Complicity, Cruelty, and Compliance - Genocide Accomplice Liability In The Age Of Platform Companies

To avoid running afoul of University self-plagiarism guidelines, this work is not to be considered as part of the Computers, Privacy, and the Constitution course. It is a final paper for Menachem Rosensaft's Law and Genocide Seminar and not quite finished. It is also on this wiki because it touches on many themes of the course, including two big problems:

1. Eben mentioned that the entire world does not have the US Constitution, and this is possibly the biggest flaw in the class's analytical framework. They We will need other legal tools.

2. Tripp Odom is correct that, to non-Jews of our generation, the Gestapo are near-comedic fantasy villains. An effort to explain the employment of these platforms by some actually-existing genocidal goons may help make the problem more tangible.

-- JoeBruner - 08 May 2018

Part 1: Historical Definition of Boundaries

1.a The Nature of Genocide

"By "genocide" we mean the destruction of an ethnic group…. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups." -Raphael Lemkin, Polish Jew and jurist, 1944.

Legally, genocide involves action taken against "in whole or in part, a national, ethnical, racial or religious group."(1) In order to take action against a group. just as to obtain a remedy for a class under Rule 23 of the FRCP, the group must be ascertainable. This means that the acting entity(2) must be able to know, with a certain degree of efficiency and precision, who is and is not a member of the group for the crime to be feasible. "In territory occupied by Nazi Germany or its Axis partners, Jews were identified largely through Jewish community membership lists, individual identity papers, captured census documents and police records, and local intelligence networks."(3). In particular, the mandatory carrying of identity papers with special identifiers for Jews became state policy well prior to any explicit intent to genocide on the part of the Nazi regime. "Carrying identity papers was compulsory. All Jewish women were given the extra name ‘Sara’ in their identity papers and men the name ‘Israel’." (4)

Consequently, limiting the ascertainability of a group when confronted with actual or impending genocide is extremely desirable both from a moral and a practical perspective. Secrecy and anonymity(5) both have substantial roles in limiting ascertainability. Secrecy is most critical because the revelation of all of one's personal communications would reveal all of their group affiliations. Anonymity is also important because it allows one to speak out as a member of the group without revealing the group membership of oneself to the audience. They are also important because, in prelude to Genocide, activists and journalists both within and without the affected groups are typically surpressed and targeted for speaking out. In the prelude to Kristallnacht, the NSDAP shut down all Jewish newspapers with national circulation to ensure they could not create a widespread counter-narrative to Joseph Goebbel's propaganda.(6) One of the necessary preconditions for the Rwandan genocide was the near-hegemonic control of mass media outlets by Hutu/RPA sympathizers.(7)

Intelligence, then, not in the sense of the personal character trait, but in the military/political sense, is extremely valuable to governments in contemplation of genocide or in the act of carrying it out. It enables prospective victims to be identified, opposition voices to be silenced, and resistance to be thwarted before it takes effect. Hans and Sophie Scholl's White Rose resistance group lasted only a precious seven months before its entire membership was arrested, but with modern surveillance techniques, they could have been caught in the first few weeks before distributing a single leaflet.(8)

Morally, informing on someone at risk of genocide to the authorities is wrong, and hiding people or enabling their escape is morally laudatory. This is, or at least ought to be, entirely uncontroversial, and the moral and technological implications of this idea are not the present topic of discussion. The immediate goal of this paper is to determine if, when, and how providing a government engaging in or contemplating genocide with intelligence on individuals it wishes to target constitutes genocide or another crime against humanity.

1.b Criminal Complicity at Common Law

"He who helps the guilty shares the crime." -Publius Syrus, freed Syrian slave and famous poet and artist of the late Roman Republic, Sententiae, Maxim 139, circa 43 B.C.

The concepts of complicity and accomplice liability have deep roots in the Western European legal tradition. Legal opinions used to form the Codex of Justinian do, in at least two cases, mandate both a punishment for a perpetrator and a lesser punishment for "all their accomplices."(9) Under British common law, the participants in a crime were divided into principals and accessories, with the principals performing the requisite actions of the crime in the required state of mind, and their accessories being those who either helped them escape capture after the fact, or who aided, encouraged or assisted the principals in the planning and preparation of the crime before or during its commission.(10) Herbert Wexler's draft model penal code of 1962, Section 2.06(2, 3) contains a summation of the more explicit, modern thoughts on complicity that supplanted the old principal/accessory system:

"(2) A person is legally accountable for the conduct of another person when: ... (c) he is an accomplice of such other person in the commission of the offense."

