A crucial period for International Crimes Tribunal
... the tribunal has itself forcefully argued that it will apply the highest standards of due process and has said clearly that it will abide by its own procedural rules. With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game., writes David Bergman
THE international crimes tribunal, prosecuting crimes alleged to have been committed by Bangladesh citizens during the country's 1971 war of independence, is now entering a crucial period.
The tribunal has 'taken cognisance' of 'the charges' against Delwar Hossain Sayedee, one of the seven men detained by the tribunal on war crimes allegations, and is due on Monday to give its decision on whether to frame charges against him and, if so, for what offences.
Until recently, the issues before the tribunal have been mainly about bail and interrogation; now, however, the tribunal is starting to make key decisions about law and evidence.
To many in Bangladesh the guilt of Sayedee and the other detained men are foregone conclusions; tribunal hearings about cognisance and charge framing are simply procedural obstacles on a legal conveyor belt that will inexorably take Sayedee and the others towards their rightful convictions.
However, those people concerned about issues of due process and fairness will recognise that the credibility of these trials will be determined by the decisions the tribunal makes on assessing evidence, on how it interprets the offences set out in the International Crimes (Tribunal) Act 1973 and, of course, on the reasoning it provides for its decisions.
Unfortunately, however, in relation to the now completed hearings about cognisance, things have not started that well.
The tribunal's own rules of procedure, drafted by the judges themselves, set out what is required if they wish to take 'cognisance' of an offence.
Rule 29(1) states that, 'The Tribunal shall take cognisance of an offence against any accused upon examination of the formal charge, the investigation report, the papers, documents and the evidence submitted by a prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.'
What does this mean? First, cognisance has to be taken for each separate offence alleged against an accused. Second, the decision should be taken on the basis of scrutiny of the formal charge, the investigation report and all the evidence submitted by the prosecutor. And third, cognisance can only be taken for an offence if, in the view of the tribunal, the evidence discloses a 'prima facie case for trial.'
On July 11 the prosecution provided the tribunal with a copy of the formal charges and the associated evidence, and the tribunal then set July 14 as the date for hearing an application concerning the taking of 'cognisance'.
On that day, without hearing either the defence or the prosecution, the tribunal passed a short order.
It ruled that after 'perusing those materials, we are of the view that evidence of the case are prima facie available, regarding the offences stated under section 3(2) of the ICT Act 1973 against the accused … We also have found that they disclosed a prima facie case for trial of the accused.'
At this point, in the proceedings, no one other than the prosecution and the tribunal had a copy of either the 'formal charge' or any of the supporting evidence, so it was not possible to make much of an assessment of this order other than to say, of course, that the tribunal provided no reasons at all for coming to this decision.
When, ten days later, the defence lawyers did receive a copy of the documentation, it decided to ask the tribunal to review its own ruling.
On August 18, the lawyers made two main arguments to the tribunal. First, they argued that the order breached basic international norms by failing to provide any reasons for its decision. As part of this, they questioned whether three days was sufficient for the tribunal to look at all the 542 pages of evidence with 97 of them illegible.
They argued in court that the order 'failed to give any indication or reasoning as to why it was of the view that a prima facie case had been established against the accused. There was no explanation as to what material the tribunal examined and on what basis it took cognisance of offence.'
Second, the defence lawyers contended that the court could not take cognisance of these offences alleged against Sayedee as the way that they are defined in the 1973 Act fails to conform to the accepted definitions of the offences that existed under customary international law in 1971 which is when they were alleged to have been committed.
So for example, they argued that in 1971, the offence of 'crimes against humanity' only existed when there was an 'international conflict' which the tribunal had already ruled was not the case in relation to the 1971 war. They also argued that the offence of genocide could not be committed in relation to the intention to destroy a 'political' group as the offence in the 1973 act allows.
The tribunal was unconvinced by these arguments, and confirmed its earlier decision taking cognisance.
The first thing to say about the August 18 order is that it did not respond to any of the legal points made by the defence. The only oblique reference to them was a comment in the order stating 'We are of the view that the learned counsel went beyond the jurisdiction of what is cognisance.' It is, however, unclear what that statement means or indeed why the tribunal is of this view.
This failure to engage with any of the legal arguments made by the defence in repeated hearings has become a particular characteristic of this tribunal. Perhaps the defence arguments are weak and easily dismissed. A court cannot, though, just simply ignore the arguments as this gives the distinct impression that the tribunal has no adequate response to them.
However, the order did this time give some reasoning behind its earlier decision taking cognisance.
