16 Oct A Reply to Ramsey III — The Rome Statute
In my previous post, I responded to Mike’s attempt to explain the amicus brief’s distortion of ICTY jurisprudence. In this post, I want to respond to his similar attempt to explain the amicus brief’s distortion of the Rome Statute. There are two basic issues: Article 10 of the Rome Statute’s relationship to customary international law, and the importance of Article 25(3)(d).
Mike’s defense of the brief’s decision to simply ignore Article 10 is premised on the same mistaken understanding of Sosa that I criticized in my first post. Once again Mike wrongly assumes that, in the ATS context, federal courts can only apply rules of customary international law that are universally accepted; as he says with regard to the purpose mens rea in Article 25(3)(c), “[t]he 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.” As I pointed out earlier, that standard is an invention of the amicus brief. Sosa does not require a customary principle to be “universally accepted”; it simply requires a new principle to be no less clearly customary than the principles accepted as custom when the ATS statute was enacted. And again, it is international law 101 that a principle must only have “widespread acceptance” to qualify as custom.
Contrary to Mike’s claim, then, Article 10 is critically important to whether Article 25(3)(c)’s purpose mens rea calls into question the idea that knowledge is the customary mens rea of aiding and abetting — the position that has been uniformly adopted by the modern international tribunals, reflects the overwhelming majority of WW II-era cases (as traced by the ICTY in Furundzija), and enjoys near-universal scholarly acceptance. The answer, contrary to what Mike argues, is no. Article 10 means what it says: “[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.” There is nothing ambiguous about that language — the drafters of the Rome Statute, recognizing the difficulty in achieving agreement on a complicated treaty in a limited period of time, wanted to ensure that provisions in the Statute narrower than custom would not be interpreted as evidence of the state of custom. Yet that is precisely how Mike and the amicus brief interpret Article 25(3)(c). No wonder, then, that the amicus brief is silent on Article 10!
Mike’s defense of the amicus brief’s failure to even acknowledge the existence of Article 25(3)(d) is similarly problematic. First, he argues that “two comprehensive expert commentaries on the Statute, by Kai Ambos and by Albin Esser [sic], expressly read Article 25(3)(c) to establish a ‘purpose’ mental state for aiding and abetting.” Actually, all scholars read the Article that way. But so what? The issue is Article 25(3)(d).
Second, Mike argues that “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)).” This is the worst kind of formalism — as Jens Ohlin, no less an authority on modes of participation in ICL than Ambos and Eser, pointed out in the comments to Mike’s post, “if Article 25(3)(d)’s phrase ‘in any other way contributes’ (to the crime) does not cover aiding and abetting, then what does it cover?” Perhaps Mike has an argument as to why a mode of participation that is functionally equivalent to aiding and abetting under customary international law should nevertheless not be read as supporting the customary standard. But he doesn’t offer any such argument in his response — and, again, the amicus brief simply pretends that Article 25(3)(d) doesn’t exist.
Third, Mike argues that “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.” Really? Is there even one ATS aiding-and-abetting case in which the defendants are accused of helping a lone individual commit an international crime? More importantly, Nestle and its co-defendants are specifically accused of aiding “a group of persons acting with a common purpose”: namely, the numerous cocoa plantations in Cote d’Ivoire that use child slaves to grow and harvest their cocoa. Here is paragraph 37 of the Complaint:
Despite the well-documented use of child labor on cocoa farms in Cote d’Ivoire, Defendants not only purchased cocoa from farms and/or farmer cooperatives which they knew or should have known relied on forced child labor in the cultivating and harvesting of cocoa beans, but Defendants provided such farms with the logistical support to do so with little or no restrictions from the government of Cote d’Ivoire.
Fourth, and finally, Mike argues that “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 discussed above, that argument is based on a misinterpretation of Sosa. Regardless, my point was not that Article 25(3)(d) supported the idea that knowledge is the customary mens rea of aiding and abetting. I was simply pointing out that — Article 10 aside — Article 25(3)(c) does not undermine the knowledge standard, because Article 25(3)(d) adopts the same mens rea for aiding and abetting in the specific context of group crimes.
At the end of his post, Mike claims that the Article 25(3)(d) argument was simply “too flimsy to mention” in the brief. As we have seen, the only basis for that claim is that Article 25(3)(d) doesn’t use the expression “aiding and abetting.” Which argument is the flimsy one?
I am confused as to why Article 10 of the Rome Statute is relevant to the effect on customary international law of Article 25. Article 10 states that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law.” It appears in Part 2 of the Rome Statute, on “Jurisdiction, Admissibility and Applicable Law.” But Article 25 does not appear in Part 2. It appears in Part 3, on “General Principles of Criminal Law.” Thus, by its plain terms, Article 10 seems not to apply to Article 25. The drafters could have stated that “nothing in this Statute shall be interpreted as limiting” developing rule of international law. But they didn’t. They limited Article 10 to Part 2. So should it be read to apply also to Part 3? What am I missing?
This is perhaps tangential, but when I read Kevin and Mike debating the degree of consensus necessary to establish a rule, I do not think of “international law 101.” I think instead of “new rules” in the context of habeas corpus and “clearly established law” in the context of section 1983 civil rights litigation. Both of these are domestic US law and therefore presumably irrelevant to what the standards are for international law. Having said that, though, I wonder what the possibility is that over time the Supreme Court will push the degree of consensus required for ATS cases in the same direction that it has pushed new rules and clearly established law — that is, to what is essentially a “no one could reasonably disagree that such and such is the law” standard?
Response to dwallach’s question: Here’s how I understand the Article 10 point that Kevin is making. Part 2 of the Statute, specifically article 5, grants the court jurisdiction over the crimes defined in the rest of Part 2. Article 10 is then a carve-out which qualifies that jurisdiction, i.e. nothing about the statute’s grant of jurisdiction should be interpreted to prejudice or preclude the development of international norms by actors other than the ICC. So the reason that Article 10 refers to “this part” is because it is a qualification of the Statute’s grant of jurisdiction contained in Part 2. As for the General principles of criminal law contained in Part 3, Article 22(3) performs a similar function. It qualifies the general restriction announced in Article 22(1). See in particular S. Lamb’s commentary in the Cassese et al Commentary on the Rome Statute, in particular Vol. 1, page 754 fn. 83 (quoting Per Saland). On the relationship between the wider Article 10 provision and the narrower Article 22(3) provision, which I admit is somewhat complicated, see Broomhall’s good commentary in the Triffterer Commentary (2nd ed), page 726: “Articles 10 and 22 para.3 were inserted to prevent the perception that the… Read more »