An informer network was the modus operandi of totalitarian states in the 20th century, but its legacy presents a legal challenge that remains unresolved. During World War II, the Gestapo relied on more than 100,000 informants who provided secret information to authorities; in the German Democratic Republic, the government had around 173,000 “voluntary helpers,” and every other former Soviet state had its own army of informers. Typically unaffiliated with the formal state apparatus, such as the secret police, these individuals were everyday citizens within dissident groups, artistic and church circles, and even within families, who gave private information to the state—information that could put others on the state’s line of fire in the form of disappearance, murder, torture, or other crimes against humanity. When the Berlin Wall fell, and the Stasi Records Archives were made public, these informants became national pariahs but faced no legal consequences. Evidently, when considering the need for social reconciliation or accountability, the extent of prosecution for the perpetrators in the previous regime should be left to the successor government’s discretion. However, this study seeks to establish a foundational framework for analyzing legal liability for informers, arguing that domestic legal systems, guided by principles of international criminal law, should recognize the act of voluntary informing as a culpable form of aiding and abetting crimes against humanity.
In all likelihood, the prosecution of informers would take place in domestic contexts, but international jurisprudence offers a valuable structural lens. As a “court of last resort,” the International Criminal Court’s (ICC) focus is on the most egregious of violations, like genocides, crimes against humanity, crimes of aggression, etc. Furthermore, its role is to supplement, not replace, national legal systems. According to Article 17 of the Rome Statute, any case that is being or has already been investigated by a State with jurisdiction and where the State has not decided to prosecute is inadmissible for the ICC. In the scenario of a former Soviet territory choosing not to prosecute informers for the sake of protecting perpetrators, the ICC would have to intervene. But in the scenario that the new regime chose not to prosecute for the sake of preserving national reconciliation, the ICC can hardly conclude that the State in question is unable or unwilling to carry out the investigation.
If the State does choose to prosecute, the most robust jurisprudence comes from international tribunals and not national precedents. Post WWII, German courts did prosecute criminal denunciation under the Allied Control Council Law No. 10. Not only is there no distinction between modes of liability like accessory, ordering, or abetting in Article 2(2), but the nature of denunciation and informing is also different. The former, officially reporting a crime to the authorities, operates under the full consciousness of the inhumane consequences that could be incurred by the person denounced, while the latter, the general act of providing information, entails an ambiguous understanding of what could happen to the person denounced. Conversely, in Tadíc and Radoslav, the International Criminal Tribunal of Yugoslavia (ICTY) clearly defined two forms of accomplice liability: co-perpetration and aiding and abetting. This study will utilize the international framework and consider the act of informing as an inchoate crime, as the state prosecutor for Saxony found that the informers were “to be prosecuted for the underlying hostility and the reprehensibility of their actions against others, regardless of the consequences.”[1]
Co-Perpetration
The act of informing does not constitute co-perpetration because there is no common purpose between the informer and the government official who punished the person informed, and the contribution is replaceable. According to Furundzija, “[t]o be guilty of torture as a perpetrator (or co-perpetrator), the accused must participate in an integral part of the torture and partake of the purpose behind the torture.” While an informer’s participation can last for an extensive period and become integral to the functioning of the enterprise, the Stasi, in this case, are not co-perpetrators if they do not share a common state of mind. Even in the most horrendous cases where the informer acted out of sheer malice or revenge, the informer had no control over the commission of the crime against humanity; they could not prevent or direct persecution. In addition, based on Bemba, “the theory entails… each co-perpetrator delivers an essential contribution in a way that the material elements of the crime will be fulfilled.” Just by considering the scope of the Stasi’s informer network, one can see that the informer’s contribution is not indispensable. A historian once surmised that the Stasi’s web of spies was so extensive that “there was one informant for every 6.5 citizens.”[2] Therefore, the informer’s cooperation is not controlling enough to equate co-perpetration liability.
Another perspective of evaluating co-perpetration liability is through the three forms of joint criminal enterprise (JCE), which is found by Krsticto be implicitly included in Article 7(1) of the Rome Statute, none of which would encompass the act of informing. For JCE, Kvockareconceptualized essential contribution to significant contribution, where a variety of factors, like the size of the criminal enterprise, the position of the accused, zealousness, or gratuitous cruelty, must all be considered. An informer, whether participating voluntarily or under blackmail, does not occupy a comparative position to a Stasi officer. The International Criminal Tribunal of Rwanda (ICTR) defined in Ntakirutimana that “basic” JCE requires the same criminal intention, “systemic” JCE requires the existence of an organized system of mistreatment, and “extended” JCE where one perpetrator’s act outside the common purpose is nevertheless a foreseeable consequence of executing the same purpose. For basic JCE, the informer’s personal motive is never the same as the Stasi objective of furthering the system of terror. For systematic JCE, the informer who has no decision-making power within the Stasi is just as out of the system as those who were informed. Finally, extended JCE is also not applicable, as while an informer might suspect that negative consequences could befall the victim, the specific, egregious crime against humanity committed by the state is not within the informer’s knowledge, nor is it a foreseeable outcome of their limited role in a systemic form of repression. Applying JCE III in this context would dangerously extend liability to individuals for crimes they did not control, intend, or play a central role in precipitating.
