Attorneys for Plaintiffs et al., J. et al.,iradvocates.org/sites/iradvocates.org/files/11.07.16...

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PAULL. HOFFMAN (S.B.# 71244) CATHERINE SWEETSER (S.B. # 171142) Schonbrun Seplow Harris & Hoffinan, LLP 723 Ocean Front Walk Venice, California 90291 Tel: 310-396-0731 I Fax: 310-399-7040 E-mail: [email protected] Email: [email protected]

TERRENCE COLLINGSWORTH (DC Bar# 471830) International Rights Advocates 621 Maryland Avenue NE Washington, D.C. 20002 Tel: 202'"-255-2198 E-mail: [email protected]

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

14 JOHN DOE I, et al., Case No. CV 05-5133-SVW-MRW

Assigned to: Stephen V. Wilson Courtroom: 6

15 Plaintiffs,

16 v.

17 NESTLE, S.A., et al.,

18 Defendants.

DECLARATION OF DAVID J. SCHEFFER ON AIDING AND ABETTING LIABILITY PERTAINING TO CRIMES AGAINST HUMANITY UNDER INTERNATIONAL LAW 19

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DECLARATION OF DAVID J. SCHEFFER

Case 2:05-cv-05133-SVW-MRW Document 222-1 Filed 11/07/16 of 19 Page ID #:1917

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DECLARATION OF DAVID J. SCHEFFER

1. My name is David J. Scheffer. I am a member of the New York and

District of Columbia bars and am the Mayer Brown/Robert A. Helman Professor of

Law and Director, Center for International Human Rights at Northwestern

University Pritzker School of Law, where I teach international criminal law and

international human rights law. I served as U.S. Ambassador-at-Large for War

Crimes Issues ( 1997-2001) and was deeply engaged in the policy formulation,

negotiations, and drafting of the constituent documents governing the International

Criminal Court. I led the U.S. delegation that negotiated the Rome Statute of the

International Criminal Court, adopted July 17, 1998, 2187 U.N.T.S. 19, available at

http://www.icc-cpi.int/iccdocs/PIDS/publications/RomeStatutEng.pdf (hereinafter

"Rome Statute"), and its supplemental documents (Rules of Procedure and

Evidence, the Elements of Crimes, and the Relationship Agreement between the

International Criminal Court and the United Nations) from 1997 to 2001. I was

deputy head of the delegation from 1995 to 1997. During the first term of the Bill

Clinton Administration (1993-1996), I was Senior Adviser and Counsel to Dr.

Madeleine Albright, the U.S. Permanent Representative to the United Nations, and

acted as her deputy on the National Security Council at the White House.

2. On behalf of the U.S. Government from 1993 through January 2001, I

negotiated the statutes of, and coordinated support for, the International Criminal

Tribunals for the former Yugoslavia {ICTY) and Rwanda {ICTR), the Special Court

for Sierra Leone (SCSL ), and the Extraordinary Chambers in the Courts of

Cambodia (ECCC) (hereinafter the "tribunals").

3. My detailed curriculum vitae with a listing of degrees, bar affiliations,

current and past professional positions, and publications since 197 5 can be found

on my faculty profile page at

http://www.law.northwestern.edu/faculty/profiles/DavidScheffer/.

DECLARATION OF DAVID J. SCHEFFER 1


1 4. I previously filed two amicus amici curiae briefs in the Doe v. Nestle

2 litigation before this Circuit, both of which are relevant to the Plaintiffs' Second

3 Amended Complaint for Injunctive Relief and Damages and Demand for Jury Trial

4 in this case. See Brief for David J. Scheffer as Amicus Curiae Supporting

5 Appellants, Doe I v. Nestle USA, Inc., 738 F.3d 1048 (9th Cir. 2013), order

6 withdrawn, 766 F.3d 1013 (9th Cir. 2014) (No. 10-56739) (Nestle Amicus Brief

7 I); Brief for David J. Scheffer as Amicus Curiae Supporting Appellants, Doe I v.

8 Nestle USA, 788 F.3d 946 (9th Cir.), as amended (June 10, 2015), publication

9 ordered, 786 F.3d 801 (9th Cir. 2015) (No. 10-56739) (Nestle Amicus Brief II).

10 5. This Expert Declaration clarifies mischaracterizations of ICTY and

11 ICTR jurisprudence in the Defendants' briefs, Nestle Mot.; ADM & Cargill Mot.

12 and explains the actus reus standard for aiding and abetting liability under

13 customary international law.

