Bangladesh: A Free and Fair War Crimes Tribunal?

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Activists of “Daughters of Freedom Fighters” stand with a caricature of a war criminal to demand punishment, as others stand in a queue to pay tribute at the memorial for war heroes to mark the country’s Independence Day, in Saver, on the outskirts of Dhaka, Bangladesh, Friday, March 26, 2010. The poster translates to “We demand punishment for war criminals. They are a disgrace.” (AP Photo/Pavel Rahman)

 

By Katherine Iliopoulos

 

A war crimes tribunal set up in Bangladesh to try those responsible for atrocities during the country’s 1971 liberation war with Pakistan is facing increased scrutiny by the international community. While the International Crimes Tribunal has been widely welcomed in Bangladesh as a response to the longstanding need to address the issue of impunity for alleged war crimes and other crimes under international law, serious concerns have been raised, particularly regarding its statute, which contains several provisions that are incompatible with international law and international fair trial standards. In July, Rules of Procedure were adopted, which are also highly problematic in terms of international human rights law. 

The International Crimes (Tribunals) Act was drafted in 1973 with some international input and well before the creation of the two ad hoc tribunals for the Former Yugoslavia and Rwanda, whose rulings have since clarified and expanded the body of international criminal law. The Act was later marginally amended in 2009.

The International Crimes Tribunal was established with a controversial amendment to Bangladesh’s Constitution in 1973. The amendment provides that a person charged with genocide, crimes against humanity, war crimes or other crimes under international law cannot challenge any law providing for their prosecution and punishment on the grounds that it is inconsistent with any of the provisions of the Constitution. That means the Act cannot be challenged on the basis that it violates basic constitutional rights that apply in other criminal proceedings. The constitutional amendment is fundamentally at odds with the rule of law, which ensures equal treatment of all persons before the law.

Five leaders of Jamaat-e-Islami are now in detention awaiting trial. Two of them, Mohammad Kamaruzzaman and Abdul Quader Molla, recently sought to challenge this amendment along with some sections of the Act, arguing that they were inconsistent with the Constitution. According to the media, their challenge was rejected by the High Court on August 23, 2010, but there are also reports that in fact the application was withdrawn by their lawyers for reasons because the judges seemed to have prejudged the matter.

In an interview with the Crimes of War Project, Professor Suzannah Linton of Hong Kong University, the author of the first comprehensive examination of the legislation and rules of procedure, welcomed the “important international precedent” that is being set by Bangladesh in creating the ICT and thereby trying to achieve accountability. But, she cautioned that the legislation as it stands is now well out of date and “runs contrary to its international obligations and the wider objective of the international criminal justice movement, which is not to bring about revenge, but justice.” According to Professor Linton, the most critical shortcoming of the legislation is its lack of adequate fair trial and due process safeguards.

The independence movement in the former East Pakistan, now known as Bangladesh, began in 1971 and was attributed to the concentration of political power in West Pakistan and perceptions in the East of economic exploitation. Rising malcontent and cultural nationalism in the East culminated in a violent crackdown by West Pakistani forces on March 25, 1971, known as Operation Searchlight. All major cities in the East were seized, political and military opposition were eliminated, and foreign journalists were deported. Almost a thousand pro-liberation intellectuals were systematically executed.

Although no systematic or comprehensive accounting was ever done, multiple large-scale mass graves have been uncovered around the country, and the popularly accepted figure within Bangladesh is that up to three million people were killed.

The conflict ended when India invaded in December 1971 and decisively beat the Pakistani forces in a matter of days, capturing 93,000 Pakistani troops. Bangladesh declared its independence shortly thereafter and Sheikh Mujib became the new country’s first prime minister. The West’s army had the support of many of East Pakistan’s Islamist parties. They included Jamaat-e-Islami, still Bangladesh’s largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr. It is these collaborators the government wants to try, not the main culprits in the former West Pakistan army.

The events of 1971 have been described as “genocide” within Bangladesh and in several international publications.

Article 2 of the 1948 Genocide Convention, which reflects customary international law, defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” It does not include “political groups,” although that term was added to the definition of genocide under the 1973 Act.

