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Bangladesh: The international crimes tribunal and the question of standards

by David Bergman, 17 June 2011

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New Age (Bangladesh)

A question of standards

by David Bergman

WHAT kind of rights should those accused of having committed international crimes during Bangladesh’s war of Independence be entitled to?

Should the seven men now detained by the International Crimes Tribunal have fewer rights than those available to the men and woman accused of crimes prosecuted in the ordinary courts or the same rights as them?

Or should the rights afforded to the seven meet a higher standard, more similar to those given to the accused in international tribunals?

With the tribunal soon to publish amendments to its rules of procedure, these are crucial questions.

In the last two months, the Bangladesh government has received much advice on what changes it should make.

The International Centre for Transitional Justice, Human Rights Watch and, most significantly, the US state department’s ambassador for war crimes-at-large, Stephen Rapp, have all written to the government arguing that, to ensure a fair process, substantial changes need to be made in the way the tribunal is run.

The state department’s ten-page letter suggested that the tribunal should make changes to its own rules of procedure incorporating basic rights for the accused—involving detention, bail, questioning of suspects, release after charging, evidence disclosure—as well as clarifications on offence definitions and rules on evidence.

The ICTJ and Human Rights Watch, however, argued that changes to the International Crimes (Tribunal) Act 1973 itself were also necessary, with HRW suggesting that the government should repeal Article 47A of the constitution which prevents the accused from seeking any remedy from the Supreme Court of Bangladesh.

So what will be the government’s and the tribunal’s response to this advice?

It is clear that the government has rejected any thought of change to the constitution and the 1973 act.

The law minister’s response to Human Rights Watch’s suggestion of repealing Article 47A was blunt. He told New Age, ‘Why should we agree with this? These men have committed murder throughout the country’ (‘Repeal 1st amendment to constitution for fair ICT trials: HRW’, New Age, May 20).

And the only reason why the US state department did not suggest changes to the 1973 act was because the law minister had previously made it clear that the government was not willing to make any legislative changes (the author’s interview with Rapp, May 4).

So that just leaves changes to the tribunal’s rules of procedure, which can be made without requiring parliamentary action.

On this front, the government has taken a more positive view, though we will have to wait to see the extent to which the tribunal has taken on board the proposed rule changes set out in the three letters.

But amendments to the rules alone will not be sufficient to deal with some of the most serious concerns.

One issue is the current prohibition on appealing pre-trial and trial decisions made by the tribunal.

Section 24 of the 1973 act, when read together with section 21, states that other than the order of conviction, ‘No order, judgment or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever...’

This section is supported by Article 47A(2) of the constitution that states that no one detained or prosecuted under the 1973 Act ‘shall have the right to move the Supreme Court for any of the remedies under this Constitution.’

As a result, other than the order of conviction, no tribunal decision can be challenged, however incorrect, unfair or inappropriate it may be.

The prohibition has meant that six out of the seven accused—most of whom have been detained without charge for over ten months—have not been able to appeal any of the tribunal’s repeated decisions to refuse them bail.

Defence lawyers have also been unable to challenge the tribunal’s earlier decisions to issue arrest warrants against their clients prior to pressing charges, which the lawyers claim was unlawful as it contradicted section 11(5) of the 1973 act.

An amendment to the tribunal’s rules of procedure alone will not be sufficient to allow these interlocuting appeals; it will also require revision of section 24 of the 1973 act and, unless an appeal mechanism could be created without recourse to the Supreme Court, repeal of Article 47A of the constitution.

Since such legislative action is off the cards, the tribunal, it seems, will continue operating without interlocutory appeals providing the accused not just fewer rights than those similarly detained by the UN-sanctioned international tribunals, but, significantly, fewer rights than those prosecuted in the ordinary courts of Bangladesh.

Any person accused of a penal code offence in Bangladesh can appeal against a decision rejecting bail first to the sessions court, then the High Court, and then, if leave is granted, to the Appellate Division. They can also seek various remedies from the High court regarding adequacy of the charging and trial process.

Those supporting the status quo have to explain why it is justified that these accused before the ICT should have fewer rights than their compatriots.

In a recent paper, the International Crimes Strategy Forum—a coalition of activists supporting the ICT—tried its best to do just that.

