By Kristine A. Huskey
Almost 40 years later, the people of Bangladesh will finally see justice done for war crimes and other atrocities committed during the 1971 War of Liberation. Or will they? The International Crimes Tribunal (ICT) of Bangladesh, which just in the last year began gearing up to try individuals accused of war crimes, crimes against humanity, genocide, mass rape and other international crimes, is certainly necessary to provide accountability and to address longstanding cries of impunity for the alleged criminals.
At the heart of Rapp’s interest … is the perceived need to have the laws and procedures of the ICT consistent or, at least up to par, with the standards of international law.
However, there has also been sharp criticism of the ICT’s statutes, rules of procedure, and practices, as well as deep concern over a related amendment to the Bangladesh Constitution. Critics have pointed specifically to the lengthy pre-charge detention of suspects, interrogation without counsel present, inability to challenge the jurisdiction of the tribunal or make interlocutory appeals, lack of presumption of innocence, potential for self-incrimination, lack of protections for witnesses and victims, and overall lack of due process rights for defendants as just a few of the numerous infirmities present in the ICT. Further, many have characterized the Tribunal as politically motivated, adding to an atmosphere in Bangladesh that is already fraught with political tension.
Justice can only be done for the victims, their families, and the perpetrators, if the Tribunal is fair and is seen as being fair by the people of Bangladesh and the international community, of which Bangladesh is a key participant as the first nation in South Asia to become a state party to the Rome Statute (for the International Criminal Court) and a signatory to the International Covenant on Civil and Political Rights (ICCPR). Perhaps in the spirit of that participation, the Bangladesh government recently invited the United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp, to come to Dhaka. The Foreign Secretary, Mohamed Mijarul Quayes, invited Rapp to ensure the “fullest credibility” in the tribunal process. In anticipation of the visit, Quayes reportedly stated, “There are two things we want from this process: For it to be transparent and consistent with international standards.” “We hope these consultations will help,” he said. Since then, Rapp has visited Dhaka twice and, in March, submitted to the Bangladesh government a 10-page letter setting forth a number of concerns and recommendations. At the heart of Rapp’s interest, like other international concern, is the perceived need to have the laws and procedures of the ICT consistent, or at least up to par, with the standards of international law and procedures of well-respected international crimes tribunals, such as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). Bangladesh now has a unique opportunity to have trials in its domestic court for international crimes of the most heinous nature. Trials of such importance should be fair and consistent with international standards and, more importantly, they must be, for justice to prevail.
A Brief History
As set out in more detail in an earlier article published by The Crimes of War Project and in a briefing by the International Center for Transitional Justice , the International Crimes Tribunal was established in 1973 to address crimes that had been committed during the 1971 War of Liberation in which East Pakistan seceded from West Pakistan, ultimately becoming the independent state of Bangladesh. The armed conflict arose out of increasing discontent in the East and a national election won by Bengali nationalist leader, Sheikh Mujib. The fighting began in March 1971, when West Pakistan launched “Operation Searchlight” against the Bengalese population in East Pakistan to quell nationalistic tendencies and ended ten months later when India invaded Pakistan and defeated the Pakistani forces in a matter of days. Bangladesh declared its independence shortly thereafter and Sheikh Mujib became the new country’s first prime minister.
Though no systematic accounting was ever done, popularly-accepted figures within Bangladesh and reported in many external sources are that up to 3 million people were killed or tortured to death, 200,000 women were raped in organized camps with a great number subjected to forced pregnancy, and more than 10 million people were forced to flee to India.
The 1971 Liberation War is considered to be one of the most severe humanitarian crises of the modern century, involving widely-documented massacres, torture, displacement, destruction and confiscation of property, disappearances, and sexual violence. Though no systematic accounting was ever done, popularly-accepted figures within Bangladesh and reported in many external sources are that up to 3 million people were killed or tortured to death, 200,000 women were raped in organized camps with a great number subjected to forced pregnancy, and more than 10 million people were forced to flee to India.