Aiding and Abetting
The act of informing should be held liable for aiding and abetting because informants did assist the state in perpetuating violations with the knowledge of their assistance. Under Furundzija, “[T]he actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” Like essential effect and significant effect, meeting the threshold of substantial effect requires fact-finding. In the case of the former GDR, the Stasi’s meticulous bookkeeping enables a precise reconstruction of how individual informers collaborated with the state. In Kalimanzira, the ICTR Trial Chamber found the defendant liable for aiding and abetting because he encouraged Tutsis to seek refuge at Kabuye Hill and provided armed reinforcements to those trying to kill the Tutsis there. With the uncovering of the Stasi files, scholars found that, according to new information from informants in 1986, “Stasi agents helped transport the explosives to West Berlin that resulted in the deaths of two American soldiers.” In other words, not all informers contributed to the same extent, as the majority simply prop up the Stasi’s tactic to atomize society and turn people against each other, but the informers who had infiltrated into dissident, church, and artist groups were more valuable. This effect can also be understood as an encouraging or legitimizing effect, as stated by Vasiljevic. With this explanation, arguably every informer’s participation was instrumental in cultivating the GDR government’s most powerful tool—the panopticon effect built on fear and uncertainty.
Even if the informers did not share the state’s common plan and were not fully aware of the specific crimes against humanity incurred as a direct result of their informing, they do have knowledge that they are providing assistance to the Stasi’s surveillance and terror regime. Vasiljevic stated, “To establish the mens rea of aiding and abetting, it must be demonstrated that the aider and abettor knew (in the sense that he was aware) that his own acts assisted in the commission of the specific crime in question by the principal offender.” In the GDR context, the relevant “specific crime” is best understood not as an isolated unlawful act but as systematic persecution carried out through surveillance, intimidation, and repression. Otherwise, the Vasiljevic standard arguably requires revision, for requiring knowledge of specific discrete crimes would create impunity for those who knowingly contribute to systematic persecution simply because no single informer can trace their reports to particular acts of violence. Persecution is explicitly listed under Article 7 of the Rome Statute as a crime against humanity without further specification.
On a separate note, the coercive environment in which informers operated challenges straightforward application of mens rea standards developed in contexts of active combat. As most informers were blue-collar males from age twenty-five to sixty-five, they have lived under a surveillance state; hence, they know the repercussions for an inappropriate political comment, meeting someone from West Germany, or preaching on the street.[3] Secondly, the files do contain explicit orders that demonstrate the expectation of assistance. For example, in pastor Heinz Eggert’s files, there is documentation of how the head of the Stasi in Dresden, Maj. Gen. Horst Boehm ordered his agents in 1982 to “use operative measures to begin the destruction process” against the pastor. As the Stasi needed the informers to understand their tasks, even if they did not do anything else or if they were deceived, they did know they were assisting the state, hence meeting the mens rea.
The legal and moral reckoning with the vast informant networks of 20th-century totalitarian states remains a profound challenge for post-Soviet countries. As this analysis has demonstrated, neither co-perpetration nor the framework of Joint Criminal Enterprise (JCE) provides a legal fit for the act of informing, due to the informer’s lack of a common criminal purpose with the state and their non-essential, peripheral role within the state apparatus. However, aiding and abetting can be an applicable liability for informers after courts assess the substantiality of the informer’s contribution. This finding by no means exhorts countries to prosecute, but it clarifies that becoming the eyes and ears of a terror regime, with the knowledge of the system one serves, is not a passive act but a form of criminal complicity that can have legal consequences.
[1] Andrew Szanajda, “The Prosecution of Informers in Eastern Germany, 1945—51,” The International History Review 34, no. 1 (2012): 140, https://doi.org/10.2307/23240801.
[2] John O Koehler, Stasi: The Untold Story of the East German Secret Police (Boulder, Colorado: Westview Press, 1999).
[3] Andrew Demshuk, “The Other Lives of Stasi Spies: Decrypting Informants at the Biographical Level,” German Studies Review 47, no. 1 (February 1, 2024): 42, https://doi.org/10.1353/gsr.2024.a919896.