Genocide trial's duty to rebuild truth and history

Law Desk (LD): How do you evaluate the idea of domestic trial of international crimes that the International Crimes Tribunal (ICT) in Bangladesh has been doing now?

Irene Victoria Massimino (IVM): From the different experiences around the world, we've seen that usually there are two types of tribunals for the prosecution of international crimes such as genocide, crime against humanity, war crime, etc. Such tribunals include domestic tribunal and/or international tribunal. Generally, international tribunals are created in the context of international organisations, while national tribunals are set up within the territory and in the ordinary official courts of the country or through specialised courts like the ICT of Bangladesh. Comparing both systems, I would definitely – and this is not just for the case of state sovereignty – prefer to national trials and suggest for setting up of national tribunals. However, of course the country must have the capacity to arrange a domestic trial by its own; because international legislation is subsidiary to national legislations. Actually, international legislation therefore recognises that the main authority and power to carry the trial is the national jurisdiction. So, if the country like Bangladesh has the capacity and willingness to do so, then there are many advantages in that initiative. One such advantage is that a national tribunal always has the better knowledge of history, culture and social, political and economic background of the country – everything that surrounds the specific crime, i.e. international crime. These issues are also better dealt within national tribunals. Throughout history, specially in the history of 20th century, we've seen that international tribunals in particular have specific interest that responds in general to the ruling countries of the world, the powerful ones. In order to keep the independence of the trials and interests of the country from external interference it is, thus, very important to hold national trials for international crimes. And as in the case of Bangladesh or Argentina the legislation has allowed us to pursue national trials in compliance with international law and norms.

LD: At the backdrop of many African countries' withdrawal from the International Criminal Court (ICC) in recent times, do you think the ICC as an international forum lacks global confidence of the States?

IVM: The dream behind the establishment of the ICC was to ensure justice for the victims of genocide and war crime, and to end the culture of impunity. But I think – with the establishment of the ICC, that dream to become an international body has ended. Since the establishment of the ICC, it has been trying mainly the perpetrators from Africa. The Court is perceived as being very biased and then there is another problem: not all countries, specially those which have committed most of the atrocities of 20th and 21th centuries in another territory (for example: US's invasion in Iraq, Libya, Afghanistan, etc.), have accepted ICC's jurisdiction. If most of the powerful countries do not accept the jurisdiction of the ICC, then the ICC seems to be an international organisation that is not equally applied to all countries. We need to remember that the international community is based on the principles of equal sovereignty and equality amongst States; although reality is far from that equality. So if we have an international organisation that is not equally applicable for all countries, then the principle of 'equal sovereignty' under international law is not being fulfilled. It's an oxymoron; it's a contradiction in itself. Therefore, I think the power of the ICC has been slowly disappearing and maybe countries like the Latin American ones – which put a lot emphasis on strengthening regional integration – will strongly oppose to the ICC, considering it to be a new and modern form of colonialism, and suggest new international forms of accountability, as it has already been happening.

LD: Often Bangladesh is suggested to forget the past and forgive the perpetrators responsible for the 1971 genocide. What is your opinion in this regard?

IVM: While talking about reconciliation in a post-conflict society specially in the context of your country, Bangladesh cannot forget the past and forgive the perpetrators until Pakistan acknowledges the 1971 genocide and seeks apology for the atrocities it had committed then. The idea of reconciliation suggests that both the parties of a conflict have a lot to do in a given circumstance and circumstances of each country differ in many respects since the pattern and genesis of genocide are not always the same. In the case of Bangladesh and even of Argentina, none of the perpetrators have recognised they committed genocide. In this scenario, I think reconciliation becomes impossible.

LD: How do you evaluate the operation of the ICT trial in Bangladesh?

IVM: The justice systems for the genocide trials of Bangladesh and Argentina have been not only in search of ensuring justice which is a permanent claim of the victims, but also in building history based on the truth of what actually occurred. After the conflicts both countries have experienced the misinterpretation of history through different political scenarios. In post-liberation war time, there were political difficulties in Bangladesh through both military dictatorships and democratic governments and there was a twist in the interpretation of liberation war history as well. Therefore, I think the ICT trials in Bangladesh have the duty to build the forgotten history based on the truth of what comes out of those trials. I have been to the couple of hearings in the ICT and, from those experiences, I can say that rebuilding the truth is what intended to do in genocide trials of Bangladesh and Argentina as well.

LD: Thank you for your time.

IVM: It's my pleasure to talk to you.