The Dangers of Membership: Participation as an Offense and Liability of Group Leaders
van Rensburg, Kate Janse, Houston Journal of International Law
I. 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
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. …