The Specific-Direction Requirement Would Not Have Acquitted the Zyklon-B Defendants

by Kevin Jon Heller

Criticism of the specific-direction requirement endorsed by the ICTY Appeals Chamber in Perišić has officially jumped the shark. According to James Stewart, the requirement would have required the British military court in Hamburg to acquit the two German businessmen who provided the Zyklon-B that the SS used to gas Jews in the death camps:

In any event, let’s assume that specific direction exonerates someone who provides assistance that can be used for dual purposes, only one of which is an international crime. (Please note, I have struggled at length to think of a way of reconciling this definition with a defensible notion of actus reus, but failed. If others have not, I would be grateful for their thoughts).

Assuming, however, this is what “specific direction” is meant to mean, it leads to the acquittal of corporate officers in the Zyklon B case since officers of the company were actually supplying Zyklon B to the S.S. for two uses: (a) to exterminate insects and germs within labor and concentration camps (a massive sanitary problem); and (b) to gas Jews.

Given these two uses for their merchandise, I take it that the company’s assistance was not “specifically directed” at the international crimes that took place at Auschwitz. If this reading is correct (it is hard to say, due to the inherent ambiguities I mention), this new standard not only leads to deeply counterintuitive results, it undoes much established case-law.

Moreover, this new standard is even higher than “purpose”. As is well known, the ICC followed the US Model Penal Code on complicity (a strange choice, given that, to the best of my knowledge, only 2 out of 194 states do). As a result, the mental element of aiding and abetting in the ICC statute requires that the aider and abettor assisted with “purpose” to facilitate the crime.

The thing is, if we modulate the facts in the Zyklon B case slightly, so that the corporate officers didn’t just know about use of the chemicals on people at Auschwitz, they positively wanted to kill these people, then “specific direction” still exonerates them. They had the purpose to destroy the people, provided the chemicals that did so, but are acquitted based on the second use for sanitary purposes. Thus “specific direction” is MORE onerous that even the “purpose” standard. To my mind, this is patently absurd.

Stewart’s argument is both historically and legally problematic. To see why, recall what the Appeals Chamber said about the specific-direction requirement (emphasis mine):

The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

The bolded text is critical, because it indicates the fatal flaw in Stewart’s argument: the SS was not an organization that was engaged in lawful and unlawful activities. On the contrary, all of the SS’s activities were unlawful, which is precisely why the IMT specifically deemed it a criminal organization:

The SS was utilized for purposes which were criminal under the Charter, involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war….

The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph, who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes.

Stewart’s argument is not simply ahistorical. It is also theoretically flawed, because it implies that no aiding-and-abetting case could survive the specific-direction requirement. That is clearly not true. To begin with, although modern international criminal tribunals no longer rely on the concept of criminal membership, the Appeals Chamber made clear in Perišić that individuals remain individually responsible for knowingly providing assistance to organizations whose activities are solely criminal:

52. The Appeals Chamber considers that two inquiries are relevant to assessing whether SDC assistance to the VRS was specifically directed to facilitate the latter’s criminal activities. The first inquiry assesses whether the VRS was an organisation whose sole and exclusive purpose was the commission of crimes. Such a finding would suggest that assistance by the VJ to the VRS was specifically directed towards VRS crimes, including the VRS Crimes in Sarajevo and Srebrenica…

53. With respect to the first inquiry, the Appeals Chamber recalls that the Trial Chamber did not characterise the VRS as a criminal organisation; indeed, it stated that “Perisic is not charged with helping the VRS wage war per se, which is not a crime under the Statute.” Having reviewed the evidence on the record, the Appeals Chamber agrees with the Trial Chamber that the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war. The Appeals Chamber notes the Trial Chamber’s finding that the VRS’s strategy was “inextricably linked to” crimes against civilians. However, the Trial Chamber did not find that all VRS activities in Sarajevo or Srebrenica were criminal in nature. The Trial Chamber limited its findings to characterising as criminal only certain actions of the VRS in the context of the operations in Sarajevo and Srebrenica. In these circumstances, the Appeals Chamber considers that a policy of providing assistance to the VRS’s general war effort does not, in itself, demonstrate that assistance facilitated by Perisic was specifically directed to aid the VRS crimes in Sarajevo and Srebrenica.

