My quick take on the German cook

The “Non-Career Law Clerk” commented on my post about the German cook who may be prosecuted for allegedly being an accomplice to the murders at Auschwitz. Condensed and summarized, the clerk argued that if the poor bastard in Germany can be sent to the slammer 60 plus years after the fact when the cook is old and infirm, then a cook at Gitmo could suffer the same fate if 60 years from now our practices there are found to have violated international norms on torture.

Here’s my take:

*If I were a young German lawyer, I would want to defend the cook. What follows is my defense strategy in several parts.

*First,  I would stress that the cook never intended to join the illegal enterprise or assist in the commission of the murders. I would argue (using standard criminal precepts) that the cook has no liability because merely associating with someone who commits an illegal act is not enough. I would posit that the government must prove that the cook specifically intended to further the illegal scheme and consequent murders.

*Second, I would argue that the cook can have no liability because his conduct (cooking) did not materially assist the commission of the illegal acts or make the scheme more likely to succeed. That is, everyone eats and even if there were no cooks, the perpetrators of the murders would have fed themselves and committed the illegal acts anyway. Because there was no material assistance, there is no derivative liability. Again, this theory would be developed from standard legal principles.

*I do not know how Germany deals with the “intent” and “materiality” components of derivative criminal liability discussed above. That said, if German law disregards these basic principles, I would argue that Germany’s law violates basic human rights (due process) because it imposes what amounts to a civil regulatory scheme (strict liability) in a criminal proceeding where the loss of liberty is at stake.

*As for our cooks at Gitmo, the same sort of defenses would apply and then some. The prosecutor in the Gitmo hypothetical would have to get over a big additional hurdle. That is, whether the Convention on torture protects non-state actors held in captivity rather than soldiers held in prisoner-of-war camps. I would point on that the rule of lenity requires a finding that my client is not guilty because at the time the acts were committed the Convention on torture did not clearly anticipate that it would be applied to soldiers and their cooks holding non-state actors.

*Additionally, the Gitmo cook would have the additional defense that he did not know at the time that the specific acts deemed torturous by international standards were in fact wrong or illegal. It is one thing to hold a cook strictly accountable for feeding guards who daily gas thousands of civilians in huge, oily furnaces, and quite a different thing to hold a cook strictly accountable for a criminal offense because another soldier put a terrorist in a stress position. I would add that in some cases (and this is one of them) the law has always required that where the legal code is unusually complex and therefore uncertain (the meaning of “torture”), the government is required to prove not only that the accused committed the act but that he subjectively knew he was violating the law. (E.g., some federal criminal tax cases.)

So, there you have  it. Thoughts please!


21 responses

  1. Because I have some familiarity with Germany and law, but not German law, your post interested me enough that I undertook a cursory look at German criminal law with respect to intent. It appears that now, at least, Germany has a complicated system when it comes to intent. But a phrase in one article jumped out at me with respect to your hypothetical, which I paraphrase here: a defendant must have been able to avoid the crime in order to have had some level of intent. I doubt the cook could have avoided the crime. Looks like you are going back to your days as a defense attorney – good for you!

  2. Judge,

    Although I hate to offer a public opinion as to the innocence of the Gitmo cook because I am still hoping to serve on a war crimes jury someday, I think you have made a VERY strong argument for a not guilty verdict. But what about the cook’s Commander In Chief….

  3. @Mary Heise Buckley — That sounds sort of like a duress defense (if what you mean is “he couldn’t have avoided committing the crime without being killed himself”), but my understanding of duress is that it only excuses crimes that are lesser than the fate the defendant would have suffered for not doing them; so if he is theoretically guilty of (multiple) murder as an accomplice under the substantive law, it wouldn’t be enough that he couldn’t have avoided committing the murders without being killed himself. But that’s reading a lot of American ideas into German law.

  4. Mary,

    Whether the cook could have “avoided the crime” will be an interesting issue. In this case, does that mean that the Cook should have merely stopped cooking? Or, does that mean that the cook should have done something affirmatively to stop others from gassing their captives? From the perspective of a criminal law theorist, the question of whether an accused has derivative liability for performing a specific act (cooking) that arguably advanced the commission of an offense is, it seems to me, very different than whether the accused has derivative liability for failing to take affirmative action, like protesting the acts of others.


    All the best.


    PS to other readers: Mary is one of my former law clerks, a former federal public defender and appellate specialist. Before all that, she was a distinguished linguist at Creighton University. She is fluent in German.

  5. Bill,

    Let’s make the Commander in Chief hypo even better. What if the Commander in Chief had a memo from a distinguished law professor then employed by DOJ’s office of legal counsel that (1) the torture Convention did not apply to non-combatants; and (2) even if it did, the acts performed by the Commander’s minions were not torture?

    All the best.


