Aiding and Abetting by Omission before the International Criminal Tribunals

The mode of liability of aiding and abetting by omission is fraught with analytical difficulties. It is prone to gratuitous expansion beyond more settled modes of liability, being grounded not only in a failure to act, but also in the actions of another, the principal. The International Criminal Tribunals for Rwanda and the former Yugoslavia have struggled throughout their history to present a coherent analysis of the development of aiding and abetting by omission. This article attempts to distil the incoherencies of the ad hoc tribunals' reasoning through an examination of the fundamental philosophical principles permeating the mode of liability - namely, the legal distinction between acts and omissions and the tenuousness of counterfactuals. This article questions the suitability of the mode of liability for the varying fact patterns to which it has been applied and concludes that a precise, first principles analysis must be utilized to ensure future applications guard against the unwarranted expansion of aiding and abetting by omission.