Sculpture entitled "Undefeated Bangla" at Dhaka University is a monument to the National Liberation War (photo - Embassy of Bangladesh)

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.

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:

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.”

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.

By Toby M. Cadman
June 26, 2011

On June 21, 2011, I attended a conference hosted by the International Council of Jurists upon the invitation of its President, Dr. Aggarwala. The conference was on the rule of law and judicial reform. I was asked to present a paper. I offered to speak about the International Crimes Tribunal in Bangladesh and international standards as this subject inevitably concerns matters of judicial reform and human rights. I provided the organizers of the conference with full notice of the topic that I intended to address. In the alternative, I offered to speak about three further topics involving defence rights and international criminal justice. No issue was taken at this stage by the President of the International Council of Jurists of the chosen topic and I was appointed to the Terrorism and Human Rights panel discussion.

The conference was attended by the newly appointed Bangladesh Chief Justice, Muzammel Hossain, and another Justice of the Supreme Court of Bangladesh, Justice Shamsuddin Chowdhury Manik. I introduced myself to the Honourable Chief Justice in the morning and informed him that I would be speaking about the International Crimes Tribunal.

I started my brief address by congratulating the Honourable Chief Justice on his recent appointment and I applauded him for his presentation earlier in the day. I stated that it was encouraging to hear his strong words on ensuring the judiciary in Bangladesh remained truly independent. Shortly after commencing my presentation the Honourable Chief Justice left the conference room. As far as I recall neither the Honourable Chief Justice nor Justice Shamsuddin Chowdhury Manik were present during my address.

I spoke for no more than 10 minutes and covered the First Constitutional Amendment, the need for proper definitions of the crimes, the exportation of fundamental rights in the Constitution and the exclusion of the Criminal Procedure Act and the Criminal Evidence Act. I then spoke about the criticisms aimed by various international organizations. The point I made was that the discussions during the conference focused on human rights protection and the rule of law. There were also discussions that focused on bringing an end to impunity. I echoed these concerns and stated that none of the rights raised by the other speakers were being provided to accused in proceedings before the International Crimes Tribunal. I listed some of the rights that had been systematically removed by the Act and the Constitution. I concluded by stating that it was crucial to ensure the independence of the judiciary was maintained.

At the end of my speech, a member of the audience, whom I now know to be Mr. Anis Rahman OBE, a Bangladeshi barrister based in London, made the point that I should not be making such statements in circumstances where the Government was not in a position to respond and clearly the Chief Justice could not respond. At this point I must state that I never intended to put anything to which the Honourable Chief Justice would be required to respond. Mr. Rahman stated that a number of accusations had been made against the Tribunal. He called for a point of order that my remarks be stricken or expunged from the record. The chair of the session, Justice Hassan B. Jallow, the United Nations International Criminal Tribunal for Rwanda Chief Prosecutor, after some conferring with the other members of the panel refused to make such a point of order and stated that there was nothing inappropriate with what I presented.

At the end of the panel session, the audience were invited to ask questions. However, Mr. Rahman rather than ask a question directed abuse at me personally and professionally. This was followed by Ms. Sonia Zaman Khan, a British-Bangladeshi solicitor, directing a number of remarks rather than questions. I was told that I should be ashamed of myself as these people “committed genocide, rape, murder, torture” and the small group of about 10-12 Bangladeshi members of the audience started to chant repeatedly “shame, shame, shame” and bang the table repeatedly. This was all conducted in a very aggressive and provocative manner. I asked to be able to respond and reluctantly, the Chair of the Panel, Justice Jallow, permitted me to respond. I stated in reply that I had not attacked the Tribunal nor had I attacked any individual judge; I had criticized the procedures. Further, I had not opposed the establishment of the Tribunal but I had criticized the manner in which proceedings were being conducted. I further criticized the fact that despite widespread criticisms being made, including the recommendations by the US Ambassador-at-large for War Crimes Issues, Stephen Rapp, to date no changes had been made to the Act, the Constitution or the Rules of Procedure. I used this opportunity to call the Government to bring the procedures in line with international standards. The small group of antagonists, and I must say this represented a very small segment of the audience, refused to listen to anything further and dismissed my answers out of hand. They continued to direct unsolicited abuse. Of particular note, Ms. Sonia Zaman Khan defended the legislation by stating that the international community, in particular the Canadian Government had heralded the legislative framework.

At the end of the session, a number of individuals approached me to commend me on my presentation and expressed their dismay as to how I was treated. I replied that this is a very emotive subject and therefore emotional statements are to be expected. I expressed some surprise; however, that at a gathering of distinguished jurists, there would be a complete disregard for a judicial process that met recognized fair trial standards. I was also taken aback by the suppression of any form of criticism of what is ostensibly a democratic nation.

I left the conference shortly after my address. The following day I learned of a number of statements that had been made by members of the Bangladeshi community in the audience. In particular it was stated that Justice Shamsuddin Chowdhury Manik explained in detail the procedures of the International Crimes Tribunal and made it clear that all steps had been taken towards ensuring a trial process based on internationally accepted standards. It was also stated that I had made “grave insinuations against the legal process in Bangladesh but had also chosen the wrong forum to express views on the war crimes trial in the country.”

In response to these statements the following remarks are made. First, I made it quite clear in my presentation that no offence was intended towards any member of the Bangladesh judiciary. Absolutely no accusations were addressed towards any judge or judicial institution of Bangladesh. I openly criticized the Act, the Rules of Procedures and the First Constitutional Amendment. I echoed the concerns of a number of international organizations, including Human Rights Watch, the International Center for Transitional Justice, Amnesty International, and importantly, the International Bar Association. In relation to Ms. Khan’s statements that the Act is heralded by the international community this is quite simply misleading and not supported by any credible facts.

