Document Type : Original Article
Ph.D Candidate, Faculty of Law, The Chinese University of Hong Kong (China)
Collecting primary evidence for investigations can be challenging due to a significant time gap between crimes and investigations, leading to lost, destroyed, or unreliable evidence. As a result, establishing guilts of individuals for primary or direct liability can be challenging, especially if they are low-level offenders, as prosecutors may need direct and primary evidence to prove actus reus and mens rea. However, having direct or primary evidence to prove secondary liability or guilt for indirectly committing crimes may not always be necessary. This is because some liabilities, such as accessories or aiding and abetting, may not be directly connected to the actual commission of crimes; thus, indirect evidence, such as documentary or expert evidence, may be sufficient to prove guilts. For example, in Germany, John Demjanjuk was convicted of remote atrocity crimes based on an identification card indicating his service status, the nature of the military operation, which included mass murder at the camp, and the daily activities of a camp guard. Imposing direct liability and proving guilt was challenging due to a lack of eyewitnesses; thus, the prosecutor applied the “functional participation” approach for jointly committed crimes. When imposing accountability, the court focused on the perpetrator’s function rather than their actions. The approach taken by the court implies that being functionally involved in a crime is enough to hold someone responsible, even if they were not physically present or in contact with victims. Can the approach applied in the Demjanjuk case, which has only been utilized in Germany so far, be employed to hold accountable those responsible for atrocity crimes committed in other regions? In Bangladesh, for example, the Pakistani Army and local Bengali perpetrators carried out a massacre in 1971. Obtaining primary evidence against many accused may be difficult as over 60 years have passed since the war’s end. Although Bangladesh has begun prosecuting local suspects, Pakistan has yet to act against its military. This research aims to see if the “functional participation” theory applies to Pakistani Army officers engaged in the 1971 massacre in Bangladesh.