There is widespread hostility to references to international law in U.S. court decisions. It is therefore especially surprising that U.S. federal judges have been discussing the Rome Statute (Statute) in their decisions, and sometimes citing it as an authority.
In between November 9th, 2009 and July 14th, 2014, the International Criminal Court (ICC) and the Rome Statute have been mentioned in U.S. judicial decisions twenty-one times, despite the U.S. not having ratified the Statute. The Fourth Circuit has stated that although the Statute is not binding on the U.S., it “does not lessen its import as an international treaty, and thus, a primary source of the law of nations.” Aziz v. Alcolac, Inc., 653 F.3d 388, 400 (4th Cir. 2011). The Statute appears in various contexts; the five most frequent situations involve the intent (mens rea) standard in aiding and abetting, immunity, corporate liability, defining crimes against humanity and defining war crimes.
The majority of the listed cases involve plaintiffs filing claims under the Alien Tort Claims Act (ATCA). The ATCA allows U.S. federal courts to hear civil suits brought by victims of human right abuses or other international crimes which are in violation of the laws of nations or a treaty that the U.S. has ratified. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the laws of nations are comprised of international norms that are accepted by the civilized world and defined with specificity. For more information on the cases, visit AMICC's website.
Aiding and Abetting:
Aiding and abetting is a form of secondary actor liability. The issue with this area of law is what level of mens rea is required. Article 25(3)(C) of the Statute provides that a person shall be criminally responsible and liable for punishment if that person facilitates the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing means for its commission. The courts have looked to the Statute because customary international law is unclear on a mens rea requirement for aiding and abetting. The courts have been divided in their interpretation of this requirement.
Some of the decisions use the definition provided in Article 25 of the Statute. See, e.g., Lui Bo Shan v. China Constr. Bank Corp., 2010 U.S. Dist. LEXIS 63938 (S.D.N.Y. June 28, 2010). Other decisions have refused to use the Statute. See, e.g., Du Daobin v. Cisco Sys., 2014 U.S. Dist. LEXIS 22632 (D. Md. Feb. 24, 2014)(the plaintiffs wanted to look at the Rome Statute and apply a lesser mens rea standard of knowledge but the court refused to do so because of a domestic precedent that settled the issue).
However, a few courts have used very strong language in support of the Statute. In Doe v. Drummond Co., 2009 U.S. Dist. LEXIS 132594 (N.D. Ala. Nov. 9, 2009), the court relies in part on the Statute for the appropriate aiding and abetting standard. In Aziz v. Alcolac, Inc., 653 F.3d 388 (4th Cir. 2011), the court concluded that adopting the standard in the Rome Statute “hews as closely as possible to the Sosa limits of requiring any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms the Supreme Court has recognized.” Aziz, 653 F.3d. at 400-401 (Internal citations omitted). The court in Aziz goes on to say that the Statute’s mens rea standard for the crime of aiding and abetting “is more authoritative than that of the ICTY and ICTR Tribunals.” Id. at 400.