Convicting the guilty or fair trial for the accused?
A year on from the International Crimes Tribunal's first hearing in July 2010, there remains much to be concerned about in both the legal regime and the day-to-day operation of the tribunal. These inadequacies provide much of the ammunition for what the government terms a Jamaat 'propaganda' war to undermine the tribunal, David Bergman argues in the first of a two-part essay
IN THE summer of 2010, when the Bangladesh government invited the US ambassador-at-large for war-crimes issues, Stephen Rapp, to advise its ministers on the legal regime it had established to prosecute those alleged to have committed international offences during the 1971 war, the government seemed, at last, willing to live up to the many promises it had made for the trials to uphold minimum international standards.
It had, of course, received similar advice in the past—from the United Nations, the International Bar Association, the International Centre for Transitional Justice and Human Rights Watch.
While the government had happily ignored their counsel, one could reasonably have assumed that any advice from Rapp would be far more persuasive.
Whereas all the other advice had been unsolicited, Rapp had been specifically invited by the government to come to Bangladesh and speak to ministers.
Also, as Rapp had been a war crimes prosecutor, the Bangladesh government could reasonably have hoped that he would better understand the needs of a prosecuting state.
And, of course, as a representative of the US government, his support for the process would be extremely helpful in ensuring wider international approval.
Earlier this month, a response finally came to Rapp and the others who had given their advice but, while it did involve some changes in the rules of procedure, it nowhere near lived up to the promises made by the government.
Although the tribunal has made some changes to the rules of procedure, they are quite limited, failing to accommodate a number of Rapp's proposals. And, significantly, the government continues to stubbornly refuse to make important changes to the International Crimes (Tribunal) Act 1973 and to Article 47A of the constitution (which prevents the accused from accessing constitutional rights) sought by the other groups.
Rapp has yet to respond. But, apart from his likely concern that many of his suggestions went ignored, he may feel particularly misled by one decision made by the government.
He was told by ministers and the tribunal that a change in the 1973 act was not practicable or realistic, and that the only changes possible were those to the tribunal's rules of procedure.
Yet, just a month ago, parliament passed very complex legislation amending the constitution after only a short period of consultation. In fact, rather than using the legislative opportunity to remove Article 47A—a crucial article behind a number of the problems with the tribunal—the government tightened it up even further, preventing any individual accused, whether or not they were part of 'an auxiliary group' to the Pakistan military, to seek a remedy from the High court.
Till now, many, quite rightly, have given the government the benefit of the doubt over the tribunal. This is the first court of this kind that this country has set up, and it is understandable that the government would need time to feel its ways towards ensuring a proper trial process.
But now, with key failings continuing to remain in the law—and repeated advice being rejected—it is right to ask whether the tribunal has been established for the conduct of a fair trial to determine the innocence or guilt of the accused, or whether the government sees it as a mechanism to convict those whom it has already decided are guilty of international crimes.
Before one considers the extent to which the legal regime remains inadequate and why the government's repeated commitments to holding trials of 'international standard' amount to very little, one should mention the positive aspects in the law.
The rules or procedure now clearly state that a 'person charged with crimes shall be presumed innocent until he is found guilty,' that 'no person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind,' and that the accused will be 'tried without undue delay.' There are also procedures in the 1973 act to ensure that defence lawyers can cross-examine witnesses.
The rules also now state that an accused is 'entitled to a fair and public hearing and to engage counsel at his choice,' and that an offence must be proved 'beyond reasonable doubt'. There is also is now an improved system of regulating bail so that except in 'exceptional circumstances' the maximum detention during the process of investigation will be one year, and bail can be sought at any time.
Many of the attributes of a fair trial are present in the law.
However, despite this, extensive problems remain.
First, section 16 of the International Crimes (Tribunal) Act 1973 prohibits, prior to conviction, either party from appealing against any order or decision by the tribunal including those relating to cognisance of offence, framing of charges, admissibility of evidence and of course, despite an improved regime, bail.
Article 47 A of the constitution bolsters this restriction by denying to those accused under this act the right to seek any remedy from the High Court, including the possibility of even challenging section 16 for being in breach of constitutional rights.
As a result, no decision made by the tribunal, however perverse or unwarranted, prior to conviction, can be appealed.
The need for these 'interlocutory appeals'—part and parcel of the process in the ordinary domestic criminal courts in Bangladesh—is, of course, necessary for all criminal prosecutions. They are, though, arguably particularly necessary in this tribunal as practically all the tribunal's ruling have so far been unreasoned and call out for appeal (see part two of this essay).