  6. Remember, the cases are governed by international humanitarian law, not national law. While international law allows for universal jurisdiction over these types of crimes, Congress has limited federal court jurisdiction for torture to cases in which the offender is a U.S. national or is in the United States. For violations of the Geneva Conventions, federal court jurisdiction is limited to cases in which a U.S. national is the perpetrator or victim.
    Both the ICTY and the ICTR have adopted a legal theory known as Joint Criminal Enterprise, JCE for short. A former judge on the Yugoslav tribunal calls JCE “Just Convict Everyone.”
    There are three forms of JCE at the tribunals. JCE 1 basically is joining a criminal enterprise and the crimes committed are those planned. JCE 2 is being part of a criminal enterprise and aiding the enterprise. The traditional example is a concentration camp staff member who does not commit crimes himself but helps the enterprise work, like a cook.
    JCE 3 is criminal responsibility for crimes committed as part of a JCE 1 or 2 which are not part of the joint scheme but are reasonably foreseeable. It’s similar to liability in a conspiracy for crimes outside the agreement but reasonably foreseeable.
    So, in your example, the Auschwitz/GTMO cook is part of an enterprise JCE or JCE 2. He’s on the hook if he knows that crimes are being commited. The GTMO cook could argue he didn’t know and might get someone to believe it. An Auschwitz cook would have a much harder time denying knowledge of crimes.
    Enterprise JCE is similar to a supply sergeant who issues bullets during wartime. That in itself is a legal act but if he’s issuing them to Einstatzgruppen to massacre Jews, it’s part of the criminal action.
    Basically, in my opinion as a defense lawyer at both the ICTY and the ICTR, the judiciary looked for ways to make the prosecution’s job easier by giving them crutches when they lacked proof that a defendant did anything illegal. And JCE was the way most of the cases went. My client was one of a small percentage who beat a JCE allegation.
    In recent months, the ICTY Appeals Chamber has backed off a bit on criminal liability based on superior authority. That theory holds a superior like a military commander liable for the crimes of his subordinates if 1) he has the effective ability to prevent the crimes or to punish them and he does not do so and 2) he knows or should know of the criminal acts of the subordinates.
    As to Jay’s comment about duress, the leading international law case from the ICTY is Erdemovic, where the Appeals Chamber without spelling out the elements of the defense held it can never be used to excuse the killing of innocents. The Rome Statute, which governs the International Criminal Court, allows the duress defense when the harm avoided is greater than the harm avoided so it leaves open the possibility that it could be used as a defense for the killing of innocents (I’m going to kill your whole family if you don’t kill this prisoner).
    One of the judges where I practice at home says if he asks me what time it is, I tell him how to make a watch. I guess this answer is proof his statements are true.

  7. Judge,

    You have gathered some of the finest legal minds with this blog, in my humble opinion, at least. Two evening ago I watch the Great Escape for the 20th time. A great 1963 movie. My wife reminded me that the Great Escape led to the TV spin-off, Hogan’s Heroes. If you don’t mind Judge, I would like to suggest that the group gathering here for your blog perhaps be called Kopf’s Kapers, yes, a subgenre of criminal fiction.

  8. Jay, you might be entirely correct. I really know zilch about German law, only the little bit I learned this morning – enough to be dangerous. Unfortunately, I do not have the answer. Interesting questions here!

  9. I don’t have anything substantive to add, but I wanted to say that this blog is one of the most refreshing and intellectually stimulating places I have ever visited on the internet. Thank you for creating it, Judge Kopf.

  10. Your Honor,

    In general, I agree with your conclusion. The role of being a cook is fairly removed from actively murdering people in a death camp. Were a cook held guilty by such association, the manufacturers of the concertina wire for the camps and the uniforms of the camp’s victims should be equally liable.

    There is one aspect to this story, though, that gives me some pause, particularly as it relates to your first point. The cook was a member of the Waffen S.S. This was not a random conscript in the Wehrmacht who was issued a 98K and told to fight for the Fatherland. Membership in the S.S. was voluntary, coveted, and fairly exclusive. One had to be a die-hard to join this group.

    Equating it to another area of the law, he was a gang member present at the scene of a gang-related murder, furthering the interests of the gang in an albeit menial capacity.

  11. One last question from an ignorant Texan. A lot of the discussion has to do with the actual guilt of the Auschwitz cook (or others similarly derivatively associated with attempted genocide, in the present case).

    Isn’t his degree of direct involvement more a matter for determining his sentence than of his guilt or lack?

    Eric Hines

  12. Pro Hac,

    True, but even gang members do not have derivative liability unless they affirmatively and intentionally act in a material way to advance the commission of the offense. Merely being a gang member is not enough.

    The cook’s membership in the SS would, however, constitute an “inconvenient truth” for the defense lawyer, particularly on the issue of intent. Still, if we are applying Anglo-American legal principles, I’d rather be the defense lawyer than the prosecutor.

    All the best.


  13. Eric,

    Your point is an important one. Yes, the degree of involvement would be a critical factor at sentencing. But, the degree of involvement might also be evidence of intent and materiality, both elements of the crime itself.

    All the best.


  14. Dear Southern Law Student,

    You’re most welcome.

    Say, sometime ago you asked about “big law.” Any developments on that front?

    All the best.


  15. “…this blog is one of the most refreshing and intellectually stimulating places I have ever visited…”

    Judge, I agree with Southern Law Student. Although I am not in any way connected to the practice of law, I have a keen interest in it. While my humor is often a default mode of communication, that humor is not a reflection of the high esteem I hold for the questions and answers posed here. As I said I earlier some of the finest legal minds are gathered here. I would love to see a list of the names of people who regularly drop in. It is no doubt an impressive list.

    Thank you Judge for the effort you put in.

    Most appreciative,

  16. Bill,

    Thanks for the good words. I love humor! It makes what we do tolerable. For example, when I start planning for my funeral, I think I will hire a stand-up comedian to give a funeral speech showering praise on an entirely different and otherwise unknown person.Can’t you just see all the puzzled faces. It makes me want to be there.

    All the best.


%d bloggers like this: