, Commentary to Art. 16, para. 7 (citing Henry Kamm, New Gulf War Issue: Chemical Arms, N.Y. Times, Mar. 5, 1984, at A3); see also Gwertzman, Bernard, US Says Iraqis Used Poison Gas Against Iranians in Latest Battles, N.Y. Times, Mar. 6, 1984, at A1 (“[Iran’s press] agency said Iran had ‘sufficient documents’ to prove that the weapons were supplied by Britain and said the documents would be submitted to international bodies. Britain denied the accusation today. Britain has long maintained that all its chemical weapons were destroyed in the late 1950’s.”).
55 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 103-21 (1993), 32 ILM 800 (1993) [hereinafter CWC].
56 Id., Art. 1(1)(d).
57 Convention on Cluster Munitions, Art. 1(1)(c), May 30, 2008, 48 ILM 357 (2008), available at http://www.clusterconvention.org. Similar language is contained in CWC Article 1(1)(d).
58 See the Convention on Cluster Munitions: A Commentary 125 (Gro Nystuen & Stuart Casey-Maslen eds., 2010).
59 Id. at 128.
60 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Art. 1(1)(c), Sept. 18, 1997, 36 ILM 1507 (1997) (entered into force Mar. 1, 1999); See 1 Stuart Maslen, Commentaries on Arms Control Treaties: the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction 95–97, paras. 1.55–1.57 (2d ed. 2005).
61 AUST, supra note 19, at 207.
62 Crawford, supra note 51, at 337.
63 Perišić Appeals Judgment, supra note 11, para. 64.
6 Crawford, supra note 44, Commentary to Art. 16, para. 9.
65 Id., para. 4.
66 Id., para. 5.
67 Id., para. 9.
68 Id. ; see also Crawford, supra note 51, at 337.
69 AUST, supra note 19, at 235.
70 Id. at 239, 249.
71 Id. at 241– 44; see also Brownlie, supra note 24, at 440–43 (addressing “culpa “ and “intention and motive” and pointing to the individuality of cases).
72 Dominicé, Christian, Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State, in The Law of International Responsibility 281, 286 (Crawford, James, Pellet, Alain & Olleson, Simon eds., 2010).
73 Application of the Genocide Convention, supra note 48, para. 422.
74 See Jørgensen, Nina H. B., Complicity in Genocide and the Duality of Responsibility, in The Legacy of the International Criminal Tribunal for the Former Yugoslavia 247 (Zahar, Alexander, Swart, Bert & Sluiter, Göran eds., 2011).
75 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 20-100 (1988), 1465 UNTS 85. Article 4(1) mentions “complicity” but only in the context of a state’s obligation to criminalize participation in torture by individuals. See also Report of the Detainee Inquiry, Annex B: the Detainee Inquiry Seminar on International and Domestic Law on Torture, Other Ill-Treatment, and Complicity (Dec. 2013), available at http://www.detaineeinquiry.org.uk/2013/12/report-of-the-detai nee-inquiry (suggesting that the definition of complicity in torture is unclear).
76 Joint Committee on Human Rights, Allegations of Uk Complicity in Torture 2008–09, H.L. 152, H.C. 230, para. 35 (UK), available at : http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15202.htm.
77 Al Nashiri v. Poland, App. No. 28761/11, Judgment, para. 517 (Eur. Ct. H.R., July 24, 2014); Abu Zubaydah v. Poland, App. No. 7511/13, Judgment, para. 512 (Eur. Ct. H.R., July 24, 2014).
78 Al Nashiri, supra note 77, para. 517; Abu Zubaydah, supra note 77, para. 512.
79 See also Bellal, Annyssa, Arms Transfers and International Human Rights Law, in Weapons Under International Human Rights Law 448, 453 (Casey-Maslen, Stuart ed., 2014) (arguing that there is no basis on which to assume the standard for state responsibility is higher than that approved by the SCSL for individual criminal responsibility).
80 Application of the Genocide Convention, supra note 48, para. 422.
81 See Report of the Detainee Inquiry, supra note 75, para.23 (citing James Crawford, who states that “there could be circumstances in which a pattern of repetitive unlawful behavior by State B could give rise to a finding of complicity against State A where State A continued to engage with State B in the knowledge of its ongoing conduct”).
