No. 09-1262

Supreme Co=.~rt’~~~’]

FILED

/

upr me eurt el the nitel

PRESBYTERIAN CHURCH OF SUDAN, et al.,

Petitioners,

V.

TALISMAN ENERGY, INC.,

Respondent.

On Petition For Writ Of CertiorariTo The United States Court Of Appeals

For The Second Circuit

BRIEF OF DAVID J. SCHEFFER, DIRECTOR OFTHE CENTER FOR INTERNATIONAL HUMANRIGHTS, AS AMICUS CURIAE IN SUPPORT OFTHE ISSUANCE OF A WRIT OF CERTIORARI

DAVID J. SCHEFFER, ESQ.CENTER FOR INTERNATIONAL HUMAN RIGHTSNORTHWESTERN UNIVERSITY SCHOOL OF LAW375 East Chicago AvenueChicago, Illinois 60611-3069(312) 503-8579d-scheffer@law.northwestern.eduAmicus Curiae

May 19, 2010

COCKLE LAW BRIEF PRINTING CO. (8001 225-6964OR CALL COLLECT (402) 342-2831

Blank Page

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ...............1

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT ...........................................................5

I. ARTICLE 25(3)(c) OF THE ROME STAT-UTE OF THE INTERNATIONAL CRIMI-NAL COURT DOES NOT REFLECTCUSTOMARY INTERNATIONAL LAW ..... 5

A. The substantive crimes within the jur-isdiction of the International CriminalCourt were drafted to reflect custom-ary international law ............................7

B. The general principles of law and otherkey provisions of the Rome Statutewere not all drafted to reflect custom-ary international law ............................9

C. Article 25(3)(c) of the Rome Statutewas not drafted to reflect customaryinternational law ...................................11

II. THE MENS REA REQUIREMENT FORAIDING AND ABETTING UNDER THEROME STATUTE IS AMBIGUOUS BUTCAN BE REASONABLY INTERPRETEDAS A KNOWLEDGE STANDARD ..............14

A. Article 25(3)(c) is reasonably read witha knowledge standard because imposi-tion of an intent standard would de-stroy the distinction between aider orabettor and co-perpetrator ....................15

ii

TABLE OF CONTENTS - Continued

Page

B. Article 25(3)(c) must be interpretedtogether with the general principle oflaw on mental element set forth inArticle 30(2)(b) of the Rome Statute .....17

C. The "purpose" requirement was notadded to Article 25(3)(c) during theRome negotiations to require a sharedintention by the aider or abettor andthe perpetrator of the crime ..................21

III. THIS COURT SHOULD GRANT CERTIoORARI TO CONFIRM THAT LOWERCOURTS CANNOT RELY UPON THEROME STATUTE OF THE INTER-NATIONAL CRIMINAL COURT FOR ARULE OF CUSTOMARY INTERNATIONALLAW ON AIDING AND ABETTING LIA-BILITY .........................................................25

CONCLUSION .......................................................26

111

TABLE OF AUTHORITIES

Page

CASES

Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998) ...................................15

Sosa v. Alvarez-Machain, 542 U.S. 692(2004) ......................................................... 6, 8, 26, 27

The Presbyterian Church of Sudan et al. v.Talisman Energy, Inc., 582 F.3d 244 (2d Cir.2009) ....................................................................6, 16

U.S. STATUTE

28 U.S.C. § 1350 .......................................5, 6, 8, 22, 23

TREATY

Rome Statute of the International CriminalCourt, opened for signature July 17, 1998,2187 U.N.T.S. 90 (1998) .................................. passim

BOOKS AND BOOK CHAPTERS

Albin Eser, Individual Criminal Responsibility,in 1 THE ROME STATUTE OF THE INTER-NATIONAL CRIMINAL COURT: A COMMENTARY

(Antonio Cassese, et al. eds. 2002) ...................14, 22

ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW

(2d ed. 2008) ................................................ 10, 14, 15

iv

TABLE OF AUTHORITIES - Continued

Page

Donald K. Piragoff and Darryl Robinson,Article 30: Mental Element, in COMMENTARYON THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT 849 (Otto Trifftrer ed., 2ded. 2008) ............................................................14, 20

Kai Ambos, Article 25: Individual CriminalResponsibility, in COMMENTARY ON THE ROME

STATUTE OF THE INTERNATIONAL CRIMINAL

COURT 743 (Otto Trifftrer ed., 2d ed. 2008) ............14

Per Saland, International Criminal Law Prin-ciples, in THE INTERNATIONAL CRIMINAL COURT:THE I~iAKING OF THE ROME STATUTE 189 (RoyLee ed., 1999) ..........................................................12

