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.