14 I. INTRODUCTION

15 6. This Declaration exammes the appropriate test to be applied m

16 determining if a complaint adequately makes a case for accessorial liability under

17 the Alien Tort Statute. 28 U.S.C. § 1350 (ATS). At its core, these issues concern

18 whether the actus reus of aiding and abetting is determined under a "substantial

19 effect" standard and whether it requires the alleged wrongdoer to have only

20 knowledge of the underlying crime or whether the actus reus standard requires a

21 more stringent standard of specific direction or purpose to aid or abet in the

22 commission of the underlying crime.

23 7. The Ninth Circuit did not reject the knowledge standard for aiding and

24 abetting. It simply found that the facts in the case satisfy the more stringent

25 purpose standard. Doe Iv. Nestle USA, Inc., 766 F.3d 1013, 1024 (9th Cir. 2014).

26 That of course means that the facts also meet the knowledge standard. As the Ninth

27 Circuit concluded, "[t]hese allegations are sufficient to satisfy the mens rea

28 required of an aiding and abetting claim under either a knowledge or purpose



1 standard." Id. at 1026. Tribunals' jurisprudence rendered since the Ninth Circuit

2 Order and Opinion in 2014 and set forth below reaffirms the knowledge standard

3 and that the actus reus standard for aiding and abetting requires a substantial effect

4 on the perpetration of the underlying crime.

5 8. The Ninth Circuit declined "to adopt an actus reus standard for aiding

6 and abetting liability under the ATS." Id. In its view, "[w]hat appears to have

7 emerged [from tribunal jurisprudence] is that there is less focus on specific

8 direction and more of an emphasis on the existence of a causal link between the

9 defendants and the commission of the crime." Id. at 1026. That view is consistent

10 with a "substantial effect" analysis, which will be examined below. The Ninth

11 Circuit invited further consideration by this court in light of the judgments in

12 Prosecutor v. Perisic, Case No. IT-04-81-A (Int'l Crim. Trib. for the Fonner

13 Yugoslavia Feb. 28, 2013) and Prosecutor v. Taylor, Case No. SCSL-03-01-A

14 (Sept. 26, 2013 ). There has been substantial jurisprudence of the tribunals since

15 those two judgments were delivered in 2013. This Declaration examines the critical

16 and more recent judgments to understand current jurisprudence on the actus reus

17 standard for aiding and abetting (as well as the mens rea standard often discussed

18 by the ICTY as part of its actus reus analysis). Defendants largely ignore the recent

19 ICTY and ICTRjudgments that directly challenge the Perisic holding on aiding and

20 abetting standards and they mischaracterize both Taylor and ICTR rulings of recent

21 years.

22 9. At the outset of this Declaration, I emphasize two notes of caution:

23 First, reliance upon Sosa v. Alvarez-Machain (Sosa), 542 U.S. 692 (2004) in this

24 case should take into account that the Supreme Court in Sosa focused on

25 identifying the character of crimes that fall within the subject matter jurisdiction of

26 the ATS; the Supreme Court did not examine modes of participation (like aiding

27 and abetting). The legal norms that federal courts are directed to use in ATS

28 litigation to identify actionable torts or crimes are those "of international character



1 accepted by the civilized world and defined with a specificity comparable to the

2 features of the 18th-century paradigms we have recognized." Sosa, 542 U.S. at 725.

3 Thus the issue in Sosa, which the Supreme Court examined in great detail, was to

4 determine the crimes pertinent to A TS litigation in 1789, and then how "any claim

5 based on the present-day law of nations" could be properly established. Id. In this

6 case, the Sosa standard has to be met with respect to the child slave labor alleged by

7 the Plaintiffs.

8 10. But the Sosa criterion has nothing to do with standards for aiding and

9 abetting liability, which is a mode of participation determined by customary

1 O international law as applied in federal common law. Nor did the Supreme Court

11 address standards for aiding and abetting in its second and more recent A TS

12 judgment, namely Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

13 11. Second, in Nestle Amicus Brief I and Nestle Amicus Brief II I

14 thoroughly address the issues pertaining to the Rome Statute that are raised in

15 Defendants' briefs. In short, Defendants misinterpret the Rome Statute with respect

16 to the scope and meaning of Article 25(3 )( c) and completely ignore the critical role

17 of Article 30 (which embraces the knowledge standard) in establishing aiding and

18 abetting standards for cases before the International Criminal Court. The Pre-Trial

19 Chamber of the International Criminal Court recently reaffirmed the standards for

20 aiding and abetting examined in its earlier cases and explained in my amicus curiae

21 briefs in the Ninth Circuit. See Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No.

