The dangers of membership: participation as an offense and liability of group leaders.

• Author: van Rensburg, Kate Janse

1. INTRODUCTION II. THE ORIGIN OF CRIMINAL MEMBERSHIP AND GROUP LIABILITY UNDER INTERNATIONAL LAW III. THE CASES INVOLVED IN THIS INQUIRY A. Afri-Forum v. Malema B. United States v. Al Bahlul C. Victims' Communication Pursuant to Article 15 of the Rome Statute Requesting Investigation and Prosecution of High-level Vatican Officials for Rape and Other Forms of Sexual Violence as Crimes Against Humanity and Torture as a Crime Against Humanity IV. INTERNATIONAL LAWS GOVERNING CRIMINAL MEMBERSHIP AND GROUP LIABILITY A. The International Covenant on Civil and Political Rights B. International Convention on the Elimination of All Forms of Racial Discrimination C. Rome Statute of the International Criminal Court D. The Charter of the International Military Tribunal at Nuremburg (London Charter) and the Trials of Major War Criminals Before the International Military Tribunal V. DEFINING CRIMINAL MEMBERSHIP AND THE EXTENT OF ITS APPLICATION THROUGH THE CHAIN OF POWER A. Distinguishing Criminal and Non-Criminal Groups B. Difficulties in Defining What Constitutes "Membership" VI. LIABILITY WITHIN CRIMINAL AND NON-CRIMINAL GROUPS AND ACTIONS SUFFICIENT TO CHANGE THE STATUS OF A GROUP A. Liability for Membership in a Criminal Group B. Liability for Membership in a Non-Criminal Group Whose Leader Is Guilty of Criminal Acts that May Be Imputed to Members of the Group C. Liability of a Leader of a Non-Criminal Group for the Acts of His Subordinates VII. CONCLUSION I. INTRODUCTION

   On September 9, 2011, the United States Court of Military Commission Review decided United States v. Al Bahlul, recognizing conspiracy and "criminal membership" as war crimes for the first time in the United States. (1) The court held that "joining al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed." (2) This decision has broad implications for the prosecution of terrorism in the United States, and raises the question of what constitutes "criminal membership."

   Julius Malema, the leader of the African National Congress (ANC) Youth League in South Africa, was convicted under South Africa's "Equality Act" on September 12, 2011, of a hate crime for leading the singing of "Shoot the Boer" at ANC rallies. (3) This is his second conviction for hate speech. (4) As South Africa is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), (5) his conviction presents potential legal issues for the ANC, as CERD demands nations "prohibit organizations ... which promote and incite racial discrimination, and ... recognize participation in such organizations or activities as an offense punishable by law." (6) Because of his position as leader of the ANC Youth League, Malema may have exposed himself to broader liability under the provisions of CERD and South African law. His actions and conviction may potentially suffice to establish a functional purpose, if not an explicit purpose, for the group to be considered racially discriminatory, and if so, his actions and conviction may be imputed to the ANC as a whole. He may be potentially complicit in the ongoing violence in South Africa toward Afrikaner landowners. (7)

   On September 13, 2011, the advocacy group the Center for Constitutional Rights filed a complaint with the International Criminal Court demanding an investigation of the Pope and other high Vatican officials for apparent complicity in covering up sexual abuse by priests worldwide. (8) The complaint alleged:

   [H]igh-level Vatican officials, including Cardinal Joseph Ratzinger, now Pope Benedict XVI, either knew and/or in some cases consciously disregarded information that showed subordinates were committing or about to commit such crimes. (9) It is further alleged that those same officials:

   [Chose] the path of secrecy and protecting their ranks over the safety and physical and mental well-being of children and vulnerable adults, families of victims and their communities. ... [C]hurch officials have gone so far as to obstruct justice and/or destroyed evidence in national legal systems and have consistently engaged in the practice of "priest shifting," i.e. transferring known offenders to other locations where they continued to have access to children or vulnerable adults and who officials knew continued to commit rape and other acts of sexual violence. (10) Under international law, these officials may be liable for the actions of members of their organizations because they are the figureheads of the Catholic Church. (11) Their inaction, as opposed to the possible incitement in the Malema case, may constitute sufficient complicity in the actions of their priests, particularly if there was a widespread pattern of willful ignorance or outright concealment of the offenders and crimes.

   These recent cases and pleadings have directly and indirectly raised the question of how far criminal liability may be imputed when the leader or a member of a group is found guilty of a crime in which the remainder of the group may be implicated in some respect. This article will examine these cases, the current international laws governing criminal membership and imputation of liability, just how far liability does or should extend in cases such as these, and the problems of over- or under-expanding imputed liability under international law.

   In this discussion, Part I addresses the origin of criminal membership under international law. Part II discusses the cases addressed in this paper. Part III clarifies laws governing interpretation of the cases. Part IV attempts to define criminal membership and how far it extends up and down the ladder of power within a group. Finally, Part V examines liability within different types of criminal and non-criminal groups.

2. THE ORIGIN OF CRIMINAL MEMBERSHIP AND GROUP LIABILITY UNDER INTERNATIONAL LAW

   The Rome Statute and other international criminal instruments, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), define criminal responsibility broadly. (12) Article 25 of the Rome Statute lays out the standards for individual criminal responsibility, in which a person is not only liable for the acts he or she commits, but is liable if he:

   a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

   b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

   c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

   d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

   i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

   ii) Be made in the knowledge of the intention of the group to commit the crime. (13)

   The Rome Statute likewise includes a provision for incitement to genocide, when an individual "directly and publicly incites others to commit genocide." (14)

   Article 7 of the ICTY similarly conveys a broad definition of criminal liability. In addition to direct individual liability, a superior is criminally liable if an act was committed by a subordinate, and the superior "knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof." (15) Liability likewise is maintained for a subordinate acting under the orders of a superior. (16)

   The recent trend is to apply this imputation even more broadly as a sort of preventative measure to discourage participation in illegal activities through some sort of organization. (17) This trend began with the origin of the doctrines of joint criminal enterprise and command responsibility at the Nuremberg Tribunal, where both concepts were introduced to the international legal stage, creating much controversy. (18) Over the past few decades, the doctrines have been expanded and refined to extend liability beyond joint criminal liability or command liability to include liability for membership in a group alone, provided that the group is of a criminal nature. (19) This seems especially evident in terrorism prosecutions, but this liability may be extended to groups without explicit terroristic or criminal purposes. (20)

3. THE CASES INVOLVED IN THIS INQUIRY

   1. Afri-Forum v. Malema

      Julius Malema was convicted of hate speech for the second time on September 12, 2011. (21) The complainants, Afri-Forum and the Transvaal Agricultural Union of South Africa (TAU SA) alleged "the respondent (Malema) while addressing various public meetings had recited and/or sung and/or chanted certain words.... The objectionable utterances which are not in English were translated as meaning "shoot the Boer/farmer" "shoot the Boers/farmers they are rapists/robbers." (22) Judge C.G. Lamont ruled that the song "constituted hate speech," and that Malema and the ANC were to be restrained from singing the song at any meeting, public or private. (23) Malema was ordered to pay for the court costs of the first three days of the trial, but otherwise the parties paid their own costs. (24)

      Malema was in violation of not only several provisions of the South African Constitution and Equality Act, but of international law as well. (25)

      The complainants further alleged:

      [T]he objectionable utterances propagated, advocated and/or communicated words based on an ethnic or social origin, culture, language and/or were words that could reasonably be construed to demonstrate a clear intention to be...