Inputs for the US Congress on the War Crimes Trial and on Accountability
A. Why the ICT-BD
The government of Bangladesh enacted the International Crimes (Tribunals) Act 1973 for investigation, prosecution and punishment of the perpetrators of those crimes. The entire nation wants to come out from the culture of impunity. Without prosecutions, there would be no healing. In post conflict societies, peace only comes with justice. The Government of Bangladesh cannot shrink off its responsibilities, if it aims at a democratic, developed and peaceful Bangladesh. It is to be reiterated that Bangladesh considers that the right to remedy should also belong to victims of war crimes. State has an obligation to remedy crimes against humanity and serious human rights violations.
The Tribunal (ICT-BD) has been constituted on 25 March 2010 under our domestic legislation known as the International Crimes (Tribunals) Act, 1973(the Act XIX of 1973). The degree of fairness as has been contemplated in the Act and the Rules of Procedure formulated by the Tribunal under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national needs such as, the long denial of justice to the victims of the atrocities committed during 1971 independence war and the nation as a whole.
Ours is an ex-post facto legislation enacted in 1973 and after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal on 25 March 2010. Independent Investigation Agency and the prosecutors' Panel have also been established under the Act of 1973. Such domestic jurisdiction of the State is surely one of the manifestations of state sovereignty and hardly raises any concern from other states or bodies. But the concerns raised revolve chiefly the apprehension regarding respecting the cardinal principles of due processes and fairness of trial.
B. Composition and Nature of the Tribunal
Section 6(2) provides that any person who is a Judge or is qualified to be a Judge, or has been a Judge of the Supreme Court of Bangladesh shall be appointed as Chairman and Member of the Tribunal. Accordingly, currently the Tribunal is composed of one Chairman and two Members of whom Chairman and one Member are the sitting Judges of the Bangladesh Supreme Court and another member is a retired District Judge.
The crimes defined in the ICTA 1973 are regarded as matters of international concern because of their grave character and thus, excepting the specific nature of the crimes, the ICT-BD is purely a domestic tribunal that has been established to try crimes of international nature criminalized under our domestic legislation enacted by the sovereign Parliament of Bangladesh
Merely for the reason that the Tribunal is preceded by the word "international" and possessed jurisdiction over crimes such as Crimes against Humanity, Crimes against Peace, Genocide, and War Crimes, it will be wrong to assume that the Tribunal must be treated as an ''International Tribunal''
C. Pre-charge detention
Currently , seven persons allegedly responsible for committing the offence(s) as enumerated in the ICTA 1973 have been detained only when on request of prosecution the Tribunal is satisfied that such detention was necessary for effective and proper investigation and also for effective and expeditious trial. Investigation Agency is entrusted to investigate into 40 years old system crimes committed in violation of international humanitarian law, Genocide Convention. Considering the needs of IA for effective investigation those persons allegedly responsible for perpetration of offences enumerated in section 3(2) of the ICTA 1973 the Tribunal ordered their detention. In no way they cannot be said to be arbitrarily detained.
Additionally, Different countries follow different processes. It should be kept in mind that different countries have different procedures and different courts have had different procedures. The Cambodia court which follows a more continental law basis system has, in fact, detained the four cabinet members of the Pol Pot government for close to three years before formal charging, during the investigative process. So it is permitted. It is permitted to detain people, though the conditions of their continued detention have to be subject to judicial review. Thus, the persons detained cannot be said to have been arbitrarily detained on any count.
In ICT-BD, question of bail at pre-charge stage is being periodically reviewed and the Tribunal has formulated explicit jurisdiction in Rule 9(6) of ICT-BD in this regard. Rule 9(6) of ICT-BD reads as below:
"After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused."
We will find that recently Pauline Nyiramasuhuko and 5 others have been convicted by the ICTR and they had been in detention for long 14 years and the accused persons facing trial that has been commenced few months back in ECCC, Cambodia have been in detention for more than three and half years.
However, it does not mean that the ICT-BD intends to justify such prolonged detention and that is why it has formulated rules relating to time frame of completing investigation and rules relating to release of accused on bail on condition to be imposed by the Tribunal. Even till today many accused persons have been detained in ICTR and their trial still in progress since couple of years. War criminal is known as enemies of human kind. Considering the extent of horrendous crimes the suspects have been kept in detention. But in ICT-BD, as we see, within shortest period of time from the date of showing them arrested/detained before this tribunal the IA has been able to complete investigation in most cases.
D. Judicial review of the detention
In ICT-BD, as we see, within shortest period of time from the date of showing them arrested/detained before this tribunal the IA has been able to complete investigation in most cases. In ICT-BD, question of bail at pre-charge stage is being periodically reviewed and the Tribunal has formulated explicit jurisdiction in Rule 9(6) of ICT-BD in this regard. Rule 9(6) of ICT-BD reads as below:
"After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused."