22 ICC-01/12-01/15, Decision on the Confirmation of Charges against Ahmad Al Faqi

23 Al Mahdi, ~ 26 (Mar. 24, 2016) ("As held by the Pre-Trial Chamber I in a different

24 case, '[i]n essence, what is required for this form of responsibility is that the person

25 provides assistance to the commission of a crime and that, in engaging in this

26 conduct, he or she intends to facilitate the commission of the crime.' It is not

27 required that the assistance be 'substantial' or anyhow qualified other than by the

28 required specific intent to facilitate the commission of the crime (as opposed to a



1 requirement of sharing the intent of the perpetrators.") (emphasis added)). The

2 Rome Statute requires that the aider and abettor act with the understanding and

3 deliberate purpose that his or her acts will facilitate the commission of the crime.

4 This is emphatically not a determination requiring t~e aider or abettor to engage in

5 specifically directing the commission of the underlying crime. The meaning of

6 "facilitate" is "to make something easy or easier." Facilitate, Oxford American

7 Dictionary and Thesaurus 459 (2nd ed. 2009). The Pre-Trial Chamber has

8 interpreted "purpose" in Article 25(3)(c) of the Rome Statute to mean "intent to

9 facilitate" the commission of the crime, not the specific intent to engage in directing

1 O the commission of the underlying crime. This intent would be to make it easier or

11 less difficult to commit the crime. Granted, the Pre-Trial Chamber also appears to

12 dismiss the substantiality requirement in customary international law. In any event,

13 even if one argues that the Pre-Trial Chamber's view in Al Faqi Al Mahdi does not

14 mirror customary international law, the codified standard set forth in Articles

15 25(3)(c) and 30(2)(b) of the Rome Statute is consistent with and does not

16 extinguish the recognition in customary international law of the knowledge

17 standard (as reflected in the jurisprudence of the ICTY, ICTR, SCSL, and ECCC,

18 as well as domestic courts globally). A federal case falling outside the jurisdiction

19 of the International Criminal Court, to which the United States is not a state party,

20 would be guided first by customary international law.

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22 II. THE ACTUS REUS STANDARD FOR AIDING AND ABETTING

23 UNDER CUSTOMARY INTERNATIONAL LAW IS A SUBSTANTIAL

24 EFFECT STANDARD ONLY

25 12. The Defendants misconstrue how the tribunals have adjudicated the

26 actus reus of aiding and abetting. Nestle Mot. 16-18; ADM & Cargill Mot. 15-18.

27 There is a clear requirement that the actus reus for aiding and abetting requires that

28 the assistance (or act of abetting) has a substantial effect on the perpetration of the



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underlying crime. That fact-based requirement for actus reus falls upon the judges

to determine what constitutes a "substantial effect" in the context of the particular

case. Tribunal jurisprudence, moreover, often marries the "substantial effect"

standard under actus reus with the requirement that the aider and abettor have

knowledge that the acts will assist in the commission of the underlying crime.

When discussing the latter requirement, the tribunals describe the mens rea

standard required for the actus reus of aiding and abetting. In contrast, federal

courts usually describe as separate prongs of liability the actus reus and then the

mens rea of aiding and abetting. But in tribunal jurisprudence the discussion about

actus reus is often joined with an examination of mens rea as part of the

determination of what constitutes actus reus.

13. Nonetheless, there is no suggestion in the tribunals' jurisprudence

(other than the outlier Perisic judgment) that the mens rea standard applied within

the actus reus standard be narrowed to require a specific intention to commit the

underlying crime. In other words, there is no leap in tribunal jurisprudence that

would require the actus reus of aiding and abetting to include a mens rea of specific

direction or intent such that the aider and abettor essentially becomes a co

perpetrator with shared intent. The mens rea standard (whether it be regarded as

part of an actus reus analysis or standing alone as the mens rea standard) is one of

knowledge, not specific direction.

14. Though Perisic employed the specific direction standard, Case No. IT-

04-81-A at, 48, subsequent decisions refuse to adhere to it; instead, several

Appeals Chambers of the ICTY and ICTR and other tribunals, such as the SCSL

and ECCC, that have considered cases concerning aiding and abetting have firmly

and expressly rejected or ignored Perisic's approach. Indeed, the tribunals'

judgments have reaffirmed the knowledge standard as recently as March 2016. See

Prosecutor v. Radovan KaradZic, Case No. IT-95-5/18-T, Judgement,,, 575-577



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(lnt'l Crim. Trib. for the former Yugoslavia Mar. 24, 2016); Prosecutor v. Vojislav

Sese/j, Case No. IT-03-67-T, Judgement,, 353 (lnt'l Crim. Trib. for the Former

Yugoslavia Mar. 31, 2016); see also Prosecutor v. Stanisic and Simatovic, Case

No. IT-03-69-A, Judgement,,~ 104-107 (lnt'l Crim. Trib. for the Former

Yugoslavia Dec. 9, 2015); Prosecutor v. Vujadin Popovic et al., Case No. IT-05-88-

