The Doe v. Nestle Amicus Brief’s Most Blatant Misstatement of All

The brief says this with regard to the mens rea of aiding and abetting (knowledge) in Furundzija and Vasiljevic (pp. 10-11):

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.

No, it cannot be questioned — the authors of the brief obviously did not bother to read the judgments in question.  Here is the Trial Chamber in Furundzija (affirmed on appeal; emphasis mine):

274.    On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7(1) and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B. He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute.

And here is the Appeals Chamber in Vasiljevic (emphasis mine):

147.    The Appeals Chamber finds the Appellant guilty of aiding and abetting the crime of murder as a violation of the laws or customs of war under Article 3 of the Statute (Count 5) and the crime of persecution under Article 5(h) of the Statute by way of murder of the five Muslim men and of inhumane acts against the two other Muslim men (Count 3).

The amicus brief’s treatment of Vasiljevic is particularly misleading.  Not only did the Appeals Chamber convict the defendant for aiding and abetting various international crimes, it did so on the ground that the Trial Chamber had erroneously concluded the defendant was a co-perpetrator in those crimes because he had participated in a JCE to commit them (emphasis mine):

131… The Appeals Chamber, therefore, concludes that the Trial Chamber erred by finding that the only reasonable inference from the evidence was that the Appellant shared the intent to kill the seven Muslim men.

132.    The error made by the Trial Chamber led to a miscarriage of justice since, without the proof the Appellant’s intent, the Appellant would not be responsible as a co-perpetrator in the joint criminal enterprise. The Appeals Chamber will now consider whether the Appellant is, nevertheless, responsible as an aider and abettor.

In light of these misrepresentations, is there any question — any at all — that the amicus brief cannot be trusted to accurately describe the state of customary international law?