Hathaway, Francis, Haviland, Kethireddy, & Yamamoto: Aiding and Abetting in International Criminal Law

Oona A. Hathaway (Yale Univ. - Law), Alexandra Francis (Yale Univ. - Law), Aaron Haviland (Yale Univ. - Law), Srinath Reddy Kethireddy (Yale Univ. - Law), & Alyssa Yamamoto (Yale Univ. - Law), have posted Aiding and Abetting in International Criminal Law (Cornell Law Review, forthcoming). Here's the abstract:

To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and in turn, generated an explosion of international criminal law jurisprudence. Nonetheless, the contours of aiding and abetting liability in international criminal law remain contested. Courts — both domestic and international — have long struggled to identify the proper legal standard for holding actors liable for aiding and abetting even the most serious violations of international law. That confusion has, in turn, produced inconsistent decisions. In the United States, for example, it has resulted in a circuit split, leading many to predict the issue will only be resolved by the U.S. Supreme Court.

This Article aims to provide context and clarity in this area of international law. It explains and categorizes the existing jurisprudence on aiding and abetting, based on a comprehensive survey of every case decided by an international or hybrid criminal tribunal since Nuremberg. It argues that the search by U.S. courts for a single standard for aiding and abetting liability under international law when deciding cases arising under the Alien Tort Statute misunderstands the nature of the aiding and abetting jurisprudence — and, indeed, misunderstands the structure of international criminal law more generally. It explains that differentiated standards for aiding and abetting liability are often a result of purposive and functional pluralism. Put simply, different standards may be appropriate to different contexts. What appears to be a discontinuous and contradictory jurisprudence is, in fact, a set of calibrated standards that are often responsive to the particular context at hand. The Article concludes with recommendations for strengthening and enabling this functional pluralism in order to strengthen and enable international justice.