It argued: the 1948 Nuremberg trial law did not allow appeals against conviction yet alone interlocutory appeals; there is no evidence that the absence of appeals will automatically result in an ‘unfair trial or the denial of justice’; the requirement in the 1973 act that the tribunal ‘shall ensure a fair trial’ renders ‘baseless’ any need for interlocutory appeals; whatever disadvantage to the defence from the lack of judicial review rights applies equally to the prosecution; absence of interlocutory appeals do not automatically rule out remedial interventions by the tribunal; appeals are unnecessary as the three tribunal members are senior judges; and allowing interlocutory appeals would result in ‘endless motions and applications’ that will result in inexorable delay.

Yet, these arguments are inadequate to justify the lack of judicial review rights.

First, legislation used for trials over sixty years earlier cannot be used as the benchmark for judging the adequacy of currently applied laws.

Second, although the absence of interlocutory hearings may not ‘automatically’ result in an unfair trial, it is likely that they will. There are already, as noted above, at least two ICT issues where appeal hearings are justified and where their absence has, arguably, created injustice.

Third, had the tribunal’s obligation to ‘ensure a fair trial’ been meaningful to this issue, it would have resulted in the accused being given the right to seek interlocutory appeals.

Fourth, while the denial of this legal right affects both parties, it disproportionately affects the accused.

Fifth, the tribunal’s power to reverse its decisions cannot be relied upon as an alternative to a right to appeal. The tribunal has already ruled, for example, that it will not re-consider its previous decision concerning the issuing of warrants of arrest, and said it will only consider ‘new factors’ in any new bail application.

Sixth, the purported seniority of the tribunal judges does not take away the fact that they are acting as trial judges. Moreover, the tribunal’s failure to provide proper reasons for decisions suggests that a supervisory appellate court is very much in need.

Finally, interlocutory appeals would not result in delay if the government created a special appellate court to deal with the tribunal’s interlocutory appeals. And, in any case, no delay could ever be caused simply by allowing reviews of bail denials.

However, it is one thing to argue that the ICT accused should have the same rights as ordinary defendants, but quite another to argue that the ICT and the government should look to the UN-sponsored international tribunals, and particularly the International Criminal Court convention, which the Bangladesh government has ratified, as a template for setting standards.

There certainly is no legal obligation on the government to hold trials that meet the standards of the international court.

It may seem odd for the Bangladesh government to have ratified the ICC, and then subsequently hold trials that are below the standards that the convention establishes, but because the alleged offences took place before the convention came into being, the government is allowed to do so.

Nonetheless, Bangladesh does have legal obligations to comply with standards in the International Convention on Civil and Political Rights which it has also ratified.

This is relevant as, for example, neither the 1973 act nor the ICT’s rules of procedure has any system for the disclosure of evidence

to the defence.

Section 9(3) of the act states that ‘at least three weeks before the commencement of the trial’ the prosecution should furnish to the tribunal copies of statements and documents which the prosecution intends to rely on.

The section is silent on when the accused will receive the material.

In its letter to government ministers, the US state department suggests that this does not match the standards of Article 14(3)(b) of the ICCPR which guarantees accused persons ‘the time and facilities for the preparation of a defence.’

The letter states that the ICCPR article has been ‘construed at every international and hybrid court and tribunal to provide pre trial disclosure of relevant documents and tangible objects to an accused person and his or her counsel in time to make effective use of it in his or her defence. Accordingly, the prosecution is strictly required to turn over any exculpatory evidence and all prior statements of prosecution witnesses but may provide for disclosure of other items that are “material for the preparation of the defence” by furnishing an opportunity for the defence to inspect and copy.’

Human Rights Watch adds in its advice that in the international tribunals ‘the defence typically receives several months to prepare.’

So, for the government to be compliant with its international obligations, arguably it should at least amend this part of the tribunal’s procedures, and ensure that it is compliant with other ICCPR obligations.

However, since Bangladesh has no legal obligation to incorporate into its legal system most of the standards which have been set out in statutes setting up the various international tribunals, the question becomes whether the government should voluntarily incorporate them.

There are a number of arguments made against doing this.

It is argued that the ICT, despite its name, is a national tribunal, prosecuting Bangladesh citizens under Bangladesh law in a Bangladesh court. There is, therefore, no need for it to look outside of its own legal norms to prosecute these offences and should be treated no differently to other courts in Bangladesh.

In response to this, the US war crimes ambassador-at-large has argued that though the tribunal may well be a national tribunal, the offences it is prosecuting are international offences that only exist in the context of case law decided on by International Tribunals. As such, he argues, this creates an obligation to incorporate the standards of these international tribunals (see ‘Interview with Stephen Rapp’, New Age Xtra, January 21).

This answer is, however, only partially convincing. It is difficult to see why the prosecution of international offences should oblige the introduction of wholesale international standards.

