A Response to Ramsey II — The ICTY

There are numerous problems with Mike’s response to my posts (here and here) about how the amicus brief distorts the ICTY’s jurisprudence.  Before getting to them, though, it’s important to acknowledge that he and I agree about one thing: decisions of the ICTY are not primary sources of international law.  That, too, is international law 101.  Even here, though, the brief is problematic. The brief could have acknowledged that the ICTY has adopted knowledge as the customary mens rea of aiding and abetting but insisted that the tribunal’s analysis of customary international law was flawed.  I would have disagreed with that conclusion, but it would at least have been a reasonable one, given the difficulty that inheres in distilling customary modes of participation from the mass of (primarily) WW II-era jurisprudence and state practice.  But that is not what the brief did.  Instead, after correctly acknowledging the status of ICTY jurisprudence, it then proceeded to misrepresent the content of that jurisprudence regarding the mens rea of aiding and abetting.

So, now let’s deal with the most important problems in Mike’s response.

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.

The problem with this response should be obvious: the amicus brief conveniently quotes only the sentence in Vasiljevic that, in its view, indicates the mens rea of aiding and abetting is intent. Here, in its entirety, is the paragraph from the amicus brief:

Moreover, even the ICTY jurisprudence has not settled on a mens rea standard for accessorial liability. Although the Furundzija decision expressly adopts a “knowledge” standard, a subsequent decision, Vasiljevic, requires that the aider and abettor’s act be “specifically directed to assist … the perpetration of a specific crime.” See Khulumani, 504 F.3d at 278 n.15 (Katzmann, J., concurring) (noting this tension).

Nothing in this paragraph acknowledges, or even implies, that the Appeals Chamber also said in the very next paragraph of its judgment that “[i]n the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.”  At a minimum, a fair summation of Vasiljevic would have included both quotes — not simply the one that ostensibly supports the amicus brief’s position. A reader of the brief who is not expert in ICL will have no idea whatsoever that the Appeals Chamber specifically held that the mens rea of aiding and abetting was knowledge, not intent.

Notice also that the “tension” Mike identifies regarding Vasiljevic is not the tension identified by the amicus brief.  Mike’s tension is internal — between two allegedly contradictory statements in the Vasiljevic judgment.  The tension in the brief is not internal to the judgment — as noted, the brief simply omits the ICTYs’ insistence that the “requisite mental state” of aiding and abetting “is knowledge.”  Instead, the brief claims that there is a tension between Vasiljevic‘s purported adoption of an intent mens rea and Furundzija‘s adoption of a knowledge mens rea — a tension that the brief deceptively creates by citing only the “specifically directed” language in Vasiljevic.

Indeed, Mike’s description of what Judge Katzmann said in Khulumani about Vasiljevic also does not correspond to what the amicus brief claims.  After arguing that Vasiljevic disagrees with Furundzija concerning knowledge, the brief cites Judge Katzmann and says in the parenthetical “(noting this tension).”  But Judge Katzmann did not note a tension between the two decisions; he simply noted the tension Mike describes in the Vasiljevic judgement itself.  Indeed, in the main text of his opinion, Judge Katzmann correctly noted that Vasiljevic, Furundzija, and Tadic all adopt a mens rea of knowledge for aiding and abetting:

I note that there is some support, principally in tribunal decisions from the ICTY and ICTR, for a definition of aiding and abetting that would lead to liability where an individual provides substantial assistance with “the knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.”  Prosecutor v. Vasiljevic, Case No. IT-98-32-A, Appeals Chamber Judgment, ¶¶ 102(i)-(ii) (Feb. 25, 2004);  see also Furundzija, Trial Chamber Judgment, ¶¶ 249, 275;  Tadic, Trial Chamber Opinion and Judgment, ¶¶ 689-92, 730, 735, 738.

He then added the following footnote about Vasiljevic in particular:

I note a possible tension in the tribunals’ definition aiding and abetting under which the necessary mens rea is knowing assistance, Vasiljevic, Appeals Chamber Judgment, ¶ 102(ii), yet requires that the act of assistance be “specifically directed to assist… the perpetration of a specific crime,” id. ¶ 102(i).

The amicus brief is thus doubly misleading.  It not only omits Vasiljevic‘s specific holding concerning the mens rea of aiding and abetting in order to create the impression that the Appeals Chamber adopted a mens rea inconsistent with Furundzija, it also wrongly implies that Judge Katzmann saw the same tension.

