The Notion of Prosecuting of Organizations Under International Law
by Toby Cadman and Lennart Poulsen
The Government of Bangladesh has consistently stated that the legal framework of the International Crimes Tribunal, a national institution established in March 2010 to deal with atrocities committed during the 1971 War of Liberation, meets the highest international standards and is founded on the 'Nuremberg Principles'.
It has also sought to argue that this judicial process, and I use the word 'judicial' in the broadest sense of the meaning as the Tribunal barely resembles anything judicious, is aimed at justice and is not politically motivated. After having convicted a handful of political opponents, and having executed one, in circumstances that the international legal community has held to fall far below recognized international standards, the Government of Bangladesh now seeks to amend the legal framework to allow for the prosecution of organizations and political groups. It is argued here that the proposed amendments to the International Crimes (Tribunals) Act 1973 have no proper legal basis or precedent in international law and therefore conflict with established principles of customary international law.
On 17 February 2013 the International Crimes (Tribunals) Act 1973 was amended by Parliament to allow the Prosecution to prosecute ‘organizations’ as well as individuals. This amendment violates established principles of customary international law, principles which were established at the Nuremberg Trials following the Second World War and which remain in force today.
As a signatory to the International Covenant on Civil and Political Rights, Bangladesh is bound by the principle of non-retroactivity contained under Article 15 and by the principle as set out in the Constitution. The principle of non-retroactivity specifies that the laws and principles in force at the time of alleged commission must be applied and subsequent amendments to the national laws can only be applied to the extent they are compatible with customary and/or international treaty law.
Under Articles 9 and 10 of the Nuremberg Charter the Military Tribunal was vested with the authority to declare an organization as being criminal in nature. However, individual criminal liability of its members must still be established. Criminal liability for a member of a declared criminal organization will not attach simply on the basis of membership alone.
Articles 9 and 10 were drafted with the intention to target not the legal entity of the Nazi party itself or its associated groups or organizations, but those members thereof who clearly had knowledge of its criminal activities and purpose and who were either in a position of authority to be able to stop it and failed to do so or willingly participated in the criminal activities furthered by that organization. The Nuremberg Charter reflected this as did Control Council Law No. 10 which expanded jurisdiction to allied states so that they may prosecute individual war criminals within their national territories.
This was made clear in the judgment of 1 October 1946 of the International Military Tribunal at Nuremberg. It stated:
“The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Leadership Corps holding the positions enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, who were personally implicated as members of the organization in the commission of such crimes. The basis of this finding is the participation of the organization in War Crimes and Crimes Against Humanity connected with the war; the group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1st September, 1939.”
Accordingly, only those individual members with personal knowledge or involvement in crimes were found to be part of a “criminal organization”. Those members, who were not, were excluded.
The International Military Tribunal at Nuremberg was established to try twenty-four major Nazi war criminals and six groups. These groups were the Nazi Leadership Corps, Reich Cabinet, German General Staff and High Command, SA (Sturmabteilung), SS (Schutzstaffel-including the Sicherheitsdienst, or SD), and the Gestapo (Secret Police). These groups or organizations had an aggregate membership exceeding two million and it was estimated that approximately half of them would be made liable for trial if the groups were convicted. The trials began in November 1945 and on 1 October 1946 the International Military Tribunal rendered its judgment on twenty-one top officials of the Third Reich. It sentenced most of the accused to death or to extensive prison terms and acquitted three. It also declared as criminal three of the groups, the Nazi Leadership Corps, the SS (including the SD), and the Gestapo. Three groups were acquitted of collective war crimes charges. Members of the three convicted groups were subject to apprehension and trial as war criminals by the national, military, and occupation courts of the four allied powers. And, even though individual members of the convicted groups might be acquitted of war crimes, they still remained subject to trial under the De-nazification program.
It is not incongruous to suggest that the fact that some of the Nazi organizations were declared as being criminal in nature had little bearing on the trials and had little effect on the development of customary international law on this issue.
Accordingly, it remains the position that there is no basis in international law for putting on trial a political party or, as the Government has termed Jamaat-e-Islami, a ‘criminal organization’ with a view to imposing an automatic ‘blanket’ conviction and punishment of all its members; many of whom were not even alive in 1971.
It is important to recall that in 1971, Jamaat-e-Islami, rightly or wrongly, took the political decision to oppose independence. It sought the unification of Pakistan as an Islamic State. This was a political decision, not a military one, as Jamaat was a political body and not a military force. It is also important to recall that hundreds of thousands, if not several million, lost their lives and there must be a credible process of accountability. If members of Jamaat committed crimes then they must face trial. The same principle must be applied to members of the Pakistani and Indian civilian and military leadership and any person who fought for independence or opposed it. It is equally inappropriate to shield certain groups or individuals from prosecution as it is single out certain groups or political parties through a process of collective responsibility.
The Bangladesh Government recently proposed yet another change to the International Crimes (Tribunals) Act 1973. It proposes, first, that “if” an accused is convicted (notwithstanding that it is a practical certainty that all of them will be) then, under the proposed Section 20(2) (a), the only sentence the court may now impose is one of death.