82 See ASR, supra note 46, Arts. 40, 41. A discussion of the ASR regime in respect of serious breaches of obligations arising under peremptory norms of general international law is beyond the scope of this article. See, e.g., Nina H. B. Jørgensen, The Obligation of Non-Assistance to the Responsible State, in the Law of International Responsibility, supra note 72, at 687–93.
83 See also AUST, supra note 19, at 240.
84 Application of the Genocide Convention, supra note 48, para. 173.
85 Marks & Clapham, supra note 9, at 14.
86 ASR, supra note 46, Arts. 2, 4–11 (attribution of conduct to a state).
87 Luigi Condorelli & Claus Kress, The Rules of Attribution: General Considerations, in the Law of International Responsibility, supra note 72, at 221.
88 Crawford, supra note 51, at 51.
89 Application of the Genocide Convention, supra note 48, para. 167.
90 Perišić Trial Judgment, supra note 10, Dissenting Opinion of Judge Moloto, para. 31.
91 Perišić Appeals Judgment, supra note 11, para. 48.
92 Prosecutor v. Taylor, Case No. SCSL-03-01-A, Notice of Appeal of Charles Ghankay Taylor, para. 100 (July 19, 2012) [hereinafter Taylor Notice of Appeal].
93 Prosecutor v. Taylor, Case No. SCSL-2003-01-A, Applicant Submissions of Charles Ghankay Taylor, Public with Confidential Annex A and Public Annexes B and C, para. 268 (Oct. 1, 2012).
94 Taylor Appeals Judgment, supra note 17, para. 462.
95 Id., para. 456.
96 See supra text accompanying note 77 (discussion of Al Nashiri and Abu Zubaydah).
97 Crawford, supra note 44, Commentary to Art. 4, para. 13.
98 Taylor Appeals Judgment, supra note 17, para. 683; see also Prosecutor v. Taylor, SCSL-03-01-T, Sentencing Judgment, para. 27 (May 30, 2012) [hereinafter Taylor Sentencing Judgment].
99 Prosecutor v. Taylor, Case No. SCSL-03-01-I, [Appeals] Decision on Immunity from Jurisdiction, para. 5 (May 31, 2004) (emphasis added).
100 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14).
101 Statute of the Special Court for Sierra Leone, Art. 6(2) (Jan. 16, 2002) [hereinafter SCSL Statute].
102 Application of the Genocide Convention, supra note 48, para. 419.
103 See Report of the Detainee Inquiry, supra note 75, at 108; see also Conventionon Cluster Munitions, supra note 58, at 130 (drawing on the criminal law concept of aiding and abetting).
104 Application of the Genocide Convention, supra note 48, paras. 419 –22.
105 Id., para. 420.
106 Report of the Detainee Inquiry, supra note 75, para. 23.
107 Perišić Trial Judgment, supra note 10, Dissenting Opinion of Judge Moloto, para. 31.
108 Id., para. 5.
109 Perišić Appeals Judgment, supra note 11, Joint Separate Opinion of Judges Meron and Agius, para. 4.
110 Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Judgment, para. 229 (July 15, 1999) [hereinafter Tadić Appeals Judgment].
111 Id.; see also Prosecutor v. Vasiljević, Case No. IT-98-32-A, Appeals Judgment, para. 102 (Feb. 25, 2004); Prosecutor v. Sesay, Case No. SCSL-04-15-A, Appeals Judgment, para. 401 (Oct. 26, 2009); Prosecutor v. Krajišnik, Case No. IT-00-39-A, Appeals Judgment, para. 675 (Mar. 17, 2009); Prosecutor v. Kvoćka, Case No. IT-98-30/1-A, Appeals Judgment, para. 97 (Feb. 28, 2005); Sainović Appeals Judgment, supra note 18, para. 1623. An individual’s contribution to a joint criminal enterprise is not required to take the form of a specific crime, and, while it must at least be significant, it need not be necessary or substantial.