WILLIAM A. SCHABAS, AN INTRODUCTION TO

THE INTERNATIONAL CRIMINAL COURT (3d ed.2007) ........................................................ 8, 10, 14, 18

WILLIAM A. SCHABAS, THE ROME STATUTE OF THEINTERNATIONAL CRIMINAL COURT: A COMMEN-

TARY (2010) .........................................................14, 21

WILLIAM A. SCHABAS, THE U.N. INTERNATIONAL

CRIMINAL TRIBUNALS: THE FORMER YUGOSLAVIA,

RWANDA AND SIERRA LEONE (2006) .......................... 16

OTHER AUTHORITIES

Roger S. Clark, The Mental Element in In-ternational Criminal Law: The Rome Statuteof the International Criminal Court andthe Elements of Offences, 2 CRIM. L.Fo 291(2001) .................................................................14, 24

V

TABLE OF AUTHORITIES - ContinuedPage

United Nations Diplomatic Conference ofPlenipotentiaries on the Establishment of anInternational Criminal Court, Rome 15 June- 17 July 1998, Official Records, Volume III,U.N. Doc. A/CONF. 183/13 (Vol. III) (2002) .............17

Blank Page

INTEREST OF THE AMICUS CURIAE1

David J. Scheffer is the Mayer Brown/Robert A.Helman Professor of Law and Director of the Centerfor International Human Rights at NorthwesternUniversity School of Law, where he teaches inter-national human rights and criminal law andcorporate human rights responsibility. He served asU.S. Ambassador-at-Large for War Crimes Issues(1997-2001) and counsel to the U.S. PermanentRepresentative to the United Nations (1993-1997). Hewas deeply engaged in the policy formulation, nego-tiations, and drafting of the constitutional documentsgoverning the International Criminal Court. He ledthe U.S. delegation that negotiated the Rome Statute(Rome Statute of the International Criminal Court,adopted July 17, 1998, 2187 U.N.T.S. 90 (1998)), andits supplemental documents from 1997 to 2001. Hewas deputy head of the delegation from 1995 to 1997.On behalf of the U.S. Government, he negotiated thestatutes of and coordinated support for the Inter-national Criminal Tribunals for the Former Yugo-slavia and Rwanda, Special Court for Sierra Leone,and Extraordinary Chambers in the Courts of

1 Counsel of record for all parties received notice at least 10days prior to the due date of my intention to file this amicusbrief; all counsel have consented to the filing of this brief; andthe consent letters have been filed with the Clerk of the Courtwith this brief. No counsel for any party authored this brief inwhole or in part, and no person or entity, other than the amicuscuriae, made a monetary contribution to the preparation orsubmission of this brief.

Cambodia. He exercised responsibility within theU.S. Government for the investigation andprosecution of atrocity crimes (namely, genocide,crimes against humanity, and war crimes) on a globalbasis. He has written extensively about the tribunals,including the International Criminal Court, and thenegotiations leading to their creation.

Ambassador Scheffer submits this brief out ofconcern that the Second Circuit erred in its analysisof the Rome Statute’s mens rea provision for aidingand abetting liability, most particularly in the SecondCircuit’s conclusions that this provision of the RomeStatute was meant to reflect customary internationallaw and that the accessorial liability of aiding andabetting arises only when there is shared intent withthe perpetrator of the underlying crime. Neitherconclusion is correct. Ambassador Scheffer believesthis brief is necessary to clarify the meaning of theRome Statute and aiding and abetting liability there-under. The Second Circuit judgment reflects seriousmisunderstandings of the Rome Statute and it meritsreview by this Court.

SUMMARY OF ARGUMENT

The Second Circuit errs in drawing upon Article25(3)(c) of the Rome Statute of the InternationalCriminal Court as a demonstration of customaryinternational law for aiding and abetting atrocity

3

crimes under the Court’s subject matter jurisdiction.Article 25(3)(c) reads:

3. In accordance with this Statute, aperson shall be criminally responsible andliable for punishment for a crime within thejurisdiction of the Court if that person:

(c) For the purpose of facilitating thecommission of such a crime, aids, abets orotherwise assists in its commission or itsattempted commission, including providingthe means for its commission ....

This provision was a negotiated compromise amongmostly common law and civil law governments afteryears of talks leading to the Rome Statute and wasnot finalized to express a rule of customary law.

The Rome Statute was never intended, in itsentirety, to reflect customary international law. Someof the document’s provisions - particularly thosepertaining to the subject matter jurisdiction of theInternational Criminal Court - were negotiated forthe purpose of codifying customary international law.However, many provisions were not so negotiated andclearly embody compromises unique to the treaty andto the operation of the International Criminal Court.Indeed, aiding and abetting liability remained anunresolved issue until very late in the negotiations.The final wording of Article 25(3)(c) is an example ofcompromise language far removed from any effort tomirror customary international law.

4

The Second Circuit further errs in concludingthat the reference to "purpose" in Article 25(3)(c) ofthe Rome Statute establishes the requirement of ashared intent between the perpetrator of the crimeand the aider or abettor. The negotiating historyof Article 25(3)(c) demonstrates that there was nodefinitive agreement pointing to either an intentionstandard or a knowledge standard with respect toaiding and abetting liability. The compromise "pur-pose" language chosen for Article 25(3)(c) reflects theobvious point that an aider or abettor purposely actsin a manner that has the consequence of facilitatingthe commission of a crime, but the aider or abettor’sintention cannot be established without reference tothe mens rea principles set forth in Article 30 of theRome Statute.2 Since the judges of the International

2 Article 30 of the Rome Statute reads in its entirety:

1. Unless otherwise provided, a person shall becriminally responsible and liable for punishment for acrime within the jurisdiction of the Court only if thematerial elements are committed with intent andknowledge.

