11 Oct A Response to Kevin Heller on Doe v. Nestle
Thanks to Kevin Heller for his thoughts on the professors’ amicus brief in Doe v. Nestle USA, Inc., and to Opinio Juris for affording me this opportunity to respond. I should say at the outset that I’m making this response only in my personal capacity, not on behalf of any litigant or amicus.
While I appreciate the passion Kevin brings to his analysis, I think he lets it carry him a bit beyond the context in which these arguments are being made.
To begin, it’s important to appreciate (as I’m not sure Kevin entirely does) that this debate arises in the unique context of the Alien Tort Statute (ATS). So the question is not purely whether there is, or could be, or might be, a rule of international law. The question is whether there is a rule of international law that meets the high standards set by the U.S. Supreme Court in Sosa v. Alvarez-Machain. In that case the Court held that the ATS permits a cause of action only for a very limited class of well-defined and undisputed violations of international law. So the question here is whether the international law underlying the claim against Nestle is undisputed and not (in Sosa‘s language) “new and debatable.”
That point is crucial in thinking about the role of the Rome Statute of the International Criminal Court. It’s true, as Kevin says, that the Rome Statute doesn’t create customary international law, and the brief doesn’t argue otherwise. But that’s not the question. The question is whether there is undisputed customary international law on the purported “mere knowledge” mental state for aiding and abetting liability. Thus it’s highly relevant that when the Rome Statute’s drafters addressed this exact issue, in the context of codifying customary principles, they were unable to reach agreement. As a result, the Statute adopted a higher “purpose” mental state for aiding and abetting. The drafters’ failure to agree on a broader liability regime is extremely suggestive that the underlying customary principles are in fact not universally accepted, as Sosa requires. This is the core point made by the Second and Fourth Circuits in the Talisman and Aziz cases, and in Judge Katzmann’s scholarly concurrence in Khulumani. I think Kevin’s longstanding objection to this argument may stem from simply not appreciating how it fits into the structure of Sosa and the ATS.
Kevin further objects that this argument violates Article 10 of the Rome Statute. It doesn’t. Article 10 says 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.” The brief’s argument is not that the Rome Statute cuts back on existing international law or that it prevents future development (which is the target of Article 10). Rather, the argument is that the Rome Statute is evidence that there is no settled international law on the point in question (or, at minimum, that the relevant international law isn’t undisputed).
Finally, Kevin claims that Article 25(3)(d) of the Rome Statute could be read to impose a “mere knowledge” mental state, even though Article 25(3)(c) seems clearly to require a “purpose” mental state. Maybe it could. But first, as the brief points out, two comprehensive expert commentaries on the Statute, by Kai Ambos and by Albin Esser, expressly read Article 25(3)(c) to establish a “purpose” mental state for aiding and abetting. Second, Article 25(3)(d) expressly does not apply to aiding-and-abetting claims, since aiding-and-abetting claims are covered by Article 25(3)(c), and Article 25(3)(d) applies for acts that “[i]n any other way” contribute to the crime (that is, in ways other than those described in Article 25(3)(c)). Third, Article 25(3)(c) seems to apply only to “a group of persons acting with a common purpose,” which, whatever it means, isn’t usually the case in corporate aiding-and-abetting cases. And finally, the most Kevin can say is that “[t]he precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars.” That hardly suggests an undisputed rule of the sort required by Sosa.
(As an aside, Kevin seems especially upset that the brief did not address the Article 25(3)(d) argument. Kevin must realize, of course, that these briefs cover a wide range of complex issues under a very tight word limit. It simply isn’t feasible to reject every possible counter argument, and the Article 25(3)(d) argument seems just too flimsy to make it worthwhile. The brief made very clear that weighty commentary endorsed its view of the Statute.)
This addresses Kevin’s objections to the brief’s treatment of the Rome Statute. In a subsequent post, I’ll address his ICTY objections. Again, thanks to Opinio Juris for encouraging this discussion.
The response on Article 25(3)(d) is quite convincing, but I am not certain that the Rome Statute can be seen as a codification of customary international law. First, the drafters quite purposely did not allow for modes of liability that were recognized by the ad hoc tribunals. The Rome Statute also recognizes a number of crimes that are not crimes under customary international law.
Lastly, although my view is that knowledge is sufficient under CIL to establish aiding and abetting liability, the strongest support for the argument of the amici is the ICJ’s decision in the Bosnia Genocide case, where the Court noted the wide divergence in views as to whether purpose or knowledge is the standard. Ultimately Serbia was held not to have aided and abetted genocide under either standard.
Response…
Sosa did not rule out use of customary international law that had its detractors, that would be judicial irresponsibility. What rule of customary international law has universal opinio juris behind it? When was that ever required as an element of customary international law? One need only prove the existence of a definable norm based in generally shared opinio juris. In a few places the Sosa majority opinion addresses acceptance among the civilized world.
And what about those TWENTY U.S. Supreme Court cases that recognized corporate or company rights and duties under customary and treaty-based international law? Isn’t a circuit court bound by those 20 recognitions? Did you put that in the brief, or did you mislead the court on that one?
Response…
p.s. the meaning of the word “debatable” should be tested with reference to internatoinal law, since internaitional law is a necessary background for interpretation of federal statutes, is law of the United States, etc. In this case, the international law concerning the nature of customary international law, that CIL is based on GENERAL patterns of opinio juris (and pracice), should be used to determine whether it is “debatable” whether a customary international norm exists — and if it is based on patterns of GENERAL opinio juris (and practice) (as the Supreme Court has often noted) it is a norm of CIL and the matter is not really “debatable”. You pointed this out to the court as officers of the court in your brief, right?
What I have always found perplexing about this debate is the expectation that customary international law would have a fixed answer to general principles of liability such as the standard for aiding and abetting, which vary from state to state for reasons not obviously related to whether an offense happens to violate international law or not. International courts like the post-World War II tribunals and the ICTY clearly had to come up with something in order to decide their cases, and so I think it’s best to be honest that much of that jurisprudence represents gap filling rather than true custom. On the other hand, the Rome Statute is specific to that court and its restrictive provisions reflect all sorts of delegation concerns that should give us pause before we treat that treaty as an authoritative statement of customary international law that is transferable to other contexts. The clear answer seems to be that customary international law defines certain offenses, but gives states substantial discretion over many of the general principles of liability required to attach responsibility for violations. I suspect this answer is also the most consistent with the legislative intent, as the ATS was promulgated long… Read more »
Two quick questions.
First, I don’t understand why corporate aiding and abetting cases would not fall under the description of “a group of persons acting with a common purpose”. Is there a particular reason that a corporation is not a group of persons acting with a common purpose?
Second, if Article 25(3)(d)’s phrase “in any other way contributes” (to the crime) does not cover aiding and abetting, then what DOES it cover?
Good points Jens. I’m guessing one distinction is that those theories would require suing individual corporate officers rather than the corporation itself. Or can we substitute corporation wherever the Rome Statute says person?
I have never understood the supposed argument (which one often hears) that since corporations qua corporations are not prosecutable under the Rome Statute, or before some other international criminal tribunal, then they are not valid subjects of international legal norms and cannot be sued in tort for violating the law of nations. This argument proves too much. Nation-states are also not prosecutable before international criminal tribunals, but this cannot be evidence that nation-states are not valid subjects of international law, on pain of a reductio ad absurdum.