Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense…

I had completely missed the fact that Bangladesh created this year a special Tribunal to prosecute the crimes committed during the 1971 war of independence against Pakistan. The Tribunal started functioning in March this year, at the same time as Bangladesh ratified the Rome Statute, and apparently issued its first arrest warrants this week.

One aspect that caught my attention is the denomination given in one article: “International Criminal Tribunal”, and the fact that it was set up with the assistance of the UN. Are we therefore in the presence of a new hybrid Court? In fact, the denomination is not the official name of the court, and there was no formal agreement between the UN and the country, so it’s a purely national tribunal.
[UPDATE: The confusion on the name of the tribunal is due to a mistake by the JURIST: ICT stands for “International Crimes Tribunal”, not “International Criminal Tribunal”. See ICTJ report issued July 30th]
[UPDATE: The JURIST has corrected the mistake]
Another interesting aspect is the applicable law, the 1973 International Crimes (Tribunals) Act, which was amended in 2009. As pointed out by Steven Kay at ICLB, it’s an interesting and little known piece of post-Nuremberg and pre-UN war crimes tribunal legislation”.
It gives the tribunal jurisdiction over crimes against humanity, genocide, crimes against peace, violations of the Geneva Conventions, and “any other crimes under international law”, the last one raising obvious questions in respect to the principle of legality.
Apart from jurisdiction, I saw three other notable features of the procedure. 
The section on the rights of the accused is quite succinct. It reads as follows:
17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.

[…]

(3) 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.

The accused basically has a right to defend himself against the charges. What a relief… and there is no mention of the presumption of innocence.

The section on evidence is also quite striking:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

[…]

(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. 

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.

 At least, the Act is honest about its desire for expeditiousness. I’m just a little curious as to what “non-technical procedure” is… It sounds like a nice way of saying “absence of procedure”… Also, the scope of possible judicial notice is quite wide, to say the least. The Bangladesh Government is well know for its spotless and impartial record in reporting, and the UN and NGOs always get it right. Why not just take judicial notice of the accused’s guilt (everybody probably knows he’s guilty) and not have a trial at all…

Finally, in terms of judgment and sentence (Article 20), there is no mention of the burden of proof for conviction and the Act provides for the application of the death penalty.

Once again, the rights to a fair trial take a back seat to the fight against impunity, despite the legitimacy of the latter depending in large part on the respect of the former. In this case, the UN and NGOs should distance themselves from this endeavor (I’ve done a rapid search on google, but failed to find any condemnation. If anybody cares to point me towards them if they exist? to be fair, a HRW report does call for respect of the rights of the defense and non-application of the death penalty) which appears to be a mockery of justice.

Just to be clear, I’m not suggesting that Bangladesh can’t do want it wants. If that is what the Bangladesh population want, fair enough. But the international community cannot and should not officially support it.

[UPDATE: The Criminal Law Forum has a Special Issue on the Bangladesh Tribunal this month]

[UPDATE: I was using the version of the Act before the 2009 amendments (i’ve updated the link to the law with the correct version now). The parts I analyse are however unchanged. But to be fair and comprehensive, I should point out that they did add a new provision which states that:

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

And to think that I was doubting that in light of the rest of the Act… I’m totally reassured now…]

2 responses to “Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense…

  1. Yes, there is a tremendous lack of interest in this tribunal. However that those interested in following proceedings the Bangladesh Tribunal, with an analysis of the law and practice might be interested in seeing this blog: http://bangladeshwarcrimes.blogspot.com/

  2. Great post! current Bangladeshi government amended this so called act to try anyone they want to for war crime. Currently they are holding six top opposition political party leaders to try for war crime under this law. Five of them are in jail for almost 200 days without any charge. This so called war crime tribunal is a mockery of justice and this government is doing everything in its power to hang these politicians.Thanks again for the post.

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