SunSep242017

The Rome Statute of the International Criminal-Court, Complementarity and National Prosecutions:The International Crimes Tribunal Bangladesh

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The International Crimes Tribunal Bangladesh

(Part-1)

This year has seen the ten-year anniversary of the International Criminal Court, the issuance of the first judgment in the case Thomas Lubanga Dyilo, the appointment of a new Chief Prosecutor, Fatou Bensouda of Gambia, and over the course of the last twelve months a number of new State Parties including Cape Verde, Maldives, Guatamala, Philippines and Tunisia have joined the international club. The jury is still out on whether these historic landmarks in international criminal justice will reinforce the principle that a permanent centalised judicial institution is the proper response to a system of justice and accountability involving atrocity crimes, particularly when the superpowers of the United States of America, the Russian Federation and the People’s Republic of China continue to enjoy a one-way relationship with the court via their position as Permanent Members of the United Nations Security Council, but at the same time declining to ratify the jurisdiction of the court. The question therefore inevitably emerges as to whether a centralised justice institution on the international level that offers a system of universally accepted norms, and adopted by a majority, is fundamental to the aspirations of global justice or whether decentralized local justice systems offer greater prospects for the future.

It is right to concede that there has been, over the course of the past decade, much debate over whether justice is better delivered at the local level where trials are held in the very communities where the crimes occurred or whether States in post-conflict transition, most commonly governed by the winning force, are ill-prepared to hold the trials of their opponents, most commonly the losing party, in a fair and transparent manner. The debate is purely subjective and largely case specific. Regrettably, there is no blueprint that can easily be transposed to any given situation.

There are many examples to call on and arguably there are pros and cons for each argument. The internationally supported domestic Bosnian War Crimes Chamber is considered by many to have had relative success, at least in theory, whereas the internationally sponsored ad hoc tribunals of Sierra Leone, East Timor and Cambodia are considered by many to have been a costly, but necessary, mistake. The success benchmark is dependent upon a number of considerations including productivity, cost and overall contribution to development of principles of international criminal justice. The Bosnian War Crimes Chamber, for example, operated on less than 10% of the annual budget of the International Criminal Tribunal for the Former Yugoslavia and the former exceeded the latter’s productivity in its first 3 years of operation. However, it was also characterised by internal political disputes and was not considered competent to deal withsenior military and civilian leaders such as Dr. Radovan Karadzic and General Ratko Mladic.

Accordingly, whilst national and regional tribunals often dispense justice quicker and cheaper, they do not necessarily possess the credibility and legitimacy to put on trial senior leaders in an independent and impartial environment.

The permanent International Criminal Court in The Hague was established to change all that with a system of complementarity that seeks to build capacity at the local level rather than adopt the more imperialistic approach adopted by the temporal jurisdiction tribunals such as the Former Yugoslavia and Rwanda. To date the ICC has focused on The Democratic Republic of Congo, Sudan, Kenya, Ivory Coast and Libya. It’s principle of complementarity remains an enigma; however, as the President of the ICC, Judge Sang Hyun Song, declared in 2010 “…if

Bangladesh ratifies the Rome Statute, it would get technical assistance from the International Criminal Court in

holding trial of the 1971 war crimes.” Judge Song went on to state that the ICC was based on two principles: non-retroactivity and complementarity. These principles meant that the ICC was a court of last resort and so perpetrators had to be tried through the national legal system first.

Only if the national courts failed, then the ICC could step in. It is unclear whether “failure” is the inability or unwillingness to initiate a judicial process or whether it means that the process initiated fails to adhere to the spirit of the Rome Statute and the practice of the ICC.

One ‘judicial process’ that appears to have slipped through the cracks is the International Crimes Tribunal in Bangladesh; an institution that is international in name only. This is a purely domestic tribunal in that it operates without international support or foreign funding. It operates without international assistance by design. Offers for support from the United Nations and other international organizations have been summarily dismissed and often criticized as unwarranted meddling in the internal affairs of a sovereign nation. However, this is a judicial process that risks setting a very dangerous precedent in an extremely volatile part of the world and is simply crying out for international intervention.

The international community that holds justice at the heart of accountability and peace owes the people of Bangladesh, its diaspora, and its neighbours, a process that meets universal standards aimed at bringing a just resolution to the many victims of the 1971 War of Liberation. It is a tragedy that justice has been delayed for more than 40 years, but without urgent international intervention justice will be denied once again.

