The Fourth Circuit Joins the International Law Improv

by Kevin Jon Heller

Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the “law of nations” is intent, not knowledge.  That’s plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision.  But this paragraph deserves specific mention, because it illustrates how shockingly bad the court’s “analysis” of international law really is:

We part company, however, with the D.C. Circuit’s decision to decline to give greater weight to the Rome Statute as the authoritative source on the issue before us. While we agree with the premise that the Rome Statute does not constitute customary international law, we find that its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability. Again, we are mindful that the Rome Statute “has been signed by 139 countries and ratified by 105, including most of the mature democracies of the world.” Khulumani, 504 F.3d at 276 (Katzmann, J., concurring). In our view, then, the Rome Statute constitutes a source of the law of nations, and, at that, a source whose mens rea articulation of aiding and abetting liability is more authoritative than that of the ICTY and ICTR tribunals.

In other words, the Fourth Circuit acknowledges that the drafters of the Rome Statute specifically disclaimed the idea that the intent standard reflected customary international law — but then adopts that standard anyway.  Why the Rome Statute is more important than customary international law with regard to the “law of nations,” the Fourth Circuit never explains.  It just likes the intent standard better.

Also note that the Fourth Circuit conveniently ignores Article 25(3)(d) of the Rome Statute — just as the Second Circuit did in Talisman Energy.  As I noted with regard to the latter decision:

Article 25(3)(d) imposes criminal responsibility on any person who “[i]n any other way contributes to the commission or attempted commission of… a crime by a group of persons acting with a common purpose” when that contribution is either “made with the aim of furthering the criminal activity or criminal purpose or “made in the knowledge of the intention of the group to commit the crime.”  The precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars, but it is clear that the Rome Statute does not unequivocally adopt the purpose standard for all forms of aiding and abetting.  Indeed, the crimes at issue in ATS cases will almost always (always?) be committed by “a group of persons acting with a common purpose,” precisely the kind of criminality that, according to Article 25(3)(d), can be knowingly aided and abetted.

Finally, given the Fourth Circuit’s bizarre preference for conventional law over customary law, it’s worth pointing out that Article 25(3)(d) is copied
 almost
 verbatim
 from
 Article 2(3)(c) of the
 International
 Convention
 on
 the
 Suppression
 of
 Terrorist
 Bombings of
 1997 (ICSTB),
 which has been ratified by 145 states — 25 more than the Rome Statute.  So if we are determining the law of nations simply by counting up the number of states who have endorsed a particular mens rea for aiding and abetting by ratifying treaties, the knowledge standard still wins.

I’d ask why the Fourth Circuit didn’t bother to mention the ICSTB, but you already know the answer to that.

PS. It’s interesting that the Fourth Circuit quotes s.102(3) of the Restatement (Third) of Foreign
Relations Law, adopted by the American Law Institute, with regard to the sources of international law.  Here is what that sections says (emphasis added):

(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.

That quote, of course, completely undermines the Fourth Circuit’s own analysis.  As it acknowledges, the States Parties to the Rome Statute did not intend the law therein “for adherence by states generally.”

http://opiniojuris.org/2011/09/21/the-fourth-circuit-joins-the-international-law-improv/

8 Responses

  1. Seriously, the interpretation of ICL in the US Federal Courts is not even funny anymore. How is it difficult to do a proper research on these questions, don’t people have libraries there? Do the law clerks get paid to do their jobs or everyone seems to be slacking on a pro bono basis?

    And by the way, nice count of the ICC ratifications. When did the ICC have 105 states parties, a few years ago?

  2. Really,

    It’s a quote from Khulumani, so it might have been correct at the time.

  3. I think the more significant point is that international law was an optional course when the judges were in law school and they did not take it.  Or, they took an international law course which was taught as a US foreign relations law course.  Finally, once we allow our leaders to torture, there is an effort to narrow these rules so as to avoid blowback for our leaders.
    Best,
    Ben

  4. Response…
    What is even more strange is that aiding and abetting liability is in ICC art. 25(3)(c)!  25(3)(d) comes close to JCE responsibility.  The customary test for complicity involves intent to engage in conduct with knowledge or awareness that that conduct can or will assist.
    I suspect that Ben is correct because if one writes a memo (intends to engage in conduct) while knowing or being aware that such memo can or will assist direct perpretration of what the world knows is an international crime, that’s enough for complicity (and ignorance of the law is no excuse — one does not have to have an intent to violate the law).  But Ben, I also suspect that there is an effort by some judges to protect corporations from liability — even to the point of ignoring overwhelming trends in judicial decision concerning corporate duties (and rights) under international law.  See, e.g., Kiobel and http://ssrn.com/abstract=1701992
    If so, it is a problem of lawfare in the courts, not merely that some judges are unaware of the law (and their clerks).

  5. Thinking out loud…  If the Rome Statute permits referral by the Security Council of any situation in which one of its crimes has been committed, might it be said that it is “intended for adherence by states generally” after all?

  6. Response…
    It does not matter because the Restatement is incorrect of stating something by example (inclusive rather than exclusive).  For example, the U.S. view is that a web of bilateral agreements between the U.S. and other states now reflects customary international law re: fair, prompt, adequate compensation re: expropriated property.   More generally, customary international law’s status is not dependent upon the status of a particular treaty that might reflect CIL at the time of formation or later, in whole or in part.

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