Day to end impunity ..... not far away
The day, when we decided to write this article for The Daily Star, we came to know that a Judgment is going to be pronounced by Tribunal No. 2 of the International Crimes Tribunal, Bangladesh on the very next day, i.e. January 21, 2013. Subsequently just after hearing the judgment pronounced by the Tribunal No. 2 of the International Crimes Tribunal, Bangladesh, in the Chief Prosecutor vs. Moulana Abdul Kalam Azad @ Abdul Kalam Azad @ Bacchu Razakar, we actually started to write this article in a pleasing mood. In the beginning, this article attempts the more modest task of reflecting towards the historical basis behind the enactment of International Crimes Tribunal Act, 1973 (henceforth: ICTA) which is followed by the summary of rationales behind the recent orders passed by both the Tribunals after the defence flooded the Tribunals with different applications.
This article will also analyse different tactics adopted by the defence teams around the globe in similar cases involving international crimes and how the other tribunals dealt with them. Since it would be too early, this article will refrain from commenting or analysing the judgment recently passed by the Tribunal No. 2.
International criminal law (henceforth: ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, terrorism) and to make those persons who engage in such conduct criminally liable. They consequently either authorise states, or impose upon them the obligation, to prosecute and punish such criminal conducts, which is the case for International Crimes Tribunal, Bangladesh (henceforth: ICTB) where it has been imposed upon the state to prosecute the persons liable for the international crimes taking place in 1971. ICL also regulates international proceedings before international courts and tribunals, for prosecuting and trying persons accused of such crimes. (Cassese, 2008)
Historical basis behind the enactment of ICTA
It is commonly known that the principle of individual responsibility for crimes under international law was recognized in the Charter and the Judgment of the Nuremberg Tribunal.
However, the Hague Convention 1907 and subsequent Treaty of Versailles, 1919 also played crucial role in developing the concept of individual responsibility. We should also consider the Leipzig Trials, which was established on the basis of Article 227 to 230 of the Treaty of Versailles, where allied governments of the First World War defined war criminals were arrested and tried. However, in that trial the Kaiser and other German leaders were not tried for waging aggressive war and resulted largely in acquittals and were widely perceived as a sham, even in Germany. (Holocaust Encyclopaedia)
Nevertheless, it is still manifested as an historical instance behind the establishment of individual responsibility. But we must remember that till that time terms like “Genocide” or “Crimes Against Humanity” were not in existence.
In an international conference held in Madrid, Raphael Lemkin (1900-1959) first proposed the creation of a multilateral convention making the extermination of human groups an international crime, paralleling slavery, piracy and other universally recognized "offences against the law of nations." In 1933 he called the crime "Acts of Barbarity." Ten years later in 1943, he coined a new word for this crime: "genocide" in his book Axis Rule in Occupied Europe: Laws of Occupation - Analysis of Government - Proposals for Redress published in 1943. (Prevent Genocide)
By the time 'genocide' was coined, the horrors of the Second World War spawned a host of developments in international law. Among the most significant was the crystallisation of the principle that violation of certain norms of international law could give rise to individual criminal responsibility.
According to this principle, certain serious violations of international law would engage not only the classical form of responsibility in international law, i.e., the responsibility of the state, but also that of the individual human beings perpetrating the violation.
Such perpetrators could be criminally prosecuted and punished for these violations of international law. The emergence of this principle was primarily driven by the need to develop effective means of enforcement.
As reasoned by the International Military Tribunal at Nuremberg, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” (Cerone, Orentlicher et el) 'Crimes against Humanity' was recognised here for the first time under Principle VI(C) and defined as “Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.”
Few years after the Second World War was over, Genocide Convention was passed by UN General Assembly in 1948 (entry into force on 12 January 1951) where Genocide was defined for first time and punishable offences were set as well under Article III as: Genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. Thus, crimes like 'genocide' and 'crimes against humanity' became known to us international crimes.
Before the enactment of ICTA in 1973, all these historical instruments were in front of the legislators along with other instruments like UDHR, ICCPR and ICSCER. If anyone compares ICTA with these instruments, they will find that the Act of 1973 is in line with these instruments. For example, any reader will find that the minimum requisites of fair trial mentioned in Article 14 of ICCPR are adopted entirely in ICTA.
Moreover, principle of no-retroactivity or latin maxim nullum crimen sine lege, which is codified under Article 15(1) of ICCPR, will not apply against ICTA since it is a clear exception to that principle and falls under Article 15(2) of the ICCPR where it is said, “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”
It is a matter of irony that when the Genocide Convention was passed by the United Nations in 1948, the world said, "Never again." But the history of the twentieth century instead proved that "never again" became "again and again."
The promise the United Nations made was broken, as again and again, genocides and other forms of mass murder killed more than all the international wars of the twentieth century combined. (Genocide Watch) The international crimes committed by the Pakistani Army and their local perpetrators were just another example of continuous breach of international criminal laws recognised by the community of nations.
In this outset, in line with the recommendations made by Lemkin, a separate legal body, i.e., International Crimes Tribunal, Bangladesh, was established through a special Act, i.e. ICTA, to try international crimes committed by those who are nationals of Bangladesh in 1971 in collaboration with Pakistan army.