112 Prosecutor v. Vasiljevicć, Case No. IT-98-32-A, Appeals Judgment, para. 102 (Feb. 25, 2004). Although the appeals chamber in the Taylor case affirmed the sentence, it departed from prior holdings of the SCSL, ICTY, and ICTR in asserting, with reference also to the law of Sierra Leone, that the plain language of the SCSL Statute did not indicate any hierarchy of gravity in the various forms of participation and that the assertion of such an abstract hierarchy would be contrary to the requirement of individualizing guilt based on the total gravity of the convicted person’s conduct and circumstances. Taylor Appeals Judgment, supra note 17, paras. 666, 670. The trial chamber had found that a conviction on the basis of such a “principal or significant” mode of liability as joint criminal enterprise might have warranted a higher sentence, even the eighty years’ imprisonment proposed by the prosecution. Taylor Sentencing Judgment, supra note 98, para. 94.
113 See, e.g., Tadić Appeals Judgment, supra note 110, para. 229(iv); Prosecutor v. Ntagerura, Case No. ICTR-99-46-A, Appeals Judgment, para. 370 (July 7, 2006). Documents of the ICTR cited herein are available on its website, http://www.unictr.org.
114 Prosecutor v. Mrkšić, Case No. IT-95-13/1-A, Appeals Judgment, para. 159 (May 5, 2009) [hereinafter Mrkšić Appeals Judgment].
115 Taylor Appeals Judgment, supra note 17, para. 436.
116 Perišić Appeals Judgment, supra note 11, para. 18 (emphasis added).
117 Mrkšić Appeals Judgment, supra note 114, para. 159. The appeals chamber explained in the context of Šljivančanin’s appeal against his conviction for aiding and abetting torture by omission that the requirement that an omission be directed to the furtherance of the crime “forms part of the actus reus not the mens rea of aiding and abetting.” Id. in the context of omissions, the core issue was to determine “whether, on the particular facts of a given case, it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime, and had a substantial effect on it.” Id., para. 146.
118 See Perišić Trial Judgment, supra note 10, para. 6; Perišić Appeals Judgment, supra note 11, para. 14.
119 Perišić Trial Judgment, supra note 10, para. 1588.
120 Perišić Appeals Judgment, supra note 11, para. 17.
121 Perišić Trial Judgment, supra note 10, para. 1588.
122 Id., Dissenting Opinion of Judge Moloto, paras. 2, 3, 10.
123 Perišić Appeals Judgment, supra note 11, paras. 28–31.
12 Id., para. 34 (analyzing the holding in Prosecutor v. Blagojević, Case No. IT-02-60-A, Appeals Judgment, paras. 188 – 89 (May 9, 2007)).
125 Id., paras. 35–36 (analyzing the holding in Mrkšić Appeals Judgment, supra note 114, para. 159). Judge Liu Daqun disagreed with these conclusions and found that the requirement of specific direction “effectively raises the threshold for aiding and abetting liability.” Id., Partially Dissenting Opinion of Judge Liu, para. 3.
126 Id., para. 37 (majority opinion).
127 Id., para. 38.
129 Id., para. 40.
130 Id., para. 42.
131 Id., para. 51.
132 Id., para. 53.
133 The appeals chamber underscored that “the VRS was participating in lawful combat activities and was not a purely criminal organization.” Id., para. 57. The appeals chamber recalled again that “the VRS undertook, inter alia, lawful combat activities and was not a purely criminal organization.” Id., para. 69.
134 Id., para. 53 (citing Perišić Trial Judgment, supra note 10, para. 1588); see also id., Partially Dissenting Opinion of Judge Liu, para. 4.
135 Id., para. 55 (majority opinion).
136 Id., para. 58. Judge Liu would have upheld the conviction: “Perišić’s acts, which facilitated the large-scale crimes of the VRS through the provision of considerable and comprehensive aid, constitute a prime example of conduct to which aiding and abetting liability should attach. Moreover, even assuming specific direction were a required element of aiding and abetting liability, I am not convinced that an acquittal would be justified given the magnitude, critical importance, and continued nature of the assistance Perišić provided to the VRS.” Id., Partially Dissenting Opinion of Judge Liu, para. 9.
