To Indict or not to Indict?
Junayed Ahmed Chowdhury examines exactly what it takes to charge someone with war crimes
The 1971 war is a tale of violent fight between an indomitable nation and a repressive state. But, as the saying goes: "There is never a good war", and ours is no different. The heinous crimes committed by the occupation forces and the collaborators in 1971 still remain unaccountable. The current government's decision to try the war criminals has sparked many and varied debates in and outside Bangladesh. In every criminal prosecution, including war crime trials, one of the fundamental questions is whether to indict the suspect or not. This depends on many factors but, generally, the weight of the evidence is an important criterion. But handling war crime trials makes this critical question more problematic because of the number of accused involved, and in the case of Bangladesh, the long delay of over 38 years.
It's one thing to start prosecuting war criminals, but it is equally important to end it unquestionably. The prosecution must keep in mind the possibility of interlocutory appeals or applications by the accused, which, as the international criminal tribunals experienced, will occur. These appellate attempts by the accused will invariably delay the trial process. One of the key reasons for appealing or filing an application before the appellate forum is to challenge the indictment brought against the accused. Therefore, framing appropriate charges against the accused is important.
This article explores the theoretical aspects of prosecution strategies with respect to bringing charges against the accused of war crimes, in particular, the roles of the members of the collaboration forces Razaker, Al-Badar, and Al-Shams.
Indictment or not: The perplexing question.
David Matas, the eminent Canadian human rights lawyer, while commenting on prosecution strategy in choosing cases in war crimes tribunals, observed the following:
"The prosecution will have to choose cases strategically […] Proceedings all at once with every possible case is likely to be unmanageable. Criteria needs to be developed for case selection. The quality of evidence available is an obvious criterion […] Also important is the nature and extent of involvement of the accused in the act. Accused directly responsible for grievous actions should be given priority over those who merely aided and abetted […] in the case of Bangladesh, the crimes occurred thirty eight years ago, many of the most senior perpetrators have died. At this late date, for the most part, there will be only junior perpetrators available for prosecution. Even amongst these junior perpetrators, though, there will be degrees of responsibility and status at the time of the crimes which should be borne in mind when choosing who to prosecute".
It is easy to prosecute someone who is directly responsible for a crime. Problems start when suspected aiders and abettors are prosecuted. How does one determine their involvement and their degrees of involvement? Are they guilty by merely supporting the ideology of the collaboration forces? Or does it require more than mere support? The prosecution will have to deal with these questions before indicting the suspects. And the answers to these questions will heavily affect the trial strategy.
Accomplice liability in war crimes: International perspective
Two of the main international instruments dealing with war crimes are the Rome Statute of the International Criminal Court ("ICC") and the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY Statute"). However, as David Matas comments , the ICC has jurisdiction only for crimes committed after the entry into force of the statute of the court, which was July 1, 2002 (See Article 11(1)). Therefore, even if Bangladesh ratifies the Rome Statute of the International Criminal Court today, it will not be applicable for 1971 war crimes.
Therefore, in deciding indictment strategy for the suspected members of the collaboration forces, a good starting point for the prosecution should be the provision of the ICTY Statute, which has generated as fair amount of case laws. Article 7 of the ICTY Statute lays down the following principles in determining the question of individual criminal responsibility:
-A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
-The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
-The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he 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 measures to prevent such acts or punish the perpetrators.
-The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice requires so.
Regarding individual criminal responsibility by participating in joint criminal enterprise, a relevant case is Tadic decided before the ICTY. Tadic, a Bosnian Serb, was originally charged with 34 crimes under the ICTY Statute. He was acquitted and appealed against his conviction of the remainder. The prosecution successfully cross-appealed against his acquittal of the murder of 5 men in the village of Jaskici. The facts were that on 14 June 1992 he was an armed member of an armed group, which entered the village and killed the 5 men. The attack was part of a joint criminal enterprise, the object of which was ethnic cleansing: to drive the non-Serb civilian population out of the territory by inhumane acts in order to achieve the creation of a Greater Serbia.