2. For the purposes of this article, a person hasintent where:

(a) In relation to conduct, that person means toengage in the conduct;

(b) In relation to a consequence, that personmeans to cause that consequence or is awarethat it will occur in the ordinary course of events.

3. For the purposes of this article, "knowledge" meansawareness that a circumstance exists or a consequencewill occur in the ordinary course of events. "Know"and "knowingly" shall be construed accordingly.

5

Criminal Court have had no occasion yet to interpretArticle 25(3)(c), particularly in conjunction withArticle 30, there is no judicial precedent from whichto gain a definitive understanding by anyone ofaiding and abetting liability under the Rome Statute.

As it now stands, however, the Rome Statute can bereasonably construed as establishing, for purposes ofcases before the International Criminal Court, aknowledge standard for aiding and abetting liability.

This Court should grant certiorari in order toexamine whether the mens rea standard for aidingand abetting under the Alien Tort Statute (28 U.S.C.§ 1350) should be determined by reference to Article25(3)(c) of the Rome Statute, which represents anegotiated formula uniquely crafted for the Inter-national Criminal Court, or whether it should beascertained from an examination of customary inter-national law, which has long applied the knowledgestandard.

ARGUMENT

I. ARTICLE 25(3)(c) OF THE ROME STATUTEOF THE INTERNATIONAL CRIMINALCOURT DOES NOT REFLECT CUSTOM-ARY INTERNATIONAL LAW

The Second Circuit holds that the mens reastandard for aiding and abetting liability under theAlien Tort Statute must be a "norm of internationalcharacter accepted by the civilized world and defined

with a specificity comparable to the features of the18th-century paradigms" recognized by this Court inSosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).Curiously, the Second Circuit looks to the Rome Stat-ute of the International Criminal Court for definitiveguidance by interpreting it as both adopting thepurpose standard and embodying the customaryinternational law standard of Sosa with respect toaiding and abetting liability. The Presbyterian Churchof Sudan et al. v. Talisman Energy, Inc., 582 F.3d 244,258-259 (2d Cir. 2009). The Second Circuit errs on allcounts with these findings. Petitioners correctly pointout that customary international law has long estab-lished a knowledge standard for aiding and abettingliability and that federal common law, which is in-formed by customary international law, should guidethe courts in determining accessorial liability underthe Alien Tort Statute. Petition for Writ of Certiorari,The Presbyterian Church of Sudan et al. v. TalismanEnergy, Inc., No. 09-1262 at 19-26 (2d Cir. April 15,2010).

While fully embracing such reasoning, thisamicus brief explicates two narrow but essentialpoints not fully addressed elsewhere. The firstobjective is to explain, in this Part I, why Article25(3)(c) of the Rome Statute, which the Second Cir-cuit relies upon for its finding of a purpose standard,should not be interpreted as customary internationallaw. Nonetheless, even if the provision were to befirmly settled as customary international law in theview of the federal judiciary, the second objective of

7

this amicus brief is to explain, in Part II, how theSecond Circuit’s interpretation of the wording ofArticle 25(3)(c) betrays both what transpired in thenegotiations leading to the Rome Statute and how themens rea standard for aiding and abetting is estab-lished under the treaty.

The Rome Statute is a negotiated treaty ofconsiderable complexity designed to govern only theInternational Criminal Court. The Rome Statute wasnever intended, in its entirety, to reflect customaryinternational law. Relatively few of the provisions ofthe Rome Statute merit that rigorous categorizationand they do not include Article 25(3)(c). Nonetheless,the Second Circuit leaps to the conclusion that Article25(3)(c) embodies customary international law.

Article 25(3)(c) was a negotiated compromiseamong primarily common law and civil law gov-ernments after years of talks leading to the RomeStatute and was not finalized to express a rule ofcustomary law. There is no international consensusreflected in Article 25(3)(c), which in any event mustbe read in conjunction with Article 30, the mens reaprovision of the Rome Statute.

A. The substantive crimes within the juris-diction of the International CriminalCourt were drafted to reflect customaryinternational law

The provisions of the Rome Statute that thedrafters understood were being negotiated to record

customary international law were the atrocity crimesdefined in Articles 6 (genocide), 7 (crimes againsthumanity), and 8 (war crimes) of the treaty- the veryprovisions federal courts should be looking to forguidance about the primary violations of interna-tional law at stake in Alien Tort Statute litigation.

See WILLIAM A. SCHABAS, AN INTRODUCTION TO THE

INTERNATIONAL CRIMINAL COURT 103 (3d ed. 2007).