In response, the International Crimes (Tribunals) Act (ICTA) was passed in 1973 “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.” At the time, the ICTA was a significant contribution to the development of international criminal law. However, several legislative and/or executive orders effectively halted the trials and granted immunity to certain select groups. The Bangladesh National Liberation Struggle (Indemnity) Order issued in 1973 gave immunity to all “freedom fighters” in connection with the struggle for liberation. Then, Prime Minister Mujib declared a general amnesty for all Bangladesh citizens who had collaborated with West Pakistan except those accused of murder, rape, arson, or genocide. Later, Pakistani soldier prisoners of war, including those who had committed war crimes, were repatriated to Pakistan without ever being charged. And, in 1975, individuals who had been tried and convicted under the Collaborators Order were pardoned and the Order repealed. The ICTA, however, was never repealed and currently stands as a mechanism with which to prosecute Bangladeshi citizens who were not previously given immunity, for international crimes committed forty years ago.
The ICT lay virtually inactive until 2008 when current Prime Minister Sheik Hasina ran on a campaign to prosecute “the war criminals” from the Liberation War. After her victory and with the Awami League in power, Parliament passed a resolution in early 2009 for speedy trials under the ICTA, which was marginally amended later in the year. In mid-2010, the Tribunal issued its Rules of Procedure (ROP) and within a short time, six individuals had been arrested and detained by the authority of the Tribunal, though no charges have been brought to date.
The International Community Voices Its Concerns
Well before U.S. Ambassador Rapp entered the debate, the international human rights and humanitarian law community had already expressed concern about the ICT, claiming that the rules lacked adequate protections for the defendants and witnesses, a related constitutional amendment was fundamentally unfair, and the trials were politically motivated. Organizations, such as the War Crimes Committee of the International Bar Association, Human Rights Watch, and the International Center for Transitional Justice, have all separately submitted to the Bangladesh government letters of concern and recommendations regarding the ICT. While the government has not rejected such recommendations outright, it has not publicly responded quite as positively to such suggestions as it has to Rapp’s participation, perhaps for obvious reasons.
Rapp was welcomed in Dhaka by the Bangladesh government twice this year, giving the U.S. dignitary the opportunity to meet with Tribunal judges, the registrar, investigators, prosecuting counsel and defense counsel and to visit the Liberation War Museum. Rapp also met with the Foreign Minister, the Law Minister, and the Foreign Secretary, as well as representatives from the Bangladesh Supreme Court Bar. His visits are of keen interest as they are the first high-level international “intervention” in the ICT. More importantly, Ambassador Rapp brings a valuable experience and perspective on war crimes issues as the former lead prosecutor at the International Criminal Tribunal for Rwanda and the Special Court in Sierra Leone, which prosecuted Charles Taylor. After his first visit, Rapp memorialized his concerns and recommendations in a letter to the Bangladesh government and has since followed up with a second visit to Dhaka in early May. As discussed in more detail below, Rapp’s concerns, like others’, include issues such as pre-trial detention, disclosure of evidence, time and facilities necessary for the defense, protection of victims and witnesses, and the right to raise legal challenges.
Issues of Concern
As a preliminary matter, one must wonder why Rapp and the international community are so exceptionally concerned with what goes on in Bangladesh’s domestic courts and why the Bangladesh government has shown to be at all receptive to outside “intervention.” After all, the victims and the alleged perpetrators are Bangladesh citizens, the majority of crimes occurred in Bangladesh (or what was East Pakistan at the time), and the trials and post-conviction incarceration will occur in Bangladesh courts and prisons. Moreover, as noted by the International Crimes Strategy Forum (ICSF), “the legitimacy of the International Crimes (Tribunals) Act is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by ICTA and not any other legal instruments of international nature.” However, as Rapp has pointed out, the ICT was established specifically to prosecute international crimes, such as genocide and war crimes, which are crimes defined under international law and recognized as violations of international law. Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards. Since the promulgation of the 1973 Act, there has been considerable development in international criminal law and much can be gained by looking at other international crimes tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ITCR, the Special Court of Sierra Leone and the ICC. Finally, as a signatory to the ICCPR, Bangladesh is obligated at all times to honor the treaty, but most especially when it purports to be enforcing international law.
Fundamental Rights Under the Constitution
The ICT was established specifically to prosecute international crimes, such as genocide and war crimes. Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards.