Recently, H.E. Ms. Tiina Intelmann, President of the ICC Assembly of State Parties stated:

“…joining the Rome Statute has become part of the acquis of international law: a key way for any State to demonstrate its commitment to the fight against impunity in a meaningful way.” It is clear that this commitment must mean more than mere membership. It should be recalled that the law of treaties obliges states from refraining from “acts which would defeat the object and purpose” of the treaty until they declare that they do not intend to become a party to the treaty (see e.g. Article 18 of the Vienna Convention on the Law of Treaties). In this regard, it should be recalled that Bangladesh joined the International Criminal Court as the 111th state party in 2010. It is therefore bound by the Statute of Rome and whilst any trials arising out of the 1971 War of Liberation falls outside of its jurisdiction ratione temporis, it remains bound by “acts which would defeat the object and purpose” of the Statute.

Bangladesh is a case in point of a unique situation whereby a state party to the Rome Statute, has initiated a judicial process that falls outside of the temporal jurisdiction of the ICC and is fundamentally at odds with the standards of due process that lie at the very centre of the permanent court; this would seemingly qualify as “acts which would defeat the object and purpose” of the Statute. The question must be whether the Assembly of State Parties of the ICC has a duty towards its members to ensure that individual state parties adhere to universally recognized standards and that any failure capable of bringing the ICC, as an institution, into disrepute must be addressed with sufficiently broad punitive measures, including suspension or expulsion. If the ICC’s system of complementarity is to serve any meaningful purpose, as the President of the ICC Assembly of State Parties alludes, then the duty of States towards the ICC must be reciprocal. With these thoughts in mind, on 21 November 2012, the International Criminal Court Assembly of State Parties held a lively debate on the Bangladesh International Crimes Tribunal (hereinafter: Tribunal) and its responsibilities towards the ICC at the World Forum Centre in The Hague. The event, hosted by No Peace Without Justice (http://www.npwj.org/ICC/11th-ASP-ICCNPWJ-convenes-side-event-“The-Bangladesh-International-Crimes-Tribunal”.html) witnessed,for the first time since the establishment of the International Crimes Tribunal, Bangladesh in March 2010, representatives from the Government, Defence and Civil Society speaking about the status of the proceedings, the role of the international community and the role of civil society in ensuring that the culture of impunity that has pervaded Bangladesh’s politics for more than forty years is brought to an end. It was noted during the two-hour long discussion, that the Tribunal has come under increasingattack from many quarters, including the United Nations Working Group on Arbitrary Detention, United Nations Special Rapporteur on the Independence of Judges and Lawyers, United States Ambassador-at-Large for Global Criminal Justice, Stephen J. Rapp, Human Rights Watch, No Peace without Justice, Amnesty International, the International Bar Association War Crimes Committee, and the International Center for Transitional Justice for its perceived failure to comply with universal standards of transparency and due process.

The event, chaired by Niccolo Figa-Talamanca, Secretary-General of NPWJ, one of the founding members of the Coalition of the International Criminal Court, hosted A.K.M. Saiful Islam from the Bangladesh Prosecution Section, Mr. Rayhan Rashid from the International Crimes Strategy Forum (http://www.icsforum.org) and Oxford University, Dr. Ziauddin Ahmed, from the Center for Bangladesh Genocide Studies, and Ms. Schona Jolly from the Bar Human Rights Committee of England and Wales. I spoke on behalf of the defence. Niccolo Figa-Talamanca opened the session and briefly spoke about the Bangladesh Tribunal. At the outset he made clear that this did not concern an international tribunal, despite its name, and that it was not to be confused with the ad hoc tribunals or the permanent International Criminal Court. This was a domestic court that was established under national law to deal with crimes of an international character in a domestic legal setting. Mr. Figa-Talamanca then spoke of the principle of complementarity under the Rome Statute and that the ICC was very much a court of last resort. The emphasis was placed on the need for national judicial institutions to prosecute international crimes under national law in accordance with the principles enumerated

under the Rome Statute. The next speaker was Prosecutor A.K.M. Saiful Islam who started his presentation by requesting the audience to respect the many victims of the 1971 War of Liberation by standing for one minute’s silence. Prosecutor Islam then gave a brief presentation of the Tribunal, its history and formation.