A, Judgement,,, 1732, 1758 (Int'l Crim. Trib. for the former Yugoslavia Jan. 30,

2015); Co-Prosecutors v. Nuon Chea and Khieu Samphan Case No. 002/19-09-

2007/ECCC/TC, Judgement,, 704 (Aug. 7, 2014); Prosecutor v. Sainovic et al.,

Case No. IT-05-87-A, Judgement,, 1772 (Int'l Crim. Trib. for the former

Yugoslavia Jan. 23, 2014); Prosecutor v. Taylor, Case No. SCSL-03-01-T,

Judgement,~, 486-87 (May 30, 2012); Co-Prosecutors v. Kaing GuekEav, Case

No. 001/18-07-2007/ECCC/TC, Judgement,, 535 (July 26, 2010), aff'd, 001/18-

07-2007-ECCC/SC (Feb. 3, 2012); Prosecutor v. MrkSic and Sljiva, Case No. IT-

95-1311-A, Judgement,, 159 (Int'l Crim. Trib. for the Former Yugoslavia May 5,

2009); Prosecutor v. Orie, Case No. IT-03-68-A, Judgement, , 43 (lnt'l Crim. Trib.

for the Former Yugoslavia July 3, 2008); Prosecutor v. Blas/de, Case No. IT-95-14-

A, Judgement,, 49 (lnt'l Crim. Trib. for the Former Yugoslavia July 29, 2004);

Prosecutor v. Furundiija, Case No. IT-95-17 /1-T, Judgement, , 245 (lnt'l Crim.

Trib. for the Former Yugoslavia Dec. 10, 1998).

15. In any event, even if the melding of actus reus with mens rea were

seen to embrace specific direction, that standard is met in this case because the

Ninth Circuit found such purpose. Nestle, 766 F.3d at 1024.

16. Several of the ICTY appellate rulings since Perisic merit closer

examination. The ICTY Appeals Chamber's judgment in Popovic, Case No. IT-05-

88-A, at,, 1732, 1758 explicitly described what is required for the actus reus of

aiding and abetting. Affirming the convictions of five Bosnian Serbs for atrocity

crimes committed at Srebrenica in 1995, the Appeals Chamber stated:



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1732. [T]he actus reus for aiding and abetting "consists of practical assistance, encouragement, or moral suRport which has a substantial effect on the perpetration of the crime and the mens rea re~uires "knowledge that these acts assist the commission of the offense.' The mens rea also requires that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator. It is not necess~ that the aider and abettor know the precise crime that was intendeCl and was in fact committed-if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.

1758. '" [Sloecific direction' is not an element of aiding and abetting liability unoer customary international law." The . . . actus reus oI aiding and abetting "consists of practical assistance, encouragement, or moral support which has a suostantial effect on the perpetration of the crime" and the mens rea is "the knowledge that tliese acts assist the commission of the offense." The Appeals Chamber therefore dismisses Pandurevic' s argument to incorporate a requirement of specific direction in the mens rea or the actus reus for aiding and abetting. Accordingly, the Appeals Chamber also dismisses Pandurevic' s argument that it was required that his failure to act was purposeful.

15 id. at ~if 1732, 1758 (footnotes omitted).

16 17. The Popovic judgment demonstrates the interplay between the actus

17 reus and mens rea standards, emphasizing that the knowledge standard prevails and

18 that there is no specific direction standard to apply, particularly with respect to

19 actus reus.

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18. Moreover, the ICTY Appeals Chamber in Stanisic and Simatovic,

Case No. IT-03-69-A at ~~ 104-107, held that with respect to the lower court's

reliance on the outlier Perisic holding:

[T]he Trial Chamber erred in law in requiring that the acts of the aider anCi abettor be specifically directed to assist the commission of a crime. This also means that the Trial Chamber erred in law in making a finding on a substantial effect of the contributing acts contingent upon establishing specific direction by holding that, when assessing whether the acts carried out by the aider and abettor have a substantial effect on the r.erpetration of a crime, the Trial Chamber must find that they are specifically directed to assist that crime."

28 Id. at~ 106 (footnotes omitted) (emphasis added).



1 19. This recent ruling clarified that the actus reus requirement of a

2 "substantial effect" is not tied to any requirement for specific direction. The ICTY

3 Appeals Chamber in Staniszc, a judgment that was delivered years after Perisic,

4 cited a long list of precedents for the knowledge standard, id. at~~ 378-84, and

5 reaffirmed the reasoning in Popovic above.

