A Response to Kevin Heller (Part 2)

In a prior post, I responded to some of Kevin Heller’s criticism of the professors’ amicus brief recently filed in the Nestle ATS case.  Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court.  Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY).

To frame the argument, it’s important to emphasize that, as Julian Ku noted earlier, the brief does not see the ICTY as a primary source of customary international law.  Customary international law arises from the practice of states.  The ICTY was created to address specific issues arising from a specific conflict.  It has done its best to apply unclear law to extraordinary facts with little precedent to guide it, and in general it should be commended.  But it was not empowered to create, and should not be understood as creating, a criminal code for the entire world, especially for circumstances far removed from those the tribunal faced.

Beyond that broad contention, the brief identifies various reasons why the ICTY decisions do not, as to the mental state required for aiding and abetting, establish a universal undisputed international law rule for ATS purposes (that being the standard set by Sosa, as explained in my prior post) — let alone one that can be translated uncritically from the ICTY context to the very different context of claims that engaging in commercial transactions with human rights violators amounts to aiding and abetting the violations.  Kevin objects to a couple of these arguments, but I don’t find his objections well-founded.

Kevin first complains that the brief “blatant[ly]” misstates the ICTY’s Vasiljevic decision.  It doesn’t.  The brief only says that Vasiljevic “requires that the aider and abettor’s act be ‘specifically directed to assist … the perpetration of a specific crime.’”  That is in fact exactly what Vasiljevic said (paragraph 102(i) of the tribunal’s opinion).  Vasiljevic did not explain how this requirement for the wrongful act related to the supposed “knowledge” standard for mental state (paragraph 102(ii)).  At least, though, it seems to create some “tension” (which is what the brief said it did).  Kevin thinks the quote from Vasiljevic (which he admits is accurate) isn’t relevant because it comes in the tribunal’s discussion of the required act, not its discussion of the required mental state.  But I don’t see why that matters – the quote seems to be talking about mental state respecting the act, regardless of where it appears, and (as Judge Katzmann said in Khulumani, see 504 F.3d at 278 n.15) it’s hard to reconcile with liability for knowledge.

I frankly have no idea what the Vasiljevic opinion was trying to say with these apparently inconsistent statements.  But that’s precisely the point.  Under Sosa, ATS claims require a showing of undisputed international law.  Even if Vasiljevic is probative generally, I don’t see how to get a clear rule out of it on the question of mental state.  That’s what Judge Katzmann said in Khulumani, and it’s all the brief claims for Vasiljevic.

Kevin’s second objection is that the brief misstates the ICTY cases in general as not being about aiding and abetting.  Here I think Kevin simply misreads the brief.  The passage to which he objects is this:  “Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit), which is a distinct category of criminal liability as a principal, not simply an accessory.”  Kevin then proceeds to argue that the tribunal decisions describe themselves as rejecting a co-participation theory in favor of applying aiding-and-abetting liability.  He’s right – they do.  But that’s not the brief’s point.  The brief’s point is that, given the facts (the defendants were members of rogue paramilitary groups that committed multiple abuses) and the thinness of prior precedent, the cases could have been decided under some form of joint criminal enterprise liability.  The ICTY opinions at times talk of aiding-and-abetting liability in more general terms, but it’s not clear whether the ICTY was (or should have been) thinking beyond rogue paramilitaries, and even less clear that states universally would accept general application of all of the ICTY’s paramilitary jurisprudence to other contexts.  That’s not an argument about what the ICTY said; it’s an argument (among many) for not applying the ICTY cases to very distinct factual circumstances, including ones where there’s no joint criminal enterprise.

Again, this isn’t a novel argument – it was made, among other places, very persuasively by Judge Korman in the Khulumani litigation.  And it’s fundamentally not about what the ICTY rule is, but whether one can say that it’s undisputed how the ICTY rule for rogue paramilitaries would apply to very distinct situations such as (in Nestle) attempts to hold a purchaser of a product liable for violations of rights by the product’s producer.

Thus while I appreciate Kevin’s comments, I think it is important to take a step back and consider what is actually being argued in the brief and how those arguments are shaped by the particular context of the ATS.