Govt position on international standards questioned
David Bergman
Editor for Special Reports bdnews24.com
Dhaka, Aug 12 (bdnews24.com) - The Bangladesh government's repeated public assertions that the country's war crimes law meets international standards is partially undermined by private legal advice it accepted in June.
The legal advice – which the law minister had himself requested and which has been seen by bdnews24.com – suggests that the government should consider making five amendments to the International Crimes (Tribunal) Act 1973 for the purpose of meeting international standards as long as this would not "unreasonably delay the commencement of the proceedings."
The advice goes on to say that if the government considered these amendments would involve considerable delay "the alternative course would be to make a public declaration that Bangladesh as a party to the ICCPR [International Covenant on Civil and Political Rights] is bound to comply with the ICCPR standards as well as [that] constitutional safeguards would guide the Tribunal in ensuring a fair trial and affording protection to the rights of the persons being tried".
The proposed five amendments include revising the definition of the offence of 'crimes against humanity' and ensuring that all three tribunal members were present in court throughout the trial.
bdnews24.com obtained a copy of the legal opinion from the UK Parliamentary Human Rights Group – whose vice-chair Lord Avebury has a keen interest in Bangladesh. It is understood that those who attended a public meeting organised by Lord Avebury at the House of Lords in London in June were given a copy of the legal advice. Some of Jamaat's lawyers were present at the meeting.
A letter from the Bangladesh High Commissioner to Lord Avebury – also seen by bdnews24.com – states that the legal advice represented "the position of the Government of Bangladesh."
Shafique Ahmed, the law minister, has consistently dismissed claims - including detailed advice it had received in 2009 from the United Nations - that the Act needed further reform to be of international standards.
Shafique Ahmed told bdnews24.com that the IBA's report had concluded that the 1973 Act "provides a system which is broadly compatible with current international standards" so that further amendment was not necessary. "I can assure you that the trial will meet international standards, and we are also making it transparent and open and inviting the observers to watch the trial. This is the assurance I will give. There cannot be any flaws, cannot be any violation of the due process, cannot be any violation of human rights. That is a guarantee."
There was further uncomfortable news for the government as a new 120-page analysis of the 1973 Act, just published in a prestigious academic Canadian journal, Criminal Law Forum, is highly critical of the legislation. Written by international lawyer Suzanne Linton, the article raises a host of serious concerns about the law including stating that one provision of the Act "must not be allowed to stand" as it "codifies trial-by-ambush in the form of surprise judicial questioning." It also describes the Act's failure to allow challenges outside of the trial court "a major human rights concern." [http://www.springerlink.com/content/g5124622362v2416/]
The analysis concludes that significant reforms are required in the law. It is not, she states, "just a matter of touching up the law, setting aside something in the budget, appointing the staff and getting going with the job of convicting the persons who are, incidentally, already convicted in much of the public mind."
The Bangladesh lawyers' advice to the government came in response to a legal opinion forwarded by the IBA War Crimes Committee in December 2009.
The IBA's opinion had concluded that some areas in the Act "now appear out of date [including] … the basic definition for some of the crimes".
It also highlighted "significant omissions" in the "rights protecting the interests of individuals on trial" and noted that the "the rights of an individual during the investigation stage" are missing from the Bangladesh legislation.
The legal opinion – which had been sought by the UK parliamentary group - suggested 17 amendments in total.
In February 2010, Anne Clwyd MP, the chair of UK Parliamentary Human Rights Group, forwarded it to the Bangladesh government with a letter stating, "Justice for the atrocities committed during the 1971 war is overdue, but for justice to be done, the process must be a credible one."
The government initially took no action. In June, however, it asked three senior lawyers to provide advice on how it should respond to the IBA opinion.
The legal advice from the lawyers found merit in five of the IBA's 17 proposed amendments: amending the definition of the offence of crimes against humanity; ensuring that all tribunal members attended each day of the trial; allowing the defence counsel to make an opening statement; changing the definition of when a person should be held responsible for those under his control; and ensuring criminal responsibility extends to civilian superiors, not just military commanders.