Rationales behind the recent orders
Now if we come back to the present from the past and look into the recent events taking place in ICTB, you will find that lots of interlocutory applications have been filed by the Defence in Sayedee, Golam Azam, Kamaruzzaman and S. K. Choudhury's case praying for retrial of the trial or recall of certain orders passed by Tribunal No. 1 or 2.
At first, Tribunal No. 1 rejected Defence application to recall certain orders of the Tribunal in the Chief Prosecutor v. Professor Golam Azam (Accused). The first rational behind such rejection was that the information placed before the Tribunal by the defence was illegally obtained by hacking which itself is a crime and extremely unethical too which committed with a malafide intention.
The second rational was that the proceeding of taking evidence has taken place in public and transparently and both parties have been afforded sufficient time they need to examine and cross-examine witnesses.
Moreover, parties shall have adequate opportunity to show, in course of summing up their respective cases, any flaw between and evidence adducted and the charges. Thirdly, final decision or verdict in no way shall be based merely on the charges framed and evidence adduced is to be evaluated only for arriving at a decision as to how far the prosecution has been able to establish charges and the illegally obtained documents in no way will keep any impact causing prejudice to either party.
Tribunal's sacred and bounden responsibility is to act on evidence already adduced or to be adduced by both parties by affording rights of defence and the Tribunal is obliged by the Statute to make it guaranteed.
Fourthly, in the four corners of ICTA there is no express provision to hold retrial or recall any order of the Tribunal and it cannot exercise its inherent power where there is express provision of the law which is under section 6(6) of ICTA in the event of any change in the membership, the Tribunal may proceed from the stage of the case from where such change took place.
Fifthly, all the orders of framing charge have been passed by three judges. Finally, Tribunal No. 1 as a court cannot judicially rely upon the hacked documents since the defence could not produce any document to show that hacked documents are admissible in evidence. In the light of these rationales, all other applications based on the similar documents obtained illegally by hacking were rejected as well.
Tribunal No. 2, similarly, rejected a retrial petition brought before it by the Defence in the Chief Prosecutor vs. Md. Kamaruzzaman on the same day on the basis of similar rationales except one, which is – the Tribunal No. 2 did not find any merit 'whatsoever' for consideration.
The point to be noted here is: nearly 58 days altogether has passed away due to such meritless applications based on illegally obtained hacked documents. This is just merely one of the delaying tactics used by the defence team in ICTB. We urge the Prosecution to be ready for other tactics that were used in other international tribunals for slowing down the justice process long due to the victims of international crimes.
Different tactics adopted by the defence teams around the globe
At the wake of so many interlocutory applications by defence teams of ICTB (almost 150 applications alone have been filed by the defence team so far in the Chief Prosecutor vs. Delowar Hossain Sayeedee), it has become pertinent to observe the practice of other defence teams worldwide in different tribunals, e.g., ICTY, ICTR, SCSL, ICC etc. and also the attitude of the tribunals in handling such 'delaying' tactics.
In 2011, after nearly ten years of coming into being, the ICC has yet to complete a single trial, raising concerns among States Parties to the Rome Statute and others regarding the effective functioning of the Court. Therefore, while recognizing that the ICC is still a very young institution faced with a variety of novel substantive and procedural challenges, a report was published to identify areas of unnecessary delays in proceedings currently before the Court that are likely to arise again, and to suggest ways in which such delays may be avoided in the future. (WCRO, 2011)
In preparing that report, they have also reviewed other tribunals like -- ICTY, ICTR etc. The report has found that most of the delays are caused after a case has been transferred in the Trial Chamber for trial by way of filing interlocutory applications and most of those applications are filed by the defence. This is also the case in other tribunals as well. Two solutions have been suggested in the report.
The first one is to impose deadlines concerning the period of time within which the defence and the prosecution must finish their submissions, and the second one is to allow a short time for submission.
Such recommendations are made following the attitude of the tribunals in ICTR and ICTY where the Tribunal Judges even did not hesitate to say, “you make your point within next five minutes or shut up” to the defence lawyers when they made interlocutory applications to cause unnecessary delay in the trial.
The longstanding historical basis behind ICTA establishes its strong base and the rationales behind the passing of the recent orders establish that ICTA is a complete act and the ICTB does not need to go beyond the act of 1973.
Study of the practice of other tribunals in the world for curbing unnecessary delay tactics of the defence will definitely enrich all the stakeholders of ICTB and will also affect positively in the furtherance of fair justice of the those victims of 1971 who have waited painstakingly for last 42 years.
Enriching ourselves with the knowledge of historical basis of ICTA and practice of other tribunals, like -- ICTY, ICTR etc, would definitely assist all the stakeholders including the civil society of Bangladesh to deny “to reinforce the longstanding status quo of evading justice and keeping the surviving victims and their relatives under a cloud of gross injustice” (Islam, 2009).
We would like to conclude by simply saying that ICTB is not a one-off but continuing process and Bangladesh must do its best to bring as many war criminals as possible to justice.
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Advocate Zead-al-Malum is Prosecutor, International Crimes Tribunal, Bangladesh and Barrister Tapas K. Bau is Prosecutor, International Crimes Tribunal, Bangladesh.