For years the drafters, including myself and ateam of State, Defense, and Justice Department law-yers working with our foreign counterparts, examinedand debated the development of international hu-manitarian law and international criminal law toarrive at a general agreement as to what constitutedcustomary international law for the substantivecrimes that would be prosecuted before the Inter-national Criminal Court. Thus, if one applies thestringent universality requirements of Sosa to theRome Statute, one can confidently identify the atroc-ity crimes defined therein as representing the types ofcrimes (or torts) that have universal character andare of such a magnitude that they fall within thejurisdictional scope of the Alien Tort Statute. But thatsharp focus on customary international law neverwas the aim of the negotiations regarding other pro-visions of the Rome Statute, including the negoti-ations on accessorial liability. While some otherarticles of the Rome Statute happened, in the end, toreflect customary international law, Article 25(3)(c) isnot one of them.

9

B. The general principles of law and otherkey provisions of the Rome Statutewere not all drafted to reflect custom-ary international law

The general principles of criminal law set forth inArticles 22-33 of the Rome Statute were intensivelynegotiated, often leading to compromises betweencommon law and civil (Romano-Germanic) law coun-tries in particular and with the active intervention ofdelegations schooled in Sharia law or other majorlegal systems. In some instances, the end product ofthis process of negotiation was a provision thatmirrors customary international law. For example,the provisions of the Rome Statute that doubtless fallwithin this category include Articles 22 (nullumcrimen sine lege), 23 (nulla poena sine lege), 24 (non-retroactivity ratione personae), 25(3)(e) (incitement tocommit genocide), 32 (mistake of fact or mistake oflaw), and 67 (rights of the accused).

It would be erroneous to claim, however, fol-lowing the deals struck and compromises arrived atduring years of talks, that all of the provisions ongeneral principles of law and all rules of evidence andprocedure, penalties, and sentencing were reflectionsof customary international law - many were not. Asexplained above, negotiators labored very hard tocreate a subject matter jurisdiction of only crimes ofcustomary international law, but the Rome Statutenever would have come to pass if that standard ofuniversal acceptance had been required for other

10

provisions, including all of the general principles oflaw.

For example, Article 33, a general principle oflaw on superior orders and prescription of law, washeavily negotiated, resulting in compromise languagethat does not mirror comparable provisions in thecharters of the Nuremberg and Tokyo InternationalMilitary Tribunals or the statutes of the other inter-national or hybrid criminal tribunals of recent years.Indeed, the end result in Rome reflected more whatwas acceptable to NATO military commanders thanwhat was desired by many other governments. Theformer President of the International Criminal Tri-bunal for the Former Yugoslavia, Professor Antonio

Cassese, writes, "[Article 33] is at odds with custom-ary international law, for it does not include warcrimes in the category of offences with regard towhich superior order [sic] enjoining their commissionare always manifestly unlawful." ANTONIO CASSESE,

INTERNATIONAL CRIMINAL LAW 279 (2d ed. 2008).

Beyond the general principles of law, anotherexample of negotiated compromise language ariseswith Article 77, which establishes a maximum sen-tence of life imprisonment "when justified by the ex-treme gravity of the crime and the individual cir-cumstances of the convicted person." Arab andCaribbean delegations strongly objected to theabsence of the death penalty in the Rome Statute andwould never concede that Article 77 reflects themaximum degree of punishment permitted undercustomary international law. WILLIAM A. SCHABAS, AN

11

INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT

316 n. 17 (3d ed. 2007). Indeed, the U.S. Governmentwould not concede that point.

C. Article 25(3)(c) of the Rome Statute wasnot drafted to reflect customary inter-national law

Similarly, Article 25(3)(c) of the Rome Statutewas negotiated not to codify customary internationallaw but to accommodate the numerous views of com-mon law and civil law experts about how, precisely, toexpress the mens rea of the aider or abettor. PerSaland, the Swedish Chairman of the Working Groupon the General Principles of Criminal Law for yearsprior to and throughout the Rome Conference, writesthat Article 25

posed great difficulties to negotiate in anumber of ways. One problem was thatexperts from different legal systems tookstrongly held positions, based on theirnational laws, as to the exact content of thevarious concepts involved. They seemed tofind it hard to understand that another legalsystem might approach the issue in anotherway: e.g., have a different concept, or givethe same name to a concept but with aslightly different content .... The text wasalso burdened with references to the mentalelement (e.g., intent and knowledge) becauseagreement had not yet been reached as tothe text of a separate article dealing with themental element in general terms.

12

Per Saland, International Criminal Law Principles,in THE INTERNATIONAL CRIMINAL COURT: THE MAKING

OF THE ROME STATUTE 189, 198 (Roy Lee ed., 1999).

