War Crimes & The Rule of Law

War Crimes & The Rule of Law

Bangladesh, 40 years after gaining independence in a brutal civil war, is holding a tribunal to prosecute alleged war criminals. But the apparent lack of due process could undermine the tribunal’s credibility, leaving the ruling Awami League party vulnerable to accusations of political retribution.

The International Crimes Tribunal of Bangladesh (ICT) has, in the last 15 months, sped up its prosecution of individuals for war crimes, crimes against humanity, genocide, mass rape and other violations of international law. Many view the trial as a way to achieve long-delayed justice; some of the alleged war criminals have been able to operate freely, without inquiry, despite their potential connection to atrocities that have lingered in the minds of Bangladeshis for decades. For a nation still struggling with democracy, the ICT’s success could be a triumph for the rule of law. But questions about the ICT’s own commitment to the rule of law persist.

International watchdogs such as the United Nations, International Bar Association, International Center for Transitional Justice, and Human Rights Watch have expressed concern over the trial’s fairness. The ICT practices, they insist, fall short of internationally

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recognized standards of due process. These groups have criticized the tribunal‘s vague governing statutes, confusing procedures, poorly reasoned rulings, and other flaws. The ICT has detained suspects with no charges for close to a year, conducting interrogations without the presence of defense counsel, and leaked dubiously obtained confessions to the media. It frequently issues rulings without any explanation or support, often failing to acknowledge arguments from both sides. Under pressure from the watch dogs, the ICT recently inserted important protections, such as a presumption of innocence and a right not to be tortured, but overall the changes have been limited. Notably, the government refuses to make changes to the International Crimes (Tribunal) Act of 1973 and to Article 47A of the constitution, the latter of which withholds from the accused constitutional protections guaranteed to all other Bangladeshis.

Many critics argue the ICT is being used by the Awami League as a weapon against their political opposition, the Bangladesh National Party (BNP) and Jamaat-e-Islami (Jamaat). Both parties, together, governed Bangladesh in a coalition from 2001 to 2006, after which a caretaker government designed to oversee national elections took over.

The Awami League regained power in 2009, and an important part of their reelection platform was to bring the war criminals of 1971 to justice. So, last August the ICT arrested seven people for alleged war crimes. Five of the seven accused are Jamaat leaders, including two former Parliament ministers, and the other two are members of the BNP. It has been alleged that during the war, Jamaat organized a militia to support the then-West Pakistani (now Pakistani) army and was involved with pro-Pakistani paramilitary groups. Jamaat’s leadership denies these allegations.

Critics of the ICT argue that its targets, its timing, and its disregard for procedure suggest that it is being used more for vengeance than justice. The possibility that the legal body created to adjudicate Bangladesh’s most painful crimes is being wielded for retribution is deeply concerning.

Bangladesh has long suffered a reputation for governmental corruption; one of ICT’s ancillary goals was to demonstrate the country’s commitment to the rule of law. Towards this objective, the government invited Stephen Rapp, United States Ambassador-at-Large for War Crimes Issues, to help bolster confidence in the tribunal process. In advance of Rapp’s arrival, Foreign Secretary Mohamed Mijarul Quayes reportedly declared, “There are two things we want from this process: for it to be transparent, and consistent with international standards. We hope these consultations will help.”

Ambassador Rapp has visited Dhaka twice since then, and in March he submitted a 10-page letter to the Bangladesh government stating concerns and recommendations. At the core of Rapp’s, and other international observers’, concerns, is the need to have the procedures of the ICT in line with the standards of international law and on level with the procedures of other international crimes tribunals, such as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). Moreover, this is consistent with the legislative origin of the ICT, the International Criminal Tribunal Act, which was intended to build upon the example set by the Nuremberg laws.

History of the Act

Established in 1973, the International Crimes Tribunal was a response to atrocities committed during the 1971 War of Liberation in which East Pakistan seceded from West Pakistan, resulting ultimately in the sovereign state of Bangladesh.