'We are of the view', the order stated, 'that witness no 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 20, 22, 23, 24 have stated that the accused was involved in torture, looting, extermination in several places of Bangladesh. It appeared that accused was also involved in killing of some people of the Hindu community and the Awami League. Allegations are available that he forcefully converted Hindus to Muslims. All comes under the purview of crimes against humanity. So we took cognisance.'
At the time the order was given, observers of the tribunal still did not know what were the actual offences alleged against Sayedee. Were these 20 witnesses substantiating just a few offences or many? Clearly, if these witnesses were giving evidence for just a handful of offences and if their evidence appeared convincing—for one moment, putting to one side the legal issues raised by the defence—this may well have been a sufficient reason for the tribunal to consider there was prima facie evidence and allow cognisance.
However, two weeks later, on September 4, when the prosecution set out its application seeking the framing of charges, we learned that the prosecution was in fact alleging that Sayedee had committed 31 different offences. Was it really possible that 20 witnesses could give sufficient evidence to substantiate 31 offences?
Well, it might have been possible if all these witnesses were giving evidence that substantiated multiple offences. However, it was clear from the prosecution application that this was far from the case—that in fact the 20 witnesses were only linked to 17 of the 31 alleged offences in the formal charge (counts: 1, 3, 5, 6, 7, 8, 9, 10, 12, 15, 17, 19, 22, 23, 26, 27, 37).
This raises two key issues.
First, the tribunal seems to have taken cognisance for many of these twenty offences on the basis of looking at just one witness statement. It is difficult to see, unless the statements were extremely strong, how the tribunal could come to the conclusion that there is 'prima facie' evidence for the commission of an alleged 'crime against humanity' which took place forty years ago just on the basis of one witness statement.
In the context of a criminal trial, the term 'prime facie' generally denotes evidence that, in itself, without hearing defence rebuttals, would be sufficient to prove all the elements required in the commission of a particular crime. Can one witness be enough to satisfy this test?
Second, and perhaps more significantly, it appears from the order that the tribunal did not give consideration at all to any witness testimony that the prosecution alleged substantiated 14 out of the 31 counts set out in the prosecution charge application. How then did the tribunal take cognisance of these offences?
Can the tribunal move onto framing charges relating to any of these 14 offences—which in fact includes all five alleged genocide offences—when it appears, from its own orders, that the tribunal has not taken any proper cognisance of them?
What appears to have happened is that the tribunal did not look in detail at each and every alleged offence and consider how witnesses or other evidence supported the different elements of the offence.
Rather, the tribunal seemed to have looked generally at some of the witness testimony—which alleged that Sayedee was involved in 'torture, looting, extermination in several places of Bangladesh … [and] in killing of some people of the Hindu community and the Awami League' along with forceful conversion of Hindus—and, on the basis of the allegations in these particular statements, took cognisance of all the offences.
The rules, however, are clear that cognisance must be taken of each offence.
Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance.
At a hearing relating to charge framing that took place on August 23—five weeks after the tribunal initially took cognisance of the offences—it came to light that neither the tribunal members nor the defence had been given the second volume of witness statements, i.e. while it had statements numbered 1 to 30 contained in volume one, it did not have statements numbered 31 to 68.
On September 21, the defence again sought a review of the cognisance order, this time questioning how it was possible for the tribunal to take cognisance without having seen all of the witness statements.
In its order, the tribunal stated that although it did not have the hardcopy volume of the statements it did 'consider the CDs and DVDs' provided on July 11 which contained 'all the documents.'
Only the tribunal and the prosecution know exactly what documents were on those CDs and DVDs, but it is notable that in its August 18 order not a single of the mentioned witnesses came from this second volume of witnesses!
Other than the defence lawyers, few people or media organisations within Bangladesh appear concerned about the issues of due process for the accused detained by the International Crimes Tribunal.
Local independent human rights organisations are silent, and the Human Rights Commission chairman has raised no concerns.
Of course, the silence has a lot to do with people holding little interest in technical issues of law and procedure and not wanting, in any case, to do anything that could bring the tribunals into question. The accused are, to many people, already proved to be guilty with the tribunal simply acting as a mechanism to give their 'guilt' a judicial stamp.
Others with concerns are also not willing to raise questions about the tribunal fearing that it will open them up to accusations of being 'pro-Jamaati' or 'anti-liberation'—two insults often used to simply de-legitimise otherwise reasonable arguments.
However, the tribunal has itself forcefully argued that it will apply the highest standards of due process and has said clearly that it will abide by its own procedural rules.
With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game. At the moment, however, there is a serious risk of the tribunal providing additional reasons for the defence to argue that they are being subject to an unfair trial.
David Bergman is editor, special reports at New Age
See his blog on the ICT at http://bangladeshwarcrimes.blogspot.com/
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