Int'l Crimes Tribunal: growing independence or a return to being the rubber stamp?
by David Bergman
THE International Crimes Tribunal, set up to try Bangladeshi citizens accused of war crimes during the 1971 war of independence, may not yet meet international standards; however, it did make two important decisions in the last fortnight that suggested that the tribunal members were not simply rubberstamps for prosecution applications.
And these two decisions could not have come sooner for those seeking some indication that the tribunal could both act independently and also be mindful of the rights of the accused.
However, on Wednesday, just when things were looking up, the tribunal showed itself to have lost its backbone by passing an order which reversed one of these decisions. Is the tribunal back to square one?
Over the last eight months, the three-member tribunal has approved every substantive application made by the prosecution and rejected practically all those applications that have been made by the defence.
These decisions were not necessarily 'wrong', of course, but after an eight-month run of decisions against it, the lawyers for the accused certainly had good reason to doubt whether the tribunal was ever going to act independently of the prosecution.
However, on the last day of March, in giving conditional bail to former BNP lawmaker Abdul Alim, the tribunal indicated that its decisions would not simply reflect the prosecution's priorities.
Till that point, all six accused—of whom five are Jamaat-e-Islami leaders and one is a BNP member of parliament—had been detained in prison by the tribunal to allow for an 'effective and proper' investigation. In each case, the prosecution had claimed that these men were powerful and influential persons able to interfere with the investigation being carried out and to intimidate witnesses, and therefore needed to be detained. And on each occasion the tribunal accepted that argument.
In a bail application last month on behalf of Delwar Hossain Saydee, the defence lawyer claimed that his client would be willing to abide by any condition the tribunal wished to impose—including forfeiting his passport and the restriction of his movements—if he was given bail. However, yet again the tribunal sided with the prosecution's claims that his release was a risk to its investigation.
The decision to give conditional bail to Abdul Alim broke this sequence of rulings.
On March 27, at the request of the prosecution, the tribunal issued a warrant for Alim's arrest. From his home district of Jaipurhat, he was brought to court the next day, and following a short hearing, the case was adjourned till March 31.
On that day, the prosecution argued that Alim should be detained since he had committed serious offences, claiming that he was involved in the killing of '10,000 unarmed men', and that 'many of the witnesses are frightened' as he 'is a very influential, dangerous and powerful person.'
In response, Alim's defence lawyer stated that the allegations against his client were not substantiated in any way, that the prosecution had provided no evidence that Alim had tried to interfere with the investigation, and that his client was willing to be subject to any conditions of bail imposed by the court.
These were similar arguments that the lawyer had argued, unsuccessfully, in seeking bail for Saydee.
Alim's lawyer, however, also focused on the 'humanitarian reasons' for why his client should get bail. The accused was 80 years old, could not move without a wheelchair, and had prostate and eye problems, the lawyer said.
And, in the end, it was due to his age and medical problems, that the tribunal ruled that he should be given bail.
It may appear that deciding not to send an 80-year-old ill and immobile man to jail who had till then showed no intention of trying to flee Bangladesh was a pretty straightforward decision. But in the current Bangladesh climate, it was a brave one for the tribunal to make and it should be congratulated on having made it.
The tribunal imposed some strict conditions on Alim's bail: his passport was taken away, he was required to live at a particular address, he cannot leave Dhaka without seeking permission from the tribunal, and he must not speak to any witness.
So whilst the prosecution team may have had glum looks on their faces after the decision was made—'the less said the better', one said at the post-hearing press conference—it is difficult to believe that the bail will have any real effect on the investigation. And the prosecutors should perhaps be happy that the credibility of the entire process has improved with this decision by the tribunal.
Five days later, the tribunal made perhaps an even more significant decision Significant, of course, only until it was reversed.
In Bangladesh it is routine for courts to rule in favour of applications by the police requesting that the court remand an accused person into their custody so that interrogations can take place. Perhaps, the courts may not allow the remand to last for as long as the police had hoped, but the courts will very rarely refuse the applications altogether.
So when on April 5 the ICT prosecutors sought the custody of both Matiur Rahman Nizami and Ali Ahsan Mohammad Mojaheed so that they could be questioned over a period of three days, the prosecutors must have been confident that their application would be successful.
Instead, however, the tribunal ruled that whilst the investigation body could interrogate both of the accused, it should be done inside the jail. And only for one day, between 10:00am to 5:00pm.
This decision by the tribunal to deviate from the currently accepted court practice was an important and significant step protecting the rights of the accused.
In making it, however, the tribunal was in fact only following a High Court ruling made eight years ago.
