Professor M. Rafiqul Islam teaches law at Macquarie Law School Australia. A brilliant academic and prolific researcher, Professor Islam, received 'Outstanding Teacher Award' by Macquarie University in 2000 for his contributions to legal knowledge. The Bangladesh Liberation Movement: International Legal Implications (UPL: 1987) is one of his splendid works. He has extensively written on international criminal law and the ongoing war crimes trial in Bangladesh. Law Desk talks with him on recent several issues related to the International Crimes Tribunal, Bangladesh (ICT-BD).
Law Desk (LD): How do you evaluate the significance of judgements rendered by the ICT-BD? Are all these going to contribute anything new in international criminal law?
Rafiqul Islam(RI): International criminal law promotes trials of crimes at international law by national criminal justice systems. The relationship between international and national criminal jurisdictions is complementary and mutually supportive to each other. The end in view is to maximise justice for victims of heinous crimes and minimise impunity. This precisely explains why still we see so many national courts trying the Nazi criminals of the Second World War today. Article 17 of the Rome Statute of the International Criminal Court (ICC) expressly endorses this complimentarity between the ICC and its state parties' domestic jurisdictions. Viewed from this perspective, the establishment and operation of the International Crimes Tribunal (ICT) in Bangladesh are clearly subsumable in international law. Bangladesh has a long and established history of common law orientation and capable justice system. Being the first ever exclusive national trials of international crimes, ICT judgements will certainly contribute to the progressive development of international criminal jurisprudence. These judgements will be crucial to determine whether the conditions of complimentarity under Article 17 of the ICC Statute work satisfactorily or warrant a searching reappraisal towards reform.
LD: How do you view the amended appeal provision in the ICT Act? Can the parliament amend a law when the trial is on process? If the amended provision also applies in Kader Mollah case, will it attract non-retroactivity principle?
RI: Being the law-making body functioning under the constitutional principle of the separation of power, Parliament can enact law regardless of what is going on in the judiciary which is also entitled to function independent of acts in Parliament. The history of common law in littered with examples of parliamentary amendments on matters under judicial consideration. Australian Parliament has enacted applicable amendments during ongoing trials. Australian Parliament amended the Australian Migration Act many times whenever refugee claims are filed with the High Court of Australia. In the Teo case 1994, Australian Parliament even made to halt the execution of the judgement of the High Court on a matter that Parliament was then contemplating to legislate.
International crimes and their trials have been seen over the history as special in nature in that they are different in gravity and purpose. Consequently no appeal lies in normal courts against the judgements of either ad hoc specialised criminal tribunals or the ICC. Most past trials by ad hoc tribunals had no appeal provision, though few had and still have review provision by the same specialised tribunal that gave the judgement. Similarly the ICC itself has an Appeal Chamber to hear appeals against the judgements of the ICC trial Chamber.
In this context, the appeal provision in section 21 of the ICT Act 1973 is unique and a departure from the relevant international standard. The previous appeal provision suffered from the lack of parity of appeal right in that it offered the losing party an unqualified right to appeal but the winning party had only a qualified right to appeal, which was discriminatory at its best and unjust at its worst. Through the recent amendment, Parliament has merely addressed this anomaly in the legal right to appeal. If it is argued that this amendment and its retroactive application would compromise the due process, it must also be noted that the previous imbalanced appeal arrangement significantly militated against the due process to which the winning party was entitled to. This recent amendment was in order and indeed imperative to render justice and due process to all parties, not just one over the other. Although the alleged insufficient sentence in the Mollah judgement has triggered this amendment, it need not be looked at in a particular case specific situation. There are more judgements to come in the future. Every case has complainant and respondent parties and both are entitled to equal rights and treatments.
LD: How an organisation can be prosecuted and punished within the contemplation of the ICT Act? Is there any similar provision (prosecuting organizations) in contemporary international criminal law?
RI: Since Parliament has validly enacted the recent amendment, an organisation may be brought under the jurisdiction of the ICT pursuant to section 3(1). The Nuremberg Charter and the judgement censoring criminal activities of the Nazi party may be cited as an example. The formal banning of this party became academic due to its demise following the death of Hitler. Quite consistently with the Nuremberg judgement, the two judgements of the ICT clearly implicate a particular political party members committing, corroborating, aiding, abating, and conspiring the commission of international crimes. However, international criminal law is based on individual criminal responsibility and culpability, which must be attributable to the organisation to show that individuals perpetrated the designated international crimes to advance the ideology and principles of that organisation. It must be proved that without this causal organisational affiliation, link, and conviction to its ideology and principles, such crimes would not have happened or would have happened to a lesser extent and frequency.
In this respect, Article 38 (c and d) of the Constitution of Bangladesh is relevant. It says that no association can be formed if 'it is formed for the purpose of organizing terrorist acts or militant activities against the State or the citizens or any other country and its formation and objects are inconsistent with the Constitution'.
LD: Some quarters have demanded the non-applicability of presidential clemency by amending Article 49 of the Constitution. Do you think that royal prerogative can be abridged? If such amendment is done, would it be a violation of due process?
RI: Since international crimes trials and sentences are special and the convicted and accused are members of a political party which was in power and may well be in the future. Viewed from this perspective, the demand for the non-applicability of presidential clemency may have some merits. The clemency under Article 49 of the Constitution is an executive prerogative, not a judicial due process. As such no violation of due process would arise. However, any move to amend Article 49 appears premature, if not unwarranted, at this stage.
LD: The ICT Act prescribes for a non-mandatory death penalty i.e. death penalty is not the only punishment. Whereas, there is a huge popular expectation that anything less than the death penalty will not be acceptable. Given the situation the appeal process, the role of the Appellate Division and our judicial legacy are very significant to address the issue. How do you view this matter?
RI: The reactions from both parties are natural and understandable. The victims of crimes are usually unhappy with any sentence not up to their expectation and demand the highest available sentence, whilst the accused parties claim their innocence and release. It is happening every day in every jurisdiction. Any claim that such reactions constitute contempt of court is preposterous. All judiciaries and their judges are used to these reactions and stay above them to administer justice according to the applicable law and sentence proportionally to the alleged crimes. The Appellate Division judges of the Supreme Court are the most experienced and senior judges, who would be able to withstand any extra-legal pressure and stay beyond political influence. I am confident that judges are mindful of the fact that they are judging a national issue.
The most important aspect of this appeal is that the Appellate Division did not have this ICT appeal jurisdiction under the existing civil or criminal laws of Bangladesh. These laws may have terms and conditions of appeal, which are irrelevant and inapplicable to any appeal against ICT judgements. The jurisdiction of the Appellate Division to hear and decides appeals against ICT judgements has specially been created in the 1973 ICT Act through amendments in 2009 and 2013. In other words, the source of appeal jurisdiction of the Appellate Division is exclusively the 1973 Act and the jurisdiction must be exercised consistently with the provisions, objects, and spirits of the 1973 Act, particularly its section 19 which is the essence and hall-mark of every specialised trial of international crimes in the world both past and present alike. Reliance on other sources of law, except the Constitution being the supreme law of the land, is likely to cause legitimacy crisis.
LD: The government has not yet taken the initiative to protect the witnesses. Do you think that it is going to take a toll on the judicial process?
RI: Witness protection has been an integral part of every international crimes trial and it is exceedingly important, as witnesses may be susceptible to risk of their physical security. Rape witnesses are especially vulnerable to social stigma in Bangladesh. It is imperative that government provide protection for witnesses from both sides wherever necessary.
LD: Thank you very much
RI: You are welcome!