The Doe v. Nestle Amicus Brief’s Problematic Reliance on the Rome Statute

I’ve already said pretty much everything I have to say about the mistaken idea that intent is the customary mens rea of aiding and abetting (see here and here), so there is no reason to spend much time addressing the amicus brief Julian mentions.  I simply want to note that the brief’s reliance on the Rome Statute for the intent standard is no less problematic than the Second and Fourth Circuit decisions that precede it. Like the Second and Fourth Circuits, the brief simply ignores Article 10 of the Rome Statute’s insistence that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”  Indeed, it claims (p. 16) that there is “no reason to discount the Rome Statute as evidence of state practice in favor of inconsistent and ambiguous opinions from international criminal tribunals.”  No reason other than the plain language of Article 10!

Even worse, also like the Second and Fourth Circuits, the amicus brief simply ignores Article 25(3)(d) of the Rome Statute.  For the third time:

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.

As Doug Cassel has pointed out, Article 25(3)(d) makes clear that “[t]he ICC Statute thus embraces a ‘knowledge’ test as sufficient to impose criminal responsibility on one who aids and abets a group crime.”

If the amicus brief believes Article 25(3)(d) is somehow distinguishable or irrelevant, fine.  Make the argument.  To ignore that provision and claim, without qualification, that the Rome Statute adopts an intent standard for aiding and abetting is simply unacceptable.