6 20. Almost two years earlier, the ICTY Appeals Chamber in Sainovic,

7 Case No. IT-05-87-A, at ~ 1772 confirmed this fundamental standard, citing to

8 numerous prior ICTY judgments that require a substantial contribution as the

9 element of actus reus for aiding and abetting while excluding any reference to a

10 specific direction or purpose requirement. Specific direction, the Appeals Chamber

11 concluded in Sainovic, is not an element of either the actus reus or mens rea for

12 aiding and abetting liability under customary international law. Id. at ~ 1649 (A

13 fulsome discussion of ICTY jurisprudence on aiding and abetting standards can be

14 found in id., at~~ 1618-67.).

15 21. A federal court in the Ninth Circuit, when reviewing aiding and

16 abetting liability pursuant to customary international law, would satisfy the

17 requirements of customary international law if it used an actus reus standard that

18 requires that there be a substantial effect on the underlying crime resulting from the

19 contribution by the aider and abettor and that the mens rea standard (either as part

20 of an actus reus analysis or standing alone) be one of knowledge. In this case, the

21 important point to draw from customary international law is that actus reus is an

22 empirical determination of "substantial effect" only; but if, in addition, mens rea is

23 factored into an actus reus standard, it need only be one of knowledge. Facts

24 showing specific direction, as the Ninth Circuit found in this case, only amplify the

25 level of knowledge of the Defendants. The actus reus would continue to be defined

26 as and require a finding of "substantial effect" on the commission of the underlying

27 cnme.

28 III. Mischaracterizations of Tribunal Jurisprudence



1 A. Prosecutor v. Taylor

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22. In a seeming attempt to fuse specific direction into an actus reus

standard for aiding and abetting, Defendants ADM and Cargill err when they claim

that the Appeals Chamber in the SCSL delivered only dicta on the knowledge

standard in Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment, ~~ 486-87

(Sept. 26, 2013). ADM & Cargill Mot. at 18.

23. The issue before the SCSL in the Taylor case was whether specific

direction was an element that had to be proven by the Prosecution; the Appeals

Chamber ruled that specific direction did not have to be proven, Taylor, Case No.

SCSL-03-01-A at ~ 481, a finding that is not dicta but is central to the case. The

Prosecution had to meet a knowledge standard for aiding and abetting in proving

the guilt of defendant Charles Taylor, which it successfully accomplished. The

SCSL explained the actus reus standard as follows:

401. [ ... J The Appeals Chamber does not accept the Defence submission that the Trial Chamber was reqµired to find that Taylor provided assistance to the physical actor wno committed the actus reus of each specific underlying crime or that such assistance was used by the physical actor in the commission of each specific crime. The Appeals Chamber accordingly affirms its prior holding that the actus reus of aiding and abetting Iiabilicy under Article 6( 1) of the Statute and customary international law is that an accused's acts and conduct of assistance, encouragement and/or moral supRort had a substantial effect on the commission of each crime chargeo for which he is to be held resEonsible. 517. [ ... J Those findings further demonstrate that Taylor Rrovided substantial quantities oI material to the RUF I AFRC over the course of the Indictment Peria~ com~ared to minor or insufficient quantities from other sources. l ney illustrate that the RUF I AFRC, faced with an arms embargo, had a fimte supply of material to support its operations, and that of that supply, the arms and ammunition provided by Taylor were critical in enabhng the RUF/AFRC's Operational Strategy, m the implementation of which the crimes charged were committed. 521. The Appeals Chamber finds that the Trial Chamber properly assessed the effect that the sustained operational support and miht~ Qersonnel Taylor provided to the RUF7AFRC had on the RUF/AFRC's Operational Strategy and the commission of the crimes charged, in light of the whole of its findings, the specific factual circumstances and the consequences establislied by the evidence. [ ... ]

Id. at ii~ 401, 517, 521 (footnotes omitted).

DECLARATION OF DAVID J. SCHEFFER IO


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24. The SCSL Appeals Chamber examined tribunals' jurisprudence and

practice in domestic courts in considerable detail to arrive at its determination of

what constitutes customary international law. Id. at ~~ 417-43 7. It concluded:

436. The Appeals Chamber's review of the post-Second World War jurisprudence demonstrates that under custom~ international law, an accused's knowledge of the consequence of his acts or conduct - that is, an accused's k.iiowing P.articipation in the crimes - is a culpable mens rea standard for individual criminal liability. Similarly, the postSecond World War jurisprudence was found in early ICTY Judgments other than FurundZzj_a to establish that under customary international law1 awareness of the act of participation coupled with a conscious decision to participate in the commission of a crime entails individual criminal responsibilicy. The 1996 ILC Draft Code supports this conclusion, and Article 25(3)( c) of the Rome Statute is not evidence of state practice to the contrary. Whether this standard is termed knowledge, general intent, do/ special, dolo diretto or do/us directus in the second degree, the concept is the same.