E. Providing notice of formal charge
Article 9(2) ICCPR contains-"Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. " This provision compatibly reflects in the Rule(3) of ICT-BD that provides-
"At the time of executing the warrant of arrest under sub-rule (2) or later on, copy of allegations is to be served upon such person."
Further, Rule 18 (4) of ICT-BD provides
"The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defense." Thus, right to disclosure has been adequately ensured so that the suspect person can have opportunity to defend his own interest.
In our legal system, at investigation stage there has been no room to infer that the allegation under investigation is vague. It is not true that the allegation was not informed to accused instantly after their detention. Therefore and since the Rules contain explicit provision as to right to know the allegation after arrest/detention , right to disclosure of charge(s) and to have assistance of interpreter, as contained in the ICTA 1973 it is not correct to say that accused persons' liberty has been curtailed in contravention of Article9(2) and 14(3)(a) ICCPR.
F. To understand charge and to have adequate opportunity to defend
Adequate time to get preparation of defense is one of key rights that signifies the fairness of the proceedings. Article 14(3)(b) of the ICCPR states,
"To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing."
What we see in the ICTA 1973? This provision has been attuned in Section 16(2) of the ICTA 1973 that reads,
"A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide."
Additionally, what time is considered adequate depends on the circumstances of the case. The ICT-BD is quite conscious ensuring this key right of defense. There has been no single instance that the ICT-BD refused to grant time on appeal or request of the defense side. The Tribunal, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests. It is to be mentioned that there has been not a single instance that any of accused person has been denied any of his right to have time necessary for preparation of his defense or interest.
G. Right of accused during interrogation
There are rules in some other tribunals that if an accused person is questioned he has the right to have his counsel present during that questioning, and he needs to be told that he has that right and that if he can't afford a counsel, that a counsel will be appointed to represent him. But that he can, if he voluntarily waives that right, go ahead and talk.
Such kind of right intends to prohibit coercion, torture etc. Practice of ensuring such safeguard has been developed in ICT-BD despite absence of explicit rules and the Tribunal has made it ensured that at the time of interrogation defence counsel and a doctor shall be present in a room adjacent to that where the accused is interrogated and during break time they are allowed to consult the accused.
H. Key elements of fair trial
It is not correct to say that current legal framework of ICT-BD does not guarantee the required procedural protections of the defendant's right to fair trial both in pre-trial phase and during trial The ICTA 1973 and the Rules framed there under explicitly and adequately offer all the key elements of fair trial which are (a) Fair and impartial tribunal, (b)Public trial,(c)Accused to know of the charges against him and the evidence against him,(d)Entitlement of having copy of formal charge together with documents collected during investigation,(e)Adequate time of getting preparation of defense,(f)Services of a defense counsel and interpreter;,(g) Full opportunity to present his defense, ' including the right to call witnesses and produce evidence before the tribunal, (h) Right to cross-examine witnesses, In the event of conviction, imposition of a sentence which does not outrage the sentiments of humanity, (i) .Right of appeal against final verdict.
The above rights of defense and procedure given in the Act of 1973 and the Rules of Procedure are the manifestations of the "due process of law" and "fair trial" which make the legislation of 1973 more humane, jurisprudentially resonance and legally valid. The Tribunal has made it ensured that at the time of interrogation defense counsel and a doctor shall be present in a room adjacent to that where the accused is interrogated and during break time they are allowed to consult the accused, despite the fact that statement made to investigation officer shall not be admissible in evidence.
I. Presumption of innocence
No one can be convicted unless the charge brought against him is proved 'beyond reasonable doubt'. This is the normal and universally settled criminal jurisprudence that all the courts constituted under valid legislation will follow. This settled norm does not need to be embodied in the Act.
The provision that the burden of proving the charge shall lie upon the prosecution (Rule 50) amply implicates the theory of innocence of an accused until and unless he is held guilty through trial. However, a new rule has been adopted that a person charged with crimes as described under section 3(2) of the Act shall be presumed innocent until found guilty[Rule43(2)].
J. Equality of Arms, Public hearing by competent & independent Tribunal
The ICTA 1973, Rules framed there under and the judicial practices adopted by the Tribunal adequately offer the notion that the persons before the ICT-BD are getting reasonably equal treatment in defending their own interest. Equality of arm is an expression that means that each party must have a reasonable opportunity to defend its interest. Parties are getting this opportunity.
- Section 10(4) provides that "the proceedings of the tribunal shall be public".
- Section 6[(2A)] provides that "the Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial" .
- The Tribunal is composed of competent judges of the Supreme Court of Bangladesh.
- Proceedings are public and transparent. Media, observers are allowed to watch the proceedings.