Killing members of a political group as such is not the crime of genocide under international law. As Professor Linton explains, “the problem with the Bangladeshi addition of political groups is that this was one of the groups deliberately excluded from the ambit of the crime of genocide set out in the Genocide Convention. States that were engaged in the drafting process did not want their own people to be tried for genocide for the very common practice of targeting their political enemies.” It is notable that attempts to expand the definition at the Rome Conference for the establishment of the ICC were also defeated.

The International Commission of Jurists (ICJ), when it published its investigation into the events in 1972, stated that “to prevent a nation from attaining political autonomy does not constitute genocide: the intention must be to destroy in whole or in part the people as such. It can hardly be suggested that the intention was to destroy the Bengali people.” Yet the ICJ report does go on to say that particular acts may have constituted genocide against part of the Bengali people: “Where large numbers were massacred and it can be shown that on the particular occasion the intent was to kill Bengalis indiscriminately as such, then a crime of genocide would be established. There would seem to be a prima facie case to show that this was the intention on some occasions, as for example during the indiscriminate killing of civilians in the poorer quarters of Dacca during the ‘crack-down.’” The ICJ took a much firmer approach with respect to the Hindu population however, and in its view there was “a strong prima facie case that the crime of genocide was committed” against this particular group.

Professor Linton, as well as the War Crimes Committee of the International Bar Association, has pointed out that the definition of crimes against humanity in the 1973 Act misses important elements of the more modern definition, namely, the widespread or systematic nature of the attacks against the civilian population. In addition, the Act does not require that the offending actions be committed “with knowledge” of the widespread or systematic attack. The lack of a required nexus with an armed conflict reflects the current definition of crimes against humanity which emerged from modern ICTY jurisprudence, but not necessarily the law of 1971.

The two-tier “crimes in armed conflict” provision in the Act appears to mean war crimes. It takes a form never seen before. One section virtually mirrors that which appeared in the Statute of the International Military Tribunal at Nuremberg. But, the other section provides that violations of any of the hundreds of humanitarian rules that make up the four Geneva Conventions can be prosecuted as war crimes. In the Geneva Conventions treaty framework, only Grave Breaches of the 1948 Geneva Conventions constitute the international crime commonly called war crimes. Then, there is a provision providing jurisdiction over “any other crimes under international law.” These are clear violations of the principle of legality; the universally recognised requirement that criminal laws be clear and people are not prosecuted for what was not criminal at the time that the acts were committed.

The eight grave breaches of the Geneva Conventions are: (1) wilful killing; (2) torture or inhuman treatment, including biological experiments; (3) wilfully causing great suffering or serious injury to body or health; (4) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (5) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (6) wilfully depriving a prisoner of war or a civilian of the rights of a fair and regular trial; (7) unlawful deportation or transfer or unlawful confinement of a civilian; and (8) taking civilians as hostages.

The Grave Breaches provisions, as incorporated into the Act, will only come into play if it can be established that an international armed conflict existed at the time of the crime. The early stages of the conflict can be characterised as a ”Common Article 3” situation, but as Professor Linton points out in her analysis, it is unclear as to whether customary international law in 1971 was such that individual criminal responsibility attached to violations of Common Article 3 of the Geneva Conventions. Nonetheless, she finds that it is possible to argue for the criminalisation of violations of Common Article 3 by 1971, in itself and by linking it to the fundamental general principles of humanitarian law which are undeniably part of the ”laws and customs of war,” violations of which constitute war crimes.

Increasing Indian involvement, particularly with regard to the country’s support and assistance of the Mukti Bahini who were fighting against the Pakistani Army, served to ”internationalise” the conflict. Yet the armed conflict could be said to have become of a truly international character with India’s invasion of East Pakistan in response to Operation Chengiz Khan, the pre-emptive airstrikes carried out by Pakistan India on the evening of December 3, 1971. The Grave Breaches provisions of the Act would thus apply to serious breaches of the Geneva Conventions occurring from that point.

