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Saturday, December 17, 2011

Shades of Essen Lynching

A recent trial court decision in Pennsylvania has caught my attention, in particular because the facts of the case bear a striking resemblance to the originally obscure, but now semi-famous, Essen Lynching case during World War II.  At issue in both cases is the liability of individuals for group conduct – probably the central riddle of substantive international criminal law. 

First, here’s what happened in the Pennsylvania case, called Commonwealth v. Poland, 26 A.3d 518; 2011 Pa. Super. LEXIS 1784 (2011).  A young woman was walking in a subway station when she was attacked by a group of individuals.  She was beaten by about half of them, while the other half watched and provided encouragement.  After the attack, the entire group fled.  After summoning the police and locating the group on a sequestered subway train, she was able to identify which members of the group physically assaulted her and which members were the onlookers. 

The defendant in the case, Poland, was one of the group members who apparently watched and allegedly encouraged the assault.  He was convicted of conspiracy to commit aggravated assault.  On appeal, the Superior Court of Pennsylvania upheld the conviction, and concluded that the defendant’s individual conduct was sufficient to establish liability for conspiracy.  In particular, the court noted that the key element to a conspiracy charge is an agreement between the defendant and the attackers, though the agreement need not be explicit; it can be inferred from the circumstances. 

In Poland, the court said that the inference was legitimate because:
Poland was part of a group when [the victim] was unfortunate enough to walk by them; Poland was part of that group when individual members were either participating in the beating or cheering the assailants on; Poland and the others fled as a group after the assault. As in French, “the actors’ relationships and their conduct before, during and after the criminal episode established a unity of criminal purpose sufficient for the jury to find conspiracy beyond a reasonable doubt.”
First, the case is interesting because it stands in some tension with the received wisdom about American criminal law, i.e. that defendants cannot be convicted for watching a crime occur.  Of course, some U.S. cases (which are taught in all criminal law casebooks) have allowed convictions where the observers were found to have encouraged or incited the assault, though these cases are not exactly common, and usually the encouragement is something more than just watching the assault.  

In this case, Poland’s liability extended from his membership in a group whose members were either committing the assault or encouraging it.  Notice that the court’s reasoning does not appear to hinge on whether Poland personally egged on the assault.  Rather, the court’s reasoning seems to be that the group as a whole either participated, or encouraged, the assault, and that Poland was undoubtedly part of the group.

Second, the case is remarkably similar to Essen Lynching, an obscure and hardly noticed case until Cassese cited it in the Tadic opinion establishing JCE as a mode of liability at the ICTY.  Essen Lynching involved the death of two captured British airmen.  A Nazi officer ordered an underling to march the airmen to another location; the Nazi officer also said, within earshot of a gathering crowd, that the underling should not interfere with the crowd’s treatment of the airmen.  Predictably, the POWs were beaten by the crowd and killed.

Cassese cited Essen Lynching for the proposition that each member of the crowd was equally responsible for the death, regardless of whether they had delivered the fatal blow or not (or any blow, for that matter), because they all participated in a common criminal endeavor.  This was certainly the military prosecutor’s position, although from the skeletal opinion in the case it is impossible to know where the judges actually agreed with this legal theory.  I’ve written about the case here and here, and several other scholars have now extensively analyzed it, as well as the similar Borkum Island.  My general position is that vicarious responsibility is appropriate only if the defendant shared a bona fide joint intention with the physical perpetrator, even if the actual execution of the assault was delegated to the physical perpetrator.

Of course, there are differences between the cases.  Poland is ostensibly about conspiracy as a separate offense, while Essen lynching deals with vicarious liability and a mode of liability.  But both cases deal with the central issue of group criminality.  More specifically, it seems to me that both cases hinge on a rather controversial concept of membership in a criminal organization.
Incidentally, the ICC has just issued a lengthy decision on this very issue -- group complicity and Article 25(3)(d) of the Rome Statute.  I will discuss that opinion in my next post.

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