It is an open question whether the Appeals Chamber’s factual assessment of the VRS is correct, and I think the Trial Chamber’s application of the specific-direction requirement in Stanisic & Simatovic – holding that the defendants’ paramilitary unit was not a criminal organization — is completely indefensible. Regardless, there will be many situations in which a perpetrator provides assistance to an organization that is engaged solely in unlawful activities, thereby satisfying the specific-direction requirement. I think Charles Taylor’s assistance to the RUF and AFRC is an example: much of that assistance took place during phases of the conflict in Sierra Leone in which the RUF and AFRC were nothing more than criminal organizations. Indeed, if we view Perišić’s reference to unlawful activities as referring to both international and domestic legality, it may well be that the RUF and AFRC were criminal organizations tout court.

Even when faced with an organization that is not inherently criminal, tribunals will often have little trouble concluding that a defendant specifically directed assistance toward unlawful activities. The most obvious situation is precisely the one that, bizarrely, Stewart denies: where there is proof that the defendant intended to facilitate an organization’s unlawful activities. Stewart claims that the specific-direction requirement is “more onerous than even the ‘purpose’ standard,” because a defendant who provides assistance to an organization specifically intending to facilitate unlawful activities must be acquitted if his assistance could also be used for lawful activities. But that argument is specifically contradicted by Perišić (para. 48):

In this regard, the Appeals Chamber acknowledges that specific direction may involve considerations that are closely related to questions of mens rea. Indeed, as discussed below, evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards charged crimes.

Stewart’s argument is also contradicted by common sense. It is difficult to imagine more powerful circumstantial evidence that the defendant specifically directed his assistance toward an organization’s unlawful activities than proof that the defendant specifically intended his assistance to facilitate that organization’s unlawful activities. Can anyone honestly imagine a tribunal acquitting, say, a military officer who provided soldiers with weapons intending them to be used to execute civilians simply because the soldiers could have used the weapons to hunt game, as well?

Moreover, once again the actual facts of the Zyklon-B case undermine Stewart’s argument. The UNWCC summary of the case repeatedly emphasizes that the prosecution relied on evidence that Bruno Tesch intended the Zyklon-B to be used to kill Jews to prove that he knew how the SS was actually using it. Here is an example (p. 95):

In this travel report, Tesch recorded an interview with leading members of the Wehrmacht, during which he was told that the burial, after shooting, of Jews in increasing numbers, was proving more and more unhygienic, and that it was proposed to kill them with prussic acid. Dr. Tesch, when asked for his views, had proposed to use the same method, involving the release of prussic acid gas in an enclosed space, as was used in the extermination of vermin. He undertook to train the S.S. men in this new method of killing human beings.

Stewart does not acknowledge this aspect of the case. Even worse, he does not acknowledge that the Perišić Appeals Chamber specifically cited the Zyklon-B case as an example of a situation in which defendants were rightly convicted of aiding and abetting even though their assistance could have been used for both lawful or unlawful purposes. (See n. 115 on p. 17.) That is a very significant oversight.

Finally, it is important to note that a tribunal could find specific direction even where an organization was not completely criminal and there was no proof that the defendant specifically intended to facilitate the organization’s unlawful activities. A tribunal is not required to take a defendant’s claim that he directed his assistance only to lawful activities at face value; as the Appeals Chamber noted in Perišić, (paras. 59-66), it is entitled to infer the necessary specific direction from the nature and manner of the defendant’s assistance. Indeed, that is precisely what Judge Picard did in her compelling dissent in Stanisic & Simatovic:

2405. While I consider the jurisprudence of the Appeals Chamber in the Perišić case to be overly restrictive, I believe – even when applying the current threshold for aiding and abetting to the specific facts of this case – that the “specific direction” requirement can be inferred from the Accused’s actions. The direct control of both Accused over “their” Unit as well as the crimes committed by the Unit, combined with the substantial and knowledgeable support the Accused gave to other paramilitary groups for whom the Trial Chamber has found they committed the crimes charged, such as the SDG and the SAO Krajina Police, lead me to the only reasonable conclusion: that the actions of both Accused were specifically directed to the commission of the crimes for which they were charged.