Second, I am not in a position to respond to Justice Shamsuddin Chowdhury Manik’s comments due to the fact that none of these comments were made in my presence. However, I will state once again that, in my opinion, which is shared by the vast majority of international observers of the legislative framework at the Tribunal, that the laws and procedures fall woefully short of what is understood to be recognized international standards.

Third, as to the suggestion that my remarks were “expunged” I am not in a position to comment on what may or may not have occurred after I left the conference. What I am able to state with absolute certainty is that when the request was made in my presence, the Chair of the Panel, Justice Jallow, refused to dismiss my remarks. He made it quite clear that my remarks were not inappropriate nor were they directed to cause offence. I have also been subsequently informed that Sir Gavin Lightman, formerly Mr. Justice Lightman of the High Court of England and Wales, in summarizing the conclusions of the conference, adopted the same position.

The article that appeared in The Daily Star on June 22, 2011 entitled “Judiciary Ensures Rule of Law in Bangladesh” is quite misleading and does not represent what actually transpired. For example, it conveniently fails to mention that one of the dignitaries attending the conference, Sir Lightman, made the point that there was no malice intended in my address. It also fails to address the point above that Justice Jallow refused to expunge my remarks when requested to do so by Mr. Rahman.

Following the publication of the article in The Daily Star I sought to ascertain whether my remarks had in fact been expunged after my departure. Regrettably, I was informed that the President of the International Council of Jurists, Dr. Adish Aggarwala, had expunged my remarks from the proceedings. I immediately made contact with the International Council of Jurists and was informed by Dr. Aggarwala that if I submitted my paper the International Council of Jurists would take a final decision as to whether my controversial statement was relevant. By his own admission, the President of the International Council of Jurists confirmed that he was not present during my speech.

What I now find particularly worrying is that my remarks were expunged by the President of the International Council of Jurists even though he had not heard them. He had concluded that my remarks were controversial again without hearing them. It is clear that my remarks were expunged at the request of those persons who had sought to suppress my criticisms of the legislative framework of the International Crimes Tribunal.

It is also of concern that the conference was organized with the “academic support” of the General Council of the Bar of England and Wales and the reputation of this organization may lend support to a process which now appears to be quite flawed.

It is of course the cornerstone of any democratic process that there is free debate on the issues and that the administration must be called to account for any process it seeks to implement. The rule of law and free speech is what distinguishes a democratic nation. Expunging remarks due to the fact that they are considered to be controversial or against the interest of the State does not represent a democratic process. 

My concluding remarks are as follows. I do not oppose the establishment of the International Crimes Tribunal as the State is under an obligation to bring an end to impunity. I have no desire to criticize the Government of Bangladesh nor do I have any desire to criticize the Tribunal or the Judges. I do consider, however, as I stated in my remarks on June 21, 2011, that the legislative framework of the International Crimes Tribunal requires urgent reform. I do not consider it sufficient to amend the Rules of Procedure, as has been suggested. In my view the First Constitutional Amendment that removes the protection of fundamental rights must be amended. The Act and the Rules of Procedure must also be brought in line with Bangladesh’s responsibilities under international law. Finally, the legislative framework must be brought in line with Bangladesh’s responsibilities as a State Party to the Rome Statute. It is difficult to see where the controversy lies.

Statements made by Toby Cadman of 9 Bedford Row International “expunged” by the International Council of Jurists

Located near Dhaka, this monument is dedicated to the lives lost during the War of Independence from Pakistan in 1971. (Photo courtesy Rasekh Fatmi via flickr)

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.

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.

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

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.

Caitlin Reiger (lt.), Ambassador Stephen Rapp, Kristine Huskey and John Cammegh on the ASIL panel

“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.

Related Links

Briefing by Ambassador Rapp at the American Society for International Law
May 19, 2011

Bangladesh War Crimes Tribunal Blog
By David Bergman

International Crimes Strategy Forum
1971 Bangladesh Justice

Press Release and Letter from Human Rights Watch to Prime Minister Sheikh Hasina
May 18, 2011

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 Michael H. Hoffman
 
Civil and military leaders often claim that their forces always administer and obey international humanitarian law (IHL). How those leaders reply to one simple question can do much to support—or undermine—their claims. What training do your forces receive in IHL?

The 1949 Geneva Conventions contain a provision compelling states to include the “study” of IHL in “programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and chaplains.” By extension, insurgents are expected to provide similar instruction to their own forces. Ultimate responsibility for IHL training remains with political authorities and military leaders. The International Committee of the Red Cross (ICRC) and national Red Cross and Red Crescent societies also conduct IHL training for civilians in many parts of
the world.

Military instruction is, generally, hands-on in nature. Effective IHL training for soldiers usually requires a practical, problem-solving approach. Some armed forces integrate IHL-linked scenarios into their training exercises, others rely more on classroom presentation. In some armed forces IHL training is by military assistance teams from other countries. There are also militaries that offer little or no training, and a few that are not aware that this body of law exists.

Two civilian institutions play an important role in IHL training. The ICRC has a Division for Relations with Armed and Security Forces that conducts IHL training using a multinational faculty composed of retired military officers. The International Institute of Humanitarian Law in San Remo, Italy, attracts military officers from around the world to its intensive IHL courses taught by IHL experts on active duty with their nations’ armed forces.

Armed forces that have not yet developed a program of IHL instruction can attain it externally from the military forces of allied nations and/or internationally recognized institutions. There is no real excuse for leaders who fail to train their armed forces in IHL.