During the conflict, an estimated 200,000 Bengali women and girls were said to have been raped by Pakistani soldiers, including Punjabi, Pashto and Sindhi, with an estimated 25,000 allegedly forcefully impregnated and many held captive as sex slaves. And the Pakistan Army’s local auxiliary forces, known as the Razakaar and Al-Badr, are alleged to have used rape to terrorise, in particular the Hindu population, and to gain access to its land and property.

But crimes such as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity – which were codified for the first time in international law by the 1998 Rome Statute of the International Criminal Court – are excluded from the Act. The only mention of sexual violence in the 1973 Act is “rape” and it appears as a core crime within crimes against humanity. No definition of rape is provided. The definition in regular Bangladeshi law (which has been expressly ousted) is a conservative and limited one, restricted to sexual intercourse.

In the Akayesu case, the International Criminal Tribunal for Rwanda held that rape, which it defined as “a physical invasion of a sexual nature committed on a person under circumstances which are coercive,” and sexual assault constitute acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, a targeted group – in the case the Tutsi ethnic group – as such. In this vein, in the case of Bangladesh, forced pregnancy could be argued to constitute not only war crimes or crimes against humanity but also genocide, if it was found to have been committed with the requisite intent to destroy in whole or in part a particular group – that is, the Bengalis – as such.

Aside from the legal issues surrounding such crimes, it appears that as things stand, the Tribunal will face considerable difficulties in persuading the victims come forward to testify. Sexual crime during the armed conflict has “always been politicised and has now become a nationalistic issue,” said Professor Linton. But, as she points out, very few women have actually spoken out publicly to substantiate the appalling figures of sexual violence that are regularly cited. Not only are there significant social constraints on women speaking out, but according to Dr Bina D’Costa of the Australian National University and human rights barrister Sara Hussein, who have examined the issue of redress for sexual violence before the Tribunal, there has been no consideration given so far to the approach the Tribunal should take and what its priorities should be for addressing sexual violence. And as Professor Linton points out, there is no provision on witness protection or support in the law, beyond one that provides that the Tribunal may take proceedings in closed session.

The Act’s shortcomings do not end there. Human Rights Watch has recommended the removal from the legislation of the death penalty as a fundamental violation of human rights. Arguably, it is also inconsistent with Article 35(5) of Bangladesh’s constitution which prohibits “torture, cruel, degrading or inhuman punishment or treatment.” The International Bar Association is concerned that the Bangladesh tribunal not follow the example set by the Iraqi High Tribunal, which ordered the execution of Saddam Hussein.

But the availability of the death penalty “ought not to be the focus of the international community” says Professor Linton. “Here, the priority seems to be a matter of making the process in Bangladesh meet basic, not five star, international standards.” Professor Linton has identified several provisions that fall well below international fair trial standards. Among these, she is concerned about the bar to Constitutional challenges and the lack of defences available to accused persons such as the defence of ”superior orders” (this exists in the domestic law that applied in 1971 and today) and the lack of disclosure obligations on the part of the prosecution. There is no mention of the right to silence, the presumption of innocence, nor the standard and onus of proof. Furthermore, the Act and the Rules of Procedure and Evidence do not contain any provision affirming the right to have counsel during the critical pre-trial phase. As such, they do not require that the suspect be advised of his rights on being deprived of his liberty, including the right not to answer questions without defence counsel present.

Despite the existence of the requisite political will and civil society support for a justice mechanism to address past crimes and fight impunity, the process remains controversial and politically charged. Serious concerns about the fairness and independence of the process cannot be ignored. Professor Linton commends Bangladesh’s courageous attempt at bringing truth and justice to victims, but says that doing so should not involve a manipulation of the justice system to achieve purely retributive ends. “Victims deserve better than this,” she says, and it is up to the international community to support Bangladesh where possible in its struggle to legitimately meet popular expectations of justice.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation
By Suzannah Linton
Criminal Law Forum, May 2010

Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons from History, and Hopes for the Future
By Bina D’Costa and Sara Hussein
Criminal Law Forum, May 2010

Report of the Commission of Inquiry into the Events in East Pakistan, 1971
International Commission of Jurists

Letter to Prime Minister Sheikh Hasina Re: International Crimes (Tribunals) Act
Human Rights Watch
July 8, 2009

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