 

Concerning the legislative framework, Prosecutor Islam stated that the International Crimes (Tribunals) Act 1973 provided for equality of arms by reference to the bail provisions, which he claimed other international tribunals did not have in their statute, review provisions that permitted for the review of the Tribunal’s decisions, the appointment of High Court judges, and the appeal procedure to the Appellate Division of the Supreme Court.

Prosecutor Islam then went through the Tribunal’s procedures, focusing on victim and witness protection, suspect interrogation, all of which, in the learned prosecutor’s view, meets international standards. In particular, the Prosecutor made a highly misleading statement that an accused person has the right to a lawyer to be present when interrogated. The learned prosecutor stated that the proceedings were open and the media were covering the proceedings. Of note, the Prosecutor made the suggestion that his office was treated like the proverbial “stepson” and the Tribunal acted in a defence-friendly manner. I spoke as a representative of the defence and at the outset made the position clear that this process bore no resemblance to a justice institution. It is not an international tribunal nor, due the wholesale abandonment of fundamental rights, is it a domestic court within the ordinary meaning. I set out in detail the concerns raised by the defence including, inter alia, lack of transparency, discriminatory intent of the legislation by targeting only one side of the conflict, lack of clear definitions of crimes, absence of rules of disclosure and investigations being conducted under a cloak of secrecy. It was stated in unambiguous terms that not only was this not a model of justice, it was in fact setting a very damaging precedent and would set back international criminal justice several decades. It is, in my view, nothing short of South East Asia’s own Guantanamo.

I made it quite clear that I do not consider that this is a process that can properly be described as a justice institution and I do not believe it has the legitimacy or credibility to serve as any model of international justice. The most fervent example of this is the recent abduction of a defence witness. This witness was previously listed as a prosecution witness who the Prosecution several months ago had misrepresented to the Tribunal was no longer available and possibly in India. It transpired that the witness had not given the statement alleged by the Prosecution and he had agreed to testify for the defence on this point. Once the authorities had learned of our intentions the witness was abducted from outside the Tribunal premises by plain clothed officers and remains missing.2 Rather disturbingly, a further two defence witnesses, who previously gave statements to the Prosecution, are also now missing.

By way of background, in the immediate aftermath of the conflict the International Crimes ! 2 See Human Rights Watch report dated 13 November 2012; http://www.hrw.org/news/2012/11/13/bangladeshinvestigate-

alleged-abduction-war-crimes-witness Tribunal Act 1973 was enacted for the purpose of putting on trial 195 Pakistan POWs identified as the most responsible for atrocities committed during the nine-month conflict. The legislation was drafted following recommendations made by the International Commission of Jurists (“ICJ”) – although few of the recommendations were followed as Professor Otto Triffterer, one of the drafters of the ICJ report, has stated. Of particular note is the ICJ’s recommendation that

the Tribunal be established with international judges, prosecutors and defence counsel. It may be recalled that this position was endorsed by Sheikh Mujibur Rahman, the founding father of Bangladesh, in his first televised interview with the British journalist David Frost, at the end of the armed conflict, when he actually called for an international inquiry with the support of the United Nations.

The Tribunal effectively lay dormant for 39 years until the current Awami League Government used its reenactment as their central election pledge. The legislation remains the IC(T)A 1973, with minor amendments passed in 2009 and 2012. It is outdated and fails to apply accepted international standards in a number of respects.

The establishment of the Tribunal was welcomed by the international community as an

indication to the end of impunity that has pervaded politics in the country since the end of the war. Bangladesh is a member of both the International Covenant on Civil and Political Rights and the Statute of Rome for the International Criminal Court since 6 September 2000 and 23 March 2010 respectively. However, from the start it has woefully failed to meet fundamental fair trial rights and due process standards provided for under these treaties. It is essential that the international community, and in particular the ICC Assembly of State Parties, to make this issue a priority.

The international community has an obligation towards Bangladesh in terms of ensuring it has the capacity to establish a process based on the rule of law. It would not be an exaggeration to suggest that the Government of Bangladesh is creating a very dangerous precedent for developing nations that see this is a political tool to stamp out any political opposition. It is important to emphasise that, as an international lawyer specializing in war crimes, the initiative to bring an end to a culture of impunity must be fully supported. It would be quite inappropriate to suggest that such an initiative should be stopped – although in its present form it certainly should not be allowed to continue. As a lawyer, I spent 8 years in Bosnia and Herzegovina advocating for an independent and impartial judicial process to put on trial those accused of having committed crimes during the 1992-1995 armed conflict and for 4 years served on the prosecution in ensuring that those accused of atrocity crimes were brought to justice. I have also spent the past twelve months advocating for an appropriate judicial response to put on trial those who have committed grave crimes in the Syrian Arab Republic. I have also advocated, in the context of Bosnia and Syria, that there needs to be a long-term transitional justice process – not merely a series of politicized trials. The vast majority of examples of war crimes justice institutions demonstrate that international support is essential in order to maintain standards of transparency and due process.

