By Morris Davis
Attorney and specialist in international humanitarian law Katherine Iliopoulos posed an important question in the title of an article she wrote in August 2010: “Bangladesh: A Free and Fair War Crimes Tribunal?” It is almost a year later and whether the trials will be free or fair is still unsettled.
The article by Ms. Iliopoulos was the first one we published after I joined the Crimes of War Education Project. To be honest, when I saw the title I wondered if there would be much interest in the topic. Now, having published three articles and co-sponsored a conference on the tribunal, my original concern about interest was clearly unfounded.
The Bangladeshi government’s reluctance to incorporate the refinements to IHL to bring the Tribunal up to international standards detracts from what could be a hallmark for the rule of law and a crowning achievement for the people of Bangladesh.
Before I read the article I knew Bangladesh was once linked with Pakistan and there were atrocities committed during the struggle for independence in 1971. I was too young at the time of the Liberation War to notice and by the time I was an adult Bangladesh was so far away and the war so far in the past that it never attracted my attention. As a result, until I read the article by Ms. Iliopoulos in August 2010, I was unaware of the extraordinary magnitude of the war’s impact on people in the region.
The battle for independence was relatively brief – March to December 1971 – and came to an end soon after India joined the fight against Pakistani forces. There is no authoritative accounting of how many lives were lost in the war, but estimates range from 200,000 to 3,000,000 deaths. Pakistani forces specifically targeted intellectuals like professors, students, doctors, and engineers who were rounded up, murdered, and buried in mass graves. Some 8 to 10 million refugees fled into India to avoid the effects of the conflict. About a quarter-million women and girls were raped by Pakistani forces and some were held as sex slaves. In retrospect, it is hard to comprehend so much carnage in so brief a period of time in just one small corner of the world.
The constitution of the newly created country of Bangladesh was amended in 1973 to authorize criminal prosecution of any person accused of “genocide, crimes against humanity or war crimes and other crimes under international law.” Bangladesh also enacted the International Crimes (Tribunal) Act of 1973 to establish a process for such prosecutions. War crime prosecutions have become common over the last decade or so, but in 1973 the people of Bangladesh were taking pioneering steps to prevent impunity for grave atrocities, steps that drew praise from the international community at the time.
There were major advancements in the rules and procedures for assessing accountability under international humanitarian law (IHL) in the 38 years since the Tribunal Act of 1973. The Rome Statute establishing and governing the International Criminal Court (ICC) was adopted in 1998 and entered into force in 2002. It was signed by 139 countries and 116 are parties to the treaty. Bangladesh signed the Rome Statute in 1999 and became a state party in March 2010. While seven countries voted against the Rome Statute – Iraq, Israel, Libya, China, Qatar, the United States, and Yemen – it is the most widely accepted set of principles on genocide, crimes against humanity, war crimes, and the crime of aggression. Additionally, internationally sanctioned tribunals created specifically to handle similar offenses have completed trials and developed an ever-growing body of IHL case law. They include the International Criminal Tribunal for the Former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), the Special Court for Sierra Leone (2002), and the Extraordinary Chambers in the Courts of Cambodia (2003).
As Ms. Iliopoulos noted in August 2010 and as Kristine Huskey noted in an article we published in June 2011, while the efforts of the Bangladeshi government to end impunity are laudatory, its reluctance to incorporate the refinements to IHL that occurred the past four decades in order to bring the Tribunal up to international standards detracts from what could be a hallmark for the rule of law and a crowning achievement for the people of Bangladesh.
U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp visited Bangladesh in January 2011 at the request of the government, and in March he submitted a letter suggesting areas the government should consider to enhance the Tribunal’s standing. [Interestingly, Ambassador Rapp’s letter cites rules from the ICC, suggests reconsidering the death penalty, and recommends establishing criteria to limit prosecution to the most serious offenders. The United States voted against and is not a party to the ICC, is seeking the death penalty for Khalid Sheikh Mohammed, and prosecuted Salim Hamdan as a war criminal for being Osama Bin Laden’s driver.] Ambassador Rapp visited Bangladesh again in May shortly before he spoke at a conference the Crimes of War Education Project co-sponsored where he lauded the effort to provide justice for the victims of the 1971 war and reiterated his suggestions on improving the Tribunal.
While the rules and procedures have been modified and improved – the latest version of the Tribunal’s Rules of Procedure is dated June 28, 2011 – many believe they are still deficient under current IHL. In announcing the new rules the Registrar for the Tribunal, Shahinoor Islam, said with respect to measuring up to international requirements, “we are not yet there, but I would say that the tribunal rules now match universally recognised standards of due process and justice.” Others disagreed. On July 11, Human Rights Watch issued an appeal to the government of Bangladesh to improve the rules for the Tribunal before going forward with trials. Brad Adams, Human Rights Watch’s Asia director, said, “Bangladesh has promised to meet international standards in these trials, but it has some way to go to meet this commitment. Now is the time for one last demonstration of political will to make this happen.” Mr. Adams added, “Bangladesh could then set the standard for other nations that have suffered from unspeakable abuses at the hands of its own people.”
