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In a book that I'm reading about the Nuremberg Trials, I noted the following:

A number of minority positions have been cited as representative of NMT, for example in The Presbyterian Church of Sudan vs Talisman Energy, the US Court of Appeals for the Second Circuit in 2009 relied solely on the Ministries Tribunal acquittal of Karls Rasche, the head of Dresdner Bank for the proposition that "International Law at the time of the Nuremberg Trials recognised aiding and abetting liability only for purposeful conduct.' In fact, Rasche was the only defendent in any of the trials held to this standard; not only did every other tribunal apply a knowledge standard for aiding and abetting, the Ministries tribunal did so for other defendents. Regardless, the purposive standard is the second circuits official standard, sounding what one scholar called 'the death knell for most corporate liability claims under the Alien Tort Statute.'

To which the author notes:

Had this study been available then the court may have reached a very different conclusion.

This seems very strange, almost like a schoolboy error. I mean, why should the only defendent indicted upon economic crimes be held to a different standard to all the other defendents? It appears to be an outright example of bias, especially when the presiding judge in his report to President Truman in June 1945 emphasised the need to prosecute individuals in the 'financial, industrial and economic life of Germany who are proveable ... to be common criminals.'

Q. Why was Rasche held to a 'purposeful conduct' criteria unlike every other defendents in the trials who were held to a 'knowledge standard.' Was this, in fact, an example of bias by the judges?

Q. What are the major differences between 'purposeful conduct' and a 'knowledge standard'?

Q. Why has it been said that holding to such a standard 'sounds a death-knell to all corporate liability claims under the Alien Tort Statute'. Why in particular to the Alien Tort Statute and not more widely?

  • The first question "Why was Rasche held..." may not be in scope here, unless there was a principled legal reason. It may not even be answerable save as speculation unless the opinions or other statements by the judges who made the decision disclose a reason. The second question ("what are the differences...") seems in scope here. The third ("Why has it been said....") should be answerable, but may be largely an opinion answer. – David Siegel Nov 23 '18 at 17:30
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I have no idea what was going on with the Ministries Tribunal and cannot speak to what they were thinking when they applied different standards -- assuming that it is true that they did.

But the other questions are easier to answer:

Purpose vs. knowledge: The distinction between purpose and knowledge is a tricky one, but some hypotheticals can help tease out the difference, which centers on what the actor is truly trying to do:

One night, a bomb goes off in a synagogue, killing a cleaning woman inside. The next night, another bomb bomb goes off in another synagogue, killing a cleaning woman inside. The local Jewish population is terrified of what might come next. The police arrest Man 1 for the first bombing and Man 2 for the second. They charge both with:

  1. terrorism, which we'll define as "the purposeful use of an explosive to intimidate a religious group."
  2. murder, which we'll define as "the purposeful killing of another person."

Man 1 is the husband of the cleaning lady at the first synagogue. He is Jewish and generally harbors no ill will toward other Jews. But he's a drunk and a loser, so his wife decided to leave him. Humiliated, he decided to kill her by rigging a bomb to go off in the broom closet when she opened it. As he did it, he worried about his congregation thinking they were being attacked because they were Jewish. He knew that was what they would think, but he was too angry at his wife to care.

Man 2 is a Nazi. He hates the Jews and he bombed the synagogue because he wants to spark a race war. After installing the bomb, he went outside to detonate it. He knew a cleaning woman was inside. He knew she wasn't Jewish and did not want to kill her. But he figured that sparking a race war is going to mean some innocent people get killed. He felt bad that she would die, but he pressed the button anyway.

The men's guilt or innocence will depend on why they put the bombs in the synagogues.

Man 1 can be convicted of murder. He knew his bomb would kill someone, and he put it there for that purpose. He cannot be convicted of terrorism. He knew that local Jews would feel intimidated by the bomb, but his purpose was not to intimidate anyone.

Man 2 can be convicted of terrorism. He knew his bomb would intimidate the local Jewish population, and he put it there for that purpose. He cannot be convicted of murder. He knew that his bomb was going to kill the cleaning woman, but his purpose was not to kill her.

Another common hypothetical is the woman who poison's her husband's coffee thermos. She wants to kill him, but she knows that he always shares his coffee with another guy at work each morning. She doesn't want to kill him, but she does it anyway. She has acted knowingly and purposefully in killing her husband. She has only acted knowingly in killing husband's co-worker.

Alien Tort Statute: The purposefulness standard was considered a "death knell" for the Alien Tort Statute because it is so much harder to prove than a knowledge standard. If someone fires a gun into a crowd, there's always going to be a question about what the purpose was, but it's a lot harder to prove that they didn't know it would kill someone.

The same is true with the Alien Tort Statute. Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244 (2d Cir. 2009), dealt with claims that Talisman had facilitated Sudanese war crimes. Those claims stemmed allegations that Talisman had upgraded Sudanese air facilities, provided financial support to the Sudanese government, and provided logistical support to the Sudanese military, all while Sudan was allegedly committing war crimes during the Second Sudanese Civil War.

While it would be relatively straightforward to prove whether Talisman knew about the government's conduct in prosecuting that war, it could be more difficult to prove why they took the actions listed above. If the ATS imposed a knowledge standard, it would not matter why they provided that assistance. But if it imposed a purposefulness standard, they would have a relatively straightforward defense by claiming that they were doing so only to protect their investments in the oil fields around the country. And if that's the case, it would matter even if they knew for certain that making those investments would lead to genocide, war crimes, or other crimes against humanity.

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    In the hypothetical, Man 2 could almost surely be convicted of negligent homicide or voluntary manslaughter, and in some jurisdictions could be convicted of murder under a "depraved indifference to human life" theory. But that is because those convictions do not require proof of purposefulness or intent to kill. – David Siegel Nov 25 '18 at 0:46
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    There are laws in at least some jurisdictions that consider any fatality caused by a felony (or perhaps violent felony) to be murder. Assuming we have enough evidence to convict Man 2 of felony terrorism, in such jurisdictions the man could be legitimately convicted of murder. – David Thornley Nov 26 '18 at 17:42
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    What does that have to do with the OP's question? – bdb484 Nov 26 '18 at 21:54
  • This is confusing: If bombs were not capable of killing someone then they can't be used to intimidate. Terrorists using bombs to intimidate people rely upon this. In the kinds of situations you are referring to, they don't care who is killed or what kind of damage is done - so long as people are killed and damage is caused. This doesn't always hold: for example, the African ANC deliberately refrained from killing people and the IRA would call the police so that they could clear civilians from a public place that they had targeted. – Mozibur Ullah Dec 8 '18 at 13:48
  • Yes. A terrorist who is satisfied "so long as people are killed and damage is caused" should be convicted of purposefully intimidating another and convicted of purposefully killing another. But in the ANC and IRA situations you describe, they should not be convicted under a law that prohibits purposefully killing another, though they should be convicted under a law that prohibits purposefully intimidating another. – bdb484 Dec 8 '18 at 17:37

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