43 7. In li~t of the foregoing, the Appeals Chamber reaffirms that knowledge is a culpable mens rea standard for aiding and abetting liability under Article 6(1) of the Statute and customary international law.

Id. at~~ 436-437 (footnotes omitted).

25. Defendants ADM and Cargill claim that the evidence presented in the

Taylor case "was specifically directed at facilitating the war crimes." ADM &

Cargill Mot. at 18. In fact, the evidence introduced in the prosecution of Charles

Taylor demonstrated that he provided military and logistical support to militia in

Sierra Leone for the purpose of securing diamond wealth and power, but with the

knowledge that his assistance could lead to crimes against humanity and war

crimes. Id. at~~ 403-45, 720.

26. For example, the Trial Chamber, in a finding upheld by the Appeals

Chamber, ruled that Taylor's influence was:

insufficient to establish that the Accused had effective control over the AFRC/RUF. The evidence indicates that the relationship between the Accused and the AFRC/RUF was mainly based on common economic, political and military interests. In drawing this conclusion, the Trial Chamber notes that the advice and instruction of the Accused to the



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AFRC/RUF mainly focused on directing their attention to the diamondiferous area of Kono in order to ensure the continuation of trade, diamonds in exchange for arms and ammunition.

Prosecutor v. Taylor, Case No. SCSL-03-01-T, Judgement,~~ 6778 (May 30,

2012).

27. The Appeals Chamber concluded:

In this case, the confirmed findings overwhelmingly establish that Mr. Taylor, over a five year period, inaividually, and knowingly and secretly, and substantialiy assisted the pen'etration of horrific crimes against countless civilians in return for diamonds and power, while publicly pretending that he was working for peace ....

Taylor, Case No. SCSL-03-01-A at~ 720.

28. There was no evidence that Charles Taylor specifically directed that

such military support be used to commit atrocity crimes, and the Appeals Chamber

confirmed that was not necessary in order to convict him of aiding and abetting the

crimes against humanity and war crimes that were committed by militia forces in

Sierra Leone. Rather, the evidence pointed to the provision of support that would

secure wealth and power for Taylor who possessed the knowledge that his acts

assisted the commission of atrocity crimes that could be committed in the course of

pursuing those objectives. The Appeals Chamber concluded:

438. This Appeals Chamber and the Special Court Trial Chambers have consistently held that awareness of the substantial likelihood is a culpable mental state for aiding and abetting under customary international law. The Defence has not providea cogent reasons to depart from this jurisprudence, which is consistent with the principle that awareness and acceptance of the substantially likely conseq_uence of one's acts and conduct constitutes culpability. In finding_ Ta~lor criminally responsible for aiding and abetting, the Trial Chamber found beyond a reasonable doubt that Taylor knew that his acts assisted the commission of the crimes. Accordingly, the Appeals Chamber concludes that the Defence has not shown an error that would occasion a miscarriage of justice and finds it unnecessary to further consider the Defence submissions.

Id. at~ 438 (footnotes omitted) Taylor was essentially a profiteer who saw in the

Sierra Leone civil war a means to gain personally from the carnage he assisted in

generating.



1 B. JCTR and ICTY Appeals Chamber Judgments

2 29. Defendants refer to a line of judgments by the ICTR that they claim,

3 for aiding and abetting liability, "requires proof of 'acts specifically aimed at

4 assisting ... the perpetration of a specific crime."' ADM & Cargill Mot. at 16-17.

5 This is a mischaracterization of the ICTR jurisprudence.

6 30. First, all of the cited ICTRjudgments by Defendants ADM and Cargill

7 are many years dated and precede the long line of post-Perisic judgments of the

8 Appeals Chamber, which rules on both ICTY and ICTR Trial Chamber judgments

9 to maintain consistency in the development of customary international law. The

10 ICTY Trial Chamber judgments in Karadiic and Seselj this year reaffirm the

11 Appeals Chamber approach in post-Perisic judgments. The Appeals Chamber that

12 has the controlling view on aiding and abetting liability, including for the ICTR,

13 has relegated the Perisic judgment to outlier status as subsequent rulings have

14 essentially buried it. ICTY and ICTRjudgments broadly follow stare decisis, "but

15 should be free to depart from them for cogent reasons in the interests of

16 justice." Prosecutor v. Zlatko Aleksovki, Case No. IT-95-14/1-A, Judgment ifif 106-

17 07 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 24, 2000).