"(3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do;"

The word "purpose" in 2.06(3)(a) has been subject to a fair amount of difficulty in interpretation. Numerous courts have held that knowing participation, or knowing participation combined with profit, is sufficient to possess the purpose of promoting or facilitating the commission of the offense. “Guilt as an accessory depends, not on ‘having a stake’ in the outcome of the crime [. . . ] but on aiding and assisting the perpetrators; and those who make a profit by furnishing to criminals, whether by sale or otherwise, the means to carry on their nefarious undertakings, aid them just as truly as if they were actual partners with them” (11) On the other hand, Learned Hand famously held that mere knowing participation is not enough, and a strong reading of "purpose", as an actual intention to bring about the criminal result, is necessary. "definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." (12)

Sherif Girgis offers a useful clear example of accomplice liability for our purposes: "Cassius knowingly drives the getaway chariot for Brutus’s burglary of Caesar’s palace, but achieves his end (payment) up-front, hence regardless of whether Brutus actually burgles, and hence (we can stipulate) without intending that Brutus do so (“getaway case”)."(13) This perspective is echoed by Menachem Rosensaft, who argued that in the case of an entity known to be acting for profit, the critical question becomes not their personal investment in the success of the plan, but rather their knowledge of the plan being contemplated or carried out. Thus, the elements of complicity could be broken down to profit motive (14) and knowledge(15). Knowledge is particularly convenient a criterion because it allows us to merge in accomplice liability of type 2.06(3)(a)(iii) from the Model Penal Code, because it is most typically knowledge that will give rise to a legal duty to prevent the commission of the offense when such a legal duty exists.

Because a manifestation of profit motive can be readily found in most or all actions of a private corporation, the knowledge of a corporation should be the critical criterion which determines liability in almost all cases. If knowledge is to be the turning point, a discussion of willful blindness is necessary. Consider the following hypothetical: IBM corporation possesses a private database with evidence of the religious and ethnic background of 97% of German residents. They allow the Gestapo to access it for a fee, and tell all employees to avoid monitoring any Gestapo use of the archive, and to refrain from keeping records or destroy any records that relate to how the archive was used. The law should not be interpreted so as to allow intentional circumvention of accomplice liability by maintaining ignorance of the plan. While a clever prosecutor might prove knowledge of a broader plan or actually-performed actions and demonstrate that the inference was sufficiently obvious any reasonable person would have made it, a legal doctrine does exist to prevent this kind of circumvention.

1.c Willful Blindness

Multinational corporations are large entities with sophisticated hierarchies; Corporate entities avoiding liability by arguing their functionaries were operating autonomously is a strategy which is still sometimes successfully employed. Under U.S. law, the most famous case on this issue is possibly United States v. Jewell, which, in response to an individual driving a mysterious car across the Mexican border for $100 without asking what was inside, held "deliberate ignorance and positive knowledge are equally culpable... one 'knows' facts of which he is less than absolutely certain. To act 'knowingly', therefore, is not necessarily to act only with positive knowledge, but also to act with awareness of the high probability of the fact in question... 'knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." Under United States federal criminal law, willful blindness is held to have two prongs: " Although the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all agree on two basic requirements. First, the defendant must subjectively believe that there is a high probability that a fact exists. Second, the defendant must take deliberate actions to avoid learning of that fact."(16) Johan D. Van Der Vyer argues convincingly that proof of willful blindness is tantamount to knowledge under the mens rea standards of the International Criminal Court and, consequently, is sufficient to secure a conviction for offenses where knowledge is a requirement, employing the doctrine of dolus eventualis to predict that a series of actions is likely to lead to a certain result and continue otherwise, "blindness could be evidence of actual knowledge, or then at least of the superior having deliberately turned a blind eye. Here, dolus eventualis would suffice to secure a conviction." Van Der Vyer's approach was adopted by the Yugoslavian tribunal in _Prosecutor v. Tadic_(17), which has become a seminal case in international criminal law, albeit on other grounds.

A willful blindness-based understanding of liability for complicity in genocide, however, is at least as old as the Nuremberg trials themselves. Albert Speer, Reichsminister für Bewaffnung und Munition, was a career-minded artist who joined the Nazis because they were on the rise and they had the best graphics. While it became clear later on that he had, in fact, personally observed concentration camp conditions on at least one occasion, and therefore should have known the conditions in his factories which used camp labor(18), during Nuremberg he confessed to a sort of willful ignorance with respect to the crimes of the Reich. He denied any knowledge of the Final Solution itself, but he admitted that he could have known had he chosen to investigate but deliberately kept his conscience clear. Then, he publicly admitted his willful ignorance was equally morally culpable as if he had known. He was specifically warned not to visit Auschwitz in 1944, and said " I did not query Himmler, I did not query Hitler, I did not speak with personal friends. I did not investigate-for I did not want to know what was happening there.... From that moment on, I was inescapably contaminated morally; from fear of discovering something which might have made me turn from my course, I had closed my eyes.... Because I failed at that time, I still feel, to this day, responsibility for Auschwitz in a wholly personal sense."(19)