As the lead U.S. negotiator, I do not recallhearing directly or being advised by my Justice De-partment team of negotiators of a single discussionprior to or during the Rome negotiations where thetext of what laboriously became Article 25(3)(c) onaiding and abetting as a mode of participation wasbeing settled as a matter of customary internationallaw. It was a very contentious provision, with somedelegations seeking explicit reference to intention,notwithstanding the important complication that theword "intention" has different meanings in differentlegal systems. In some countries, for example, passiveintention is inferred from an actor’s engaging inconduct with knowledge of some likely consequence ofthat conduct. Other delegations were wedded to theterm "knowledge," believing that it better reflectedthe standard that was employed in their nationalpractice and that had been endorsed in the juris-prudence of the Nuremberg and Tokyo InternationalMilitary Tribunals and of the International CriminalTribunals for the Former Yugoslavia and Rwanda.

Negotiators struggled to find compromise word-ing and ultimately settled on using neither "intent"nor "knowledge" but "purpose." Reaching this compro-mise was made easier, in the end, by the priorresolution of the final language of Article 30, anarticle that deals expressly with the issue of themental element of crimes. Finalizing the language of

13

Article 30 helped enormously, as it enabled negoti-ators to look to Article 30 for intent and knowledgestandards while seeking an accommodation for Ar-ticle 25(3)(c). However, if anyone had claimed wewere writing customary international law on aidingand abetting liability in Article 25(3)(c), they wouldhave been laughed out of the room.

Thus, the wording of Article 25(3)(c) was uniquelycrafted for the International Criminal Court, andwhen read in conjunction with the mens rea stan-dards set forth in Article 30 of the Rome Statute,leaves to the judges of the International CriminalCourt the task of determining precisely the propercriteria for accessorial liability. Nothing discouragesor prevents them from looking to the growing juris-prudence of the International Criminal Tribunals forthe Former Yugoslavia and Rwanda, the SpecialCourt for Sierra Leone, the Extraordinary Chambersin the Courts of Cambodia, to state practice, and toscholarly texts for guidance on this issue.

Article 25(3)(c) is not a statement of customaryinternational law. Since the International CriminalCourt has yet to interpret the provision’s meaningand application with respect to accessorial liabilityfor aiding and abetting, national courts can onlyspeculate as to its scope and meaning; yet that spec-ulation should be fully informed by the negotiatinghistory. One pillar of certainty in that history is thatArticle 25(3)(c) has no standing as customary inter-national law.

14

II. THE MENS REA REQUIREMENT FOR AID-ING AND ABETTING UNDER THE ROMESTATUTE IS AMBIGUOUS BUT CAN BEREASONABLY INTERPRETED AS A KNOWL-EDGE STANDARD

In the years following the Rome Statute negotia-

tions, scholars have debated what Article 25(3)(c) ofthe Rome Statute achieves - whether the provisioncreates a shared purpose requirement for aiding andabetting or whether, when joined with the mentalelement provision of Article 30, it builds upon long-standing and growing precedents from internationaland hybrid criminal tribunals that sustain the knowl-edge standard for aiding and abetting. See ANTONIOCASSESE, INTERNATIONAL CRIMINAL LAW 74, 214-29 (2ded. 2008); Roger S. Clark, The Mental Element inInternational Criminal Law: The Rome Statute of theInternational Criminal Court and the Elements ofOffences, 2 CRIM. L.F. 291, 301-03 (2001); Donald K.Piragoff & Darryl Robinson, Article 30: Mental Ele-ment, in COMMENTARY ON THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT 849, 854-55 (OttoTrifftrer ed., 2d ed. 2008); Kai Ambos, Article 25:Individual Criminal Responsibility, in COMMENTARYON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL

COURT 743, 759-60 (Otto Trifftrer ed., 2d ed. 2008);WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTER-

NATIONAL CRIMINAL COURT 213 (3d ed. 2007); WILLIAM

A. SCHABAS, THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT: A COMMENTARY 435-46 (2010); AlbinEser, Individual Criminal Responsibility, in 1 THE

15

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT:

A COMMENTARY 767, 798-801, 900-02 (Antonio Cassese,et al. eds., 2002). Such debate demonstrates thatthere are reasonable interpretations, one of themcertainly being application of the knowledge stan-dard. But until the judges of the International Crim-inal Court rule on the mens rea requirement foraiding and abetting under the Rome Statute, no

national court can dictate that one standard (such aspurpose or shared intention) negates a second stan-dard (such as knowledge) in the International Crim-inal Court’s constitutional framework or in itspractice.

A. Article 25(3)(c) is reasonably read witha knowledge standard because imposi-tion of an intent standard would de-stroy the distinction between aider orabettor and co-perpetrator

The great weight of international precedent hasidentified aiding and abetting with a knowledge stan-dard. See, e.g., ANTONIO CASSESE, INTERNATIONAL CRIM-

INAL LAW 211, 214-18 (2d ed. 2008); Prosecutorv. Furundzija, Case No. IT-95-17/l-T, Judgment,

~1~ 234-35, 245 (Dec. 10, 1998); Brief for InternationalLaw Scholars William Aceves et al. as Amici CuriaeSupporting Petitioners at 12-15, Presbyterian Churchof Sudan, et al. v. Talisman Energy, Inc., No. 09-1262(2d Cir. April 30, 2010). The Second Circuit neverthe-less reached a contrary conclusion: "Thus, applyinginternational law, we hold that the mens rea

16

standard for aiding and abetting liability in ATSactions is purpose rather than knowledge alone."Presbyterian Church of Sudan, et al., 582 F.3d at 259.