Recently, US War Crimes Ambassador, Stephen J. Rapp, visited Bangladesh and made a number of observations on the proposed amendments. First, he made it clear that individuals were responsible for the crimes and they should be tried based on facts and evidences in keeping with international standards. Any form of collective responsibility would not be conducive to long term reconciliation. Second, in terms of the death penalty, the Ambassador made the point that it should only be applied in the most exceptional cases for the most serious crimes. Clearly, any removal of discretion on what sentence can be applied does not appear to be compatible with any test of exceptionality.
The rights of the accused to a fair trial under Article 14 of the International Convention on Civil and Political Rights (to which Bangladesh is bound), which is absolute, have been consistently and willfully ignored. Moreover, pursuant to the enhanced safeguards for potentially capital cases under Article 6, the death sentence cannot be imposed under customary international law where the fair trial rights of the accused have not been strictly observed. It is also established, both in national and customary international law, that courts and tribunals must develop a range of sentences which properly reflect the relative positions of different accused and their role in the offence in which they were allegedly involved. To impose a blanket death sentence on all those convicted regardless of their level or degree of involvement is in contravention of the fair trial provisions set out in the International Convention on Civil and Political Rights and the jurisprudence of the ad hoc international tribunals.
An even more dramatic development is the proposed addition to the Tribunal’s powers under section 20(2) of the Act which aims to bestow upon it the power to “convict” an organization (this includes any organization or association, consisting of persons, and also includes political parties). If such organization is convicted, the proposed amendment provides as follows:
“(2)…The Tribunal shall award sentence declaring it as banned and prohibiting its future activities in any name or form or in disguise; and the persons in the organization responsible for such conviction of the organization, shall also be punished under the provision of clause (a)…[i.e. death]… or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper. [Italics added].
(3) Where an offence under this Act is committed by an organization, the President or Secretary of that organization including persons holding such equivalent post, or any activist or representative of the said organization who had direct involvement in the commission of the offence shall be deemed to have committed the offence.”
As mentioned above, it is unprecedented that a group or organization (howsoever defined) should attract collective criminal liability under international criminal and humanitarian law as a single entity. There is no scope for this under customary international law and certainly no provision for it in the current Statutes of the various international ad hoc tribunals or in the Statute of the International Criminal Court. For example, the International Criminal Tribunal for the former Yugoslavia has previously declared that it “has jurisdiction over individual persons and not organizations, political parties, army units, administrative entities or other legal subjects.” The ICTY, as with all other international tribunals, adopted a principle of individual criminal responsibility and not collective guilt through membership.
The wording of the proposed amendments is predictably vague which will allow the Government to suggest, on one interpretation, that it conforms with international law while it permits, in effect, the Tribunal to impose the death penalty on “[those] persons in the organization responsible for such conviction of the organization”. How it assesses who is responsible may be gleaned from paragraph 20(3) which suggests that such persons need to have “direct involvement” in the commission of the offence that gives rise to the conviction of the organization. What precisely constitutes “direct involvement” means is yet to be clarified. Considering the rather flexible approach the Tribunal has taken in determining criminal responsibility to date raises significant concerns as to how widely this new provision will be applied.
While the wording of the proposed amendments to Section 20 of the Act is important, what is more important is the purpose for which such text is being introduced. It is, some might suggest, not giving the judges a wider discretion to impose harsher punishments or even to ban organizations or political parties. Rather, its underlying purpose, it seems, is to put in place legislative measures to allow for the collective prosecution of members of a political party or organization.
It has been suggested, primarily by certain members of the Prosecution Team acting on behalf of the Government, that the International Military Tribunal in Nuremberg put on trial individuals and organizations. It did not. It declared as criminal a number of organizations including the Nazi Party. There is a fine distinction between the two concepts that those advocating to put Jamaat on trial have conveniently overlooked.
Those advocating for the trial of an organization have based their argument on the view that certain government groups and organizations that formed the structural and organizational apparatus of Nazi Germany were put on trial at Nuremberg following the end of the Second World War. Certainly, many of the top leaders of the Nazi party were tried and many were convicted for their individual involvement in contributing to war crimes. And rightly so. The party itself was however never indicted, only its individual members. The case against each one of these individuals had to be proven on the evidence beyond reasonable doubt.
In March 2014, a Criminal Court in Minya, Egypt, sentenced 529 people to death, possibly the largest mass death sentence in recent years anywhere, in a trial lacking basic due process protections. The allegations were vague, mostly membership or association with the Muslim Brotherhood that the Government sought to ban. The trial lasted a matter of hours. The statement by Human Rights Watch was unequivocal:
“[I]t’s shocking even amid Egypt’s deep political repression that a court has sentenced 529 people to death without giving them any meaningful opportunity to defend themselves …The Minya court failed to carry out its most fundamental duty to assess the individual guilt of each defendant, violating the most basic fair trial right [under the International Covenant on Civil and Political Rights (ICCPR), to which Egypt is a state party].”  [Human Rights Watch]
It is argued that the Bangladesh Government’s proposals to amend the International Crimes (Tribunals) Act 1973 to pave the way for the Tribunal to collectively prosecute political opponents under the guise of international law conflicts with its international obligations under the International Covenant on Civil and Political Rights, to which it is bound.
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