The fighting began in March 1971, when West Pakistan launched “Operation Searchlight” against the Bengali population in East Pakistan to quell nationalistic ferment. It ended ten months later when India intervened, invading Pakistan and routing its forces in under two weeks. Bangladesh declared its independence shortly thereafter. Sheikh Mujib, the leader of the Awami League party, and victor of a country-wide election that had precipitated the conflict, became the new country’s first prime minister.

The struggle for independence was brutal and short. The war in total spanned from March to December 1971, and came to an end shortly after the intervention of the Indian army. No systematic accounting has been done of the total lives lost, but popularly accepted figures in Bangladesh claim near 3,000,000 deaths.

With the assistance of Bangladeshi colla-borators, Pakistani forces specifically targeted intellectuals, professors, students, doctors, and engineers, who were rounded up, murdered, and buried in mass graves. Some 8 to 10 million refugees fled to India to avoid the effects of the conflict, and roughly a quarter-million women and girls are believed to have been raped by Pakistani forces, some being held against their will as slaves or forcibly impregnated.

The International Crimes Tribunals Act, or ICTA, was passed in 1973 as a response to these atrocities. The act’s stated goal was “to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.” Taking the Nuremberg laws as a basis, the ICTA comprised a significant contribution to the development of international criminal law at the time. However, several legislative and executive orders effectively halted the trials and gave immunity to certain select groups, a process that has tainted the political and legal culture of the nation ever since.

The Bangladesh National Liberation Struggle Indemnity Order issued in 1973 provided immunity to all Freedom Fighters, a name given to people who fought on behalf of the mukhti judho, or liberation war, as it is known in Bengali. Prime Minister Mujib declared a general amnesty for all Bangladesh citizens who had collaborated with West Pakistan except those accused of murder, rape, arson, or genocide. Pakistani prisoners of war, including those who had committed war crimes, were repatriated to Pakistan without ever being charged. This was the first in a series of indemnities that was, in theory, designed to help the new country move on from its bloody origins.

In 1975, Sheikh Mujib and members of his family were assassinated in a military coup. Individuals who had been tried and convicted under the Collaborators Order were pardoned by the new military regime, and the Order was repealed. The ICTA, however, was never abolished and currently stands as the mechanism with which to prosecute Bangladeshi citizens not previously given immunity for war crimes committed forty years ago.

The ICTA was essentially dormant until 2008 when current Prime Minister Sheikh Hasina ran on a platform to aggressively prosecute “the war criminals” from the Liberation War. After her victory and the Awami League’s return to power, Parliament passed a resolution in early 2009 allowing for expedited proceedings under the ICTA, which was marginally altered later in the year. The Tribunal subsequently issued its Rules of Procedure, and within a short time, seven individuals had been arrested and detained by the authority of the Tribunal.

As of this writing, only Jamaat leader Delwar Hossain Sayedee has been formally charged. All but one of the accused—BNP member Salahuddin Quader Chowdhury–remain in detention. Amongst Sayedee’s alleged crimes are the murders of over 50 people, torching villages, rape, looting, and forcibly converting Hindus to Islam.

The Question of Due Process

Since the resuscitation of the ICT and the inception of the tribunal, the international law and humanitarian rights communities have steadily voiced their concerns. These communities conceive of the ICT, rightly, as not merely a domestic legal regime for Bangladesh to prosecute alleged war criminals, but as a part of the bulwark of international law. As a signatory to the Rome Treaty, Bangladesh has pledged to uphold legal proceedings of a certain standard.

There is little doubt the current ruling party wants Bangladesh to be seen as a lawful democracy. The ICT represents an opportunity for Bangladesh to not only bring the perpetrators of war crimes to justice, but to showcase the progress of their democracy before the world. It is in both their interests politically, and the interest of the rule of law, to consider the following issues.

The foremost problems with the current rules and procedures are Articles 47(3) and 47A of the Bangladeshi Constitution. These clauses, added shortly before the hearings began, deny a number of constitutional protections to Bangladeshi citizens who are being detained or prosecuted under the ICTA. For example, Article 47(3) prohibits such individuals from challenging any law, including the amendments themselves, on the ground that it is unconstitutional. Article 47A further strips those individuals of specific constitutional rights that are guaranteed to all other persons in Bangladesh, such as the right to protection of the law (Art. 31), protection from ex post facto (retroactive) laws and the right to a speedy and public trial (Art. 33), and the ability to enforce guaranteed rights (Art. 44).

