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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 248
December 10, 2011

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Reviewing The Views

BNP and war crimes trial: A legal deception for political ends

Professor M Rafiqul Islam

Photo: news21bd.com.

Following the footstep of Jammat, BNP in a recent statement denounced the ongoing war crimes trials, asked the government to stop it, and urged foreign powers to oppose the trial. Such a blatant disregard for the trials of heinous war crimes perpetrated in 1971 may not be to the wonderment of those who are familiar with the genesis and politics of BNP. However, the statement has legal overtone, which is littered with legal deception engineered to generate public confusion about the trial. It claims the unconstitutionality of the tribunal, which cannot be independent short of US Ambassador Rapp recommendations requiring a definition of crimes against humanity, among others. This note highlights and comments upon this political statement camouflaged in legal make-up.

The Bangladesh Tribunal and its substantive and procedural law do not suffer from any fundamental flaws in constitutional and international law. The designated crimes against humanity under the 1973 Act are recognised crimes at international law long before the enactment of our Constitution. The jurisprudence of these crimes has been developed institutionally since the Nuremberg judgment until recently by various war crimes tribunals and the ICC Statute (Art. 7). The 1973 Act has not for the first time criminalised crimes against humanity, whose legal definition, criminality contents, and culpability elements are well-established in international criminal law. The specified crimes under trial were committed in 1971, predating the Constitution, which has no authority to decriminalise or undermine them. Even if it is conceded for the sake of arguments that the Constitution is relevant to this trial, it is relevant only to the extent of its consistency with international law and obligations. No state can plead the inconsistency of its national law as a defence to exonerate from the definite responsibility to try these crimes, which can come under universal jurisdiction (Pinochet case 1999). This responsibility to try these crimes and punish their perpetrators is a recognised peremptory norm of international law from which no derogation is permissible. If our Constitution comes into conflict with this fundamental international obligation, international law prevails over the Constitution, which warrants amendments to comply with the international obligation. There is absolutely no international law that renders the Tribunal unlawful. A comparative study of the modus operandi of the Bangladesh Tribunal with that of Bosnian and Rwandan tribunals reveals that they are comparable.

Crimes against humanity and their prohibiting international law and judicial precedents existed at the time of the commission of those crimes in 1971 and are enriching continuously. The Tribunal is required merely to interpret and apply these law and precedents in the context of those committed in 1971 to ascertain the responsibility and culpability of their perpetrators. Being human constructs, legal interpretations can vary from trial to trial pursuant to the experience of the judges, ability and constraints of criminal justice system, differing circumstances of the commission of crimes, and complexion of tribunals (international, national, or mixed). This precisely explains why we see varying exposition of the law and judicial precedents pertaining to crimes against humanity in the Bosnian, Rwandan, Sierra Leone, Dili, Kosovo, and Cambodian trials. Presupposing that the Bangladesh Tribunal is incapable of making legally subsumable reasoned interpretation of the law and precedents applicable in the crimes under trial is grossly premature and an overreaction. Existing resource-rich war crimes trials' interpretations and judgments are set to provide pertinent lessons, understanding, and jurisprudence for the Tribunal to try the alleged perpetrators much along the line of other such tribunals. Moreover, a functional and working definition of crimes against humanity already exists in the 1973 Act (s3), which can be refined and improved further as the Tribunal proceeds. The ICC, commencing its proceedings in 2002 to try crimes against humanity under its Statute Article 7, has only recently expanded Article 7 in its 2010 Kampala Review. Identical examples from various war crimes trials are also available. If the ICC and ad hoc war crimes tribunals can proceed with a working definition of crimes against humanity, so can the Bangladesh Tribunal.

Photo: news.priyo.com

Which standard of due process is being pleaded in Ambassador Rapp's suggestion and the BNP statement? It cannot be the one that Rapp's government follows in trying Guantanamo detainees. Indeed, there is no common but a minimum international standard to be followed procedurally in procuring and presenting evidence in international crimes trials. Every war crimes trial is unique and different from the next. A procedural standard followed in one may or may not be worthy of adoption in another. Lessons from war crimes trials suggest that procedural aspects are tailored to suit the specific circumstances of a given trial and it is an evolving process. Commencing in 1993-94, the Bosnian and Rwandan tribunals are still developing and improving their trial procedures. So is the situation with the ICC. Nothing prevents the Bangladesh Tribunal from developing its own procedural standard as the need arises in the course of conducting the trials. Minimum procedural standards and due process are important means of ensuring fair trials. But these procedural standards should not be stretched too high to make it undeliverable. The procedural standard, however rigidly and immutably stressed, cannot frustrate the course of justice in ending the impunity of perpetrators. Albeit there will always be room for improvement and this is why the ICC and other war crimes tribunals are constantly changing their procedures simultaneously with trial proceedings. By requiring Bangladesh to achieve the so-called perfection in advance is to set a very high standard that was not expected of the ICC and those 8 war crimes tribunals. Seemingly the requirement is an orchestrated delaying tactic that Jammat initiated to save its alleged war criminals and now BNP to salvage its political ally and its member in custody.