The Appeals Chamber’s judgment in Perišić is anything but perfect. But there is simply no justification to claim, as Stewart effectively does, that the specific-direction requirement dooms all future aiding-and-abetting cases. It does not — and it certainly would not have doomed the British prosecution in Zyklon-B.

http://opiniojuris.org/2013/08/19/no-specific-direction-would-not-have-acquitted-the-zyklon-b-defendants/

15 Responses

  1. On the contrary, all of the SS’s activities were unlawful, which is precisely why the IMT specifically deemed it a criminal organization:
    The declaration that the SS was a criminal organisation did not depend on proof that everything it did was unlawful. This is illustrated by the findings in respect of the NSDAP Leadership Corps, which was declared to be a criminal organisation notwithstanding the Tribunal’s specific finding that some of its activities were lawful political pursuits. 
     
    What the IMT actually said about the SS is that it was engaged in manifold criminal activities, that knowledge of them was general, and that (in respect of the Holocaust) it was “impossible to single out any one portion of the SS which was not involved in these criminal activities.” But it did not say that anything and everything done by the SS was unlawful – that is why it specifically accounted for the position of Waffen SS conscripts by excluding from the declaration ”those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes”. There was, moreover, a judicial finding in the Flick Case that some of what the SS did was lawful, a point that was addressed specifically in relation to whether or not two of the defendants were accomplices in its criminal activities (they were).
     
     

  2. Excluding those who were drafted into the SS says nothing about the criminal nature of the organization itself. Not only did the Flick tribunal specifically state that “an organization which on a large scale is responsible for such crimes can be nothing else than criminal,” it specifically relied on the inherently criminal nature of the SS to reject the idea that Flick and Steinbrinck could not be convicted of criminal membership because their financial support of the SS could have been used for salaries instead of lethal gas.

     
  3. On the contrary, as the text quoted plainly indicates, the Tribunal recognised that certain members of the Waffen SS were not personally engaged in crimes. That can only mean that not everything the SS did was criminal.
    There’s a contrast to be drawn there with the special findings in various subsidiary trials that certain specific organs of the SS – namely, the concentration camps – constituted a “common design” any act in execution of which was criminal.
    And as I said, the Flick Case explicitly said that some of the SS’s activities were lawful. You attack Stewart’s reasoning on the basis that
    SS was not an organization that was engaged in lawful and unlawful activities. On the contrary, all of the SS’s activities were unlawful
    I do not see how that reasoning can be squared with the findings in Flick, or Nuremberg.

  4. The quoted text says no such thing; it clearly says those who did not voluntarily join the SS could not be held responsible for the SS’s crimes. You fail to understand the IMT/NMT criminal-membership jurisprudence, which divided defendants into two categories: those who voluntarily joined the SS, who were guilty of criminal membership even in the absence of proof that they personally committed crimes (because the SS was a criminal organization); and those who were drafted into the SS, who were not guilty of criminal membership and could only be convicted of crimes they personally committed. Properly understood, therefore, the IMT/NMT jurisprudence proves precisely the opposite of your claim.

  5. Response…
    I agree with Rob. My understanding is that the finding that the SS was a criminal organization is one of the most controversial of the Nuremberg findings as it completely undermines the principle of individual criminal responsibility. Thus, I believe that James is absolutely right in concluding that the Zyklon B providers would not be held liable today if the specific direction requirement were an element of the actus reus of aiding and abetting.

  6. Response…
    In support of my argument that the Nuremberg findings on the SS as a criminal organization have been largely discredited, I would note that not a single international criminal statute establishes “membership in a criminal organization” as a crime. In addition, despite their inherent viciousness, there has never been a finding by an international criminal tribunal that the Khmer Rouge (Cambodia), the Interahamwe (Rwanda), the RUF (Sierra Leone), Arkan’s Tigers (Bosnia) etc. were criminal organizations.