18 31. A closer examination of judgments of the ICTR Appeals Chamber in

19 2014 and 2015 (the last year of such judgments for the ICTR) reveals how "specific

20 direction" has been cast adrift in aiding and abetting liability. The Appeals

21 Chamber, which in its ICTY judgments has cast aside the Perisic standard, largely

22 avoids any deliberation on "specific direction" or "specifically directed" acts in

23 arriving at its rulings on aiding and abetting liability in the ICTR cases. See

24 Prosecutor v. Ndindilyimana et al. (Military II), Case No. ICTR-00-56-A (Feb. 11,

25 2014) (no mention of "specific direction" or "specifically directed" acts in

26 addressing appeal on aiding and abetting; upheld the Trial Chamber which had

27 found actus reus without any reference to such standard); Prosecutor v. Bizimungu

28 (Military II), Case No. ICTR-00-56B-A, Judgment ifif 66-69 (June 30, 2014) (aiding



1 and abetting conviction overturned but no mention of "specific direction" or

2 "specifically directed" acts and no reference to Perisic); Prosecutor v. Karamera et

3 al., Case No. ICTR-98-44-A, Judgment, ifif 385-386 (Sept. 29, 2014) (in examining

4 aiding and abetting, no deliberation on "specific direction" or "specifically

5 directed" acts); id. at if 16 (Pocar, J., dissenting) (Even in dissent, acknowledging

6 that "it has been clarified that 'specific direction' is not an element of aiding and

7 abetting liability under customary international law.' I further recall that the mens

8 rea of aiding and abetting is 'the knowledge that these acts assist the commission of

9 the offense."'); Prosecutor v. Nzabonimana, Case No. ICTR-98-44-A, Judgment if 1 O 489 (Sept. 29, 2014) (no deliberation on "specific direction" or "specifically

11 directed" acts but definition of actus reus requiring that "conduct must have a

12 substantial effect upon the perpetration of the crime.").

13 32. In Prosecutor v. Ngirabatware, Case No. MICT-12-29-A, Judgment

14 (Dec. 18, 2014), the ICTR Appeals Chamber, presided over by Judge Theodor

15 Meron who had presided in the Perisic judgment, steered clear of the Perisic

16 standard. One of the appeal grounds of Augustin Ngirabatware was related to the

17 Trial Chamber's finding that he aided and abetted killing Tutsis in one incident in

18 which he was not present. In his appeal, Ngirabatware explicitly referred to the

19 "specific direction" requirement from the Perisic Appeal judgment. The Appeals

20 Chamber, while not explicitly rejecting "specific direction," failed to mention it and

21 essentially departed from the Perisic standard. The Appeals Chamber focused

22 solely on the "substantial contribution" of the acts of the defendant as an element of

23 actus reus, which was the standard reaffirmed in Sainovic, Case No. IT-05-87-A at

24 ~ 1649 ("[T]he Appeals Chamber ... comes to the compelling conclusion that

25 'specific direction' is not an element of aiding and abetting liability under

26 customary international law. Rather ... under customary international law, the actus

27 reus of aiding and abetting 'consists of practical assistance, encouragement, or

28 moral support which has a substantial effect on the perpetration of the crime.' The



1 required mens rea 1s 'knowledge that these acts assist the commission of the

2 offense."').

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33. In its final judgment delivered less than one year ago, the ICTR

Appeals Chamber omits any reference to "specific direction" as a requirement for

actus reus of aiding and abetting and affirms "knowledge" as the requisite mens rea

standard:

1995. The Appeals Chamber recalls that the actus reus of aiding and abetting 'consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime' and the mens rea is 'the knowledge that these acts assist the commission of the offense.' ... 3332 ..... .It is also well-established 'that proof of a causal relationship, in the sense of a condition sine qua non, between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition to the commission of the crime, is not required' as long as 'the support of the aider and abettor has a substantial effect upon the perpetration of the crime.' Whether a particular contribution qualifies as 'substantial' is a fact-based inquiry. Moreover, the actus reus may occur before, during, or after the principal crime has been perpetrated and the location at which the actus reus takes place may be removed from the location of the principal cnme.

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42, Judgment,~~ 1995,

3332 (Dec. 14, 2015) (footnotes omitted). Only the "substantial effect" standard for

actus reus would be plausible for actions occurring after the perpetration of the

underlying crime.

34. Judge Meron, who had spearheaded the "specific direction" standard

22 m Perisic, filed a dissent in Nyriamasuhuko acknowledging "that appeal

23 judgements [following Perisic] have subsequently been issued in the Sainovic et al.

24 and Popovic et al. cases, departing from the approach adopted in the Perisic

25 case ... .I must express my disagreement with paragraphs 1955, 3332, and 3343 of

26 the Judgement to the extent that these paragraphs do not mention 'specific

27 direction' when recalling the applicable law on aiding and abetting." id. at ~ 44 (

28 (Meron, J., dissenting) (footnotes omitted). By December 2015, Judge Meron's



1 views on "specific direction" had been soundly rejected in numerous judgments

2 joined by most of his colleagues on the ICTY and ICTR Appeals Chamber.