It rejected the other 12 recommendations proposed by the IBA - mostly on the basis that constitutional protections would be sufficient protection to the defendants. The advice did not, however, mention that as a result of the First Amendment to the constitution passed in 1973, these defendants cannot rely on constitutional protections.
On June 21, the Bangladesh high commissioner in London, Dr M Sayeedur Rahman Khan, forwarded the legal advice to Lord Avebury, vice-chair of the parliamentary group saying that it represented "the position of the Government of Bangladesh as regards the standard and consistency of the International Crimes (Tribunals) Act, 1973."
The IBA's War Crimes Committee comprises a 20-member expert advisory board, including Justice Richard Goldstone who was a former chief prosecutor for the International Criminal Tribunal for former Yugoslavia and the International Criminal Court. It also includes three judges who sat on the Iraqi, Sierra Leone, and Yugoslavia tribunals respectively.
The lawyers' advice, however, has itself come under criticism for giving the government an excuse not to legislate. International Bar Association's (IBA) War Crimes Committee co-chair, Stuart Alford told bdnews24.com, "Either the legislation is fair, and meets international standards, or it is not. Saying that there is insufficient time to deal politically with shortfalls in legislation does not seem to properly satisfy the legitimate concerns that have been raised."
He said that the IBA has not "circulated the Government's response to the War Crimes Committee members. "The meeting at the House of Lords concluded with a desire by Lord Avebury to explore the possibility of a more focused discussion on the legislation between the Government, the IBA and other interested groups."
On 14 July, Lord Avebury reported on his website that, he met up with the High Commissioner for Bangladesh and that they "agreed that the best approach would be for the IBA lawyers to be in touch with the Bangladesh government's legal advisers, and since then I hope we have set the process in motion."
The tribunal has so far issued arrest warrants against Jamaat-e-Islami chief Matiur Rahman Nizami, secretary general Ali Ahsan Mohammad Mojaheed, assistant secretary generals Mohammed Kamaruzzaman, and Abdul Quader Molla, and executive committee member Delwar Hossain Sayedeee for alleged crimes against humanity during 1971.
david.bergman@bdnews24.com
Editor for Special Reports bdnews24.com
Dhaka, Aug 12 (bdnews24.com) - The Bangladesh government's repeated public assertions that the country's war crimes law meets international standards is partially undermined by private legal advice it accepted in June.
The legal advice – which the law minister had himself requested and which has been seen by bdnews24.com – suggests that the government should consider making five amendments to the International Crimes (Tribunal) Act 1973 for the purpose of meeting international standards as long as this would not "unreasonably delay the commencement of the proceedings."
The advice goes on to say that if the government considered these amendments would involve considerable delay "the alternative course would be to make a public declaration that Bangladesh as a party to the ICCPR [International Covenant on Civil and Political Rights] is bound to comply with the ICCPR standards as well as [that] constitutional safeguards would guide the Tribunal in ensuring a fair trial and affording protection to the rights of the persons being tried".
The proposed five amendments include revising the definition of the offence of 'crimes against humanity' and ensuring that all three tribunal members were present in court throughout the trial.
bdnews24.com obtained a copy of the legal opinion from the UK Parliamentary Human Rights Group – whose vice-chair Lord Avebury has a keen interest in Bangladesh. It is understood that those who attended a public meeting organised by Lord Avebury at the House of Lords in London in June were given a copy of the legal advice. Some of Jamaat's lawyers were present at the meeting.
A letter from the Bangladesh High Commissioner to Lord Avebury – also seen by bdnews24.com – states that the legal advice represented "the position of the Government of Bangladesh."
Shafique Ahmed, the law minister, has consistently dismissed claims - including detailed advice it had received in 2009 from the United Nations - that the Act needed further reform to be of international standards.
Shafique Ahmed told bdnews24.com that the IBA's report had concluded that the 1973 Act "provides a system which is broadly compatible with current international standards" so that further amendment was not necessary. "I can assure you that the trial will meet international standards, and we are also making it transparent and open and inviting the observers to watch the trial. This is the assurance I will give. There cannot be any flaws, cannot be any violation of the due process, cannot be any violation of human rights. That is a guarantee."