The bodies of the victims were found after the raiding party had left. There was no evidence to show which members of the attacking group had killed any particular victim. The Trial Chamber of the ICTY, holding that the prosecution failed to prove its case and finding in favour of Tadic, observed:
"This Trial Chamber is satisfied beyond reasonable doubt that [Tadic] was a member of the group of armed men that entered the village [Jaskici], searched it for men, seized them, beat them, and then departed with them and that after their departure the five dead men named in the Indictment were found lying in the village and that these acts were committed in the context of an armed conflict. However, this Trial Chamber cannot, on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part in the killing of the five men or any of them. Save that four of them were shot in the head, nothing is known as to who shot them or in what circumstances. It is not irrelevant that their deaths occurred on the same day and at about the same time as a large force of Serb soldiers and tanks invaded the close-by and much larger village of Sivci, accompanied by much firing of weapons. Again, it is not irrelevant that the much larger ethnic cleansing operation conducted that day in Sivci involved a very similar procedure but with no shooting of villagers. The bare possibility that the deaths of the [Jaskici] villagers were the result of encountering a part of that large force would be enough, in the state of the evidence, or rather, the lack of it, relating to their deaths, to prevent satisfaction beyond reasonable doubt that the accused was involved in those deaths. The fact that there was no killing at Sivci could suggest that the killing of villagers was not a planned part of this particular episode of ethnic cleansing of the two villages, in which the accused took part; it is accordingly a distinct possibility that it may have been the act of a quite distinct group of armed men, or the unauthorised and unforeseen act of one of the force that entered Sivci, for which the accused cannot be held responsible, that caused their death".
The above observation by the Trial Chamber was rejected by the Appeals Chamber of the ICTY. The Appeals Chamber observed :
"The Trial Chamber did not allude to any witness suggesting that another group of armed men might have been responsible for the killing of the five men. In fact, none of the witnesses suggested anything to that effect. In the light of the facts found by the Trial Chamber, the Appeals Chamber holds that, in relation to the possibility that another armed group killed the five men; the Trial Chamber misapplied the test of proof beyond reasonable doubt. On the facts found, the only reasonable conclusion the Trial Chamber could have drawn is that the armed group to which [Tadic] belonged killed the five men in [Jaskici]".
There was no evidence that Tadic personally killed the 5 men in the Jaskici village. The Appeals Chamber, while dealing with this issue, identified the issues of law as follows:
"The question therefore arises whether under international criminal law [Tadic] can be held criminally responsible for the killing of the 5 men from [Jaskici] even though there is no evidence that he personally killed any of them. The two central issues are:
-Whether the acts of one person can give rise to the criminal culpability of another where both participate in the execution of a common criminal plan; and
-What degree of mens rea is required in such a case?
The Appeals Chamber began by endorsing the following basic assumption:
"The basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa)".
In interpreting Article 7 of the ICTY Statute, the Appeals Chamber observed that personal liability could be incurred through participation in a joint criminal enterprise.
It said: "Thus, all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the perpetration of those violations, must be brought to justice. If this is so, it is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes, which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions".
The Appeals Chamber observed that many post-World War II cases concerning war crimes began upon the principle that when two or more persons act together to further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the members of the group. The Appeals Chamber then observed that close scrutiny of these case law showed that the notion of common purpose broadly encompassed three distinct categories of collective criminality.
The first category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention. For example the co-perpetrators formulate a plan to kill, where each co-perpetrator carries out a different role, they nevertheless all possess the intent to kill.
The second category is illustrated by concentration camp cases, where those responsible for the running of a concentration camp had been held guilty of crimes committed against individual inmates. The accused in these cases, when found guilty, were regarded as co-perpetrators of the crimes of ill-treatment, because of their objective "position of authority" within the concentration camp system and because they had "the power to look after the inmates and make their life satisfactory" but failed to do so. The Appeals Chamber, on the degree of liability in these cases observed:
"All those convicted [in the second category cases] were found guilty of the war crime of ill-treatment, although of course the penalty varied according to the degree of participation of each accused in the commission of the war crime".
The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act, which was nevertheless a natural and foreseeable consequence of the effecting of that common purpose. In this regard, the Appeals Chamber provided examples and observed:
"An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region with the consequence that […] one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might as well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk. Another example is that of a common plan to forcibly evict civilians belonging to a particular ethnic group by burning their houses; if some of the participants in the plan kill civilians by setting their houses on fire, all the other participants in the plan are criminally responsible for the killing if these deaths were predictable".
The Appeals Chamber observed that the requirements, which are established by the cases in the third category, are two-fold:
-A criminal intention to participate in a common criminal design, and
-The foreseeability that criminal acts other than those envisaged in the common criminal design are likely to be committed by other participants in the common design .
Putting these together, the Appeals Chamber summarised the principle of joint enterprise liability as follows :
(a) The objective elements (actus reus) of the mode of participation in one of the crimes provided for in the ICTY Statute are: (i) A plurality of persons: They need not be organised in a military, political or administrative structure; (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the ICTY Statute: There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise; and (iii) Participation of the accused in the common design: Involving the perpetration of one of the crimes provided for in the ICTY Statute. This participation need not involve commission of a specific crime under one of those provisions, but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.
(b) By contrast, the mens rea element differs according to the category of common design under consideration. With regard to the first category of cases, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category of cases, personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused's position of authority), as well as the intent to further this common concerted system of ill-treatment. With regard to the third category of cases, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.