Among the problems with this conclusion is thatit obliterates the distinction between aiders andabettors, on the one hand, and perpetrators ofatrocity crimes on the other hand. The character ofatrocity crimes, which are massive assaults oncivilian populations or egregious violations of thelaws of war, means that: 1) the intention of theperpetrator can often be inferred more readily; and 2)the many additional participants in the vast criminalenterprise necessarily act with a multiplicity ofintentions among them, but the aiders and abettorsdo so only knowing that their participation facilitatesthe intentional commission of the principal crimewhile they act upon their separate individual inten-tions, such as the pursuit of profit, survival, status, oreven discrimination against the victims.

Professor William Schabas explains, "Some judg-ments [of the war crimes tribunals] have attemptedto explain the distinction [between aiding and abet-ting and perpetration] in another way, stating thatwhen the accomplice ’shares’ the intent of the princi-pal perpetrator, he or she becomes a ’co-perpetrator.’"WILLIAM A. SCHABAS, THE U.N. INTERNATIONAL CRIM-

INAL TRIBUNALS: THE FORMER YUGOSLAVIA, RWANDA AND

SIERRA LEONE 307-08 (2006). Had the drafters of theRome Statute meant to require an intent standard foraiding and abetting, they would have agreed to recastaiding and abetting more coherently as a co-perpetrator

17

mode of liability. But they did not. Consequently, anational court would be mistaken to identify theRome Statute as somehow confirming a sharedintention standard and denying the knowledgestandard. The final wording of Article 25(3)(c)

negated neither the large body of precedents for aknowledge standard in aiding and abetting liabilitynor the common sense reality of how atrocity crimesare committed.

B. Article 25(3)(c) must be interpreted to-gether with the general principle of lawon mental element set forth in Article30(2)(b) of the Rome Statute

Negotiators repeatedly stumbled over whateventually was consolidated in Article 30 of the RomeStatute regarding the required mental element for allof the atrocity crimes, including the mental elementfor accessorial liability for such crimes. There re-mained a lingering and significant problem prior toRome among largely common law and civil law dele-gations about precisely how the mens rea for aidingand abetting should be worded. The PreparatoryCommittee draft in spring 1998, which was the initialworking draft in Rome, reflected this continuedindecision with its draft language for the aiding andabetting provision: "[With [intent] [knowledge] tofacilitate the commission of such a crime,] aids, abetsor otherwise assists ... " United Nations DiplomaticConference of Plenipotentiaries on the Establishmentof an International Criminal Court, Rome 15 June -

18

17 July 1998, Official Records, Volume III, U.N. Doc.A/CONF.183/13 (Vol. III) (2002), at 31.

It was only after negotiators reached Rome in thesummer of 1998 that they finally arrived at com-promise language. We knew that Article 30 of theRome Statute, which deals with the required mentalelement, would be the agreed formula for how bothintent and knowledge would be described and applied

as the mental element for criminal acts, "[u]nlessotherwise provided." Rome Statute, art. 30(1). Thelatter proviso relates to explicit formulations of intentand knowledge for some of the atrocity crimes definedin Articles 6, 7, and 8, for command responsibilityunder Article 28, and for participants in a "commonpurpose" under Article 25(3)(d)(ii). WILLL~I A. SCHABAS,AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL

COURT 224-25 (3d ed. 2007). But the proviso’srelevance, if any, to Article 25(3)(c) is far from clearand was never confirmed in the negotiations.

The final text of Article 30(2)(b) easily capturesthe mens rea requirement for aiding and abetting,namely, "[i]n relation to a consequence, that personmeans to cause that consequence or is aware that itwill occur in the ordinary course of events." (emphasisadded). At Rome, negotiators did not relegate aidingand abetting to the first prong of this formulation -"means to cause that consequence" - which wouldhave injected a shared intention standard into aidingand abetting. Rather, the intent of the aider orabettor is logically discovered within the awareness ofthe "consequence," namely that he or she who aids or

19

abets is someone who "is aware that [the conse-quence] will occur in the ordinary course of events."Rome Statute, art. 30(2)(b).

Article 25(3)(c)’s opening phrase, "For the pur-pose of facilitating the commission of such a crime,"was agreed to in Rome during the final negotiationsas an acceptable compromise phrase to resolve theinconclusive talks over whether to use the word"intent" or the word "knowledge" for this particularmode of participation. The "purpose" language statedthe de minimus and obvious point, namely, that anaider or abettor purposely acts in a manner that hasthe consequence of facilitating the commission ofa crime, but one must look to Article 30(2)(b) forguidance on how to frame the intent of the aider orabettor with respect to that consequence.

