Trial of war criminals: Some issues
The movement to bring war criminals of '71 to trial has resurfaced with unstoppable vigour and continues gaining momentum at an unprecedented rate. Positive gesture by the government makes us believe that the incessant popular demand has yielded some results at the end. Our interview with Professor Rafiqul Islam will shed some light on the practical aspects of such trial. Dr. Islam is a Professor of Law at Macquarie University, Sydney, Australia. He teaches and has published extensively in the area of international criminal law and court. Today we publish the first part of the interview.
Law Desk( LD): Though the Bangladesh Collaborators (Special Tribunals) Order, 1972 was repealed, fortunately the International Crimes (Tribunal) Act 1973 did not suffer the same fate and still exists. However, do you think the International Crimes (Tribunal) Act 1973 in its current form is enough to provide for the trial of war crimes or it needs some adaptation?
Professor Rafiqul Islam (RI): The International Crimes (Tribunal) Act 1973 affords only a general legal basis and some procedural guidelines, among others, to be followed in the formation of the proposed tribunal. It is silent on a number of pressing legal matters that need to be taken into account at the formative stage of the tribunal. For example, provisions of International Covenant on Civil and Political Rights 1966 (ICCPR) of which Bangladesh is a party and Bangladesh constitutional guarantees in chapter 3 of the Constitution may be taken into account. ICCPR Article 9 on arrest and speedy trial and the right of the accused in Articles 14 and 15 together with a readily available appeal remedy, victim and witness protection would require a reconsideration of s10 (procedure of trial), s11 (power of the tribunal), s17 (right of the Accused) and s21 (right of appeal) of the 1973 Act. Section 20 (2) of the 1973 Act containing capital punishment may be revisited in view of Bangladesh's international human rights obligations emanating from various UN human rights instruments prescribing life imprisonment as the maximum penalty. Bangladesh must comply with its assumed international treaty and human rights obligations. Certainly, 1973 Act can serve as a starting point, which can be improved and tailored to cater for the special needs and conditions of Bangladesh in launching this trial.
LD: Applying conventional principles of law of evidence may defeat the purpose of such trial and let many perpetrators escape unpunished. But these norms are there for some reason. Any deviation from such standard norms of evidence may allow some to manipulate the trial and realise political objectives in the process. Where dose the balance lie in your opinion?
RI: Conventional principles of law of evidence have been developed to administer the admissibility of evidence primarily in national criminal justice systems. there are qualitative differences between the legal definition and constituent elements of ordinary crimes such as murder in national law and extra-ordinary crimes at international law such as genocidal mass killings. The former may be one off and secret while the latter is systematic and open. Their available evidence and investigative process are different. Whilst the conventional procedural rule of evidence is adequate in the former, it is not necessarily adequate and suitable in the latter to render justice. Since the war crimes are special in their nature and element, a special court or tribunal with specific mandate and jurisdiction is capable of addressing the usual procedural complexities in the admissibility of evidence. In order to avoid any politically motivated prosecution, an effective balance can be maintained through the creation of a pre-trial chamber consisting of judges of the tribunal to examine the prima facie evidence with a view to ascertain whether there is a legal case to answer. If there is, only then the pre-trial chamber issues an arrest warrant and the case can proceed to the trial chamber for hearing. This is how a judicial determination of the admissibility of evidence and the merit of the case can be determined prior to the proceedings of the tribunal. This practice is widespread to guard against the institution of any politically motivated prosecution.
LD: Not only the nature and constituent elements of war crimes but also the unavailability of typical 'admissible' evidence may have something to do with the differentiated treatment of war crimes. However, tribunals like Nuremburg are often viewed as victor's justice as those were formed or sponsored by winners of war. Is there any possibility of our to-be-formed tribunals being seen the same way?
RI: Yes, the Nuremburg judgement may be called, to an extent, “victor's justice” as its charter mandated to try war crimes committed only by the Axis Power, not by the Allied Power. The lesson from the Nuremberg for Bangladesh is not to look at the application of the law but the exposition of the applicable law itself. It added jurisprudential flesh and blood to the composition and construction of the crimes in question, which eventually led to the development of the 8 fundamental principles of international criminal law unanimously adopted by the UN and followed subsequently by other war crimes tribunals. All war crimes tribunals are case-specific, not general. So there is no room for generalising and comparing the Bangladesh one with the Nuremburg. Bangladesh should guard against any presumption of victor justice by providing ample checks and balances and successful precedents for such safeguards are readily available in the formation and operation of war crimes tribunals/courts established subsequent to Nuremburg.
LD: Ideally all war crimes should be tried without fail. But practically the idea seems to be enormously daunting. Would it be enough to try some leading culprits responsible for most heinous war crimes attaching some symbolic value to it by registering our disapproval of war crimes instead of trying all the suspects and making a mess of it at the end?
RI: Bangladesh must do its best to bring as many war criminals as possible to justice. Not to act now is to reinforce the longstanding status quo of evading justice and keeping the surviving victims and their relatives under a cloud of gross injustice. Persistent immunity in Bangladesh also undermines the international community's commitment to render global justice for heinous crimes. Not to commence this trial because it is not possible to try all suspects is equivalent to arguing that since all lawbreakers cannot be brought to justice, none should be. This all-or-none approach is no legal standard. It is rather hallow, self-defeating, and the enemy of justice.
LD: Did the other widely known war crimes tribunals take the same course i.e. tried as many war crimes as possible? And right now we may not have enough resources e.g. human, logistics etc to support such efforts? If so, how this deficiency can be remedied?
RI: War crimes trials are not one-off, but continuing. This is why trials of the 2nd World War criminals are still ongoing. So are the Bosnian and Rwandan. The tribunal should try as many alleged criminals as possible. There may well be resource constraints. But as the tribunal goes ahead, it will eventually be mature and resource-sufficient to carry out its task. Every such tribunal of the past started with a cautious approach and built on. In my view, one of the palatable options to remedy such deficiency is to rely on various national and international support systems - both public and private sectors alike. There are some resource-rich alliances for war crimes trials formed particularly in Rome in 1998 during the formulation and adoption of the Statute of the International Criminal Court.
The last part of the interview will be published on February 21, 2009 issue.
-- Law Desk.