  7. those who were drafted into the SS, who were not guilty of criminal membership and could only be convicted of crimes they personally committed
     
    Exactly as I said. If everything that the SS did was criminal, there would be no room for such an exclusion, and of a large number of SS members too.
     

  8. Charles,

    I said quite clearly in my post that modern tribunals no longer rely on the crime of criminal membership. But that is different than saying that tribunals no longer consider certain organizations to be fundamentally criminal.

    I’m glad you agree with James — but I’d like an actual argument, not simply a conclusion. The Zyklon-B defendants were not convicted of criminal membership; they were convicted of knowingly aiding and abetting a criminal organization, the SS. That is why the specific-direction requirement, had it existed in the WW II era, would not have acquitted the defendants — there was no plausible argument that the defendants specifically directed their assistance only to the SS’s “lawful activities,” because there were no such activities for them to assist. Moreover, as I pointed out, the evidence indicated that the defendants not only knew what the SS was doing with the Zyklon-B, but approved of that use and encouraged it. So on that score specific direction would also have been satisfied.

  9. Readers should be clear about what Rob is arguing: namely, that if the SS had only engaged in unlawful activities, the IMT would have convicted any member of the SS, even one who did not personally participate in the SS’s criminal activities and who was forcibly conscripted into the organization. I will leave it to the readers to decide whether that argument bears any relationship to what the IMT actually held.

  10. As I said, if everything the SS did was unlawful, it is impossible to see how any member of the SS could be excluded from the declaration, since they would all be personally implicated in a crime. It is a simple observation, and it does not require your condescending commentary by way of ‘clarification’.
     

  11. It wasn’t condescending at all, and I’m sorry if you took it that way. I was simply pointing out the implications of what you were arguing. It seems obvious to me that you misunderstand the basic nature of the crime of criminal membership, the very essence of which was that voluntary members of the SS did not have to be “personally implicated in a crime” to be convicted, because mere voluntary membership in the SS, an organization that was inherently criminal, sufficed for criminal responsibility. But, again, I will leave it to readers to decide which one of us better understands the IMT jurisprudence.

    This will be my final comment on the post.

  12. Suppose that the SS used the chemicals only to sanitize the camps, and that they used other means to kill people.  You could still find specific direction on the ground that the very purpose of the camps (whose operation requires chemical sanitation) is to provide a vehicle for the SS’s illegal activities, and perhaps the assistance of these illegal activities is the very purpose behind the provision of chemicals.  There is a problem for aiding and abetting liability in this scenario, but it is not a lack of specific direction.  The question is whether the assistance is sufficiently substantial to give rise to criminal liability.
    If I understand Kevin correctly, this is why it doesn’t matter that the chemicals had a dual use, since for both uses the assistance is being specifically directed towards illegal activities.  Moreover, so long as the perpetrators know that their actions are providing substantial assistance (because they know that one use of the chemicals is in fact to gas people), then both the specifically directed prong, and the substantial assistance prong are satisfied.
    I do agree with James that specific direction should not be required if the mens rea is purpose rather than knowlede.
     

  13. Response…I think there is a much more interesting case unfolding in Egypt.
     
    There are two provisions of the Leahy Law that apply to the situation. The one in “22 USC § 8422 – Authorization of assistance” applies to a military coup or military decree that removes an elected head of state.

    The other, in “22 USC § 2378d – Limitation on assistance to security forces“, cuts-off funding to units of the security forces of a foreign country if the Secretary of State has credible information that the units have committed a gross violation of human rights, like gunning down 1000 demonstrators.
     
    The President is only required to make a certification to restore funding after a coup, but none is required in either case prior to the cut-off. So while he is mulling over the possibility of circumventing Article 1 Section 9 of the Constitution, which provides that No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law, The Saudis and Gulf States have stepped-in and assured the Egyptian Generals that, if either the EU or the US terminate assistance, they will step-in and make-up the difference.
     