In its recent amendment to its rules of procedure, the tribunal has introduced a mechanism which allows the parties to apply to it for a review of one of its orders—a process effectively asking the tribunal to overturn a decision it has just made!
This, of course, is simply not an acceptable alternative to an appeal to another court.
The second problem concerns the wording of two of the offences in the 1973 act—the offences of genocide and of crimes against humanity,
The offence of genocide as set out in the 1973 act allows the offence to be committed if certain conduct is carried out 'with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group.'
In 1972 the offence of genocide was not defined to include the destruction of a 'political group', and even now this is not the internationally recognised definition.
So in the context of the 1971 war, while the internationally recognised offence of genocide could be committed if there was, for example, an intent to destroy the Hindu population (a religious group), it cannot be committed if there was an intent to destroy those who, for example, sought the independence of Bangladesh (a political group).
This is important as if the prosecution decides to prosecute a person for genocide involving an alleged intention to destroy a 'political' group', this would be in breach of Article 15 of the International Covenant on Civil and Political Rights. This provision only permits states to prosecute people for offences that were not recognised as crimes in the country at the time they were committed if the offence was considered criminal 'according to the general principles of law recognised by the community of nations' at that time.
And genocide through the destruction of a political group was not.
There are also similar difficulties with the offence of 'crime against humanity.' In 1973 international law principles required that, for the commission of the offence, the alleged criminal conduct should be 'part of a widespread or systematic attack directed against any civilian population'. This wording, however, is not part of the 1973 act.
The additional phrase is important as it ensures that there is a clear difference, for example, between someone committing an individual murder on the one hand and a 'crime against humanity' on the other. Does the tribunal intend to incorporate these words into the meaning of the offence? It is anyone's guess?
The most obvious way for the government to have dealt with the concerns relating to these two offences would have been to amend the 1973 act.
But the government did not do that.
Rapp suggested another way out of the problem by amending the rules of the procedure so that a document, produced by the International Criminal Court, called 'Elements of Crimes' could became a guide to the tribunal.
But again the tribunal did not do this.
The third problem, connected to the previous point, is that it remains unclear what law will be used by the tribunal to interpret the meaning of the offences in the 1973 act.
It would seem obvious that the tribunal would use the international case law which has been developed over the recent years by the UN-sponsored international tribunals.
But, nothing is stated specifically in the 1973 act or in the rules of procedure. The judges also have not stated their position in the court hearings and, significantly, to the extent that international law has been argued at all so far in the court, the tribunal members have either ignored it or rejected its application to the tribunal.
Connected with this is whether or not the tribunal will use the international case law to assist it in determining the probity of particular kinds of evidence.
Although Rapp states that the 1973 act's broad rule on evidence was in line with other international statutes, he suggests that the tribunal should look towards 'the decision of these [international courts] that have resolved evidentiary issues regarding similar crimes sometimes many years ago after their commission.'
It remains unclear whether the tribunal will do as Rapp suggests. No new rule was introduced to this effect—though, to be fair, Rapp said the tribunal would not necessarily have to make a rule change. However, the tribunal's failure to make this explicit means that the basis upon which the tribunal will make decisions on the probity of the evidence remains uncertain.
Fourthly, the act and the rules continue to be in breach of certain provisions of the International Covenant on Civil and Political Rights which Bangladesh has ratified.
Article 14 (3)(b) of the covenant states that 'adequate time and facilities for the preparation of defence' should be provided; however, the tribunal's amended rule allows the possibility of a trial taking place just three weeks after a not-guilty plea.
While the rules do say that three weeks is a 'minimum' time period given to the defence to prepare its case, the fact that the tribunal thought that it could ever be possible for a defendant to prepare his defence in three weeks seems to suggest that the tribunal will not provide 'adequate time' to the defendants as required by the ICCPR.
Moreover, Rapp noted that this particular provision of the ICCPR had been interpreted to mean that the accused is 'strictly required' to hand over any 'exculpatory' evidence—i.e. evidence that points to the innocence of an accused—that they have identified.
The tribunal had also not adopted any rule to that effect.
Article 14(3)(d) of the ICCPR states that everyone should have the right to defend themselves 'through legal assistance of his own choosing'. The ICT rules do state that there is a right to 'engage counsel of his choice' but effectively prevents foreign counsel from appearing in the tribunal.
It has done this by making their presence in court contingent on consent of the Bar Council, which the tribunal must have known has long taken a view that it is not legally permitted to have non-Bangladeshis to appear in a Bangladesh court.