It is also important to note that both Ramsey and the amicus brief are mistaken in their insistence that Vasiljevic did not clearly adopt knowledge as the mens rea of aiding and abetting.  It’s regrettable that the Appeals Chamber was sloppy in its description of aiding and abetting’s actus reus, including language (“specifically directed to assist”) that clever lawyers can use to distort what is otherwise a clear and specific holding (“the requisite mental element is knowledge”). But the holding is indeed clear and specific.  As I noted in my previous post, it is not possible to interpret Vasiljevic as being unclear about the knowledge vs. intent issue — as Mike’s “tension” argument implies — because the Appeals Chamber specifically convicted the defendant of aiding and abetting after rejecting the idea that he intended to further the principal perpetrators’ crimes.  Here again are the relevant paragraphs (emphasis mine):

131. The Appeals Chamber recalls that the question before it is whether no reasonable tribunal could find that the only reasonable inference available on the evidence cited above was that the Appellant shared the intent to commit murder. The Appeals Chamber considers that when a Chamber is confronted with the task of determining whether it can infer from the acts of an accused that he or she shared the intent to commit a crime, special attention must be paid to whether these acts are ambiguous, allowing for several reasonable inferences. The Appeals Chamber is satisfied that no reasonable tribunal could have found that the only reasonable inference available on the evidence, as cited above, is that the Appellant had the intent to kill the seven Muslim men. The Trial Chamber found that the Appellant assisted Milan Lukić and his men by preventing the seven Muslim men from fleeing.    It did not find, however, that the Appellant shot at the Muslim men himself, nor that he exercised control over the firing. Compared to the involvement of Milan Lukić and potentially one or both of the other men, the participation of the Appellant in the overall course of the killings did not reach the same level. The above-mentioned acts of the Appellant were ambiguous as to whether or not the Appellant intended that the seven Muslim men be killed. This conclusion is further supported by the relatively short period of time between the change of attitude of Milan Luki} and the shooting, the strong personality of Milan Luki} compared to the Appellant, as well as the factors mentioned in paragraph. 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.

If there is a “tension” in its decision, the Appeals Chamber didn’t see it.  Nor did the Appeals Chamber in later cases, when it specifically cited Vasiljevic for the idea that the mens rea of aiding and abetting is knowledge.  In Krstic, for example,the Appeals Chamber noted that it had “previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime” (para. 140) — and then cited Vasiljevic as one of those occasions.  Mike and Judge Katzmann are completely alone, therefore, in finding a “tension” in the Vasiljevic judgment.

Finally, I want to address this claim in Mike’s post:

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.

It’s a very bad sign when your explanation of a paragraph in a brief is twice as long as the paragraph itself.  Here it is, in its entirety:

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. See Gerhard Werle, Principles of International Criminal Law 120-23 (2005) (discussing this category of liability).

Readers can judge for themselves, but I think the paragraph’s argument is quite clear: whatever Furundzija and Vasiljevic said about knowledge being the mens rea of aiding and abetting was simply dicta (not “necessary to their holdings”), because the better reading of the judgments is that the defendants were convicted of JCE.  And that argument is clearly wrong, for all of the reasons I’ve mentioned in this post and the previous ones.

That said, I have to confess that I find Mike’s re-interpretation of the paragraph in the brief simply bizarre.  He seems to be arguing that Furundzija and Vasiljevic can be read counterfactually as being based on JCE instead of aiding and abetting; as he says, “[t]he 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.”  Two responses.  First, the counterfactual claim is simply untrue.  As just discussed, the Appeals Chamber in Vasiljevic specifically acquitted the defendant of JCE because it concluded that the defendant did not intend for the JCE’s crimes to be committed.  For Mike’s re-interpretation of the paragraph to make sense, then, we have to read both the law and the facts of Vasiljevic counterfactually.  In other words, we have to imagine that Vasiljevic was a completely different case than the one it actually was.

Second, and more importantly, what would it matter if Furundzija and Vasiljevic could be read counterfactually to rest on JCE?  After all, the actual judgments were based on aiding and abetting and a mens rea of knowledge.  Isn’t that what matters?  Roe v. Wade could have been decided on equal protection grounds instead of on substantive due process grounds; it probably should have been.  But it wasn’t — which is why Roe v. Wade has always been viewed as a substantive due process case instead of as an equal protection case.  The same is true of Furundzija and Vasiljevic. Like it or not, the cases stand for the proposition that the mens rea of aiding and abetting at the ICTY is knowledge.  The brief is free to dismiss ICTY jurisprudence as irrelevant.  But it is not free to distort what that jurisprudence says.

I appreciate Mike’s attempts to salvage the amicus brief, but the brief’s blatant misrepresentation of ICTY jurisprudence speaks for itself.  The judges on the Ninth Circuit will read the brief itself, not Mike’s blog posts.  And they will be misled.  That is one bell, unfortunately, that cannot be unrung.