137 Stanišić Trial Judgment, supra note 15, para. 1.
138 Id., Dissenting Opinion of Judge Picard, para. 2364.
139 Id., paras. 2336, 2354 (majority opinion) (conclusion on Simatović). Judge Michéle Picard dissented and would have convicted the accused on the basis of their participation in a joint criminal enterprise. Despite considering the Perišić interpretation of aiding and abetting liability to be “overly restrictive,” she also found that the threshold established in that case would still have been met on the facts ofStanšić. Id., Dissenting Opinion of Judge Picard, para. 2405.
140 Id., para. 1264 (majority opinion).
141 Id., para. 2360.
142 Id., para. 2361.
143 Taylor Appeals Judgment, supra note 17, paras. 478 – 80, 486. The trial chamber had similarly found that “[t]heactus reus of aiding and abetting does not require’specific direction.’” Prosecutor v. Taylor, Case No. SCSL-03-01-T, Trial Judgment, para. 484 & n.1141 (May 18, 2012) [hereinafter Taylor Trial Judgment]. Both the prosecution and the defense had been keen to file additional submissions before the appeals chamber concerning the impact of Perišić, but this prospect was denied, the appeals chamber claiming to be “aware of current relevant jurisprudence including the ICTY appeals chamber decision in Perišić “ Prosecutor v. Taylor, Case No. SCSL-03-01-A, Order Denying Defence Request for Leave to Amend Notice of Appeal (Apr. 11, 2013); Prosecutor v. Taylor, Case No. SCSL-03-01-A, Decision on Prosecution Motion for Leave to File Additional Written Submissions Regarding the ICTY Appeals Judgment in Perišić (Mar. 20, 2013).
144 Taylor Appeals Judgment, supra note 17, para. 390.
145 Taylor Trial Judgment, supra note 143, paras. 13, 455.
146 Id., paras. 6887–900.
147 Id., para. 6898. The prosecution did not appeal the issue of Taylor’s participation in a joint criminal enterprise.
148 Taylor was also convicted of planning in respect of all counts but limited to the attacks on Kono and Makeni in December 1998, and in the invasion of and retreat from Freetown between December 1998 and February 1999. Taylor Trial Judgment, supra note 143, para. 6977.
149 Id., para. 6910.
150 Id., para. 6912.
151 Id., para. 6913.
152 Id., para. 6914.
153 Id., paras. 6916–24.
154 Šainović Appeals Judgment, supra note 18, paras. 1621, 1649. Judge Bakhtiyar Tuzmukhamedov dissented on the basis that it was not necessary to discuss the issue of specific direction in this case as Lazarević’s conduct would not fall into the category of “remote assistance.” Id., Dissenting Opinion of Judge Tuzmukhamedov, para. 43.
155 Id., para. 1644 (majority opinion).
156 Id., para. 1625.
157 The ICTY prosecutor filed a motion for reconsideration of Perišić’s acquittal as a consequence of the Šainović Appeals Judgment. This motion was rejected by the appeals chamber, which found that the “Prosecution has failed to establish cogent reasons in the interests of justice for departing from the settled jurisprudence of the Tribunal regarding the reconsideration of final judgements. .. .” Prosecutor v. Perišić, Case No. IT-04-81-A, Decision on Motion for Reconsideration, at 3 (Mar. 20, 2014).
158 The Perišić case and the issue of “specific direction” have been debated extensively by scholars such as James Stewart and Kevin Jon Heller in blogs including EJIL TALK! (http://www.ejiltalk.org) and OPINIO JURIS (http://opiniojuris.org); see also ChernorJalloh, Charles, Case Report: Prosecutor v. Taylor, 108 AJIL 58 (2014); Coco, Antonio & Gal, Tom, Losing Direction: the ICTY Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić, 12 J. Int’l Crim. Just. 345 (2014).
