The Doe v. Nestle Amicus Brief’s Problematic Reliance on Vasiljevic

by Kevin Jon Heller

The brief claims the following (p. 11):

Moreover, even the ICTY jurisprudence has not settled on a mens rea standard for accessorial liability. Although the Furundzija decision expressly adopts a “knowledge” standard, a subsequent decision, Vasiljevic, requires that the aider and abettor’s act be “specifically directed to assist … the perpetration of a specific crime.” See Khulumani, 504 F.3d at 278 n.15 (Katzmann, J., concurring) (noting this tension).

This statement is blatantly incorrect.  Here is what Vasiljevic actually says about the mens rea of aiding and abetting (para. 102; emphasis mine):

In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

The quote that the amicus brief uses comes from the paragraph that immediately precedes the one that I have quoted — the paragraph that addresses the actus reus of aiding and abetting, not the mens rea.

Misstatements don’t get much clearer than that.

http://opiniojuris.org/2011/10/08/the-doe-vs-nestle-amicus-briefs-problematic-reliance-on-vasiljevic/

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