Donald Piragoff, lead Canadian Governmentnegotiator on general principles of law throughoutthe years of negotiations culminating in Rome, writesabout the relationship between aiding and abettingliability under Article 25(3)(c) and mental elementrequirements of Article 30(2):

A question arises as to whether the conjunc-tive formulation [intent and knowledge]changes existing international jurisprudencethat an accomplice (such as an aider orabettor) need not share the same mens rea ofthe principal, and that a knowing partici-pation in the commission of an offence orawareness of the act of participation coupledwith a conscious decision to participate is

2O

sufficient mental culpability for an ac-complice. It is submitted that the conjunctiveformulation has not altered this jurispru-dence, but merely reflects the fact that aid-ing and abetting by an accused requires bothknowledge of the crime being committed bythe principal and some intentional conductby the accused that constitutes the partici-pation .... Article 30 para. 2(b) makes itclear that "intent" may be satisfied by anawareness that a consequence will occur inthe ordinary course of events. This same typeof awareness can also satisfy the mentalelement of "knowledge," as defined in article30, para. 3. Therefore, if both "intent" and"knowledge" are required on the part of anaccomplice, these mental elements can besatisfied by such awareness.

Donald K. Piragoff & Darryl Robinson, Article 30:Mental Element, in COMMENTARY ON THE ROME STAT-

UTE OF THE INTERNATIONAL CRIMINAL COURT 849, 855(Otto Trifftrer ed., 2d ed. 2008).

There has been no ruling by the judges of theInternational Criminal Court on whether the "pur-pose" language in Article 25(3)(c) constitutes a form ofspecific intent, whereby evidence of a particularintention must be demonstrated and the mentalelement of Article 30(2)(a) or the first prong of Article30(2)(b) ("that person means to cause that conse-quence") must be applied. For the present, the com-promise struck in Article 25(3)(c) reflects the

21

ambiguity that uniquely characterizes theStatute on aiding and abetting liability.

Rome

C. The "purpose" requirement was notadded to Article 25(3)(c) during theRome negotiations to require a sharedintention by the aider or abettor andthe perpetrator of the crime

The Second Circuit equates the "purpose tofacilitate" requirement in Article 25(3)(c) with theperpetrator’s intent to commit the crime, thusmarrying the perpetrator’s intent with that of theaider or abettor as a virtual co-perpetrator. That is amistaken reading of the provision.

Professor William Schabas writes, "The purposerequirement was added during the Rome Conference,but nothing in the official records provides any clari-fication for the purposes of interpretation." WILLIAMSCHABAS, THE ROME STATUTE OF THE INTERNATIONAL

CRIMINAL COURT: A COMMENTARY 435 (2010). When theintentionof the principal perpetrator is known to theaider or abettor, who nonetheless proceeds to assistsuch perpetrator in the commission of the principalcrime, then aiding and abetting liability logicallyarises. This is so even though the aider or abettoracts with a different intention, which may be anintent that on its face is perfectly legal (such asseeking to profit from a business enterprise).

The most generous interpretation one can affordArticle 25(3)(c) is that it cor~notes an inferred intent

22

from the act of providing assistance that one knows isfacilitating the commission of a crime. That one caninfer intent from knowledge is well established. Forexample, in the context of the Alien Tort Statute,while making a profit may be a corporation’s primaryobjective, a secondary objective can arise in the reali-zation that one’s actions facilitate the commission ofthe crime and such knowledge can give rise to aninferred intent to join in the criminal conduct becauseit is profitable. In some cases - probably rare - acorporation may actually come to embrace not only itsprimary objective of making a profit, but also thecriminal purpose of the perpetrator. But when thatadditional objective is fully embraced, it transformsthe criminal character of the corporation from that ofan aider or abettor into that of a full co-perpetrator ofthe crime. See infra at 15-17.

A small group of European scholars - with whomthe Second Circuit seemingly aligns itself- seeks to

impose a far-reaching and provocative interpretationon Article 25(3)(c), setting aside precedent andfavoring a narrow interpretation that attaches to thedefendant aider or abettor an intention to join theperpetrator in the commission of the underlyingcrime. See Albin Eser, Individual Criminal Responsi-bility, in 1 THE ROME STATUTE OF THE INTERNATIONALCRIMINAL COURT: A COMMENTARY, 767,798-801, 900-02(Antonio Cassese, et al. eds., 2002). Such a view, atthe heart of the debate in Rome, would lead one tobelieve that the Rome Statute definitively establishesa whole new playing field for aiding and abetting

23

that, at a minimum, would have to be uniquelytailored for the International Criminal Court and farremoved from any claim of customary internationallaw.

The Second Circuit succumbs to the notion thatinsertion of the word "purpose" in Article 25(3)(c)must really mean a purpose or shared intent stan-dard for aiding and abetting, when in reality thephrase "purpose to facilitate" was a compromiseusage of those words to avoid any agreement on prec-isely the issue of shared intent. In Rome there was noagreement to so limit aiding and abetting to such anarrow range of liability requiring the finding of ashared intent to commit the underlying crime. Thattheory may exist in the aspirations of certainacademics determined to declare victory ex post factoat Rome, but it has no reality in either the RomeStatute or the Alien Tort Statute.