Furthermore, the accused are denied the right to interlocutory appeals, a minimum standard in international courts. A recent change allows the defense to make an appeal on a ruling by the tribunal, but only to the tribunal itself. In essence this allows for the defense to ceremonially appeal a ruling to the same judge that issued it. This should be rectified.

Prosecutors continue to remain stubborn in their refusal to share with defense counsel discoverable documents and any extraneous (and potentially exculpatory) evidence found during investigations until only three weeks before the hearings begin. This represents a major abrogation of recognized international, and indeed most, legal norms, as the defense is given insufficient time to prepare their cases. International observers along with defense counsel have been imploring the ICT to clean-up these procedures, but the court so far has either offered only deaf ears, or else tolerated passive aggressive intransigence by the prosecution on the matter.

The ICT(A) is of course designed to stack the cards in favor of conviction. The Act specifically provides that the Bangladesh Evidence Act and the Code of Criminal Procedure, both of which apply in all criminal proceedings in Bangladesh domestic courts, do not apply to proceedings under the ICTA. Further, the Act provides that “the Tribunal shall not be bound by the technical rules of evidence.” This makes the work of investigators and prosecutors much easier, but one can see how problematic it is when trying to ensure a fair trial.

Finally, the by-laws of the tribunal allow for the defense to seek counsel from outside the country. It has been strongly recommended, by Rapp and others, that all foreign counsel is furnished with the appropriate visas to come to and work in Bangladesh. Despite this, Barrister Toby Cadman, a British attorney retained by all five of the accused members of Jamaat, was denied entry into the country on explicit order of the home ministry in advance of the first criminal hearings involving Sayedee. Certainly, if the Bangladesh government wants the Tribunal to be perceived as being non-biased and in congruence with international norms and standards, this is not a good way to go about doing it.

One could argue that some of these failings, taken on their own, do not constitute an absence of due process. As a whole however, in concert with the constitutional amendments, the ICT clearly falls short of the standard of a fair international war crimes trial.

Domestic Tenor

The tribunal has gotten some things right. The proceedings are conducted in a sizeable, clean facility. Journalists have been allowed to witness and report on the hearings with minimal fuss. The conduct between judges and counsel has been respectful and professional, and though their arguments are frequently ignored, the defense counsel has been permitted to make citations to international law without censure or reprisal.

Still, at this juncture serious misgivings remain about the efficacy and impartiality of the tribunal. If it wants to be perceived with any degree of seriousness or legitimacy outside of Bangladesh, it needs to take stock of itself and its role both within Bangladesh's national heritage and as a judicial body contributing to the development of international criminal law and justice.

Despite the constant haranguing from international observers, it’s possible that the court suffers from a kind of epistemic closure. Reactions to the tribunal inside Bangladesh are considerably different than that of the international community. There is a distinct lack of concern amongst domestic human rights organizations or other independent civil society people for the ICT’s standards. This is probably because no one from the Bangladeshi political center wants to be perceived as supporting the interests of the Jamaat and alleged war criminals; an accusation that was reflexively lobbed at London based The Economist when they dared to question the fairness of the proceedings. Few understand the details of the legal and operational concerns, which to laymen seem nitpicky and beside the point. Criminal trials tend to be fraught, arbitrary affairs in Bangladesh anyway, with little priority being placed domestically on judicial reform. With regards to the ICT, most assume the accused are guilty, and the tribunal’s sole raison d’être is convicting and punishing them; the question of standards and the rule of law, insomuch as they are understood, are dismissed as nuanced concerns for apologists and foreign interlopers.

David Bergman

David Bergman, who closely covers the tribunal from Dhaka, recently spoke to South Asia Journal about the tenor of the proceedings. He provides consistent and thorough reports for the English speaking world in the Bangladesh newspaper New Age, and on his own blog covering the tribunal.

When asked about the seemingly mounting international skepticism regarding the ICT, Bergman offered this bit of perspective:

“I think the vast majority of the international community supports the principle of the country deciding to hold trials of those accused of war crimes during the 1971 war, with many of them seeing that there could technically be benefits to the country from dealing with this history of immunity, the first original sin, as some people have called it.”