    Choosing to continue to supply military aid with the knowledge that the regime is committing systematic and flagrant crimes against humanity isn’t really just an example of guilt by association. The Saudis and the gulf sheikdoms would even have a free hand to finance their vendetta against the members of the Muslim Brotherhood, so long as they don’t specifically direct their aid to that criminal enterprise.

  14. Response…
    Kevin,
    You state that there was “no plausible argument that the defendants specifically directed their assistance only to the SS’s “lawful activities”  but as James pointed out, one perfectly plausible argument was that they provided the gas “to exterminate insects and germs within labor and concentration camps (a massive sanitary problem).”
    In addition, I do not understand your comment that “modern tribunals no longer rely on the crime of criminal membership. But that is different than saying that tribunals no longer consider certain organizations to be fundamentally criminal.” I would like to see any decision or judgement from an international tribunal supporting that statement. On the contrary, despite trials against individuals who were members of heinous groups, including the Khmer Rouge, Interahamwe, RUF, Arkan’s Tiger, etc., all modern tribunals have insisted on evidence of individual criminal liability. As far as I know, membership in one of these heinous groups has not even been used as circumstantial evidence of individual criminal liability. So, again I agree with James that the Zyklon B providers would have been acquitted if they were tried today in accordance with the specific direction actus reus of aiding and abetting.

  15. Hi Kevin,
     
    Thanks for airing this issue, and for your insights about the Zyklon B case. It’s a great thing to have someone of your experience criticizing my arguments for broader criminal responsibility, which I agree should always be subjected to the greatest skepticism from various angles. This said, I’m not sure the reference to criminal organizations in Perišić or your blog is at all plausible, and maintain my concern for cases like Zyklon B moving forward.
     
    By way of clarification, I never thought that “specific direction dooms all future aiding and abetting cases” as you attribute to me. I did have a hunch that the future of complicity under “specific direction” would not deliver basic moral responsibility in an exceptionally important subset of these cases, undermine whatever remains of Alien Tort litigation and set corporate responsibility for human rights back several decades. I’m afraid that nothing in your response here has changed my mind about this.
     
    Also on a preliminary level, I feel compelled to place our discussion here in its wider context. In my earlier blogs on this issue, I felt like I did enough to at least start a conversation on a whole range of problems with “specific direction.” Can “specific direction” as an actus reus mean anything without making a nonsense of that whole concept? Is a split standard of aiding and abetting that turns on presence at the scene of the crime not highly regressive? Are the Appeals Chamber’s very restrictive understandings of remoteness coherent or desirable? Could we better channel these concerns about overreach through necessity as a justification? And overall, what does it mean for international criminal law to adopt a standard of complicity that has no equivalent elsewhere?
     
    Our exchanges haven’t really discussed these core issues.
     
    Let me proceed, however, to offer some thoughts on your criticisms. To my mind, our core difference is definitional—we focus on different aspects of an irredeemably ambiguous test. You seize upon the portion of the judgment that refers to “criminal organizations” as a test for “specific direction,” but my thoughts about Zyklon B were based on the statement that “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient.” As I acknowledge in my blog you criticize, I don’t believe anyone can be clear about what “specific direction” means, when much of this language is Orwellian in its lack of meaning or internal logic.
     
    The truth is, both of the tests we place emphasis on are without any grounding in modern international criminal law, unprecedented in national understandings of complicity, and theoretically flawed, but I attempted to use the latter in my example because I saw it as by far the stronger. I never stopped to think that anyone might defend the idea that criminal organizations color the meaning of aiding and abetting in modern international criminal law, since this seemed so manifestly implausible to me. In what remains of this post I explain why.
     
    In my years as a practitioner of international criminal law and throughout my academic research in this field, I have never had occasion to study the history of “criminal organizations” at Nuremberg in close detail. The reason is threefold—this  involved a separate crime of membership in a criminal organization, had nothing much to so with aiding and abetting, and is no longer applied in international criminal law. On these bases, modern international courts make almost no reference to “criminal organizations”, so resurrecting the concept here struck me as blatantly erroneous on first reading.
     