Professor Roger Clark, a principal negotiatoradvising Samoa before and during the Rome Con-ference, writes:

Article 25 sometimes uses terms like "pur-pose" and "with the aim of" that may need tobe read in the light of article 30. Speakinggenerally, one who does not personally "do"the deed, must know of it and intend toassociate himself with it .... There wasconsiderable debate throughout the processabout the conjunctive "and" between intentand knowledge [in Article 30]. Some dele-gations, the French in particular, insisted

24

that both were necessary. Others of us,especially from common law jurisdictions,believed that the appropriate mental ele-ment for each separate material element hadto be considered on its own merits. Par-ticularly for circumstance elements, as theterm "circumstance" is used in article 30(3)(and some consequence ones), knowledge (inthe sense of awareness) might well beenough, although intent might be requiredas to other relevant elements. The debateshed more heat than light. In part, the dif-ferences of perspective coincided with theease with which some of us are prepared tosee several different material elements com-bining with appropriate mental elements(plural) to form "the offence," where otherstend to see the material element, a global"thing," and a single intent/knowledge men-tal element which gets attached to thatthing.

Roger S. Clark, The Mental Element in InternationalCriminal Law: The Rome Statute of the InternationalCriminal Court and the Elements of Offences, 2 CRIM.L.F. 291, 302-303 (2001). Only the judges of theInternational Criminal Court will sort this out whenfaced with a real case.

I believe, however, that when Article 25(3)(c) isinterpreted by the judges of the International Crim-inal Court, they are more likely to discover the stan-dard for aiding and abetting as it has developed inthe jurisprudence of the international military tribu-nals at Nuremberg and Tokyo and the international

25

and hybrid criminal tribunals or recent years, in statepractice, and in the writings of leading scholars: aknowledge standard of substantial assistance and anintent standard arising from awareness that thecriminal consequence will occur in the ordinarycourse of events. A fair reading of Articles 25(3)(c),30(2)(b), and 30(3) of the Rome Statute achieves sucha standard.

III. THIS COURT SHOULD GRANT CERTIO-RARI TO CONFIRM THAT LOWER COURTSCANNOT RELY UPON THE ROME STAT-UTE OF THE INTERNATIONAL CRIMINALCOURT FOR A RULE OF CUSTOMARYINTERNATIONAL LAW ON AIDING ANDABETTING LIABILITY

The ambiguity that burdens the meaning ofaiding and abetting liability under Article 25(3)(c) ofthe Rome Statute one day will be replaced withclarity, but only by the judges of the InternationalCriminal Court when they deliberate on a relevantcase. Even then their ruling will not necessarily beformulated to reflect customary international law.Neither the Second Circuit nor this Court can sub-stitute itself for their judgment about the RomeStatute’s meaning. Scholars only can speculate at thisstage. What can be stated with certainty is thatArticle 25(3)(c) was a negotiated compromise duringthe Rome negotiations that achieved the utilitarianobjective of ensuring that aiding and abetting liabilitycan be prosecuted before the International Criminal

26

Court, and that the provision was uniquely crafted forthe Court and thus never negotiated as a rule ofcustomary international law.

While the subject matter jurisdiction provisionsof the Rome Statute offer a valuable resource for thefederal courts in their determination of what viola-tions of international law under the Alien Tort

Statute meet this Court’s standard set in Sosa, anexamination of accessorial liability standards foraiding and abetting under the Rome Statute offers nosuch guidance. This Court would seriously misreadthe Rome Statute to award Article 25(3)(c) of theRome Statute with the weighty significance of cus-tomary international law when the facts so clearlychallenge that finding. Only the most self-inflatednegotiators at Rome would hope for such a prize inthe aftermath.

CONCLUSION

As a long-time participant in the American strug-gle over the merits and risks of the InternationalCriminal Court, I find it ironic that the SecondCircuit relies upon a mistaken reading of the RomeStatute to ascertain aiding and abetting liability. TheUnited States has not ratified the Rome Statutebecause of continuing opposition from some quartersto its purported jurisdictional reach and even, insome respects, to its divergence from customary inter-national law. Many of these critics no doubt would be

27

surprised to learn that a federal court is relyingheavily on the unratified Rome Statute for guidanceon a form of accessorial liability - aiding and abetting- so easily and correctly found within the federalcommon law. Even the Sosa standard, which focuseson determining the primary violations of interna-tional law that should qualify for Alien Tort Statutelitigation, does not purport to abandon federal com-mon law, which itself is informed by customaryinternational law, with respect to secondary, oraccessorial, liability standards.

For the above reasons, this Court should grantthe petition for certiorari.

Respectfully submitted,

DAVID J. SCHEFFER, ESQ.CENTER FOR INTERNATIONAL HUMAN RIGHTS

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

357 East Chicago AvenueChicago, Illinois 60611-3069(312) 503-8579d-scheffer@law.northwestern.eduAmicus Curiae

May 19, 2010

Blank Page