3 Professor James Stewart has confirmed empirically that "specific direction" has

4 almost never been applied as an element of actus reus of aiding and abetting. See

5 James Stewart, "Specific Direction" is Unprecedented: Results from Two

6 Empirical Studies, EJIL Talk (Sept. 4, 2013), http://www.ejiltalk.org/specific-

7 direction-is-unprecedented-results-from-two-empirical-studies/.

8 35. Moreover, the ICTR judgments cited by the Defendants ADM and

9 Cargill and which require acts "specifically aimed at assisting ... the perpetration of

10 a specific crime," ADM & Cargill Mot. at 16-17, pertain in large part to the crime

11 of genocide, which requires that the aider or abettor must know the principal

12 perpetrator's specific intent to commit genocide. Prosecutor v. Ngirabatware, Case

13 No. ICTR-99-54-A, Judgment, iJ 155 (Dec. 18, 2014); Prosecutor v. Ndahimana,

14 Case No. ICTR-01-68-A, Judgment, iJ 157 (Dec. 16, 2013). The ICTR was an

15 international criminal tribunal established by the U.N. Security Council to

16 adjudicate, most prominently, the crime of genocide, which devastated the

17 population of Rwanda in 1994. While other egregious crimes, namely crimes

18 against humanity and war crimes, are included in the statute of the ICTR, the

19 judgments of the ICTR Trial and Appeal Chambers focus to an extraordinary

20 degree on genocide. The aider or abettor must be directly linked to the specific

21 crime of genocide with proof that he or she knows that the principal perpetrator

22 intends to commit that particular crime. Prosecutor v. Elizaphan Ntakirutimana and

23 Gerard Nta"/drutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Judgment, iJ 24 501 (Dec. 13, 2004). That is a far cry from almost all other atrocity crimes, which

25 do not require such proof. It is understandable that the ICTR elevated usage of

26 wording such as "specifically aimed at assisting" and "specific direction" for aiding

27 and abetting in the unique context and circumstances of the crime of genocide. But

28 as the Appeals Chamber that governs ICTR and ICTY jurisprudence has clarified



1 repeatedly since Perisic, that requirement is nowhere to be found in the judgments

2 pertaining to crimes against humanity (other than persecution) and war crimes. In

3 this case, child slave labor constitutes a crime against humanity for which the

4 specific intent requirement associated with the crime of genocide is inapplicable.

5 IV. CONCLUSION

6 I have sought in this Expert Declaration to make the following points:

7 1) The relevant holding in Sosa pertains only to what torts or crimes

8 should qualify for A TS litigation. Sosa has nothing to do with how to determine

9 modes of participation like aiding and abetting.

10 2) The Rome Statute does not relegate aiding and abetting to a

11 specific direction requirement. A more informed interpretation of both Articles

12 25(3)(c) and 30(2)(b) of the treaty as well as Pre-Trial Chamber jurisprudence of

13 the International Criminal Court do not embrace the narrow interpretation of aiding

14 and abetting put forward by the Defendants.

15 3) The Defendants misconstrue how the tribunals have adjudicated the

16 actus reus of aiding and abetting. Actus reus for aiding and abetting requires that

17 the assistance (or act of abetting) has a substantial effect on the perpetration of the

18 underlying crime. Tribunals' jurisprudence, moreover, often marries the

19 "substantial effect" standard under actus reus with the requirement that the aider or

20 abettor have knowledge that his or her acts will assist in the commission of the

21 underlying crime. Post-Perisic jurisprudence of the ICTY and ICTR, as well as

22 other tribunals, has abandoned the specific direction standard for actus reus in

23 aiding and abetting.

24 4) The Appeals Chamber of the SCSL in Taylor did not deliver dicta

25 when it required the Prosecution to prove a knowledge standard, rather than a

26 specific direction standard, against Charles Taylor on charges of aiding and

27 abetting. The assistance provided by Charles Taylor to militia in Sierra Leone was

28 aimed at securing wealth and power for Taylor personally; he was not found to be



specifically directing such assistance towards the commission of atrocity crimes,

2 although Taylor was found to know of the likelihood that such crimes would be

3 committed by the militia.

4 5) The Appeals Chamber ofICTR ignored or cast aside the specific

5 direction standard of actus reus for aiding and abetting in its judgments of 2014 and

6 2015 and chose not to invoke Perisic.

7 Federal com1s would be well advised not to rest their judgments on the

8 flawed and abandoned Perisic judgment or on misinterpretations of the Rome

9 Statute or on mischaracterizations of international criminal tribunal rulings.

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Executed this 7th day of November, 2016 in Chicago, Illinois.



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