By far, the most troubling concern is that related to the constitutional amendments (Articles 47(3) and 47A), which deny a number of constitutional protections to Bangladesh citizens who are being detained or prosecuted under the ICTA. For example, Article 47(3) prohibits such individuals from challenging any law, including the amendments themselves, on the ground that it is unconstitutional. Article 47A further strips those individuals of specific constitutional rights that are guaranteed to all other persons in Bangladesh, such as the right to protection of the law (Art. 31), protection from ex post facto (retroactive) laws and the right to a speedy and public trial (Art. 33), and the ability to enforce guaranteed rights (Art. 44). These are fundamental due process rights and are guaranteed in international law and to all other suspected criminals in Bangladesh. Withholding such rights from suspected war criminals who have not even been convicted does not engender faith in the fairness of the process or outcome.
Rights of the Accused
There are a number of worrisome provisions in the ICT Act and the Rules of Procedure (ROP) and practices of the Tribunal, all of which have been set forth and discussed in detail, with specific reference to other tribunals’ rules and procedures for point of comparison, in Rapp’s letter and letters by the aforementioned international organizations. The following are some of the many concerns going to provisions affecting the rights of the accused:
• Individuals can be arrested and questioned before formal charges are brought and they can only challenge their detention once and have no right of appeal. Currently, at least five individuals have been in detention for over six months, some as long as ten or more months, with no possibility of release until post-conviction, having already lost their initial applications for bail.
• The rules also allow for the interrogation of the (informally) accused without counsel present and there is no procedure for informing a questioned individual of their privileges or rights or that they are entitled to counsel. Already, several detainees have been interrogated without counsel present based on the prosecution’s request to the Tribunal and during the interrogations, which lasted all day, the detainees were denied the opportunity to have private conversations with their counsel during breaks and were prohibited from discussing the interrogations with counsel altogether. Further, there has been no investigation into claims of torture and abuse of individuals in detention.
• There is no procedure for challenging the jurisdiction of the Tribunal or making constitutional challenges to the ICT Act or Rules of Procedure.
• There is no requirement that the prosecution disclose exculpatory evidence (“unused evidence”) to defendants or their counsel, nor are there any provisions that enable a defendant to request discovery. Additionally, the prosecution is only required to disclose the evidence upon which it will rely three weeks in advance of the trial to the Tribunal and does not specifically require disclosure to defendants or their counsel.
• The Act specifically provides that the Bangladesh Evidence Act and the Code of Criminal Procedure, both of which apply in all criminal proceedings in Bangladesh domestic courts, do not apply to proceedings under the ICTA. Further, the Act provides that “the Tribunal shall not be bound by the technical rules of evidence”
• Though the burden of proof is on the prosecution, there is no presumption of innocence. Additionally, the burden of proof is reversed to the defendant in an alibi defense.
It could be argued that some of these inadequacies, standing alone, are not enough to evince a lack of due process. However, allowing all of them in the same proceeding and together with the constitutional amendments, which deny fundamental protections to the defendants, the ICT, as it now stands, falls far short of the international standards of due process that are evident in the rules and procedures in the ICTY, ITCR and the ICC. Moreover, the ICT rules and procedures together with the constitutional amendments clearly violate the guarantees under Article 14 of the ICCPR, which Bangladesh ratified in 2000. In short, Bangladesh would be violating its international law obligations were the ICT to proceed without modification.
Motions and Appeals
There is no appellate chamber within the ICT and the ROP only allow for appeal on matters of law to the Appellate Division of the Supreme Court after the conviction of an accused. There are no procedures that allow both parties to file motions for appropriate rulings and relief and to seek interlocutory appeal of key adverse decisions. Allowing parties to appeal decisions on evidence and other significant issues during the course of the trial, particularly given the complexity of international crimes, is more efficient and fair and avoids waiting until an acquittal or conviction in the event error occurs during trial.