Perhaps justice will be done in the trials conducted before the International Crimes Tribunal of Bangladesh, but justice should be, to the maximum extent possible, guaranteed by the law – the rules and procedures governing the trials – rather than by hope for the good will and skills of the trial participants. Supreme Court Justice Louis Brandeis famously said that sunlight is the best disinfectant, a phrase that underscores the value of transparency in matters of public policy. Efforts to silence those who believe there are flaws in the Tribunal process and to delegitimize criticism of the rules of procedure cause concern about its efficacy. For instance –
Ambassador of Bangladesh to the United States Akramul Qader attended the conference the Crimes of War Education Project co-sponsored on May 19 and he was the first member of the audience to speak when the three panelists finished their remarks. He began by saying the absence of anyone from Bangladesh on the panel kept the other side of the story from being presented, implying the program was biased. His comment ignores the fact that neither he nor any member of his staff responded to multiple messages over several weeks soliciting official Bangladeshi participation in the event. The Ambassador went on to say the Tribunal would be fair, but he did not address the specifics of the substantive issues raised by the panelists.
A representative of the International Crimes Strategy Forum (ICSF), an organization that supports the government of Bangladesh and the Tribunal through various means, attended the conference as well. Afterwards, the ICSF representative expressed his disappointment to me that Ambassador Rapp, as a United States government official, would publicly criticize the Tribunal. When I noted that Ambassador visited the Tribunal at the invitation of the government of Bangladesh he said the invitation was to demonstrate the fairness of the Tribunal, not to critique its fairness, and that Ambassador Rapp did not understand diplomacy if he thought his criticisms were welcomed or appropriate. The same sentiment is expressed in an ICSF paper dated May 15, 2011, posted on the ICSF website:
The January 2011 invitation conveyed towards Mr. Rapp by the Bangladesh Government reflects its commitment towards conducting the war crimes trials in a manner that is fair and transparent. However, it must nonetheless be mentioned that Mr. Rapp’s recent actions and opinions he expressed with regard to the war crimes trials process in Bangladesh, a purely domestic and an internal process, amounts to a direct violation of Article 41(1) of the Vienna Convention on Diplomatic Relations. It is the responsibility of those enjoying diplomatic immunity, like Mr. Rapp, to be respectful towards the laws and regulations of a receiving state, including a duty not to interfere with the internal affairs of that state. This particular provision has long been a part of customary international law and is included in an international convention that the US is a signatory. These suggestions of Mr. Rapp are undoubtedly a subtle form of diplomatic bullying and amounts to a lapse in diplomatic norms because they are designed to interfere in an internal Bangladeshi affair.
British barrister Toby Cadman spoke at an International Council of Jurists sponsored conference in London on June 21. The International Council of Jurists states on its website that its objective is to promote the rule of law and the administration of justice. Mr. Cadman informed the conference organizers in advance that he would be speaking about his views on the Tribunal, views which he had expressed before and were publicly available. Bangladesh Chief Justice Muzammel Hossain and Justice Shamsuddin Chowdhury Manik were present at the conference where Chief Justice Hossain was to receive an award. It is unclear if they were present and heard Mr. Cadman’s presentation, but a Bangladeshi barrister in the audience said it was unfair for Mr. Cadman to criticize the Tribunal when no one was present to defend it and he asked that Mr. Cadman’s remarks be stricken from the record. The chairperson for the session, International Criminal Tribunal for Rwanda Chief Prosecutor Hassan Jallow, declined the audience member’s request. Mr. Cadman learned a short time later that the President of the International Council of Jurists, Dr. Adish Aggarwala, expunged his remarks from the proceedings saying they were “controversial.” It is remarkable that what purports to be an association of legal professionals committed to the rule of law would alter history at its convenience using an eraser.
On July 15 the Tribunal itself chastized an attorney for five accused men for comments critical of the Rules of Procedure. Tribunal Registrar Shahinoor Islam told journalists at a press briefing, “The tribunal firmly believes that everyone has the right to freedom of expression. But, by any consideration, it is not expected such remarks to be offensive and beyond civilized norms and etiquette.” Mr. Islam explained, “Such remarks might confuse the public mind about the tribunal, an independent judicial institution, established solely for trying the crimes that are recognized internationally.”
Supreme Court Justice Louis Brandeis famously said that sunlight is the best disinfectant, a phrase that underscores the value of transparency in matters of public policy.
An unproven judicial process that lacks the strength to stand up to the sunlight of public debate begins under a cloud of suspicion. The promise of what Bangladesh set in motion with its bold steps in 1973 is diminished by the obstinacy and callous indifference it displays in 2011.
A lesson I learned in the two years I was chief prosecutor for the Bush-era military commissions at Guantanamo Bay, Cuba, is that when a government has a single-minded focus on achieving an objective, rejects any and all criticism and condemns the critics, and argues publicly “trust us, we know fair,” a healthy dose of skepticism is in order. In Guantanamo and in Bangladesh the prospect of what could have been remarkable examples of justice are overshadowed by hardheaded bureaucrats insistent that they alone hold all the answers. It is unfortunate when an opportunity to demonstrate the virtue of a legal process that is free and fair appears to be free of fair.
The views expressed are those of the author.