In a situation where there are no Bangladesh lawyers with experience of defending international criminal offences, the failure to explicitly allow foreign counsel is a significant omission. As Rapp stated, 'The field of international crimes is highly specialised and the participation of foreign counsel, particularly those who have litigated cases in the international and hybrid courts and tribunals, is very important to ensure that uniform or generally agreed standards are observed in practice.'
Article 14 (2) of the ICCPR states that the accused 'shall have the right to be presumed innocent until proved guilty.' Although the tribunal has introduced a new rule that explicitly provides for the presumption of innocence, it is limited by another rule that states that if an accused relies on an alibi, the onus is on him to prove it. Rapp had proposed that that the tribunal change this, but it has not done so (though a new provision does at least say that a failure to prove his alibi cannot be the sole proof of his guilt.)
The fifth problem with the legal regime concerns the rights of the accused during questioning.
In his advice to the government, Rapp said it was normal international practice for a lawyer to be present during interrogations and for the questioning to be recorded.
During the ICT hearings themselves, the judges have argued that such requirements were not necessary as ordinary Bangladesh law did not allow any statement made during a police investigation to be admissible as evidence. It subsequently made a formal ruling to this effect in court.
It was expected that the tribunal would embed this position in the rules of procedure; however, instead of doing so, it introduced a new rule which states that while generally evidence during questioning is not admissible, any 'part of the statement' of an accused, made during the questioning, 'which leads to discovery of any incriminating material' would be admissible.
How this will work is very unclear, but one can see how easily it could be open to misuse, since the interrogation is not recorded and no lawyer is present during the interrogation.
The new rule would seem to allow investigators to claim that any aspect of the evidence that it found against a particular person had in fact been obtained following a statement made by an accused during the interrogation. They can then use this to justify making admissible prejudicial 'statements' allegedly made during the interrogation that the accused may well deny having made.
This clearly is problematic, and removes entirely the tribunal's justification for prohibiting the presence of lawyers during the interrogation.
It is also of concern that the tribunal has created a new rule of procedure which is in conflict with what it had previously stated in court to have been the legal position, and which may have retrospective effect.
And finally, there are concerns about the wider impact of Article 47A of the constitution which prevents any aspect of the 1973 act to be challenged as unconstitutional. So an accused person can neither challenge section 6(8) of the act which prevents the accused questioning the establishment of the tribunal or the appointment of judges nor challenge the way offences of genocide, or crimes against humanity, have been defined (mentioned earlier).
So there remains a long list of outstanding problems, some more significant than others, but which together mean that the tribunal remains quite a distance from meeting either international—or indeed national—standards.
Providing justice to the 1971 victims is an important goal. After forty years the government decision to set up a tribunal is one that every international human rights organisation has applauded.
Yet providing justice to the 1971 victims should not be achieved through an unfair trial process.
There is a very widespread and strongly held assumption in Bangladesh that those currently accused by the ICT are guilty of terrible crimes during the 1971 war.
This allegation is believed as many of the accused were involved in the leadership of the student wing of the Jamaat in 1971 which supported the cause of the Pakistan military, and by their alleged involvement in Al Badr, widely believed to have been involved in atrocities during the war.
The commonly held assumption that these accused men are guilty may well be correct. However, assumptions are not evidence and may, in fact, be exaggerations embellished down the years or indeed prove to be false.
The purpose of the tribunal is to provide a proper forum to assess the evidence provided by the prosecution and allow it to be properly tested.
In order to allow this to happen, one needs a tribunal that provides proper protections to the defence. And, currently, a number of important safeguards, provided by both domestic as well as international laws are absent from the existing tribunal.
The government accuses Jamaat-e-Islami of taking part in a 'propaganda' war to undermine the tribunal. Undoubtedly, since five of their leaders are currently accused of war crimes, the party is doing whatever it can do to undermine the trial. The party's survival is to some extent at stake.
But, ironically, most of the ammunition for Jamaat's 'propaganda' is given by the Bangladesh government.
It is not Jamaat that has brought together Amnesty International, Human Rights Watch, and International Centre for Transitional Justice, and Ambassador Rapp and other international lawyers to criticise the existing law.
It is the failure of the government to make the necessary legal changes.
And if the government wants to defuse the Jamaat 'propaganda', the government can easily do this, by making the changes that Rapp and others have suggested.
But, I think at this stage one can now be clear of one thing. It looks very likely that the government will not do that.
David Bergman is editor, special reports, New Age. He has a blog on the tribunal at http://bangladeshwarcrimes.blogspot.com.
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