- The Judges discharge judicial functions according to ICTA 1973, Rules keeping the matter of meeting the highest universally recognized norms of fair trial in mind.
The above provisions and practices are manifestation that proceedings before the ICT-BD are public and transparent and the Tribunal has been functioning quite independently, in exercise of its own wisdom, legal acumen to ensuring highest degree of fairness.
Independence of a judicial mechanism is a key and fundamental condition of its functions and of ensuring fair trial. Section 6(2A) provides that
"The tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial".
This provision is quite compatible with the international standard. This provision together with the provision relating to composition of the tribunal and appointment of judges shall appear to be similar to the organization and composition of the tribunal, qualifications and appointment of judges under Articles 10-13 of the ICTY and ICTR Statute
K. Retroactivity
.
The Act of 1973 has been given retrospectivity, which might be misread by both admirers and skeptics if the facts of the 1971 genocide and the birth of Bangladesh are not appreciated in their contexts. Retrospectivity of criminal law, which has been prohibited in the Constitution, is also a serious concern in the international criminal law jurisprudence, but the case of Bangladesh does not quite fit into that. As mentioned, international crimes are subject to prosecution and punishment irrespective of domestic criminalization of international (war) crimes. The 1973 Act has simply enacted, in a fashion of recognition, the then existing international rules concerning war crimes and crimes against humanity. The duty of the State to locally prosecute international crimes pre-dates the 1973 Act. Moreover, the prosecution of crimes against humanity is a widely acknowledged exception to the principle of non-retrospectivity.
It must be noted that the ICTY was formed in 1993, two years after the commission of crimes, and the SCSL was formed in 2002, eight years after the commission of the concerned crimes. It is hard to see the reasoning behind criticism in questioning the permissibility of the ICTA, a law that was enacted by the Bangladesh Parliament within a year and half of the commission of the concerned crimes.
Not only is the retroactive justice process of crimes a widely practiced legal norm, Article 15(2) of the ICCPR makes a clear exception to non-retroactivity: "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations." The ICTA 1973 is entirely consistent with ICCPR Article 15(2).
The ICC is the only institution which possesses prospective jurisdiction, meaning that it can only deal with crimes committed after its governing statute came into force. Thus, the ICC is rendered incapable of exercising jurisdiction over the crimes committed in Bangladesh in 1971. This is another reason as to why Bangladesh had to, despite being a signatory to the Rome Statute, initiate its own process to try the crimes committed in 1971
L. Witness victim protection
Sometimes, direct witnesses, if available, may not forthcoming to testify, particularly if they do not feel secured and protected. Providing protective measure to the victims and witnesses is thus imperative to ensure their effective participation to the justice system. Such measures may be needed even at post trial stage. The Tribunal has incorporated rules in this regard in its Rules of Procedure
M. Old Age of accused: Core International Crimes
In ICT-BD, one accused M.A Alim (80) is on bail. Six other accused persons (age range (65-75) and one accused Ghulam Azam (89) are in detention/continued detention by order of the Tribunal. All of them are getting all necessary facilities and highest degree of treatment as and when needed. Even one accused Delwar Hossain Sayedee has been allowed to have treatment in hospital of his own choice and own cost.
Time and again the question has arisen: Are you ever too old or too ill to be judged for your past? Are justice and the public interest served by trying such infirm people? Most experts says it's justified—arguing responsibility doesn't diminish with age, especially set against the enormity of the crimes. "Old age should not afford protection to people who committed very serious crimes---that's not a defence. You have to keep in mind the victims who deserve that their tormenters are held accountable; the passage of time doesn't diminish the guilt'"
John Demjanjuk a 91 year old retired US autoworker convicted in Munich in the month of May 2011. His lawyers failed to convince the court that the former Nazi death camp guard was too sick to be tried because of bone marrow disorder, kidney disease, anemia and other ailments.
The age and medical condition of Khmr Rouge accused persons is also a central issue in ECCC, UN backed Tribunal in Cambodia, set June 2011 to judge four of the brutal regime's top officials. Those accused, ranging in age from 79-80, have been suffering from variety of illnesses. Yet, they are in detention. "To let them away because they are old means they would get away with it". Brad Adams, Director of the Asia Division, Human Rights Watch, said about those Khmr Rouge defendants."
(http://www.foxnews.com/world/2011/05/31/aging-ill-war-crimes-suspects-still-face-trials/
N. Rights of defense embodied in the ICTA 1973
· At least three weeks before commencement of trial list of witnesses intended to be produced along with recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intend to rely have to be furnished (Section 9(3)]
· Copy of formal charge together with documents collected during investigation shall be furnished to accused person at a reasonable time before the trial [section 16(2)]
· Before calling additional witnesses or tendering any further evidence notice is to be given to the defense [proviso of section 9(4)]. Objects of these sections are to provide adequate opportunity for getting preparation of defense through due process.