159 Perišić Trial Judgment, supra note 10, Dissenting Opinion of Judge Moloto, para. 32.
160 Case No. 9, the Zyklon B Case (Trial of Bruno Tesch and Two Others), l Law Reports of Trials of War Criminals 93 (Brit. Mil. Ct. 1946). The defense went on to say that “[t]he first [duty] would be to try to prove that Tesch supplied this gas not knowing for what purposes it might be used. My second duty is that, even if he knew something about it, still the laws of this procedure would not suffice to find him guilty.” Id. at 98 n.2.
161 Id. at 100. The prosecution’s argument was accepted by the court. Two industrialists were convicted and sentenced to death, while a third was acquitted.
162 Prosecutor v. van Anraat, Hoge Raad der Nederlanden [Supreme Court], June 30, 2009, Case No. 07/10742 (Neth.) (LJN: BG 4822).
164 See also Perišić Trial Judgment, supra note 10, Dissenting Opinion of Judge Moloto, para. 13 (“An alternative reasonable explanation is that the assistance provided by Perišić to the VRS was directed at supporting the war effort and not to the commission of the crimes and that such assistance did not contribute substantially to the commission of crimes.”).
165 Perišić Appeals Judgment, supra note 11, para. 48.
166 Id., paras. 48, 68; see also Stanišić Trial Judgment, supra note 15, para. 1264. In their joint separate opinion, Judges Theodor Meron and Carmel Agius indicated that this conclusion was reached so as not to disturb the prior jurisprudence, which had always treated specific direction as part of the actus reus. However, the two judges revealed that, had they been starting from scratch, they would have considered “categorising specific direction as an element of mens rea.” Perišić Appeals Judgment, supra note 11, Joint Separate Opinion of Judges Meron and Agius, para. 4.
167 Perišić Appeals Judgment, supra note 11, para. 65 (majority opinion).
168 Perišić Trial Judgment, supra note 10, Dissenting Opinion of Judge Moloto, para. 12; see also Kai Ambos & Njikam, Ousman, Charles Taylor’s Criminal Responsibility, 11 J. Int’l Crim. Just. 789, 800 (2013) (A substantial contribution “means that the contribution must have an effect on the commission. Thus, a type of causal relation ship must be proven between the act and the result. However, this causal relationship does not equal a strict ‘cause-effect relationship between the conduct of the aider or abettor and the commission of the crime,’ the facilitation of the main act by the contribution suffices in principle.”).
169 Taylor Notice of Appeal, supra note 92, para. 96.
170 See User’s Guide to Council Common Position 2008/944/CFSP, supra note 40, para. 3.2.7 (explaining these terms).
171 Cf. Sainović Appeals Judgment, supra note 18, para. 1061 (discussing the probability standard (i.e., the crime “would be committed”) in the context of individual criminal responsibility).
172 A preliminary report of the investigation being conducted by the Dutch Safety Board found that the airplane broke up in midair “probably as the result of structural damage caused by a large number of high-energy objects that penetrated the aircraft from outside.” Dutch Safety Board, Preliminary Report, Crash Involving Malaysia Airlines Boeing 777-200 Flight MH 17, Hrabove, Ukraine (Sept. 2014), available at: http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17-july-2014.
173 See, e.g., Paul Lewis & Harriet Sherwood, US Condemns Shelling of UN School in Gaza but Restocks Israeli Ammunition, Guardian, July 31, 2014, at http://www.theguardian.com/world/2014/jul/30/us-firm-condemnation-shelling-un-school-gaza.
174 Boivin, supra note 27, at 471.
175 Crawford, supra note 44, Commentary to Art. 16, para. 5.
176 AUST, supra note 19, at 215.
177 UN Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention Against Transnational Organized Crime (Fire arms Protocol), 2326 UNTS 208 (May 31, 2001), available at http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf; see also Boivin, supra note 27, at 485.
178 Report of the Detainee Inquiry, supra note 75, para. 18.
179 Taylor Appeals Judgment, supra note 17, at 480.
180 ATT Article 19 refers to various options for the resolution of disputes, including judicial settlement, but does not make specific reference to the ICJ.
181 Taylor Appeals Judgment, supra note 17, at 480.
182 See Marks & Clapham, supra note 9, at 15.
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