Judge Pregerson Gets the Rome Statute Right on Aiding and Abetting

As Roger has pointed out, the Ninth Circuit has just released a blockbuster ATS decision in the Rio Tinto case.  There is a great deal to like in the decision, particularly concerning the liability of corporations under the ATS, but it’s regrettable that the majority refused to address the knowledge/intent “debate” concerning the mens rea of aid and abetting under customary international law, choosing instead to hold that, at a minimum, purposeful assistance qualifies.

That said, Judge Pregerson’s partial dissent — joined by Judge Rawlinson — gets the issue absolutely right.  The entire discussion is well worth a read; Judge Pregerson’s analysis of the WW II-era jurisprudence and the jurisprudence of the ICTY is outstanding.  (Unlike the amicus brief I criticized a couple of weeks ago, Judge Pregerson reads Vasiljevic in the same way that the Appeals Chamber itself reads it — as endorsing the mens rea of knowledge.)  The best part of the partial dissent, though, is that it recognizes that, properly understood, the Rome Statute does not support the idea that the customary mens rea of aiding and abetting is purpose.  The opinion is worth quoting at length (my emphasis; citations omitted):

Despite the foregoing multitude of international sources uniformly concluding that knowledge is the applicable mens rea, the majority principally relies on the Rome Statute of the International Criminal Court (the “Rome Statute”) as the basis for a purpose mens rea standard. But not every provision of the Rome Statute was intended to reflect customary international law. Moreover, the Rome Statute was never intended to supersede, constrain or limit existing customary international law, including the universal knowledge mens rea standard—any deviations from customary international law should be viewed as specific only to cases heard under the jurisdiction of the International Criminal Court (“ICC”).

After apparently assuming that the entirety of the Rome Statute necessarily reflects customary international law, the majority then erroneously interprets Article 25(3)(c) as establishing a purpose mens rea standard for all allegations of aiding and abetting liability under the Rome Statute. In so holding, the majority overlooks other Rome Statute provisions delineating a knowledge mens rea standard for aiding and abetting liability. Article 30 establishes that the default mens rea standard for crimes under the Rome Statute is knowledge that a circumstance exists or a consequence will occur in the ordinary course of events. Consistent therewith, Article 25(3)(d) requires only a mens rea of knowledge when an actor aids or abets a crime committed by a group with a common purpose. Consequently, even if the Rome Statute were an appropriate source for determining the mens rea standard, Article 25(3)(d)’s knowledge standard would apply, where, as here, Plaintiffs allege international crimes carried out by a group with a common purpose.

I have nothing to add to this, except to say that Judge Pregerson is spot on, especially concerning the relevance of Article 25(3)(d).  The most baffling part of Mike Ramsey’s defense of the amicus brief’s reliance on Article 25(3)(c) is his claim that “Article 25(3)(d) 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.”  As Judge Pregerson  notes, Article 25(3)(d) is precisely suited to most, if not all ATS cases, in which the international crimes at issue are committed by groups, not by lone individuals.

Kudos, Judge Pregerson.  I hope the Supreme Court pays attention to you when it deals with the aiding and abetting issue.