There was further uncomfortable news for the government as a new 120-page analysis of the 1973 Act, just published in a prestigious academic Canadian journal, Criminal Law Forum, is highly critical of the legislation. Written by international lawyer Suzanne Linton, the article raises a host of serious concerns about the law including stating that one provision of the Act "must not be allowed to stand" as it "codifies trial-by-ambush in the form of surprise judicial questioning." It also describes the Act's failure to allow challenges outside of the trial court "a major human rights concern." [http://www.springerlink.com/content/g5124622362v2416/]
The analysis concludes that significant reforms are required in the law. It is not, she states, "just a matter of touching up the law, setting aside something in the budget, appointing the staff and getting going with the job of convicting the persons who are, incidentally, already convicted in much of the public mind."
The Bangladesh lawyers' advice to the government came in response to a legal opinion forwarded by the IBA War Crimes Committee in December 2009.
The IBA's opinion had concluded that some areas in the Act "now appear out of date [including] … the basic definition for some of the crimes".
It also highlighted "significant omissions" in the "rights protecting the interests of individuals on trial" and noted that the "the rights of an individual during the investigation stage" are missing from the Bangladesh legislation.
The legal opinion – which had been sought by the UK parliamentary group - suggested 17 amendments in total.
In February 2010, Anne Clwyd MP, the chair of UK Parliamentary Human Rights Group, forwarded it to the Bangladesh government with a letter stating, "Justice for the atrocities committed during the 1971 war is overdue, but for justice to be done, the process must be a credible one."
The government initially took no action. In June, however, it asked three senior lawyers to provide advice on how it should respond to the IBA opinion.
The legal advice from the lawyers found merit in five of the IBA's 17 proposed amendments: amending the definition of the offence of crimes against humanity; ensuring that all tribunal members attended each day of the trial; allowing the defence counsel to make an opening statement; changing the definition of when a person should be held responsible for those under his control; and ensuring criminal responsibility extends to civilian superiors, not just military commanders.
It rejected the other 12 recommendations proposed by the IBA - mostly on the basis that constitutional protections would be sufficient protection to the defendants. The advice did not, however, mention that as a result of the First Amendment to the constitution passed in 1973, these defendants cannot rely on constitutional protections.
On June 21, the Bangladesh high commissioner in London, Dr M Sayeedur Rahman Khan, forwarded the legal advice to Lord Avebury, vice-chair of the parliamentary group saying that it represented "the position of the Government of Bangladesh as regards the standard and consistency of the International Crimes (Tribunals) Act, 1973."
The IBA's War Crimes Committee comprises a 20-member expert advisory board, including Justice Richard Goldstone who was a former chief prosecutor for the International Criminal Tribunal for former Yugoslavia and the International Criminal Court. It also includes three judges who sat on the Iraqi, Sierra Leone, and Yugoslavia tribunals respectively.
The lawyers' advice, however, has itself come under criticism for giving the government an excuse not to legislate. International Bar Association's (IBA) War Crimes Committee co-chair, Stuart Alford told bdnews24.com, "Either the legislation is fair, and meets international standards, or it is not. Saying that there is insufficient time to deal politically with shortfalls in legislation does not seem to properly satisfy the legitimate concerns that have been raised."
He said that the IBA has not "circulated the Government's response to the War Crimes Committee members. "The meeting at the House of Lords concluded with a desire by Lord Avebury to explore the possibility of a more focused discussion on the legislation between the Government, the IBA and other interested groups."
On 14 July, Lord Avebury reported on his website that, he met up with the High Commissioner for Bangladesh and that they "agreed that the best approach would be for the IBA lawyers to be in touch with the Bangladesh government's legal advisers, and since then I hope we have set the process in motion."
The tribunal has so far issued arrest warrants against Jamaat-e-Islami chief Matiur Rahman Nizami, secretary general Ali Ahsan Mohammad Mojaheed, assistant secretary generals Mohammed Kamaruzzaman, and Abdul Quader Molla, and executive committee member Delwar Hossain Sayedeee for alleged crimes against humanity during 1971.
david.bergman@bdnews24.com
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