Neutrality and Equality of Arms
While an estimated 1,600 people took part in the atrocities, it is clear that the Tribunal will not be prosecuting soldiers in the Pakistani army or the Bengali freedom fighters. Instead, the government appears to be targeting only Bangladeshi citizens accused of collaborating with West Pakistan and committing certain crimes. Five of the seven alleged collaborators are members of the Jamaat-e-Islami party, Bangladesh’s biggest Islamic party and a partner in the main opposition alliance against the Awami League, the controlling party. The other two accused are from another opposition party, Bangladesh National Party (BNP). This has led to criticism that the Tribunal is merely a vehicle to repress political opposition. To exacerbate the problem, there is no process in the ICTA or ROP to challenge the Tribunal judges.
“Equality of arms” is a fundamental component of a fair trial as every party must have the opportunity to present their case under conditions that do not place either party at a substantial disadvantage. Accordingly, the Tribunal could enhance both the fairness of the process and the perception of fairness by establishing a “Defense Office,” which could play an important role in protecting the rights of the accused by ensuring that defense counsel have adequate support to prepare and present cases and by providing training on investigative techniques and access to jurisprudence and developments in international criminal law. Further, a Defense Office could maintain a list of qualified lawyers who can be assigned to a defendant in the event he cannot afford legal counsel. Cases involving allegations of war crimes, crimes against humanity and genocide are already complex and the crimes here date back decades. It is important for a fair and just outcome that the attorneys for both sides have the knowledge, the expertise and the ability to effectively bring their case or defend their clients.
Protection of Witnesses
The ICTA does not contain any provisions for the protection of witnesses whose testimony may be necessary in the trials. It is the experience of other international crimes tribunals, particularly those involving war crimes and genocide, that witnesses have legitimate concerns about being subjected to intimidation, threats and actual violence to keep them from testifying. The ability to ensure the attendance and safety of witnesses is an essential component of a successfully functioning tribunal process. Accordingly, at a minimum, there should be resources and a process in place to protect witnesses, victims and family members before, during and after court appearances, and provide secure transportation to and from the court, as well as address the protection of personal information in a manner that will not deny the right of defendants to see the evidence against them.
Will Justice Prevail?
Just a few weeks after Rapp’s second visit to Bangladesh, he spoke at a briefing on the International Crimes Tribunal of Bangladesh, which was sponsored by the American Society for International Law (ASIL), the Center for Human Rights & Humanitarian Law at American University’s Washington College of Law, and The Crimes of War Education Project. During the discussion, Ambassador Rapp made clear he would be returning to Bangladesh to continue his involvement and to provide assistance to the ICT. Interestingly, at the end of the briefing, Bangladesh’s top diplomat to the U.S., Ambassador Akramul Qader, passionately defended the Bangladesh justice system and Parliament, taking the opportunity to point out that nobody on the ASIL panel was from Bangladesh, resulting in a “one side of the fence” discussion.
Perhaps mirroring the political tension in Dhaka over the ICT, several Bangladesh citizens were quick to respond, including Zakir Hafez, an international law professor in the School of International Service at American University, who remarked that everyone in Bangladesh wants to see the perpetrators prosecuted, but he could not see “truth and independent justice” in the composition of the Tribunal judges or its rules. Professor Hafez then summed up one reason why it is important that the ICT be fair: “If the Tribunal is not in accordance with international justice and the rule of law, it will not be a good legacy for Bangladesh.” As for why the ICT matters beyond Bangladesh, Retired U.S. Air Force Colonel Morris Davis concluded the briefing with the compelling and poignant remark, “I can tell you as a career military officer that war is hell. The law of war makes it a little less hellish and as this Tribunal contributes to that body of law – international humanitarian law and the law of war — every little bit contributes to that body of law and it is important, to all of us.”
It remains to be seen whether pressure from the U.S. or other international sources or internal outcry will bring about any changes to the ICT statute or rules of procedure, or the Bangladesh Constitution and, thus, whether justice will finally prevail in Bangladesh.
Kristine A. Huskey is an attorney and consultant on matters of national security law and policy and international humanitarian and human rights law, an adjunct professor at Georgetown Law School, and a Fellow at the Robert S. Strauss Center for International Security and Law. She has taught national security law and international humanitarian and human rights law at the University of Texas School of Law, George Washington University Law School, Washington College of Law at American University, and Victoria University Law School in Wellington, New Zealand.
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