The claim that 'an individual accused of war crimes should get the same time and support as the accused of other cases get to defend themselves' is untenable in law. War crimes trials and ordinary criminal trials are not the same and as such their accused cannot be treated equally. Crimes against humanity are extraordinary crimes at international law, which are qualitatively different from the legal definition and constituent elements of ordinary crimes, such as murder. International crimes are organised, massive, and their trials involve a myriad of perpetrators including those behind the scenes, spreading over more than one jurisdiction, and raising complex issues of international law. Special tribunals with specific mandates to try war crimes are better suited to render expeditious justice by addressing usual procedural complexities. Ordinary national criminal trials are often circumscribed by technicalities of the applicable law and procedural rules for the admissibility of evidence - the usual causes of delays. The unavailability of typical admissible evidence, such as enough surviving witnesses and physical evidence, warrants the differential treatment of international crimes. The readily available evidence of the commission of war crimes and their perpetrators are usually newspapers reports, special reports, photographs and footages, documentaries, tape recordings, hearsay, and the like, which are not necessarily admissible as a matter of fact in ordinary criminal trials. Special tribunals also apply both national and international law in a mutually supportive way. It is these special factors that necessitate the formation of special tribunals or courts with mandates substantially different from ordinary national criminal trials. Individuals accused of international crimes in Nuremberg, Bosnian, Rwandan, Sierra Leon, East Timor, Kosovo, and Cambodian trials have been treated markedly differently than that one experiences in ordinary national criminal trials.

Nonetheless, the 1973 Act provides certain recognised rights of the accused during and after trial (ss16-17). For examples, the accused has the right (a) to offer any explanation pertinent to the charge made against him/her, (b) to conduct his/her own defence or resort to the assistance of counsel, (c) to present evidence in support of his/her defence, and (d) to cross-examine prosecution witnesses (s 17). There is a right to appeal against any conviction, sentence, and acquittal by the Tribunal before the Supreme Court Appellate Division within 60 days (s21 as amended). These rights of the accused are comparable with that of the Bosnian (Art 21), Rwandan (Art 20) and the Cambodian (Art. 13) trials.

Given the current climate of international antipathy towards the perpetrators of crimes against humanity and sympathy for their victims, the BNP's call for foreign interference in the trial is likely to go unheeded. It would be an international relation nightmare for any country that publicly condones these crimes and opposes any trial of their alleged perpetrators merely on rickety technical grounds. Meddling in another country's affairs may not be desirable for many, perhaps save some US officials who still sustain their tradition of treating other sovereignties as less equal than that of theirs. Given the role of paid lobbyists' influence on the US administration, a future Wikileaks revelation explaining the reason for such opposition may well be a possibility. Historically, the Bangladesh liberation war was opposed by the US, among others. Therefore oppositions to this trial are to be expected. It is incumbent upon the government to embark on serious diplomatic negotiations to explain the gravity and intensity of the crimes committed, formidable popular demands for this trial, and positive role the trial would play in bringing post-conflict peace and politico-economic stability in Bangladesh. The liberation war was fought partly to resist any brand of religion that condones and/or perpetrates crimes against humanity. Not to try these crimes for the speculative and illusive individual views would be a contemptuous betrayal of the cherished ideals of the liberation war.

The perpetrators of the 1971 war crimes escaped justice for 40 years to serve sectarian interests and it would be a tragedy for justice if the vested interests of Jammat and BNP help the alleged perpetrators get off the hook. The war crimes committed in 1971 still stigmatise their victims more than their perpetrators. The reversal of this stigma by mobilising the shame from victims to victimisers has started in this trials. In its desperate bid to frustrate this process, the BNP statement purports to insulate its ulterior political agenda through legal deceptionalism and conscience bankruptcy.

The writer is Professor of Law, Macquarie University, Sydney, Australia.


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