Albert Speer's lying aside, the most relevant part of the matter is that the Nuremberg tribunal seemed perfectly content to convict Albert Speer based on what he admitted to for Crimes Against Humanity, the closest available equivalent to genocide given that there was not an indictment for genocide or a cohesive legal understanding of genocide at that time. Of course, the level of proof of knowledge necessary at trial is likely to be significantly higher for an outside corporation or contractor than a high-level official of Nazi government themselves, but the proto-precedent is still telling that actual knowledge may not be necessary, given sufficient reasonable expectations and deliberate action not to know.

1.d Summation of the Rule

When a natural or legal person, acting with profit motive, collaborates with a government planning, attempting, or conducting genocide, and either (1) does this knowingly or (2) reasonably expects that genocide is the result of their collaboration and takes deliberate action not to discover it, that person is complicit in genocide.

Notes

1 : https://www.oas.org/dil/1948_Convention_on_the_Prevention_and_Punishment_of_the_Crime_of_Genocide.pdf

2 : State action is not necessarily a component of genocidal acts. Private organizations can collect platform data or open-source intelligence for their own purposes.

3 : Holocausr Memorial Museum, https://www.ushmm.org/educators/teaching-about-the-holocaust/common-questions#answer%204

4 : Anne Frank House, http://www.annefrank.org/en/Education/Teachers-portal/Pupilsquestions/How-did-they-know-who-was-Jewish/

5 : For definitions of secrecy and anonymity, see Eben Moglen's Snowden and the Future talks. Put simply, anonymity means being able to deliver communications to people without anyone unintended knowing it came from you, and secrecy refers to being able to communicate with someone without the content of their communications being revealed. https://let.snowden.in/2015/11/21/moglen-eben-privacy-warrants-secrecy-anonymity-and-autonomy-20131030/

6 : Kristallnacht: Prelude to Destruction. Martin Gilbert, 2006, p. 23.

7 : Human Security Centre, The Media as a Tool of War: Propaganda in the Rwandan Genocide, 2014, p.3, http://www.hscentre.org/wp-content/uploads/2014/05/HRCR-2014-Issue-2-No.-1.-Lower-and-Hauschildt-The-Media-as-a-Tool-of-War.pdf

8 : This is at least feasible for any major online software platform that has access to your data. See, e.g., http://techland.time.com/2013/12/18/facebook-can-see-what-you-type-even-if-you-dont-publish-it/ If you use a proprietary operating system like Microsoft Windows or Apple Macintosh, your own computer is entirely capable of informing on everything you do. See, e.g., https://www.express.co.uk/life-style/science-technology/782471/Windows-10-download-creators-update-secret-keylogger Additionally, any other app you install but do not understand could potentially be doing the same in most cases, so a seemingly-innocuous app could be a major threat vector for you and your friends, as in the recent Cambridge Analytica scandal

9 : Codex of Justinian, THE OPINIONS OF JULIUS PAULUS, BOOK V, Titles 4 and 14

10 : Wayne Lafave, Criminal Law, 1972, sec 6.6(c)

11 : Backun v United States (1940) 112 F2d 635 (Fourth Circuit Appeals Court) p 637.

12 : United States v. Peoni, 100 F.2d 401 (2d Cir. 1938)

13 : Knowing the plan of a crime, the profiteer provides a useful service and accepts payment despite not being particularly interested in whether the crime succeeds.{{The Mens Rea of Accomplice Liability: Supporting Intentions, Sherif Girgis 123 Yale Law Journal 2, 2013

14 : Profit motive is intended to encompass general business motivations, whether gross profits, market share, valuable market research or other data commodity, and so on. Whether actual profit was obtained or intended as opposed to entry into an emerging market could be hotly debated, but seems to me to be legally irrelevant.

15 : Foreknowledge or continued participation once obtaining the requisite knowledge

16 : GLOBAL-TECH APPLIANCES, INC., ET AL. v. SEB S. A., 536 U.S. 754 (2011)

17 : Int’l Crim. Tribunal for the Former Yugoslavia, Decision on Interlocutory Appeal on Jurisdiction, 1995. Appeals Chamber, Case No. IT-94-1-ar72, 35 I.L.M. 32 (1996).

18 : See, e.g., The Good Nazi: The Life and Lies of Albert Speer, Dan van der Vat

19 : Contrived Ignorance, David Luban, 87 Geo. L.J. 957, p. 965-966