In 2003 the High Court judges Justice Md Hamidul Haque and Justice Salma Masud Chowdhury directed that it should be a normal practice for police interrogations to take place 'in a room in the jail' rather than in police custody. Only in particular situations should a person be remanded in police custody for questioning, the judges ruled.
The judgement also recommended that the 'Jail authorities should construct a room specially made for the purpose [of interrogations] with glass wall and grill in one side within the view … of a close relation or lawyer of the accused.'
The judges said the reason to avoid police remand was due to the evidence of systematic police abuse that took place during police remand.
However, this High Court judgement has only rarely been applied by the magistrate courts.
No one was of course, suggesting that the interrogation team would torture Nizami or Mojaheed, but as the Tribunal must presumably have recognised, if the two were only to be questioned, there was no reason to move the two accused from jail.
There did remain, however, two problems with the tribunal's otherwise progressive order.
The first one related to the presence of the lawyers for the accused. The tribunal order stated that the lawyers for the accused were 'permitted to be present at the adjacent room where the interrogation will be held.' It then stated, 'The learned counsel will not be allowed to hear the interrogation.'
For the tribunal to allow the interrogation to take place in a prison with lawyers in an adjacent room did break new and important ground in Bangladesh and may well also be an improvement on standards in neighbouring countries.
However, if this tribunal wants to meet international norms the lawyers would need to be allowed to be present in the room at the time of interrogation.
It is true that allowing lawyers to be present during police questioning is not part of Bangladeshi, or indeed general South Asian, legal culture—a key reason of course why systematic torture by the police is so common— but it is part of the norms used by most developed criminal justice systems and is required in all the international crime tribunals around the world.
The second concern with the tribunal order related to the failure of the tribunal to respond to the legal arguments made by the defence lawyers. The prosecution application for interrogation was made under rule 16 of the ICT rules of procedure. This states that the tribunal can pass an order that an accused person be given into the custody of the investigation agency if the tribunal itself considers it to be 'indispensable'.
Prior to the ruling, the defence lawyer for Nizami had argued at some length, and in his written application, that the prosecution had failed to give any reason why the interrogation at this stage was really necessary.
The tribunal's ruling, however, failed to mention rule 16 or any of the defence lawyers' arguments. Perhaps the interrogation was indeed 'indispensible', but the Tribunal was surely duty bound, by the terms of rule 16, to explain why it considered this to be so.
It has become a common practice of the tribunal to issue rulings without setting out the reasons and without responding to the legal points made by the defence. As a result, one does not always know the legal basis for the tribunal's rulings or why it rejected particular defence arguments. This may, of course, be common practice in other Bangladesh courts, but perhaps the tribunal should surely be held to a higher standard.
However, the biggest concern, of course is that the decision itself was reversed on Wednesday. How did that come about?
Two days after the court had given its ruling, the Dhaka Central Jail superintendent wrote to the tribunal registrar saying that the jail did not have the space to conduct the interrogations. On the basis of the letter and of conversations an investigation officer had with the jail superintendent, the prosecution applied for the ruling to be modified so that questioning would take place outside jail in the custody of an investigation officer.
On hearing the application (and the defence's response), the tribunal ruled in favour of the prosecution.
However, interrogations in the past have taken place at the Dhaka Central Jail, so why was it not possible now? Moreover, a High Court order, referred to by the Tribunal chairman himself during the proceedings, has for the last eight years required interrogations to take place inside the jail.
Besides, the defence showed the tribunal a rough sketch map of the jail that indicated that rooms were available. There was a room for clients and lawyers to meet, for example.
Was there a concern that there was no 'adjacent' room for the accused's lawyer? Well if that was the case, the lawyer would no doubt have been happy to be in a room that was not immediately adjacent to the interrogation room.
The tribunal just rolled over, without seeking any further information from the jail authorities about the rooms where questioning could take place. The members did not seem to understand the symbolic importance of its original decision, and how their speedy change of mind, without making any further inquiries themselves, only suggests a weak court easily swayed by government authorities and the prosecution.
The original draft of this article submitted before Wednesday's order had concluded on the following note, 'The big picture that should be taken from these two decisions is that the tribunal seems slowly to be finding its own feet, a very important development if it is going to mete out fair justice.'
One day on, and it is no longer possible to be quite so positive. The tribunal registrar said rather wisely a few days ago, 'It will take some time before anyone can properly judge whether this tribunal is independent and fair.' Let's hope that the tribunal can provide more signs of independence and fairness—and a stronger backbone—sooner rather than later.
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David Bergman is editor, special reports at New Age. davidbangladesh@ gmail.com See his blog on the ICT at http:// bangladeshwarcrimes.blogspot.com/.
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