    Confirmation of this proposition is abundant. If one searches a database of modern case law from ad hoc and hybrid tribunals for the words “criminal organi*ation”, you find fifteen cases that mention the term at all. Most of them mention it only once in passing in a lengthy judgment that runs to several hundred pages, and none of them do so in the context of aiding and abetting. Similarly, in a two-year study of all aiding and abetting incidents in ICL that I have just completed with a research team (I will post the results of this study together with the dataset on EJIL Talk! in the coming days), not even 1 of the total 362 incidents we have coded involves any reference to criminal organizations in the context of aiding and abetting. The sudden combination with aiding and abetting in Perišić is legal fantasy.
     
     
     
    In short, I did not take the “criminal organization” limb seriously, preferring the alternative in a bid to cast “specific direction” in its best possible light (which is still not much light at all).
     
    Although I am yet to see any normative argument why the stealth addition of criminal organizations to aiding and abetting could be a good thing, I have several grave misgivings. First, I inquired in one of my earlier responses to you why organizations are so important anyway? I asked “what makes organizations so special anyway? Kevin offers no reason why the organization is normatively significant and I see none—an individual can also use one and the same weapon for both innocent and illegal purposes, so the organization adds nothing of conceptual significance to the analysis.” When there is no support for “criminal organizations” is existing law, I believe one needs to address this issue before defending the test on normative grounds.
     
    Equally strikingly, what precisely is a criminal organization? Your criticism accepts that these are disputable questions of fact, that it’s uncertain whether the VRS was a criminal organization but the RUF was during a certain period of the war in Sierra Leone. I am concerned, however, that you announce no legal criteria for this determination, which would seem essential when such colossal liability turns on the concept. As my last paragraph showed, there is absolutely no definition of “criminal organization” in modern international criminal law. Do you not think that after we remove the bamboozling verbiage around this new test, this all starts to become a little bit too Kafkaesque?
     
    Also, the fundamental question remains unanswered. The obvious concern is that Perišić standards for the proposition that individuals (through “legitimate” organizations or in their own capacity) who make a substantial and unjustifiable contribution to atrocity with the mental element required for the underlying crime, do not share responsibility for that crime simply because: either (a) their contribution did not pass through a criminal organization; or (b) their assistance was also used for some innocent second function. Both alternatives strike me as perverse, and I’m not sure new facts about one defendant in the Zyklon B case change that.
     
    I am not alone in this view. This shift is also at odds with modern scholarship on complicity. As part of the forthcoming blog with EJIL Talk! next week that I alluded to earlier, I reveal the results of a second empirical survey, this one of (a) thirty-two (32) criminal law textbooks from various national systems; (b) nineteen (19) treatises on international criminal law; and (c) one hundred and fifty four (154) articles on the theory of complicity. To summarize a more sophisticated breakdown to come, there is not one single author at any of these levels who discusses “specific direction” in more than a casual throwaway sentence. I, like almost everyone else, see no value in the concept.
     
    Relatedly, you criticize me for being ahistorical, but I am worried that you are in an infinitely worse position in that regard with respect to criminal theory. At the risk of offending the gods of genuine reasoned scholarship, “specific direction” turns its back on the theory of complicity developed by no lesser intellectuals than: Beccaria (1764), Stübel (1828), Getz (1875), Torp (1895), The Union International de Droit Pénal (1902); Williams (1961), Fletcher (1978), Roxin (2005), Kutz (2000), and Moore (2010), to name but a few. Are you sure you want to bravely follow the ICTY down this lonely path?
     
    In short, I stand by my earlier analysis, limited as it is by an impossibility ambiguous core concept. I respect that you and those who decided Perišić have heartfelt concerns about the overreach of complicity without something like “specific direction,” but to the extent these concerns are normatively sound, there is an enormous literature considering them in painstaking depth over the course of at least two centuries, all of which deals with these issues in a very different way to that you now defend. In any event, I’m grateful as always for your criticisms and hopeful our exchange of ideas is of some wider utility in the resolution of these vitally important issues.
     
     
     
     
     

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