Yet, it does remain a strong argument for the tribunal, at the very least, to apply the International Criminal Court document that sets out agreed elements of the different international offences as well as the international tribunal case law on the meanings of these offences.

These would be important changes as, at present, it remains totally unclear how the tribunal will define the offences set out in the 1973 act.

Another argument against the need for the introduction of new rights is that no change is required to the current legal architecture since the 1973 act, and its procedures, are already of international standard.

This argument comes in two forms. It is claimed (see for example, ‘War Crimes Act does not need reform’, The Daily Star, March 1, 2010) that the appropriate measurement of whether the 1973 act meets ‘international standards’ is the 1948 Nuremberg Tribunal and jurists’ opinions in 1973.

The problem with this argument is that international standards have changed significantly since 1948 and 1973, and one has to judge the 1973 legislation by current, not historical, standards.

The other form the argument takes is that the current 1973 legislation, in fact, does meet modern international standards. The ICT prosecutors have said this in open court on a number of occasions.

The differences between the International Criminal Court statute and the 1973 act are, however, evident.

Apart from the lack of interlocutory appeals and disclosure provisions, the 1973 Act/ICT procedures reverses the burden of proof in relation to alibi evidence, contains no system for the regulation of bail, no grounds for excluding criminal responsibility (i.e. mental capacity, self-defence, and duress), and do not contain normal protections relating to questioning of suspects.

Another argument made against the introduction of new standards is that these internationally recognised protections are not relevant in the context of Bangladesh law.

The tribunal members have, for example, said that the right of an accused to have a lawyer present during his interrogation, along with other associated rights, are not relevant to Bangladesh since any comment made by an accused to the tribunal’s investigation officers cannot—unlike in other jurisdictions—be used as evidence in a trial.

There may be some justification in this argument, but the right to have lawyers present during interrogation is also to prevent unlawful intimidation and abuse, something which the defence lawyers allege is taking place.

And even if one accepts that Bangladesh law precludes the need for the presence of lawyers, the same argument does not apply to any of the other international norms.

It has also been argued by the International Crimes Strategy Forum that it would be difficult to import into Bangladesh law new international standards. ‘[H]ow can there possibly be two separate distinct and competing standards in a legal system?’ it asks.

Well, there is already a ‘competing standard of law’ in the country involving the trials of the soldiers of the Bangladesh Rifles, since renamed Border Guard Bangladesh, accused of the February 25-26, 2009 rebellion and, of course, the ICT trials are right now operating without the application of the Code of Criminal Procedure 1898 and the Evidence Act 1872, with the tribunal deciding its own procedures. These competing systems in their current forms do not seem to be causing any problem.

Another argument used against the introduction of international norms is the hypocrisy of the US state department advising Bangladesh on these issues when it has blanket reservations relating to the application of the ICCPR and has not ratified the ICC.

There may well be contradictions in the US’s position, but the state department’s criticisms of the current law are shared by all independent international human rights organisations and lawyers.

There is, of course, another side to this discussion—the significant advantages that, arguably, the tribunal will gain through incorporation.

To start with, the government and its ministers, who over a period of nearly two years have repeatedly committed the government to holding ‘international standard’ trials, would gain the obvious satisfaction that comes from keeping their personal commitments. That must surely count for something.

Second, there is no question that unless significant changes are made, the tribunal will be criticised by all respectable independent organisations and lawyers outside Bangladesh. Having waited 40 years to hold these tribunals, does the government really want that to happen?

Third, improving the tribunal’s standards would help prevent the tribunal from being part of the partisan political controversies within Bangladesh.

The tribunal has become highly politicised—with the Bangladesh Nationalist Party and Jamaat-e-Islami opposing the process of trials in their current form on the basis of not conforming to international standards—though many see this as simply a way for these parties to legitimise its opposition to the idea of accountability for the 1971 crimes.

By improving standards, the government could defuse this argument, forcing the opposition parties to either support the tribunal process or be exposed for opposing the tribunal on simple political grounds.

The government and the tribunal members right now have important decisions to make.

It may seem inappropriate that whilst so little media and political attention is given to the unfairness of the day-to-day prosecutions in Bangladesh, so much attention is now focused on making the trials involving 1971 offenders fair. This is a fair comment.

Yet, these trials, involving international crimes that allegedly took place 40 years ago in a war in which the international community took much interest, and which only involve opposition politicians, were always going to be seen differently. Otherwise, why did the country’s foreign and law ministers repeatedly promise its own citizens and diplomats that the tribunal will meet international standards?