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

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.