The case of Tadic (supra) was heavily discussed in the recent decision of the English Court of Appeal in R (on the application of JS (Sri Lanka)) v. Secretary of State for the Home Department where the English Court of Appeal issued guidance on determining responsibility for war crimes and crimes against humanity. In this case, the claimant was a citizen of Sri Lanka and a Tamil. He arrived at Heathrow Airport from Sri Lanka on February 7, 2007, travelling on a false passport, and claimed asylum 2 days later. His claim for asylum was based on his fear that if returned he would face mistreatment due to his race and membership of the Liberation Tigers of Tamil Eelam (LTTE). He also claimed humanitarian protection based on his fear that, if returned, he would face a real risk of unlawful killing and torture or inhuman or degrading treatment or punishment. The claimant joined the LTTE at the age of 10. He was trained in the use of small weapons and attended classes on the history of the LTTE. He was then sent to a military school in Jaffna. On 28 December 1993 the claimant joined the Intelligence Division of the LTTE. He received lessons in intelligence and further military training. Between 1997 and 2000 he took part in various military operations against the Sri Lankan army. In March 2000 he was fighting as a platoon leader in charge of 45 soldiers trying to protect the LTTE's supply lines to the coast when he was injured. He required medical treatment for 6 months. He reached his 18th birthday in September 2000. After his recuperation he was moved to a mobile unit responsible for supplying arms by foot from Vanni to Vavuniya. He continued doing this job until April 2002. In February 2002 a ceasefire was agreed between the LTTE and the Sri Lankan government. The leader of the Intelligence Division was Pottu Amman. At the end of April 2002 the claimant went with him to Batticaloa as one of his chief security guards.
In December 2006, he moved to the home of a work colleague in Mount Lavinia. In January 2007 there was a festival known as Thai Pongal. The claimant rang the family he had previously been staying with to give them his best wishes for the festival. They told him that members of the Sri Lankan government's Intelligence Division had searched their home, made enquiries about him and taken photographs of him at the birthday party.
Two days later the officers had returned and informed the family that the claimant was a member of the LTTE. They also knew his LTTE name. At this point the claimant spoke to his father and arrangements were made for him to leave Sri Lanka.
The claimant's clam for humanitarian protection was rejected by the Secretary of State for the Home Department on the ground that the claimant voluntarily joined LTTE and had command responsibility within that organisation, which has been responsible for widespread and systematic war crimes and crimes against humanity.
Therefore, it was decided that the claimant was complicit in war crimes and crimes against humanity and accordingly, pursuant to article 1F(a) of the Refugee Convention, it was considered that the claimant was excluded from the protection of the Refugee Convention and was also excluded from humanitarian protection. Against this decision, the claimant filed application for permission to apply for judicial review, which was also dismissed. On appeal to the Court of Appeal, the central question was whether the claimant committed war crimes and crimes against humanity by virtue of his membership with LTTE.
The English Court of Appeal at the outset concluded as follows:
"Everyone agrees that mere membership of an organisation committed to the use of violence as a means to achieve its political goals is not enough to make a person guilty of an international crime"
The Court of Appeal considered whether mere acquiescence would lead to criminal liability in war crimes. The Court of Appeal rejected the notion and observed :
"Acquiescence is a slippery word. It can amount to a mere omission and may provide a gateway to guilt by association rather than by anything done by the defendant. There is a qualitative difference between assisting or encouraging and mere acquiescence. If an international instrument defining international crimes is intended to create a form of criminal liability by omission, one would expect the circumstances to be defined. […] I am unaware of any support for it in the case law of international criminal tribunals. In my judgment it would be objectionable as a matter of general principle".
Finally, the Court of Appeal, after discussing numerous international and domestic criminal case laws, observed on the issue of joint criminal responsibility as follows:
"[…] a decision maker ought in my judgment to apply the principles […] that in order for there to be joint enterprise liability:
1. There has to have been a common design, which amounted to or involved the commission of a crime provided for in the statute;
2. The defendant must have participated in the furtherance of the joint criminal purpose in a way that made a significant contribution to the crime's commission; and
3. That the participation must have been with the intention of furthering the perpetration of one of the crimes provided for in the statute".
With regard to the claimant, the Court of Appeal held that given that it was the design of some members of the LTTE to carry out international crimes in pursuit of the organisation's political ends, the Secretary of State acted on a wrongful presumption that the claimant, as a member of the LTTE, was therefore guilty of personal and knowing participation in such crimes, instead of considering whether there was evidence affording serious reason for considering
-That he was party to that design,
-That he had participated in a way that made a significant contribution to the commission of such crimes, and
-That he had done so with the intention of furthering the perpetration of such crimes.