On the subject of legitimacy and whether the tribunal was a political show trial, Bergman gave a strong objection, noting that the exact course of the trials themselves had yet to be
determined:

“I think it is important to recognize that the people arrested are amongst the most appropriate targets of those alleged to have committed war crimes,” he said. “What I mean by that is that these people were certainly not detained simply because they were political opponents; there was reason to investigate their conduct in 71. That is of course not to say that the allegations made are necessarily correct.”

Bergman did, however, admit: “These trials do provide a political opportunity for the government – since the detained men are members of the opposition, and no doubt there are some people who see the trial as a possible double-whammy: the trial of alleged 1971 offenders and the demise of the leadership of the Jamaat.” He is of the position that it is precisely because opposition leaders are amongst those accused that makes it is so important for the tribunal to ensure the trials are fair and independent.

Recently there has been significant debate over the notion of genocide with regards to the 1971 Liberation War. Notably, Oxford University professor Sarmila Bose’s recently penned book Dead Reckoning offers a dissenting voice, alleging that figures about the total number of rapes and murders are greatly exaggerated. Although the book has been criticized from disparate quarters for its methodology, it represents a first salvo in what may be a forthcoming torrent of scholarship that attempts to systematically analyze the atrocities that occurred in ’71.

Bergman notes however, with respect to the accused, “Numbers should not impact upon the war crimes tribunals. The numbers of those who died, whatever the number, are very large, and the trial will be focusing on specific allegations about specific people, so the total numbers of deaths I don't think is significant for the tribunal.”

The major test for the ICT is whether it will be able to conduct the investigation and prosecution without the help of international prosecutors and investigators. As of yet, they have not solicited any input from those with international criminal law experience and the experience of investigating atrocities decades after they have happened. Since the defense has been allowed, at least nominally, to seek the help of international lawyers, should not the prosecution do the same?

“I think it was always going to be a great great challenge for Bangladesh, with a very creaking criminal justice system, to pull off a trial of this kind which would have international credibility,” says Bergman, “Remember just about no lawyer in Bangladesh has experience in international crimes, and police are not known for their deductive investigations. I think the refusal of the government to bring in international experts in investigation, prosecution et cetera, was a significant mistake.”

Conclusion

Pressure from the U.S. and other international outlets has led to some cursory changes to the ICT rules and statutes. The latest changes to the Tribunal’s rules, dated July 28th, 2011, made some crucial improvements. However, as Shahinur Islam, the tribunal’s registrar admitted, “With international standards, we’re not there yet.”

The International Crimes Strategy Forum (ICSF), a Bangladesh based think tank that supports the Tribunal as presently constituted, has pointed out that the ICT is a purely domestic court, and that ultimately Bangladesh is under no actual obligation, legal or otherwise, to mete out a trial consonant to international standards:

“The ICT is purely a domestic tribunal that has been established to try crimes of international nature criminalized by a piece of domestic legislation enacted by the Bangladesh Parliament. In other words, the legitimacy of the International Crimes (Tribunals) Act, 1973 is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by ICTA and not any other legal instruments of international nature.”

This is the intellectual ballast that allows the Bangladeshi Government to remain obstinate in the face of criticism. Legally, they have no requirement under the Rome Statute to comply with international standards for crimes committed and laws drafted before the signing of the treaty (1998). Furthermore, a trial perfectly consonant with international standards would make securing a conviction more difficult for the prosecution. Some have even argued that without the constitutional exceptions allowed in the ICT(A) and amendment 47(A), with the crimes now 40 years passed, the evidential threshold would be too high for the ICT to operate.

By invoking international law, the ICT draws the attention of discerning observers the world-over. Despite this attention, the ultimate sovereign in these proceedings remains Bangladesh and Bangladesh alone. The next few months will show whether Bangladesh’s War Crimes Tribunal will shine as an exemplar of justice and the rule of law, or whether it will join that nation’s history of skewed legal ignominy. ■

__________________________

Abeed Hossain received a BA in philosophy from Rutgers University

and is a contributing editor to South Asia Journal.

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