· The accused shall have right to examine witnesses [section 10(1)
· the right to interpreter [section 10(3)];the right to expeditious trial [section 11(3)]
· the right to have counsel engaged at the expense of the government (section 12)
· the right to remain free from compulsion in making confession [section 14(2)];
· the right to inspect document [section 16(2)];
· the right to conduct own defense [section 17(2)];
· the right to cross-examine prosecution witnesses [section 17(3)]
· the right to appeal [section 21(1)]
The Rules of Procedure (ROP) has ensured all the possible and universally recognized rights of defense which principally include—
- Prohibition of arbitrary arrest. Only with the order of the tribunal an order of arrest or detention may be done. (Rule 9)
- Prohibition of prosecution on frivolous charge (Rule 29[2] )
- Prohibition of coercion, duress or threat of any kind (Rule 16(2)
- Prohibition of self incrimination by making confession [Rule 25(2) & section 14(2)]
- Right to be enlarged on bail. [Rule 34(2)]
- Discharge an accused if the tribunal finds no adequate reason to presume that the accused committed the offence charged (Rule 37).
- Adequate time for preparing defense [Rule 38(2)]
- The tribunal may allow appearance of foreign counsel for either party if Bangladesh Bar Council permits so ( Rule 42)
- Appointing defense counsel at state's expense (Rule 43)
- Presumption of innocence [Rule 43(2)]
- Burden of Proof lies on prosecution (Rules 50-54)
- Right to speedy trial [Rule 43(5)]
- Prohibition of self incrimination or making confession [Rule 43(7)]
Finally, we see that the ICTA 1973 and the Rules explicitly offer the key elements of due process and fair trial procedure. The above rights of defense and procedure given in the Act and the Rules of Procedure are the glaring manifestations of the "due process of law" and "fair trial" which make the legislation of 1973 jurisprudentially sound and legally valid. We do not consider inferring that Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which recognized the equality before courts or tribunals, has been denied in any manner, in prosecuting the persons responsible for perpetration of system crimes committed in violation of customary international law.
O. Compatibility of ICTA 1973 with ICCPR (comparison)
In wrapping up, it is necessary to state that the provisions of the ICTA 1973 are compatible with the rights of the accused enshrined under Article 14 of the ICCPR. The following account identifies some of the main rights and also points out the corresponding Sections in the ICTA which acknowledges those rights:
a. To be informed of charge(s) promptly
Article 14(3)(a) of the ICCPR states, "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him."
Section 10(3) of the ICTA 1973 : This provision is reflected in Section 10(3) of the ICTA 1973 which states, "Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.
b. Adequate time for defence preparation
Article 14(3)(b) of the ICCPR states, "To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing."
Section 16(2) of the ICTA 1973: This provision is reflected in Section 16(2) of the ICTA 1973 which states, "A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide."
c. To be tried without undue delay
Article 14(3)(c) of the ICCPR states, "To be tried without undue delay."
Section 11(3) of the ICTA 1973: This provision is reflected in Section 11(3) of the ICTA 1973, which states that a Tribunal shall, "(a) confine the trial to an expeditious hearing of the issues raised by the charges" and "(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements."
d. Right to defend in person and legal assistance
Article 14(3) (d) of the ICCPR states, "To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it."
Section 17(2) of the ICTA 1973: This provision is reflected in Section 17(2) of the ICTA 1973 which states, "An accused person shall have the right to conduct his own defence before the Tribunal or to have the assistance of counsel."
e. Right to examine witness
Article 14(3) (e) of the ICCPR states, "To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
Section 17(3) of the ICTA 1973: This provision is reflected in Section 17(3) of the ICTA 1973 which states, "An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution."
f. Right to Interpreter
Article 14(3) (f) of the ICCPR states, „„To have the free assistance of an interpreter if he cannot understand or speak the language used in court."
Section 10(3) of ICTA 1973: This provision is reflected in Section 10(3) of ICTA 1973 which states, "Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter."
g. Right to appeal
Article 14(5) of the ICCPR states, "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."
Section 21 of the ICTA 1973: This provision is reflected in Section 21 of the ICTA 1973 which states, "A person convicted of any crime specified in Section 3 and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence: Provided that such appeal may be preferred within sixty days of the date of order of conviction and sentence."
It is therefore evident from the above comparative account that the ICTA 1973 does indeed adhere to most of the rights of the accused enshrined under Article 14 of the ICCPR. Furthermore, it must be understood that the purpose of Article 14 of the ICCPR is to provide some general guidelines applicable to ordinary criminal proceedings. Instead, Article 15 of the ICCPR is meant to apply to the other special domestic proceedings related to international crimes, that is, through special tribunals like the ICT.
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