The fact that the claimant was a bodyguard of the head of the intelligence wing (evidence of how highly trusted the claimant was within the LTTE) shows that he was trusted to perform that role, but not that he made a significant contribution to the commission of international crimes or that he acted as that person's bodyguard with the intention of furthering the perpetration of international crimes.
The Court of Appeal also noted that reference was made by the Secretary of State to the claimant's command responsibilities in a combat unit, but the Court of Appeal concluded there was no evidence of international crimes committed by the men under the claimant's command for which he might incur liability. The Court of Appeal finally observed that the claimant's own engagement in non-criminal military activity was not of itself a reason for suspecting him of being guilty of international crimes.
The decision indicators for indictment in 1971 war crimes prosecution
The international jurisprudence makes a stark distinction between guilt by association/participation in common purpose and guilt by aiding and abetting. The prosecution, before indicting suspects for the 1971 war crimes, must bear in mind the following:
-An aider and abettor is always an accessory/ accomplice to a crime committed by another person, i.e. the principal.
-In the case of aiding and abetting, there is no requirement of proof of a common concerted plan. No plan or agreement is required. There is no requirement of meeting of minds; the principal may not even know about the accomplice's contribution.
-The actus reus (physical manifestation) requirement of participation for common criminal purpose is broader than that of the aiding and abetting a crime. The aider and abettor acts specifically to assist, encourage, incite or lend moral support to the perpetration of a certain specific crime (murder, rape, torture etc.), and this support has a substantial effect upon the perpetration of the crime. On the other hand, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. In case of participation for common purpose, the participant does not have to assist, encourage, incite or lend moral support to the actual perpetrator. It will suffice if the participation furthers the common object in some way.
-The mens rea (mental state) requirement of participation for common criminal purpose is narrower than that of the aiding and abetting a crime. In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design, the mental element is two-fold, namely, (a) a criminal intention to perpetrate a crime or participate in a common criminal design and (b) the foreseeability that criminal acts other than those envisaged in the common criminal design are likely to be committed by other participants in the common design.
Thus, it should be kept in mind that because people supported the ideologies of the collaboration forces (Razaker, Al-Badar, and Al-Shams) does not necessarily make them liable for the atrocities committed by the collaboration forces in 1971. Amongst others, the trial strategists must ask themselves the following questions before indicting anyone for the 1971 war crimes:
-Did the suspect voluntarily join the collaboration forces?
-Did the suspect aided and abetted in commission of any of the war crimes in 1971?
-In particular, did the suspect assist (directly or indirectly) in, encourage or incite the commission of any of the war crimes in 1971?
-Did the suspect know, at the time of his assistance, encouragement or incitement, that such assistance, encouragement or incitement was directed for the purpose of or in connection with the commission of any of the war crimes in 1971?
-Even if the suspect had joined the collaboration forces voluntarily, was he ever a party to any common criminal design? If yes, had the suspect participated in a way that made a significant contribution to the commission of such crimes? If yes, had the suspect done so with the intention of furthering the perpetration of such crimes?
-Did the suspect know at the time of participating in the common criminal purpose that crimes, other than those envisaged in the common design, was likely to be committed by his fellow participants?
-What was the suspect's position or authority within the hierarchy of the collaboration forces at the time of commission of the 1971 war crimes?
The prosecution needs to keep in mind that one does not need to prosecute all in order to prosecute a few. Careful pre-trial preparation is absolutely necessary for the successful outcome of the 1971 war crimes trial. It must be remembered that we choose success or failure long before we experience them and for the 1971 war crimes prosecution, the indictment is the stage that will determine the eventual outcome of the trials.
1 International Tribunals: Lessons for Bangladesh, Second International Conference on Genocide, Truth and Justice, Liberation War Museum, July 30, 2009, Dhaka, Bangladesh
3 The Prosecutor v. Duško Tadic, Case No.: IT-94-1-A, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 15 July 1999
4 The Prosecutor v. Duško Tadic, Case No.: IT-94-1-T, 07 May 1997
5 Ibid., Judgment at para. 273
6 The Prosecutor v. Duško Tadic, Case No.: IT-94-1-A, op cit., paras. 182-183
7 Ibid., para. 185
8 Ibid., para. 186
9 Ibid., para. 190
10 Ibid., para. 203
11 Ibid., para. 204
12 Ibid., para. 206
13 Ibid., paras. 227-228
14  EWCA Civ 364
15 Ibid., at para. 98
16 Ibid., paras. 109-110
17 Ibid., para. 119
18 At para. 123
Junayed Ahmed Chowdhury is a Barrister and Advocate of the Supreme Court of Bangladesh