On 24 November 2012 I became aware that one of the members of the audience, a member of the International Crimes Strategy Forum had published a blog in which he made a number of highly controversial, and wholly inaccurate, comments. The author, Nijhum Mojumdar, claiming to represent the International Crimes Strategy Forum, made a number of remarks that require a full response. Further, in order to prevent any confusion a full audio recording will be made available and a full transcript issued.

First, the author suggested that present at the meeting were authors of the Rome Statute and Prosecutors of the Rwanda and Yugoslavia Tribunal, members from different Embassies, NGOs, and hundreds more people involved in international criminal law. In reality, there were significantly fewer participants, possibly around 30-40 in total. It is quite correct to state there were a number of important personalities, but it is quite inappropriate to suggest there were representatives from Embassies and Prosecutors from the Yugoslav and Rwanda tribunals; there clearly were not any prosecutors present. This is not to diminish the significance of the event, there were a number of important personalities present, some of whom asked the panelists important questions, including representatives from the ICTY Association of Defence Counsel, Coalition for the ICC, The Hague Institute for Global Justice and the ICC Assembly of State Parties.

The second point raised concerns a statement that I allegedly made that the trials in Bangladesh should be conducted under the Rome Statute and within international standard. In response, it was suggested that Rayhan Rashid threw in the challenge that there was nothing under the Rome Statute that required domestic trials to be conducted under the Rome Statute. First, it is important to note that it is not my suggestion that the trials should be under the Rome Statute. It is clear that the Rome Statute does not have retrospective jurisdiction. In response to the point raised by Rayhan Rashid, I never argued the point that the Rome Statute requires that it applies to national criminal proceedings; it does not. However, the elements of crimes implemented by the Rome Statute reflect an understanding for the need for clear definitions of crimes. This is in line with the fact that proceedings before the ICT are happening now in 2012 and not in 1971.

Furthermore, there is a requirement under the Rome Statute to cooperate with the ICC and to adopt implementing legislation. Bangladesh has failed to do so. It is important to recall the statement made by the Honourable Prime Minister of Bangladesh, Sheikh Hasina Wajed on the occasion of the United Nations General Assembly 65th Session, in which she declared that:

“Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

The Rome Statute sets up a framework determining whether the national justice system is

‘unwilling or unable genuinely’ to proceed with a case. With respect to inability, Article 17 (2) of the Statute declares that “having regard to the principles of due process recognised by international law” the ICC is to determine whether national proceedings “are being conducted in a manner, which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes.

Admittedly this complimentary principle is only triggered in a situation where the ICC can itself exercise jurisdiction over the case if the national courts are unwilling or unable to proceed; not the case with Bangladesh. However, it is the spirit of the complementarity principle that creates legal obligations which leads to the second limb.

The ICC was established to try and punish only the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is indicated in both Article 17(2) above and the preamble of the Rome Statute which provides that state parties to the Rome Statute are:

resolved to guarantee lasting respect for and the enforcement of international justice”. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation”.

If this fundamental principle was not the case and the Rome Statute did not impose obligations on state parties where it had no jurisdiction as is the case with Bangladesh, then the following scenario could potentially exist in present day Bangladesh. In one courtroom, we have the trial of A and B who allegedly committed crimes against humanity/genocide/war crimes 40 years ago and are being tried according to the International Crimes (Tribunals) Act 1973 with no adherence to Rome Statute obligations; as is presently the case. Hypothetically, in a court room next door is the trial of X and Y who committed crimes against humanity/genocide/war crimes in 2012 and are being tried either in national proceedings or before the ICC with the Rome Statute in full operative use. These two sets of proceedings would be conducted under procedures fundamentally at odds; there would be a total lack of consistency. This defeats the international right to equality before the law under Article 7 of the Universal Declaration on Human Rights.

 

To be continued 

The Rome Statute of the International Criminal Court

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